When creating laws and rules, it can be hard to get them right. At the State level there is a process for each branch of hearing bills, amending, hearing, and amending them some more (or killing them) before they are finally sent to the governor to be signed or vetoed. It is a rigorous process that means laws are not easily passed, which is how the Founders designed the process to be. In NH, local municipalities can only execute authority that the State has granted them the power for. The term for this is “Dillon Rule” which is what NH follows.
What some of us learned during the pandemic is that the rules are so broadly written, that a municipality that wants to pass an ordinance is likely going to be able to perform some minor mental gymnastics to grant the local authorities the power to do just about anything.
Local Ordinances do not have the same level of scrutiny, even if many of the Town Council reviewed the language. At the State level, there are hundreds of eyes, both legislators and the public, looking for problems or unintended consequences of each bill before anything is ever enacted. Sometimes citizens come to the State to say their municipality is going too far and the State should intervene. In my research thus far, I have found many examples of poorly written ordinances that don’t have the scope the boards were hoping for. This can result in lack of enforcement or inconsistent enforcement, causing an opportunity for unconscious bias. One example of such an ordinance is:
It shall be unlawful for any person to carry or consume an alcoholic beverage in or on any street, sidewalk, alley, public or semi public parking lot, or other public place within the Town of Antrim.
This sounds good at first pass, but they forgot to limit it to open containers so now carrying any alcoholic beverage is unlawful.
Another example is a noise ordinance that says:
No person shall cause, suffer, allow or permit the following acts except by written permission of the Chief of Police or the Board of Selectmen.
Sound reproduction systems operating, playing, or permitting the operation or playing of any radio, television, phonograph or similar device that reproduces or amplifies sound without the use of earphones or headphones upon any way or in any campground.
If you look closely it doesn’t talk about loud noises or disturbing anyone. It seems to outlaw listening to the radio while driving or streaming youtube fireplace videos in your tent at the campground without the use of headphones.
However, there are more problematic issues like a health officer ordinance saying that only medical doctors and surgeons can tattoo in the town, essentially eliminating that field from the town as not many doctors quit their practice to start a tattoo shop. Is that an error or a way to restrict an activity in the town? The Representative in that town told me that ordinance came about because someone was inquiring about opening a tattoo shop so they passed this ordinance to hinder them. It worked, there is no tattoo shop in that town. That is a shocking example of misuse of power by local public officials.
However, any bill where the State tries to put up safeguards to help protect the local communities from these bad ordinances is opposed by the New Hampshire Municipal Association (NHMA). You might know of this Association as a training and guidance resource for local municipalities and elected officials. They are a nonprofit whose only members are NH municipalities. Training for local boards was my first contact with NHMA and from the municipality's perspective, they are a great resource. However, at the state level, they are all about maintaining as much local control as possible, full stop. I just spent a number of weeks with their legislative policy-setting committee and presented the argument that municipalities’ purpose is to serve and protect the individual rights of the citizens. If a municipality is doing something contrary to that purpose and the State wants to step in to protect those citizens, the NHMA shouldn’t oppose that because it would serve the ultimate purpose of the municipality. The response shocked me because I didn’t believe others would have the nerve to say this out loud; they said there are other groups that protect the rights of the individual, and that the purpose of the NHMA is to protect the power and authority of the municipalities.
I was completely dumbfounded. How does NHMA get its money? From the dues paid by municipalities. Where do municipalities get their money? From taxes from the people. So the people are being forced to support an organization that can work opposite to their interests? Yep. The obvious thing for those local citizens to do is to join a budget committee and defund the NHMA, right? Not so fast, NHMA does give lots of valuable resources to the community, it is just their lobbying that seems, at times, to oppose the people ultimately paying the bill. If only there were a way to support the trainings and services without funding opposition to guardrails to help the local volunteers avoid inadvertently stepping on a right or two.
In the meantime, there is a segment of legislators on both sides of the aisle who have started to catch on to the problem with the NHMA and are discounting/ignoring their advocacy. I would like to see the option for towns to be a member and get access to the trainings without funding lobbyists who work against their best interest, but either way, it seems like those lobbying dollars spent by the NHMA, and in turn the town, will be carrying less weight going forward.