By Margaret M.L. Byrnes
One of those things that will keep a municipal official or administrator awake at night is the fear of a procedural mistake during the time leading up to, during or immediately after a town meeting. Such a mistake could undo months or even years of work in preparing an important local ordinance, zoning change, collective bargaining agreement or bonded capital project for the voters. If the mistake requires going back to the voters again, there is always a possibility that the result once obtained could be reversed.
With any large project, there are many different local officials who must work together to draft the initial request, and then perform a bewildering array of tasks in order to place the issue in final form before the voters. For example, assume the request is for a municipal bond issue to buy a piece of fire apparatus. This matter might involve the fire department, town administrative staff, the board of selectmen and the official budget committee, to get to the point where the town clerk prepares a ballot, the supervisors of the checklist update the voting list, and the moderator prepares for a written ballot. There will be professional advice from the equipment vendor, town counsel, bond counsel, Department of Revenue Administration, and perhaps the banking institution used by the town. If there has been a capital reserve fund used to save for a portion of the cost, the treasurer will be involved. The local newspaper will have to publish various notices at the right time, and in the correct format.
With all of these people involved, it is small wonder that errors occur. Thus, think of these projects as a team effort, and not the task of the single department that is most affected. The members of this team will often have years of experience with past projects—and the scars to prove it. However, past experience does not substitute for carefully researching and verifying the procedural steps specifically required for the current project.
Not only is every project somewhat unique, it seems that every year brings some change in a federal or state statute, administrative rule, accounting standard or tax law that could impact the project. Do not assume that what worked for a similar project in the past will work in every instance. To help officials stay informed of changes, each year New Hampshire Municipal Association publishes a municipal calendar to alert municipal officials to the dates for notice and posting that pertain in that particular year, and the Legislative Bulletin and Court Update to highlight changes in applicable law.
Even a team that is well prepared can be set back by an error or situation that is beyond their control. A notice properly delivered to a newspaper well in advance can still fail to make it to publication on the correct day. Inclement weather can force postponement of meetings, as occurred in 2005 with heavy snow on town meeting day. During the meeting, the citizens can take an action that can’t be legally implemented, or a local official may in good faith give an incorrect opinion on a legal issue, or make a procedural mistake. How can these problems be corrected?
Fortunately, in some instances, time does by itself heal all things. RSA 31:126 through 131 creates a “presumption of procedural validity." For all forms of municipal legislation, whether it be a police power ordinance, zoning ordinance, or warrant article vote at town meeting, once five years have passed from the time of enactment, the legislation is conclusively presumed to have been validly enacted. No challenge to the enactment based on a procedural defect can be asserted after that time, although the ordinance may still be challenged for other reasons, such as its constitutionality. This is important to know at the research stage, because it means that officials currently in office may rely on the validity of past enactments, which often provide a basis for current projects.
Five years can be a long time to wait and worry that a challenge might be made, especially if the enactment in question requires local officials to take some action in reliance upon the enactment. For example, if the enactment changes the method of choosing a local official, such as requiring the election of zoning board of adjustment members who were previously appointed, or changes the amount of a property tax exemption for the elderly, these are items that must be implemented within the next cycle of elections or collection of the property tax. In these cases, municipalities are supervised by state agencies that have statutory powers to oversee these local activities and direct local officials to take action. The secretary of state will direct local officials on questions relating to elections and ballots, and the Department of Revenue Administration will supervise the implementation of property tax exemptions. In issues such as these, local officials will not face the procedural dilemmas alone, and state officials may counsel local officials to proceed with their duties as set forth in the questionable enactment on the theory that a municipal enactment is presumed to be valid until it has been challenged.
Local and state officials are willing to proceed in these cases because the courts have not always required technical perfection in the enactment of municipal ordinances in instances where challenges to these enactments have been litigated. As Peter Loughlin, Esquire, explains in his work, Land Use Planning and Zoning, 15 New Hampshire Practice, section 5.15, the New Hampshire Supreme Court has adopted the “substantial compliance doctrine" which holds that minor deviations from the procedure required by an enabling statute will not invalidate an enactment if there was “substantial compliance" with that legislation. There are limits to this rule. If the defect serves to deprive the voters of meaningful notice of a proposed enactment or meaningful opportunity to be heard in debate, the enactment will be declared invalid. Each situation must be evaluated upon its own facts, but in general, if the defect is minor and technical, the enactment will probably survive. However, if the defect is such that the voters did not know they would be considering the issue due to lack of notice, or if required public hearings were never held, the ordinance will probably be invalidated.
The notion of “probably will survive" still means that there is substantial risk of challenge if a defect is found, so the state legislature has provided other procedures to permit defects to be cured and enactments validated. Because municipalities in New Hampshire have only such powers as are granted to them by the legislature, the legislature has the power to correct or “legalize" certain types of defects arising out of a town meeting. There are limits to this power, both legal and practical.
