Municipal Matters


Municipal Matters

Ann M. Freeman, N. Joel Moser, Philip R. Saucier

March 2016

Your friends in Bernstein Shur’s Municipal & Governmental Services Practice Group are pleased to present Municipal Matters to offer practical updates on legal issues relevant to your work and interests. Take a quick break from your budget season duties to keep yourselves current on the latest municipal legal issues.

In this issue, you’ll learn about two recent decisions of the Maine Supreme Judicial Court (the “Law Court”) – one that expresses frustration with appeals from development project permit decisions and another addressing appeals from poverty abatement applications. We’ll also provide context for the labor union appeal pending in the United States Supreme Court and the likely impact of Justice Antonin Scalia’s death on its outcome.


Maine Law Court: Municipal Appeals Procedures Are Confusing and Lead to Unnecessary Cost and Delay

By Phil Saucier

In a case that could have far-reaching impact on the review (and appeal) process for land development projects, the Maine Law Court recently held that the approval of a special exception permit by a board of appeals is not reviewable on appeal to Superior Court when additional approvals are required for final authorization of a proposed use. The decision potentially invalidates municipal ordinance provisions across the state that provide for appeals for any decision of a board of appeals. 

In Bryant v. Town of Camden, 2016 ME 27, — A.3d —, the owner of the Camden Harbour Inn sought to expand an existing hotel. Under the Camden Zoning Ordinance, such an expansion in the zone where the hotel is located requires both a special exception permit from the Zoning Board of Appeals (the “ZBA”) and site plan review approval from the Planning Board. The ZBA found that the proposed use met the special exception criteria and granted the permit conditioned upon further review of certain standards by the Planning Board during site plan review. Maine law and the Camden Zoning Ordinance allows for appeals of any decision of the Zoning Board of Appeals to Superior Court. An abutter appealed the decision through Maine Rule of Civil Procedure 80B, the Superior Court upheld the ZBA’s decision, and the Maine Supreme Judicial Court (the “Law Court”) overturned the Superior Court and dismissed the appeal on the basis it was not ripe.

In Bryant, Law Court held that the ZBA’s approval was not ripe for appeal because additional process was required by the Town’s ordinances before a final decision on the Inn’s proposed expansion could be finally approved. The decision demonstrates that the Law Court is frustrated with what it believes is an inefficient system of appeals relative to municipal board decisions. The Court announced its intention to clarify when a municipal decision is a final action that may be appealed to Superior Court “in an effort to reduce confusion, costs and delay in municipal appeals” by preventing “piecemeal appeals” from municipal decisions when additional approvals are required before a proposed use is finally authorized or rejected. Finally, the Court encouraged municipalities – together with the Maine Municipal Association – to review the appeal provisions in their ordinances and urged the creation of standardized rules for appellate review to “diminish the problems of cost and delay.”

Although the Bryant decision intends to streamline the process for municipal appeals – there will likely be a lot of confusion over which decision is the “final” decision that may be appealed when a project receives conditional approval and/or requires multiple approvals (such as a variance, conditional use, special exception, site plan and subdivision among other potential permits). Feel free to contact me regarding this case and its application to your municipality’s ordinances and appellate procedures.

Property Tax Alert: Preparing the Record in Poverty Abatement Appeals

By N. Joel Moser

Applications for an abatement of property taxes due to hardship or poverty create difficult issues for municipal decision makers. At the outset, neither the relevant Maine statute, 36 M.R.S. § 841(2), nor case law make clear the standard municipal officials must apply when determining whether to abate one’s property taxes on the ground that the applicant is unable to “contribute to the public charges.” As such, case-by-case determinations become very important.

Because each decision to grant or deny a poverty abatement is so fact-specific, the appellate record is crucially important to reviewing courts. A recent decision of Maine Supreme Judicial Court (the “Law Court”), provides additional guidance regarding the procedure that applicants and municipalities must use when appealing from a decision of a municipality’s Board of Assessment Review (“BAR”) or the County Commissioners, which hears poverty abatement appeals if there is no BAR.

