The Calm Before the Storm? Legislature Has Plenty in Store on Municipal Issues

Cordell A. Johnson

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

The Calm Before the Storm?  Legislature Has Plenty in Store on Municipal Issues

As was noted in NHMA’s Final Legislative Bulletin, 2015 was a relatively quiet year for new state legislation, both generally and with respect to municipal issues. Most of the bills dealing with high-profile municipal issues were either retained or converted to study committee bills. While this made 2015 somewhat anti-climactic, it means 2016 is likely to be more eventful.

By the time this article is published, most 2016 bills will have been released, but at press time the only information publicly available is a list of “LSR” titles. An LSR is a legislative service request, which is what a senator or representative submits to the Office of Legislative Services to begin the process of drafting a bill.

Some of the LSR titles give very little away. For example, there is one titled “relative to the laws governing the citizens of New Hampshire.” That could mean almost anything. Others are more descriptive. The bill titled “repealing the administrative procedure act” is pretty clear—and also unlikely to go anywhere.

While we can only speculate about what is behind many of the LSR titles, we have more detailed information about some of the forthcoming legislation, much of which is left over from last year. Here are some of the items that should be of significant interest to municipal officials:

Municipal liability. Last year’s SB 41 created a committee to study “government immunity from suit and accountability by its citizens.” This was precipitated by concern, primarily among trial lawyers, about recent court decisions that have reinforced municipalities’ limited immunity from lawsuits for personal injuries. After much discussion and debate, the study committee recommended filing a bill that would significantly expand municipalities’ exposure to lawsuits. This should be of grave concern to all local officials and taxpayers.

RSA 507-B:2 states that a municipality, county, or school district may be held liable for personal injuries caused by its negligence “arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.” The legislation would expand this potential liability to include injuries arising from any act of negligence, regardless of whether it related to premises or motor vehicles. (In fairness, the committee indicated that it did not necessarily endorse this change, but agreed to submit the bill to get the discussion started.)

The effect of this would be dramatic. Among the actions that could give rise to municipal liability are innocent errors in judgment by police officers, teachers, athletic coaches, and, really, any local government employee who deals with human beings as part of his or her job. (One of the actual cases at the center of the debate is that of a high school basketball player who sued his coach because the player was injured in a practice drill. The case was dismissed based on the existing law, but would be allowed under the proposed change.) This legislation, which has been filed as a House bill, needs to be watched closely, and legislators will need to hear from local officials about it.

Right-to-Know Law. Last year the House tabled a bill, HB 646, that would have allowed public bodies and agencies to recover a small part of the cost of responding to Right-to-Know Law requests. The bill would have allowed a public entity to charge for staff time, after the first hour, at minimum wage rates to retrieve, redact, and copy requested records. The goal of the bill was to relieve the burden of excessive and frivolous requests, while not deterring legitimate requests.

A new bill, which NHMA strongly supports, is being introduced this year, with changes to address some of the concerns expressed last year. It does not allow a charge for meeting minutes that are less than ten years old, or for records relating to any administrative proceeding that is still active or that concluded within the last three years. It also expressly prohibits charging a fee to inspect any record that is immediately available.

Taxation of Telephone Poles. Last year the House passed HB 547, which would have imposed a statutory valuation formula on telephone poles and conduits for property tax purposes. To make a long story short, the bill eventually died in a committee of conference, but the Assessing Standards Board (ASB) took up the issue over the summer, assigning a subcommittee to gather information and make a recommendation.

As of this writing, it is unknown what the ASB’s recommendation will be. It may recommend a methodology for valuing poles and conduits, or it may recommend that the issue be left alone. A House bill has been filed for 2016, which probably will serve as a vehicle for the ASB’s recommendation. More information will be forthcoming in early editions of NHMA’s Legislative Bulletin.