The legal limits arise when a procedure has been so deficient that constitutional requirements of due process, including adequate notice and the opportunity to be heard, are not met. Thus, even the legislature cannot validate a zoning enactment that was not properly noticed to the voters. Calawa v. Litchfield, 112 N.H. 263 (1972). The practical limits arise from the legislative process itself. Even though the legislature meets in annual sessions, it has a great deal of other work to do, and these “special acts" filed to cure a local procedural defect may not be dealt with quickly in the legislative process. There is always the risk that either the House or the Senate will refuse to pass the bill, or the governor will refuse to sign the legislation.
In order to avoid requests for validation bills, the legislature has enabled municipalities to correct minor procedural defects themselves by calling a special town meeting to ratify their action pursuant to RSA 31:5-b. (RSA 40:16 clarifies that SB 2 municipalities may also use this option for legalizing procedural errors.) The authority is limited to correcting “minor procedural irregularities," which specifically include failure to comply with statutory requirements regarding time or place of notice, vote, hearing or wording, or with any procedural act not contrary to the spirit or intent of the law. Presumably, this authority would be used most often in the first year after the enactment, since that is when the defects are usually detected, and the risk of challenge is greatest. Theoretically, it could be used in years two through four after enactment if that is when the problem is detected, but after the fifth anniversary of the enactment, a procedural challenge is barred by RSA 31:126 and the need to validate the enactment disappears.
If the enactment in question does not result in the appropriation of money, then it is clear that the selectmen can call a special town meeting for the purpose of ratifying the action using the procedure found in RSA 31:5-b. If an appropriation was involved, then the issue arises whether the meeting is a special meeting for the purpose of appropriating money, which would require the prior approval of the superior court under RSA 31:5. There is no reported decision on this point, although in the case of Bedford Chapter–Citizens for a Sound Economy v. SAU #25, Bedford School District, 151 N.H. 612 (2004), the New Hampshire Supreme Court made it clear that an article at a special school district meeting that had the effect of raising and appropriating money would be treated as a request for an appropriation, even if such words were not contained in the article.
The language of RSA 31:5-b suggests that the procedure can be used to validate a minor procedural defect, even on an article involving an appropriation. However, as there is no clear case law to serve as a guide, NHMA suggests that you proceed with caution in such a situation. If you have the type of defect that is expressly covered in the language of RSA 31:5-b, the argument that superior court approval is not required is quite strong. As you move to other types of defects, especially defects in notice to the voters, the argument becomes considerably weaker. We suggest that you review the situation with town counsel, and if a bond is involved, then with bond counsel as well.
If there is a major problem with notice to the voters, or other constitutionally based requirement, a special town meeting called under RSA 31:5-b will not serve to overcome the defect. If the issue can wait until the next annual town meeting, the best solution may be to regard the matter as a lesson learned, and wait to place the matter before the voters at the next meeting using the correct and required procedure.
There are times when waiting is not an option. Examples include: a significant land use project may be proceeding in reliance upon a change in a zoning ordinance that could be invalidated; a capital project has commenced, and the defect is found after contracts are signed and work is underway; a piece of equipment has been ordered and received, and now payment must be made; or an article has passed, officials have acted in reliance upon it, and the Department of Revenue Administration has now invalidated the article.
As noted previously, the selectmen have the authority to call a special town meeting to deal with any issue that does not involve an appropriation at any time during the year up to 60 days prior to the date of the next annual meeting. If an appropriation is required, the matter becomes more complex. Pursuant to RSA 31:5, the burden is placed upon the selectmen to petition the superior court and document that an emergency exists of sufficient importance to warrant the call of a special town meeting. Part of that proof is evidence that the situation was not foreseeable or avoidable. Notice must be provided to the Department of Revenue Administration, and copies of the petition for a special town meeting must be posted locally and published in a newspaper.
If the petition to hold the meeting is granted, there remain many steps to successfully calling and holding the special meeting. Peter Loughlin has provided a timetable and checklist of these items at Local Government Law, 13 New Hampshire Practice, section 230. As he notes, it can take five to seven weeks to complete the steps and hold the meeting. The procedure involves the superior court, and virtually every elected official in the town, and involves a fair amount of work and expense to the town.
It should be clear that local officials do not want to get to the point of petitioning for a special meeting in the absence of a true emergency or a truly unexpected circumstance. Therefore, we will close as we began, with a suggestion of careful research well in advance of presenting an issue to the voters, all in the hope that a good night’s sleep may be restored to the local official.
Original article, written by Paul Sanderson, first appeared in the March 2006 issue of New Hampshire Town and City. This article has been revised and updated by Margaret M.L. Byrnes, Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 603.224.7447 or at email@example.com.
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