• Call your senator and urge him or her to respect your municipality’s zoning authority by opposing the short-term rental mandate in SB 458. 

• Ask your representatives to support the committee recommendation of Ought to Pass on HB 1160, providing for an optional local occupancy fee. 

• Ask your senator to vote to take SB 667 (transportation improvement fee) off the table and pass the bill. 

• Ask your representatives to support the committee recommendation of Inexpedient to Legislate on two confusing bills dealing with town meeting warrant articles, HB 1309 and HB 1105.

The House Municipal & County Government Committee this week recommended killing two troubling bills dealing with town meeting warrant articles. We hope the House will follow the committee’s recommendations; but we have concerns, because both votes were closer than they should have been. 

Effect of petitioned warrant articles.  HB 1309 amends RSA 39:3 by adding this sentence: “Unless restricted by any other provision of law, the vote on a petitioned warrant article shall be binding upon the town.” At best this bill is unnecessary; at worst it will create serious confusion. 

First, there is no reason that petitioned warrant articles should be treated differently than other articles. This is like saying that some laws enacted by the legislature carry more weight than others. In any event, it is already true that any warrant article passed by the town meeting—whether petitioned or otherwise—is binding if it is within the authority of the town meeting. 

The bill’s sponsor had explained at the committee hearing that the bill was motivated by a school board’s refusal to put a properly petitioned article on the annual meeting warrant. If the school board did that, its action was already illegal, and passing a new law will not make it more illegal. 

The bill’s supporters also, apparently, want the selectmen/school board to be bound by any article passed by the town meeting—or rather, by any petitioned article. Again, if an action of the town meeting is within its authority, the action already is binding. But the town meeting does not have absolute authority. If the town meeting adopts a petitioned article to impose an income tax, should the selectmen be bound to implement it? There is no specific “provision of law” that prevents this, but everyone knows a town has no authority to impose an income tax. 

The town meeting also does not control the selectmen. Separation of powers is a pillar of our government. The town meeting is the legislative authority; the board of selectmen is the executive authority. They cannot usurp each other’s powers. The town meeting cannot, for example, require the selectmen to hire or fire an employee, or enter into a contract, any more than the state legislature can require the governor to do the same things. The town meeting cannot tell the selectmen whom to appoint to the ZBA, just as the legislature cannot tell the governor whom to appoint to the superior or supreme court. Of course, it works the other way, too. The selectmen cannot usurp the town meeting’s authority by appropriating money or passing a zoning ordinance. 

These restrictions are not expressly stated in any “provision of law”; they are inherent in the nature of the legislative and governing bodies. HB 1309 would create serious confusion about the effect of town meeting actions that have always been understood to be non-binding and advisory only. 

Amended warrant articles.  HB 1105 provides that if a warrant article is amended at the deliberative session in an SB 2 town, both the original article and the amended article must be placed on the official ballot. If both articles are approved, the amended article would supersede the original article. 

This is a curious idea. First, we know of no legislative body anywhere in which an original, un-amended motion is voted on after it has been amended. Would anyone suggest a similar process for bills in the New Hampshire Senate or House? 

Second, the opportunity for voter confusion is obvious, and the list of potential problems is endless. If everyone—literally every voter—at a deliberative session agrees on an amendment to an article, why would the un-amended article still go on the ballot? It is not uncommon for mistakes to be made in drafting warrant articles. If, for example, the selectmen are proposing a one-year lease, but the article is inadvertently drafted to provide for a ten-year lease, this is easily corrected by an amendment at the deliberative session. But under HB 1105, both the one-year lease and the ten-year lease would have to go on the official ballot. Similarly, if a zero is inadvertently added in drafting a warrant article, changing a $25,000 appropriation to $250,000, that can be fixed at the deliberative session, but under HB 1105, both appropriation amounts would go on the official ballot. Why do that? 

As mentioned, the votes on both HB 1309 and HB 1105 were surprisingly close, 10-7, with all Democrats voting for an Inexpedient to Legislate motion and all Republicans voting to support the bills. Please make sure your representatives understand that these bills would have seriously bad consequences and ask them to support the committee’s report of Inexpedient to Legislate on both bills.

As this edition of the Bulletin went to print, we were preparing for a 1:00 p.m. Senate Finance  executive session on SB 496, the NHMA policy bill that would provide state financial assistance toward the costs of meeting water and wastewater quality standards associated with PFAS. As we said in last week’s Bulletin, we believe state assistance for compliance with clean drinking water standards should be a priority, and are hopeful that this bill will soon make it to the House. 

On Wednesday, the House Ways and Means committee heard testimony on HB 1603, which would allocate any funds from the state’s lawsuits against PFAS manufacturers into a dedicated PFAS contamination remediation and mitigation revolving loan and grant program and fund. Like the Resources, Recreation and Development committee, which already approved this bill, members of Ways and Means seemed in general agreement that the state should provide assistance for compliance with clean drinking water standards.

