Town Meetings: Testing Home Rule, Greater Efficiency, Ice Storm
(from Maine Townsman, April 1998)
By Jo Josephson, Staff Writer

 AUTHOR’S NOTE: As stated in previous years’ summaries, any attempt to generalize about actions taken at Maine’s town meetings is difficult if not dangerous. One tries each year, nevertheless, to find the common thread(s), knowing full well that one finds what one looks for and may in fact overlook what one is not looking for. Also, knowing full well that for every example of an apparent trend there are numerous exceptions to it.

  It's safe to say that a handful of municipalities used town meeting this year to test the limits of home rule. One could also say with assurance this year that more than a handful of March town meetings acted, if ever so slowly, to make government more efficient and cost effective. And last but not least, one could also say with assurance that a surprisingly few town meetings took the opportunity two months after the so-called Ice Storm of ’98 to prepare for future losses of light and heat during the winter.

A closer look at who did what and some nuts and bolts background follows.

 TESTING HOME RULE

 The muscle of home rule was flexed when it came to the siting of telecommunication towers, the spreading of sludge, and the mass gathering of 1,000 or more people. While Maine statutes and/or the U.S. Constitution prohibit the outright banning of any of the above, local regulations are allowed.

 Telecommunication Towers

  While local government does not have the authority to ban the hundred foot high or higher telecommunication towers that have been springing up around the state in the past few years, it does have the authority to regulate them. Under the Telecommunications Act of 1996, local zoning authority is recognized when it comes to regulations that have a reasonable and clearly defined health, safety or aesthetic objective.

Faced with the growing number of towers on the horizon and having no regulations on the books, many towns have begun to call for moratoriums on their siting. While most of the action to date has occurred during hastily called special town meetings at least three towns acted on the issue at their annual March town meeting.

They passed regulatory ordinances in Troy ( pop. 860 ) and Ogunquit (pop. 974) and enacted a moratorium in Harpswell (5,012). In doing so, the three towns joined a growing list of towns using the powers of home rule to regulate the industry that is basically the bailiwick of the federal government. The TOWNSMAN’s latest tally on telecommunication tower ordinances here in Maine is as follows:

Towns with current 180-day moratoriums, in addition to Harpswell: Arundel, Denmark, Pownal and Sebago.

Towns with strict ordinances limiting the siting and height of towers, in addition to Troy and Ogunquit: Belfast, Falmouth, Freeport, Kennebunk and Yarmouth .

Towns preparing to act on an ordinance in May: Edgecomb and Bridgton.

Kennebunk’s ordinance restricts towers to the town’s industrial district and business park; it also restricts the tower’s height to 150 feet unless more than one company uses it. The practice of two or more companies using the same tower is known as "co-location" and is a practice that is being pushed here in Maine to limit the number of towers in an area.

Ogunquit’s ordinance limits the height of towers serving one carrier to 125 feet and for each additional carrier using the tower to another 32 feet for a maximum of 190 feet. It also states that the towers may not have any flashing lights. With a few exceptions, lights are only required by the Federal Communications Commission (FCC) on towers over 200 feet high.

Belfast’s ordinance requires that towers be set back from the lot lines a distance equal to at least 125 percent of tower height and that a security fence be constructed around the towers. It also requires that a visual impact analysis be submitted that includes recommendations to "mitigate adverse visual impacts" on properties as far away as two miles. It limits the height of towers to 200 feet.

 Sludge Spreading

  The State of Maine has had rules governing the spreading of sludge since 1976; some say they are the most stringent in the nation. So it is not surprising that under the Maine Solid Waste Law of 1989, local ordinances - even those pertaining to the spreading of sludge - cannot be more stringent than state law. But this has not stopped a number of small to medium size rural towns, when faced with the threat of sludge from out-of-town waste water treatment plants being spread on local farmland, from passing their own and often stricter ordinances,. While the legality of some of these ordinances has yet to be challenged in the courts, they have often had the effect of keeping unwanted sludge out of a community because of the high cost of obtaining the local permit.

Those passing ordinances at this year’s March meetings included Farmington (pop. 7,320) and Palmyra (pop.1,936). Faced with requests to have sludge from the Portland Water District spread on local fields and concerned that the town was running out of space to spread sludge from its own waste water treatment plant, Farmington developed and passed an ordinance that charges a nonrefundable $300 application fee and an annual $10 per acre impact fee for those seeking to spread non-locally generated sludge.

Enacting moratoriums on the spreading of sludge in their community at their March meetings were New Portland (pop. 785), Acton (pop.1,761), and Washington (pop.1,258). Union (pop. 2,121) enacted its third moratorium following the defeat of a proposed ordinance by voters at a special town meeting in February. At that time, Union residents said the proposed ordinance needed to be reworked so it was consistent with the town’s land use ordinance. Among other things, the defeated ordinance in Union called for a $40,000 permit fee, $1 million in liability insurance, review by both the planning board and the board of selectmen, a 48-hour limit on the storing of sludge in a field prior to its spreading, and buy-sell agreements between those spreading the sludge and the abutters.

