Ordinance Enactment - Legal Note

Ordinance Enactment
(from Maine Townsman, "Legal Notes," April 1989)

This Maine Municipal Association publication is presented for "Classroom Use Only." Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

Please Note: Despite this article’s original publication date, it remains a valid resource on the relevant subject matter. Recent cases and statutory changes have been changed to reflect current law. (11/98)

Question: What is the correct procedure for our town to follow in enacting an ordinance? We do not have a charter specifying how this is to be done.

Answer: Although special enactment procedures may be required for particular kinds of ordinances, for any other kind of ordinance to be enacted 30-A MRSA § 3002 (formerly 30 MRSA § 2153) specifies the steps that must be followed. Most ordinances will be subject to that statute for enactment procedure. For such ordinances to be lawfully enacted 3002 requires that:

1) Posted. The proposed ordinance must be attested and posted in the manner provided for town meetings.

2) Certification. One copy of the proposed ordinance must be certified by the municipal officers to the municipal clerk at least 7 days prior to the day of election to be preserved as a public record and copies must be made available for distribution to the voters by the municipal clerk at and after certification as well as at the time of the town meeting.

3) Question. The subject matter of the proposed ordinance must be reduced to the question "Shall an ordinance entitled _________________________ be enacted?", and that question must be submitted to the town meeting for action either as an article in the warrant or a question on a secret ballot.

4) Application. This section shall not apply to ordinances which are enacted by the municipal officers, such as traffic, general assistance or cable t.v. ordinances.

Under this procedure, the order of events would be as follows:

Certification.

After the ordinance is drafted in its final form, the municipal officers must certify a copy of the proposed ordinance to the municipal clerk to be preserved in the town records as a public record. The certification must be made before the warrant is posted.

Attestation.

From the certified copy, the municipal clerk is then able to make attested copies that will be posted along with the town meeting warrant. The clerk, in attesting copies of the ordinance for posting, should use substantially the following language:

Attest: A true copy of an ordinance entitled "The Subdivision Review Ordinance of the Town of Blankton", as certified to me by the municipal officers of Blankton on the __ day of March, 1989.

Signature __________________________________________________

Town Clerk of Blankton

Distribution.

From the certified copy, the clerk is also able to generate copies of the proposed ordinance for distribution to the general public. The law requires that copies be left in the clerk's office for distribution to the voters and that copies be present at the town meeting for voter use. All of the copies of ordinances referred to here, including the certified and attested copies, may be reproduced by any standard process that the town officials decide to use. In many instances, this is accomplished by offset printing, mimeographing, photo copying, or similar means.

Posting.

The town meeting warrant should be issued with the usual necessary articles. The article relating to the ordinance should be placed in the warrant, as is any other article. This is required whether the vote will be by referendum ballot or at open town meeting. The article should be phrased in the nature of a question with the precise wording called for in Subsection 3. For example: "Article 32. Shall an ordinance entitled 'The Subdivision Review Ordinance of the Town of Blankton' be enacted?"

The law requires this specific wording, and so towns may not use the historic wording "To see if the town will vote...", or any other words of that nature. Again, the exact title of the ordinance must be used, not some descriptive phrase. Therefore, it is important for Selectmen to ensure, before certifying a draft ordinance to the Clerk, that it has a title or name.

In addition to the posting procedure required of all town meeting warrants, this statute requires that a copy of the complete text of the proposed ordinance, as attested, be posted right along with, next to, and at the same time as the warrant for the town meeting at which the proposed ordinance will be considered. [If, however, the proposed ordinance or comprehensive plan exceeds ten pages in length, the warrant and warrant article relating to adoption of the item need only state that copies of the text of the same are available from the town clerk. 30-A MRSA § 3002(1)]While the attestation is done by the municipal clerk, the posting is accomplished by the person posting the warrant and ordinance. The return of the person who posts the warrant should contain at the end and before his or her signature words substantially as follows: "And I have this day posted one copy of an ordinance entitled 'The Subdivision Review Ordinance of the Town of Blankton', attested by the municipal clerk, with the warrant(s) at said places."

The same time limits on posting apply to this procedure that apply to the town meeting.

A permissible alternative is for the ordinance itself to be incorporated into the warrant article and printed and attested as part of the warrant. Some communities prefer this approach, particularly where the text of the ordinance is short.

