MAINE MUNICIPAL ASSOCIATION
Legal Services
60 Community Drive
Augusta, Maine 04330-9486
(207) 623-8428 Fax (207) 623-1287

WILLIAM W. LIVENGOOD
REBECCA WARREN SEEL JOSEPH J. WATHEN
RICHARD P. FLEWELLING (1957-1997)
ELLERBE P. COLE
MICHAEL L.STULTZ
KRISTIN MCHENRY COLLINS


April 5, 2006

VIA FACSIMILE 207-382-3040
Steven Bennett, Selectman
Town of Freedom
71 Pleasant Street
Freedom ME 04941

RE: Moratorium; Road Abandonment; Citizens' Petition

Dear Mr. Bennett:

I am writing to follow up on our phone conversation of March 31. During our call, you indicated that a group of citizens is preparing a moratorium ordinance in response to plans to develop a wind turbine project in town, and intended to use the petition process to put the ordinance before the voters. You said that you are a participant in this group and are helping to draft the ordinance. I explained that I could not give advice on the matter because you were not calling as a representative of the Board of Selectman but in your capacity as a concerned private citizen. I also advised you that you should recuse yourself from the vote to place any such petition on the warrant. Understanding that, you went on to ask questions regarding other matters.

During our call, I explained the law of abandonment of roads and the status of roads once abandoned, all of which is included in our Municipal Roads Manual and available for reference as needed. You asked that I confirm in writing the information I explained over the phone. I regret that I am also unable to respond to that request. It has become apparent to me from comments you made during our telephone conversation and from others in the department that you own property abutting the proposed wind turbine project. As such, I must decline to comment further on the abandonment issue because our advice also appears to have been requested in your capacity as a private citizen. If the majority of the Board provides a written request for an opinion, and the request concerns the Selectmen's role in the process, I would be happy to respond.

As for your other question, which concerns a different citizens' petition presented to the Board ("Petition to have all Town Officials voted on by Australian ballot"), I have no problem with Articles 1, 2 or 4. The commentary language in Article 2 that is surrounded by parentheses could arguably be removed on the grounds that it is not part of the warrant article. While Article 4, if passed, would be administratively difficult and expensive to follow, the Article itself is not legally infirm. I do, however, have a problem with Article 3. This Article requests an illegal and unenforceable action, because it is considered an "ultra vires act" (an act beyond town meeting's authority). The Maine courts have held that it is impermissible for one legislative body to limit the ability of a future legislative body to act. A charter provision is the only appropriate method to limit the matters that can be considered by town meeting. Given the above, I believe the Board should vote to put Articles 1,2 and 4 on the warrant, but to refuse Article 3. Since you have already had this year's town meeting, the articles should be placed on a warrant for an open special town meeting within 60 days from submission of the petition. 30-A M.R.S.A. 2522.

I hope the above is of help. Please contact me if you have any further questions.

Kristin M. Collins
Staff Attorney