Last year, in response to the growing number of local moratoriums and ordinances, the Maine Legislature passed a law, 38 MRSA, section1305(9), that for the first time includes municipal government in the State’s permitting and enforcement process. The Department of Environmental Protection is now required to notify a town prior to approving an application for sludge storage and/or spreading, so the town can register its concerns with DEP. And municipalities can now enforce the permits issued by the DEP, whether or not they have an ordinance, provided they notify DEP of their intent.

 Commercial Construction

  The siting of towers and the spreading of sludge aside, there were at least three town meetings that flexed their home rule muscles when it came to regulating construction in their towns. In Fryeburg (pop. 2,993), fueled by rumors that a large Rite Aid Drug Store was to be built in the middle of its historic downtown, residents passed architectural standards for the commercial district.

Rite Aid also spurred the consideration of a moratorium on commercial construction greater than 5,000 square feet in Blue Hill (pop.2,900). While voters defeated the article 433-383, reports are that a new moratorium vote is on its way and that the vote was seen as a trial balloon.

And last but not least, rumors of a 10,000 square foot Rite Aid in downtown Bar Harbor (pop.4,698), prompted the town council earlier this year to place a 120-day moratorium on commercial construction greater than 5,000 square feet in an effort to preserve the integrity of the downtown. Residents will have their say in a May referendum subjecting all such construction in the downtown district to site plan review. Prior to the moratorium, such projects in the downtown area were not open to public scrutiny but were part of the code enforcement officer’s duties.

 Mass Gatherings

  Under the First Amendment, it is illegal to ban mass gatherings, but it is not unconstitutional to reasonably regulate them. In fact there are state laws on the books that purport to do so; but as one local official in Vienna told town meeting, "There are holes in it large enough to drive a Mack truck through."

A few years ago, prompted by an unruly gathering every summer by advocates for the legalization of marijuana, it was the Town of Starks that passed a mass gathering ordinance. This year, in anticipation of the Freedom Fest II music show and political rally for the legalization of marijuana, it was the town of Vienna (pop. 417) that passed such an ordinance; its designers claim it is stricter than the one passed in Starks.

Among other things, the Vienna ordinance targets gatherings of 1,000 people or more. Applicants for a permit will be required to pay $100 for a permit and post a minimum bond of $7,500 to back compliance of the regulations and present nearly $1 million in insurance coverage. The ordinance also sets minimum standards for on-site sanitary facilities and restricts loud music from 10 p.m. to 9 a.m.

 GETTING LOCAL GOVERNMENT IN ORDER

  Testing the limits of home rule aside, the efficient and effective running of local government was also a major item on many a town meeting warrant this March, be it appointing rather than electing the clerk, revaluing property, upping pay, getting more help by hiring a manager or an assistant, or increasing the size of the board of selectmen.

 Getting a Town Office

  Among those taking their first step toward moving out of the kitchen into a town office was Monhegan Plantation (pop. 85). But that doesn’t mean they were in a hurry. They said "no" to an article seeking to spend $7,000 to set up a town office in an existing structure, and asked elected officials to look into the matter a bit further.

If Monhegan took its first step to move out of the kitchen, Hebron (pop.914), used its town meeting to take its second step. Last year, the TOWNSMAN reported that the Hebron town meeting voted to appoint a committee to look into the advisability of constructing a town office. This year, town meeting approved setting aside $5,000 in a town office equipment account to purchase a computer, when a decision is made to locate town office in a central location. As the chair of the Town Office Study Committee reported, "The first step in a long long process has been taken." The committee will continue to study the situation.

 Getting More Help/Efficient

  At last count, there were 136 towns with a town meeting-manager form of government. The latest to join the list is Etna (pop.1,012). Last year, it voted to research the idea; last September it voted to appoint a search committee for a new manager; and this March it voted to pay the yet-to-be-hired manager approximately $22,600. And, as in many towns that switch to a town manager form of government, Etna voters also agreed to expand the three-man board to five.

But not everyone agrees that a town manager form of government is the way to go. Many fear a loss of control so they hire an administrative assistant to the board of selectmen to take care of the day-to-day duties. In Swanville (pop. 1,119), voters agreed with the selectmen that it did not make sense for three part-time people to run what is essentially a $1 million operation. As such, town meeting this year said "yes" to hiring a part-time town administrator, beginning next year.

And while there was a move in Strong (pop. 1,327) to hire an administrative assistant, who would take on the duties of the elected clerk and to expand the three-man board to five, residents opted for the latter only. However, the vote against the assistant was close, 28 to 29, despite the fact that the plan called for no additional money. Voters said they didn’t mind the inconvenience of a clerk who worked from her home in order to be able to select the clerk themselves.