Secret Ballot.

The question may be submitted to the voters on a secret ballot in those towns that use this procedure. If this is desired, it must be done under the provisions of 30-A MRSA § 2528 (formerly 30 MRSA § 2061). The question may be initiated by a petition to the municipal officers signed by a number of voters equal to at least ten percent of the number of votes cast in town at the last gubernatorial election or by an order of the municipal officers without a petition. The petition or order must be filed with the town clerk on or before the 35th [Now the 45^th day, see 30-A M.R.S.A. § 2528. ] day prior to the referendum election. A hearing must be held by the municipal officers on the proposed article and ordinance at least 10 days before the day of voting and at least seven days' notice must be given of the time and place of the hearing and the text of the proposed article. The return of the person posting the notice should be similar to the type of return used in connection with posting a warrant.

Public Hearing.

If an ordinance is not going to be voted on by a preprinted secret ballot under 30-A MRSA § 2528, then there generally is no statutory requirement that a separate public hearing be held prior to a vote on the ordinance at open town meeting. This is because the open town meeting discussion serves as a hearing. However, at least one prior public hearing is advisable to pinpoint problem areas, since no changes in the proposed ordinance can be made from the floor at the open town meeting (see below).

Where an ordinance is one which will be voted on under 30-A MRSA § 2528 (secret ballot process), if the comments made at the public hearing result in substantive revisions to the proposed ordinance, another public hearing on the new draft of the ordinance must be held prior to the secret ballot vote in order to be in strict compliance with Section 2528. Town of Hampton v. Brust, 446 A.2d 458 (N.H., 1982). The hearing on the revised ordinance must be scheduled to meet the deadlines set out in the statute. Therefore, when dealing with a complicated ordinance or an ordinance of major importance, Selectmen would be well advised to hold an initial hearing well in advance (e.g., 60 days) of Town meeting.

Regarding zoning and shoreland zoning ordinances, there is a requirement in 30-A MRSA § 4503 [30-A M.R.S.A. § 4503 repealed and replaced by 30-A M.R.S.A. § 4352. ] that the public be given an opportunity to have input in the preparation of the ordinance or any amendments. This "opportunity" usually takes the form of a public hearing conducted by the planning board. Section 4503 [30-A M.R.S.A. § 4503 repealed and replaced by 30-A M.R.S.A. § 4352. ]should be followed by communities which are not yet subject to the provisions of the new growth management law found, as of this writing, in 30 MRSA §4960-C [30 M.R.S.A. § 4960C repealed and replaced by 30-A M.R.S.A. § 4301 et seq.].

Town Meeting.

Finally, it is the opinion of the MMA Legal Services Staff that an ordinance may not be amended on the floor of town meeting. This opinion is based in part on a reading of the statutes and in part on relevant case law.

The statutory requirement for providing prior notice to the voters of the town in the town warrant is governed by 30-A MRSA §2523 (2) which states:

"It (the town meeting warrant) shall state in distinct articles the business to be acted upon at the meeting. No other business may be acted upon."

The underlying reason for the requirement is that the voters are to be notified, with reasonable certainty, of the subject matter to be acted upon. Once the voters are so apprised of the nature of the business to be considered, the body may generally act with some latitude in disposing of that business. Belfast & MLR Co. v. Inhabitants of Brooks, 60 Me. 568 (1872), Inhabitants of Argyle v. Eastern Trust & Banking Co., 125 Me. 370 (1926), Bucksport v. Bangor RR, 68 Me. 81 (1878).

It is, however, quite clear from the statute that no other business or subject matter may be acted upon except as stated in the article, and the precision with which an article is stated may limit the latitude which the voters may exercise. Austin & Blaisdell v. Inhabitants of York, 57 Me. 304 (1869).

In the Austin case, the court determined that a town was severely limited in its ability to deal with a money article specifying a particular sum because the warrant article called "for (the town's) action, yea or nay, upon a single distinct proposition", as opposed to an article which is general in description. Similarly, when a town acts to adopt an ordinance, it is not presented with an article general in its description. The statutory question to be posed to the voters is "Shall an ordinance entitled ______________________ be enacted?" Such a "single, distinct proposition" demands a "yes" or "no" answer.