As many towns prepare for their annual town meeting, questions always seem to arise surrounding citizen petitioned warrant articles. Can they be amended? What if they call for an appropriation? What if the content isn’t legally enforceable? These common questions and more will be addressed in this issue’s Legal Q&A.
Q: Our town has received a petitioned warrant article. Can the language of this warrant article be amended by the voters at the deliberative session or business session?
A: Yes. RSA 39:3 provides a process whereby registered voters can petition the selectmen to place an article in the warrant. Just as with an article created by the selectmen, a petitioned article in the warrant serves only to alert the voters to the subject matter that will be acted upon. The town meeting retains the same authority to add to or delete from a petitioned article particular terms, details or conditions that it has with respect to articles placed by the selectmen.
Q: What if the select board disagrees with the petitioned article? Can the select board remove or amend the article?
A: Absolutely not. RSA 39:3 prohibits the selectmen from altering or changing petitioned warrant articles. The statute requires the selectmen to insert the petitioned article in the warrant “with only such minor textual changes as may be required.” “Minor textual changes” most likely refer to the selectmen putting the petition in the form of a question. Perhaps it includes correcting spelling or grammar. It certainly doesn’t include making changes in the substance of the article.
Q: What if the person who submitted the petitioned article no longer wants it to be submitted? Can the petitioner have the article removed from the warrant?
A: No. Once a petitioned warrant article has been properly submitted, in that it has been determined to have the proper number of signatures and has been delivered to the town, it is a legal document. Neither the citizen or group who originally drafted the article nor the select board has the authority to remove this article from the warrant. The article can, however, be amended and anyone opposed to the article, including the person who originally submitted it, can appear at the deliberative or business session and speak out against the article.
Q: Can petitioned warrant articles be amended in official ballot referendum (SB 2) towns and districts?
A: Yes. There is no indication anywhere in RSA 40:13 that petitioned warrant articles are treated any differently than articles placed in the warrant by the select board. Under, RSA 39:2 the subject matter of all business to be acted upon at the meeting must be distinctly stated in the warrant, but the meeting is free to add to or delete from the article any terms or conditions it deems appropriate or increase or decrease amounts of money proposed to be appropriated in a petitioned article. However, RSA 40:13, IV states that warrant articles whose wording is prescribed by law shall not be amended, (b) warrant articles that are amended shall be placed on the official ballot for a final vote on the main motion, as amended, and (c) no warrant article shall be amended to eliminate the subject matter of the article. An amendment that changes the dollar amount of an appropriation in a warrant article shall not be deemed to violate this subparagraph. Once the deliberative session determines the final wording of the warrant articles, they are placed on the second session ballot in their final form for a yes or no vote. Voters can’t amend official ballot referendum questions at the second session.
Q: Can voters amend petitioned zoning amendments at the deliberative session of an official ballot referendum meeting?
A: No. RSA 675:3 governs the method of enactment of zoning ordinances and amendments to the zoning ordinance. RSA 675:4 governs petitioned zoning amendments. Petitioned amendments must be submitted to the selectmen, who must submit them to the planning board “in a timely manner.” The planning board must hold a public hearing on any petitioned zoning amendment and then submit the petitioned amendments to the town clerk for inclusion on the official ballot. The ballot must include a notation of whether the planning board approves or disapproves of a petitioned zoning amendment. Zoning amendments cannot be d amended on the floor of town meeting.
In official ballot referendum towns, the process for petitioned zoning amendments is the same. However, because the deliberative session occurs several weeks before the official ballot voting on election of officers, zoning amendments and the final form of warrant articles, there is a mistaken belief that the deliberative session can determine the final form of proposed zoning amendment questions, amending the language as proposed by the planning board or by petition. As noted above, RSA 675:3 and 4 require proposed zoning amendments, whether submitted by the planning board or by petition, to be voted on by official ballot.
In some official ballot referendum towns, moderators have permitted voters at the deliberative session to discuss proposed zoning amendments. However, this practice is strictly up to the moderator, subject to being overruled by the deliberative session voters, of course, but moderators should not permit the deliberative session to amend proposed zoning amendments.
Q: A petitioned warrant article was submitted that, if approved, will require a significant expenditure. Must the budget committee appropriate funds towards this project and is it binding on the town if approved?
A: Petitioned warrant articles are allowed to contain appropriations. If a petitioned warrant article contains an appropriation, it must be addressed at the town’s budget hearing. If the town has already held its budget hearing, then the petitioned article should be addressed at a supplemental budget hearing under RSA 32:5, II. It is important to keep in mind, however, that an appropriation is not a requirement that the funds be spend, it is simply an authorization to spend funds for that purpose. The select board is not required to spend funds on a project, even if it is called for in a warrant article. If the article passes, it becomes a political decision for the select board if they want to spend the funds on the project or not.
Q: We received a petitioned warrant article that appears to be “illegal”. Do we still need to put it to a vote?
A: An illegal warrant article is one that, if passed, cannot have any legal effect, typically because it calls for the town to exercise a power or use a procedure that the legislature has not authorized. If the select board receives a petitioned article that calls for the town meeting to take some unauthorized action, the New Hampshire Supreme Court has, in some cases, said that the select board is not required to place it on the warrant. Levasseur v. Selectmen of Hudson, 116 N.H. 342 (1976). In addition, if an “illegal” article is petitioned for a special meeting, the Court has said the select board is not required to call the special meeting. Winchester Taxpayers’ Association v. Selectmen, 118 N.H. 144 (1978). Nevertheless, the Court has also referred to the inclusion of petitioned articles on the warrant as a “right.” Woodside v. Selectmen of Derry, 116 N.H. 606 (1976). Because of these mixed decisions, and because the failure to include a petitioned article subjects the select board to a criminal penalty (RSA 39:3-b), it is recommended that in most cases the article should be placed on the warrant anyway. The select board could seek a legal opinion that a vote on the article will have no legal effect, and that opinion could be shared with the meeting voters. In short, it is probably good practice to put all petitioned articles on the warrant, unless the select board has a clear le al opinion from the town’s attorney, or a ruling from a court, stating that the article can be omitted.
Jonathan Cowal is the Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.