On Tuesday the House Finance Committee Division I voted unanimously to recommend to the full committee that HB 1205 be referred to Interim Study.  HB 1205 is the bill that delays the 10 percent reduction in group I (employees and teachers) New Hampshire Retirement System (NHRS) pensions at age 65 until full Social Security eligibility age, which may be up to age 67.  The fiscal note states that the bill will increase the NHRS unfunded liability by approximately $37 million and would be paid by employers through increased contribution rates over the next 20 years.  Acknowledging that HB 1205 will have a fiscal impact not only on local budgets but on the state budget as well, division members felt this issue should be addressed as part of the state budget and therefore recommended the bill be sent to interim study and considered in the biennial state budget process next year.

A lot of other stuff happened this week—far more than we can report in this space. Here are some of the highlights—some good, some bad, and some on which the jury’s still out: 

Capital reserve funds for lease/purchase agreements. The Senate passed SB 456, which allows capital reserve funds to be used to make payments on a lease/purchase agreement, regardless of whether the agreement contains a non-appropriation clause. 

Appointment of town clerks. The Senate killed SB 561, an NHMA policy bill that would have allowed a town to vote to have its clerk appointed, rather than elected. Unfortunately, the legislature continues to receive misinformation about this issue. According to the committee report on the bill, “the New Hampshire Constitution . . . states that the role of the town clerk is an elected position.” The constitution does not say that. There is one reference to clerks in the constitution. Part 2, article 32, says that the moderator “shall . . . receive the votes [for governor, council, and senators] and shall, in presence of the . . . selectmen, and of the town or city clerk, sort and count the said vote . . . .”  It says nothing about how the clerk is selected. 

Right-to-Know Ombudsman.  The Senate passed SB 696, establishing the office of the Right-to-Know Ombudsman. The bill allows citizens who believe the Right-to-Know Law has been violated to file a claim with the ombudsman, who will issue a decision that is subject to de novo review by the superior court. The hope is that this will enable more efficient and less costly resolution of Right-to-Know Law disputes. 

Notice of leases on DOT property. The Senate also passed SB 614, which temporarily exempts the Department of Transportation from the requirement that public entities leasing property to private parties provide written notice and a copy of the lease to the municipality in which the property is located. The department will be required to provide copies of such leases beginning April 15, 2021, and annually thereafter. 

Perambulation, now and forever. The House killed HB 1441, which would have repealed the requirement that selectmen perambulate the town boundaries every seven years. No one has been able to explain why this requirement must persist; but persist it will. 

Workforce housing. The House passed HB 1629, the affordable housing bill we have written about several times before. See Legislative Bulletin #9 for a description of the bill as amended. 

All bills that passed in one chamber will now go to the other chamber, except for SB 696, which remains in the Senate and will go to the Senate Finance Committee for further review.

Thursday, March 5, 2020 

SB 414, changing the formula for the distribution of highway funds in the Woodsville fire district.  Passed with Amendment. 

SB 450, relative to brew pubs allowing customers to bring dogs to outdoor areas.  Passed with Amendment. 

SB 456, relative to the use of capital reserve funds.  Passed with Amendment. 

SB 460, relative to enforcement of zoning violations.  Passed. 

SB 464, establishing a committee to study the release of state land for the northern section of the Conway bypass.  Inexpedient to Legislate. 

SB 469, relative to shooting ranges.  Inexpedient to Legislate. 

SB 479, establishing a committee to study the regulation of food trucks.  Passed with Amendment. 

SB 487, repealing the housing appeals board and establishing a commission to advance affordable housing in New Hampshire.  Inexpedient to Legislate. 

SB 491, relative to shoreland water quality.  Tabled. 

SB 493-FN-A, relative to register of deeds fees used to support the land and community heritage investment program (LCHIP), and establishing a committee to study the economic impact of land conservation and to review the LCHIP surcharge.  Passed. 

SB 536, establishing a committee to study the housing appeals board. Passed with Amendment. 

SB 561, relative to the appointment of town clerks.  Inexpedient to Legislate. 

SB 562, relative to a property tax relief program for repairs and updates of affordable older homes.  Passed with Amendment. 

SB 614, exempting the department of transportation from the notice requirement for lessors of real or personal property owned by the state or its political subdivisions.  Passed with Amendment. 

SB 618-FN, requiring employers to provide access to a sufficient space for nursing mothers and reasonable break time.  Passed with Amendment. 

SB 630-FN, relative to removing names from the voter checklist.  Passed with Amendment. 

SB 632, relative to enforcement of the state building code by municipalities and the state fire marshal.  Passed with Amendment. 

SB 667-L, relative to the maximum optional fee for transportation improvements charged by municipalities when collecting motor vehicle registration fees.  Tabled.  NHMA Policy. 

SB 696-FN-A, establishing the office of the right-to-know ombudsman and making an appropriation therefor.  Passed with Amendment. 

SB 713-FN, relative to the municipal winter maintenance certification program.  Passed. 

SB 717-FN-L, relative to reimbursement to cities and towns from the state of New Hampshire.  Passed. 

SB 721-FN-A, relative to court review of planning board decisions and making an appropriation therefor.  Inexpedient to Legislate. 

SB 723-FN-L, relative to winter highway maintenance exemptions.  Inexpedient to Legislate. 

SB 728-FN, establishing the coastal program administered by the department of environmental services.  Passed. 

SB 735-FN, repealing the housing appeals board.  Inexpedient to Legislate.