In Penkul v. Town of Lebanon, 2016 ME 16, — A.3d — (per curiam), the Law Court affirmed the denial of a poverty abatement because the taxpayer failed to provide a proper record of what occurred before the County Commissioners. In its 11-page decision, the Law Court stressed that it was the appellant’s responsibility to ensure a proper record, unless the local BAR or County Commissioners failed to keep a proper record in the first place. The Court further clarified that “to ensure that complete appellate review of a decision is possible, an applicant for abatement who appeals from a municipal abatement decision must obtain and provide to the Superior Court a record of all evidence—both documentary and testimonial, to the extent that the testimony was recorded—that was presented to the board of assessment review or county commissioners.” The taxpayer-appellant in the Lebanon case failed to provide a full record, and there was no indication that the County Commissioners failed to keep a proper record. Without the minutes or transcript of a proceeding before the County Commissioners, the Law Court had an incomplete record to review and therefore concluded that the appellant had not shown the decision of the County Commissioners was in error.

The case provides a few key takeaways for municipalities:

  • Municipalities should carefully ensure that the local BAR or County Commissioners keeps a proper record (either a recording or minutes) for all abatement appeals.
  • If the municipality is the appellant, it must provide the reviewing court with the record created before the local BAR or County Commissioners. The record should be a verbatim transcript if a recording was made or minutes if no recording exists, and should also include a written decision with findings of fact.
  • Municipalities also should not assume that the reviewing court will simply affirm a denial if a taxpayer-appellant does not file a complete record with the court. The Lebanon case presented an extreme circumstance in which the taxpayer did not provide the Law Court with a complete and defined record of arguments or testimony before the County Commissioners. In cases where the taxpayer-appellant provides a partial record, the Law Court could instead remand rather than affirm a denial. Therefore, even though preparation of the record remains the responsibility of the party appealing a decision, in many cases municipalities should consider going the “extra mile” to ensure that the full record is presented to the Superior Court.

Poverty abatement applicants often are not assisted by an attorney, and therefore the appeal procedure can be difficult and frustrating for all. Having the municipality ensure that a full record is presented to the reviewing court will help the case move smoothly through the appeal process and reduce the chances of a potentially costly remand.

Union Contracts: The Fate of Fair Share

By Ann M. Freeman

At issue in Friedrichs v. California Teachers Association is the constitutionality of “fair share.” Fair share permits an employer and union to negotiate an arrangement that requires bargaining unit employees who do not want to support the political or ideological positions of the union to pay only the portion of the union dues which represent the cost of collective bargaining, contract administration and grievance arbitration. Friedrichs and nine other public educators in the State of California sued the teachers’ union alleging that fair share violates the teachers’ constitutional right of free speech under the First Amendment and requesting the court to overturn longstanding U.S. Supreme Court precedent under Abood v. Detroit Board of Education. In a nut shell, the teachers argue that requiring them to pay fair share amounts to “compelled” speech in violation of the First Amendment because labor unions are inherently political and there is no way to separate the political from the non-political speech.

After oral argument on January 11, 2016, many legal scholars and Supreme Court experts predicted the Court’s decision, anticipated in June, would be a 5-4 ruling that fair share is unconstitutional, overturning Abood. However, with the death of Justice Antonin Scalia, a 4-4 split decision is now anticipated. With an even split, no national precedent would be set. The decision in the lower court would be upheld and in this case, the decision of the 9th Circuit Court of Appeals, upholding the constitutionality of fair share, would stand. That decision would only apply within the jurisdictional boundaries of the 9th Circuit.

But….stay tuned. The typical swing vote on the Court, Justice Kennedy, is just that—a swing vote. Additionally, there is information suggesting that, if the decision is a 4-4 split, the teachers will file a motion for re-hearing after the appointment of the 9th Justice. When that Justice will be appointed, however, is currently embroiled in the political process, and how that will go in the currently polarized climate is impossible to predict.

For now though, it is important to remember that even if fair share remains constitutional, it must nonetheless be bargained for during the collective bargaining process. Fair share is not a mandatory provision of the collective bargaining agreement unless the union and employer agree to include it. In the event fair share is deemed unconstitutional, the impact could have wide-reaching implications. If the wind starts to blow in that direction, you can be sure we will be prepared to advise you accordingly.

Upcoming events

Phil Saucier is speaking at Maine Municipal Association’s Aerial Drones and the Current Legal Landscape in South Portland on March 17.

Shana Cook Mueller is speaking at the Maine Recreation & Park Association Annual Conference on the Freedom of Access Act in Portland on March 21.

Ann Freeman is speaking at the Maine Local Government Human Resources Association meeting about the new concealed weapons law and its impact on public sector employees in Sanford on April 14.

Linda McGill is presenting a seminar on collective bargaining at the 2nd Annual Maine Municipal Association Human Resources Conference at Thomas College on June 7.