Accessory Dwelling Units.  In 2015 the Senate passed SB 146, which would require municipalities to allow accessory dwelling units in all districts where single-family dwellings are permitted. The House Municipal and County Government Committee retained the bill, and, after making some changes that provide greater local regulatory control, the committee has reported the bill with a recommendation of Ought to Pass.

The bill will go to the full House in early January, where it is likely to pass. It will then need to go back to the Senate, which is likely to concur with the House amendment, although it could request a committee of conference. One of the important changes made in the House is that the bill has an effective date of June 1, 2017, which will give every municipality time to amend its zoning ordinance if necessary.

Agritourism.  In response to a New Hampshire Supreme Court decision over the summer, two bills—one in the House and one in the Senate—have been introduced dealing with “agritourism.” A number of legislators were concerned that the court’s decision did not give appropriate protection to activities that many farmers have been pursuing to keep their farms economically viable, such as on-site farm stands, tours, farm-related recreational activities, overnight stays, and serving of meals.

The new legislation seeks to  encourage these activities by giving them a level of protection under the zoning laws. Recognizing the importance of agriculture to the state and local economies—as well as the political reality that legislation in some form is likely to pass—NHMA worked with other interested parties to draft a Senate bill that protects agritourism activities without enabling farms to reinvent themselves as hotels, restaurants, or function halls.

The Senate bill provides that agritourism activities that are “accessory uses to the primary farm operation” must be permitted in any district where agriculture is permitted, but may be subject to local approvals, such as special exception, conditional use permit, and site plan review. This should enable farmers to pursue legitimate agricultural uses while still allowing a reasonable measure of local control; but local officials will want to watch both bills carefully.

Police or Flaggers for Traffic Control. Another issue left from last year is the use of uniformed police officers or non-police flaggers for traffic control in connection with utility work in municipal rights-of-way. Utility companies have complained that some municipalities require them to pay for uniformed police officers, at much higher rates, to direct traffic on projects where civilian flaggers could do the job just as well. They have argued for requiring municipalities to use the same standards that the state uses for work on state roads. Police groups have objected, arguing that traffic control is a safety issue that must be left to the local police chief.

A study committee considered the issue this fall and, with input from NHMA, drafted legislation that strikes a compromise. Municipalities would still be able to adopt their own ordinances or regulations for traffic control, but when a utility or other private entity is required to pay, the use of police officers would have to be based on reasonable safety concerns. Requiring that police officers be used in all circumstances, or requiring them for private projects but not for comparable municipal projects, would not be allowed. In the absence of a policy that complies with these rules, the state Department of Transportation’s guidelines for the use of flaggers and police officers would apply. The legislation will be introduced as a Senate bill.

Road Usage Fee. The first LSR filed for 2016, the product of yet another study committee, would establish a “road usage fee” to supplement the existing road toll (more commonly known as the gas tax). The road usage fee would be paid by the owner of each motor vehicle (with some exceptions), and the amount would depend on the vehicle’s fuel economy. The higher the vehicle’s EPA miles-per-gallon rating, the higher the fee would be. The owner of a vehicle with an EPA rating of 20 mpg or less would pay nothing, while the owner of a vehicle with a rating of 50 mpg would pay approximately $90 per year. City and town clerks would collect the fee when they register vehicles, and the municipality would retain $1 for each fee collected.

The idea is that with newer vehicles getting better gas mileage, gas tax revenue is declining, and vehicles that use the least gasoline are paying less than their fair share for road maintenance. Needless to say, not everyone supports this approach. While it has bipartisan support and will help to bolster the state highway fund (a portion of which goes to municipalities), it is likely to meet opposition both from those who oppose new taxes and fees of any kind, and from those who believe drivers should not be penalized for owning fuel-efficient vehicles. This should be one of the more interesting debates of the legislative session.

For more information on these and many other issues affecting municipalities, please read NHMA’s Legislative Bulletin, published every Friday during the legislative session.

Cordell A. Johnston is Government Affairs Counsel for the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext. 3408 or at