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MUNICIPAL LAW UPDATE: TAX ACQUIRED PROPERTY

Increasing the Value of Tax-Acquired Property It is not surprising that when municipalities acquire title to real estate as a result of the expiration of a tax lien, the property is usually returned to the delinquent taxpayer by filing a tax lien discharge or delivering a quit claim deed.  Ordinarily the value of the real estate subject to the tax lien greatly exceeds the amount owed in real estate taxes.  However, municipal officials are often reluctant to pocket a windfall at the taxpayer’s expense, being mindful of the fact that the failure to pay the taxes in a timely manner may have been the result of unfortunate circumstances beyond the taxpayer’s control. The municipality’s reluctance to assert its title under an expired tax lien may also result from concern about the taxpayer’s ability to find an alternative place of residence if evicted from his property.  If the taxpayer is evicted, his or her family may be obliged to apply for welfare assistance in order to obtain substitute housing. Municipal tax collectors may also be concerned about the difficulty of complying with statutory eviction procedures and incurring the legal expense of doing so.  Such concerns may lead to procrastination in the hope that threatening letters will motivate the taxpayer to beg or borrow the money to pay the delinquent tax bill. Sometimes municipalities enter into installment payment arrangements with delinquent taxpayers which allow them to repay the back taxes in installments.  However, such arrangements can bring about unintended consequences.  Such agreements would ordinarily be subject to state laws regulating “land installment contracts” and therefore be subject to burdensome disclosure[1] and...

UNENFORCEABLE ADVISORY OPINIONS BY MUNICIPAL BOARDS OF APPEAL

Are Advisory Opinions by Municipal Boards of Appeal Enforceable? In two opinions issued in 2010,[1] the Maine Supreme Court ruled that decisions of local boards of appeal in proceedings to enforce local ordinances were unenforceable because they were only “advisory opinions.”  These decisions have left municipal officials and their attorneys perplexed about how to correct a situation in which administrative appeals to local boards of appeals have, in effect, become useless as part of the process of enforcing municipal ordinances.  The issue is relevant now because a bill is being submitted to the upcoming legislative session which attempts to restore some measure of enforceability to the decisions of local boards of appeal. To understand how the current impasse has developed, it is useful to review the facts of the two Supreme Court cases previously cited.   In Farrell v. City of Auburn, Farrell appealed to the board of appeals from a decision of the Code Enforcement Officer that he was operating an illegal automobile graveyard.  The Auburn Board of Zoning Appeals and the Superior Court both upheld the Code Enforcement Officer’s decision. On appeal, the Maine Supreme Court held that the decision of the Board of Appeals was only an “advisory opinion” since the Code Enforcement Officer was free to ignore it and proceed to initiate an enforcement action regardless of the outcome.  Since advisory opinions are not judicially reviewable, the Farrell’s appeal was dismissed. Similar circumstances were presented in the case of Eliot Shores v. Town of Eliot.  In that case, the Code Enforcement Officer determined that the developer, Eliot Shores, had created an illegal subdivision.  He advised the...

DISCIPLINE OF PUBLIC EMPLOYEES AND APPLICABLE MAINE MUNICIPAL STATUTES

Discipline of Public Employees — Applicable Laws A.  State Statutes Know the applicable laws before taking certain actions to discipline public employees.  Because Maine is an employment-at-will state, people sometimes forget that some protections are available for workers in the public sector that private sector employees don’t have.  Title 30-A M.R.S.A. § 2601 states that, except as otherwise provided by law, charter, or ordinance, the municipal officers shall appoint “all municipal officials and employees required by general law, charter or ordinance[1] and may remove those officials and employees for cause, after notice and hearing.”  (Emphasis added) Certain categories of public employees also have separate protections from being fired except for cause.  See, e.g., 30-A 2601-A (Code Enforcement Officers), 30-A M.R.S.A. § 2671(1) (Police).  There is no obvious explanation for affording extra protection to these municipal employees except perhaps more effective lobbying at the state level by their employee organizations. Protection against being discharged except “for cause” means that the reason for termination must be substantial.  Except in the most egregious cases, a municipality should follow some kind of progressive discipline procedure before terminating an employee so that it is obvious that the employee in question failed to meet his or her employer’s expectations. In cases in which the employee is charged with serious misconduct, the employer may be reluctant to allow him or her to remain in the workplace while the allegations are being investigated.  In such a case, administrative leave may be appropriate so that the employee in question is, in effect, suspended with pay until the employer is ready to make a final decision and, if necessary, conduct...