In Canton (pop. 967), it was a so-called "quorum problem" and a need to spread the work out more, given the fact that the town has no manager, that reportedly led voters, albeit by a small margin, to increase their three-man board of selectmen to five.

 Appointing vs. Electing the Clerk

It wasn’t only in Strong that they stuck with an elected clerk who worked from her home. They also said "no" in Garland (pop. 1,224) to appointing the clerk and moving the position to the town office.

However, voters in Eustis (pop. 632) said "yes" to combining the job of elected clerk, tax collector and treasurer into a newly created appointed administrative position. It probably helped that the person appointed has held all three elected positions for the past 13 years and the pay and duties would stay the same.

They did almost the same thing in Eastbrook (pop. 296), combining the elected positions of treasurer and tax collector into the single appointed position of administrative assistant, albeit by a slim margin of 50 to 48. The position will pay $10,000 a year.

 Increasing/Regulating the Pay

  They began paying the tax collector and clerk regular salaries in Solon (pop. 916) instead of paying them in fees or a percentage of the fees they collected. The tax collector will receive $17,000 a year; the clerk, $3,000. They also voted to pay a regular $10 an hour salary instead of a percentage of the fees collected by the person who serves as appointed clerk, deputy tax collector, deputy treasurer in Etna.

In Avon (pop. 554) they agreed to start paying town officials who attend training workshops $5.15 per hour for their time and 22 cents per mile traveled. This would be in addition to the salaries currently paid: $6,000 a year to the first selectman; $800 each for the second and third selectman and town clerk; $4,000 for the tax collector and $1,500 for the treasurer. The expenses will be taken out of surplus.

Limerick (pop. 1,755) selectmen are now paid $5,000 each after receiving a $1,000 raise at this year’s town meeting. And the town clerk will no longer have to pay the deputy clerk out of her own pocket as the voters also approved spending $3,500 for the deputy clerk.

Officials in Upton (pop. 69) gave elected officials their first pay raise in nine years. The selectmen and the clerk will now each receive $1,000, an increase of $300; the tax assessor will now receive $800, up from $500; and each of the school committee members will receive $100, up from $75.

Vienna will pay officials in the fire department for the first time; and selectmen will get an increase from $2,650 to $4,000 a year. Even the animal control officer’s pay was raised by $1,000 to $2,500. And not only did the selectmen get a salary increase, they will also get $6 an hour to attend training and regional meetings that are mandated for the position.

 Upgrading Assessing/Conducting a Revaluation

  They said yes to spending $20,000 in Fort Kent (pop. 4,280) to upgrade and therefore more efficiently and equitably tax the personal property of businesses in town. Advocates said this would go towards expanding the town’s tax base and reduce the mill rate.

But they said no for the second year in a row in St. Albans (pop. 1,724) to hiring someone to conduct a revaluation of the town, despite the fact that one had not been done in 20 years; the manager reported that many homes were greatly undervalued. They also said no to a building permit ordinance; as they did in West Paris (pop. 1,514), where they have reportedly been saying "no" for the past 15 years.

They agreed to look into a revaluation of the town in Freedom (pop. 652), appointing a group to study the options, after one resident reportedly noted that anyone who lived in the town and did the revaluation of the town loses a lot of friends and another said they would prefer an in-house approach because it "stresses the human factor." With 528 parcels to be revalued, the selectmen figured it would cost about $26,000.

 PREPARING FOR NEXT STORM

  So as not to get caught the next time the power goes out for up to two weeks, so as not to wait till the memory of the Ice Storm of ‘98 fades from view, many a municipality took the opportunity of March town meeting to prepare for the next power outage.

 Emergency Power

  In Lovell (pop.890) voters upped the Civil Emergency Preparedness account from $100 to $1,000 in order to replace the electric heater at the town’s fire station with a gas-fired water heater. In Waterford (pop.1,433) they authorized the selectmen to purchase a $20,000 diesel-powered generator for the new municipal building, which houses the town office as well as the fire station and town garage. The monies will be taken from the town’s forestry account, which reportedly has more than $100,000 in it. and repaid in $5,000 installments over four years.

In Steuben (pop. 1,126), voters approved spending $1,000 to purchase a small generator to run the town office during an emergency. They asked for and received $3,000 to purchase a generator for the town garage in Greene (pop.4,001). They established a committee in Durham (pop.2,939) to look into the cost and feasibility of installing a generator at the local school so it could be used as a shelter in future emergencies. The committee was denied $2,500 to hire an engineer to assess what it would cost to run the school’s heating plant, after learning that the minimum cost would be $30,000 not counting the cost of wiring the building and housing the generator.

 Shelter

But what do you do for shelter, if you belong to a school district and there is no school to house a shelter in your town; if in fact you have to hold your town meeting in a school in another town? You do as they did in Vienna: get voter approval to spend $60,000 to build a 32 x 40-foot addition to the fire station, complete with showers and a kitchen and communication room to be used in future emergencies. As planned, the town will use reserve monies and a low interest loan from the Farmers Home Administration.