AGO 06-5.

• Case Date: May 13, 2006
• Court: Maine

Maine Attorney General Opinions 2006. AGO 06-5. STATE OF MAINE OFFICE OF THE ATTORNEY GENERAL 6 STATE HOUSE STATION AUGUSTA, MAINE 04333-0006 May 13, 200606-5Honorable Philip L. Bartlett, II Maine Senate 3 State House Station Augusta, ME 04333-0003 Honorable Sean FairclothMaine House of Representatives 2 State House Station Augusta, ME 04333-0002RE: L.D. 1481Dear Senator Bartlett and Representative Faircloth: By correspondence from Representative Faircloth dated April 28, 2006, you have asked two questions concerning L.D. 1481, as amended by Committee Amendment "C" (S-437) as amended by Senate Amendment "C" (S-554), a copy of which is attached (Attachment 1). The bill as amended would prohibit a municipality from nullifying or amending a land use permit by subsequent enactment, amendment or repeal of a local ordinance after a period of 75 days has passed after 1) the permit received its lawful final approval and 2) any required public hearing was held on the permit. Your questions can be summarized as follows: 1) Does the 75-day limit require a municipality to schedule a special meeting for a vote on a citizen petition to amend or nullify a land use permit and, if so, does that constitute a mandate on the municipality within the meaning of Article IX, section 21, of the Maine Constitution? 2) If L.D. 1481(fn1) permits a municipality to delay a vote on such a citizen petition beyond the 75-day limit, would that delay deprive citizens of a true right of initiative and referendum under the rule of LaFleur v. Frost, 146 Me. 270, 80 A.2d 407 (1951)? In preparing an opinion, our goal is to provide the most objective analysis possible of how we believe a court would decide the issues presented. In this instance, we are hampered by both a lack of case law addressing the issues, as well as a lack of detailed knowledge of municipal law and its practical application. Within these limitations, we offer the following conclusions. 1) We believe it is likely that a court would conclude that, when considered within the existing statutory framework, the 75-day limit in L.D. 1481 implicitly requires towns to schedule a special meeting to vote on a timely citizen petition for an ordinance change to amend or nullify a land use permit, if a regular meeting is not already set to occur within those 75 days. It is less clear whether a court would find that this requirement results in a modification of town activities necessitating additional spending of local revenues so as to constitute a mandate within the meaning of Article IX, section 21. On balance, however, we believe it is more likely than not that a court would conclude that, because L.D. 1481 would compel municipalities to schedule special meetings in some cases, it results in a mandate. 2) As noted in answer to Question 1, we believe that a court would conclude that L.D. 1481 does not permit a town to delay a vote on a timely citizen petition for an ordinance change to amend or nullify a land use permit beyond 75 days from final permit. approval. To allow such a delay and thereby deny a town vote on an ordinance within the scope of L.D. 1481 would be inconsistent with the statutory right to petition for an ordinance change. I.

Applicable Constitutional and Statutory Provisions

Maine's Constitution was amended effective November 23, 1992 by adding Article IX, section 21 (hereafter "Article IX, section 21"), which provides as follows:

Section 21. State mandates. For the purpose of more fairly apportioning the cost of government and providing local property tax relief, the State may not require a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures from State funds not previously appropriated to that local unit of government. Legislation implementing this section or requiring a specific expenditure as an exception to this requirement may be enacted upon the vote of 2/3 of all members elected to each House. This section must be liberally construed.

Consistent with the authorization contained in Article 21, section 21, in 1993 the Legislature enacted implementing legislation, 30-A M.R.S.A. § 5685. This statute contains definitions of key terms, and spells out how funding of mandate obligations may be provided to local units of government. In addition, section 5685(4) provides:

4. Local units of government not hound. A local unit of government is not bound by any mandate unless funded or exempted from state funding in accordance with this section and the Constitution of Maine, Article IX, Section 21.

We consider these provisions in light of state laws that allow for citizen petitions. For municipalities with a town meeting form of government, citizens can bring a matter to a vote pursuant to 30-A M.R.S.A. § 2522, which provides:

§ 2522. Petition for article in warrant. On the written petition of a number of voters equal to at least 10% of the number of votes cast in the town at the last gubernatorial election, but in no case less than 10, the municipal officers shall either insert a particular article in the next warrant issued or shall within 60 days call a special town meeting for its consideration.

Under certain circumstances, 30-A M.R.S.A. § 2521(4) permits a notary public to call a town meeting to vote on a matter: 4. Petition by voters, if selectmen refuse. If the selectmen unreasonably refuse to call a town meeting, a notary public may call the meeting on the written petition of a number of voters equal to at least 10% of the number of votes cast in the town at the last gubernatorial election, but in no case less than 10. In addition, the municipal officers may order that a matter be placed on the next ballot printed or a special meeting called to consider it. 30-A M.R.S.A. § 2528(5). II.

Whether L.D. 1481 Creates a Mandate Within the Meaning of Section 21

Your first question is whether the 75-day limitation on a towns ability to amend or nullify a land use permit in L.D. 1481 requires the town selectmen to schedule a special town meeting on any citizen petition to amend or nullify such a land use permit, and thus causes the town to expand or modify its activities in a manner that necessitates the expenditure of local revenue within the meaning of Article IX, section 21. To analyze this question, we must determine: 1) what current law requires with regard to citizen petitions; 2) whether the terms of L.D. 1481 change that process; and 3) whether any change required by L.D. 1481 constitutes a mandate. We begin with a review of current municipal law. A. Current law governing town meetings to address citizen petitions In municipalities with a town meeting form of government, a citizen can put a matter before the voters under section 2522(fn3) on a written petition signed by voters who number at least 10% of the votes cast in the town at the last gubernatorial election. Section 2522 provides that the municipal officers "shall either" insert the article in the next warrant issued, or call a special town meeting within 60 days for its consideration. This language appears to give the town selectmen the Option of waiting for the next regular town meeting to put the matter before the voters, which may be the town's annual meeting, rather than scheduling a special town meeting within 60 days of receiving the petition for purposes of taking the vote. However, if the town selectmen do not schedule a special meeting for consideration of the matter that is the subject of the petition within 60 days, the petitioners may be able to force the scheduling of a meeting prior to the next regular town meeting, using the procedure established by section 2521(4). Section 2521(4) permits a notary public to call a town meeting on the written petition of a number of voters at least equal to 10% of the votes in the last gubernatorial election, based on a finding that the selectmen have unreasonably refused to schedule a meeting. The minimum number of signatures required for such a petition to a notary public is the same as required under section 2522 to put a matter before a meeting. The Law Court has commented on the purpose of permitting a notary public (or justice of the peace under the predecessor statute) to call a town meeting:

In fact, the whole theory of a New England town meeting, has been, that upon all necessary occasions, the inhabitants upon short notice, could come together. Upon this idea is based the provision (R.S., c. 3, § 4) that where the selectmen unreasonably refuse to call a town meeting, a justice of the peace may call one upon the application of any ten or more voters.

Jones v. Inhabitants of Sanford, 66 Me. 585, 590 (1877). We have located only three Maine cases that address what it means for the selectmen to "unreasonably refuse" to schedule a town meeting. Two of these cases held only that there could not be an unreasonable refusal by the selectmen to hold a meeting where none was requested, and that in the absence of an unreasonable refusal, any meeting called by a justice of the peace (who held this authority under a predecessor statute) was illegal. Southard v. Inhabitants of Bradford, 53 Me. 389 (1866); Allen v. Hackett, 123 Me. 106, 121 A. 906 (1923). In the third case, Go fins v. Gilpatrick, 131 Me. 23, 158 A. 699 (1932), the Law Court held that when a vacancy in the office of town treasurer had been...