The Home Rule Amendment
Following is the Encyclopedia Britannica on-line article regarding Home Rule:
Here in New Hampshire, the State Legislature, by 3/5 vote of each house, recommended passage of the following amendment, which shall appear on the November 7, 2000 State Election Ballot.
“Are you in favor of amending the constitution to provide that municipalities shall have home rule authority to exercise such powers and perform such functions pertaining to their government and affairs which are not prohibited by the state constitution, state statute, or common law, and that the state shall retain its right of preemption over municipal powers and functions?"
As a public service, we are providing the following Concurrent Resolution and House Bill that relate to the Home Rule Constitutional Issue:
The Home Rule Amendment
CACR 6 - FINAL VERSION
25may99.....1308h
1999 SESSION
99-0067
04/01
CONSTITUTIONAL AMENDMENT
CONCURRENT RESOLUTION 6
RELATING TO: municipalities' home rule.
PROVIDING THAT: municipalities shall have home rule authority to exercise such powers which are not prohibited by the state constitution, state statute, or common law.
SPONSORS: Rep. G. Brown, Straf 17; Rep. Rice, Belk 7; Rep. Peter Cote, Hills 32; Rep. Weyler, Rock 18; Rep. Soltani, Merr 10; Sen. Roberge, Dist 9; Sen. McCarley, Dist 6
COMMITTEE: Municipal and County Government
AMENDED ANALYSIS
This constitutional amendment-concurrent resolution provides home rule authority to municipalities, so that they may exercise such powers which are not prohibited by the state constitution, state statute, or common law and provides that the state shall retain the right of preemption over municipal powers and functions.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
25may99.....1308h
99-0067
04/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord One Thousand Nine Hundred and Ninety-Nine
CONCURRENT RESOLUTION PROPOSING CONSTITUTIONAL AMENDMENT
RELATING TO: municipalities' home rule.
PROVIDING THAT: municipalities shall have home rule authority to exercise such powers which are not prohibited by the state constitution, state statute, or common law.
Be it Resolved by the House of Representatives, the Senate concurring, that the
Constitution of New Hampshire be amended as follows:
I. That the first part of the constitution be amended by inserting after article 39 the following new article:
[Art.] 40 [Home Rule Authority Granted.] A municipality may exercise such powers and perform such functions pertaining to its government and affairs which are not prohibited by the state constitution, state statute, or common law. Nothing in this article shall be construed to alter or limit in any way the state's right of preemption over municipal powers and functions.
II. That the above amendment proposed to the constitution be submitted to the qualified voters of the state at the state general election to be held in November, 2000.
III. That the selectmen of all towns, cities, wards and places in the state are directed to insert in their warrants for the said 2000 election an article to the following effect: To decide whether the amendments of the constitution proposed by the 1999 session of the general court shall be approved.
IV. That the wording of the question put to the qualified voters shall be:
Are you in favor of amending the constitution to provide that municipalities shall have home rule authority to exercise such powers and perform such functions pertaining to its government and affairs which are not prohibited by the state constitution, state statute, or common law, and that the state shall retain its right of preemption over municipal powers and functions?
V. That the secretary of state shall print the question to be submitted on a separate ballot or on the same ballot with other constitutional questions. The ballot containing the question shall include 2 squares next to the question allowing the voter to vote "Yes" or "No." If no cross is made in either of the squares, the ballot shall not be counted on the question. The outside of the ballot shall be the same as the regular official ballot except that the words "Questions Relating to Constitutional Amendments proposed by the 1999 General Court" shall be printed in bold type at the top of the ballot.
VI. That if the proposed amendment is approved by 2/3 of those voting on the amendment, it becomes effective when the governor proclaims its adoption.
The following legislation will go into effect only if the above Constitutional amendment is adopted:
CHAPTER 278
HB 468 - FINAL VERSION
25may99.....1351h
1999 SESSION
99-0642
08/09
HOUSE BILL 468
AN ACT relative to the home rule powers of municipalities.
SPONSORS: Rep. Stone, Rock 7; Rep. Fraser, Merr 21; Rep. Burling, Sull 1; Rep. V. Clark, Rock 17; Sen. Cohen, Dist 24; Sen. D'Allesandro, Dist 20
COMMITTEE: Municipal and County Government
AMENDED ANALYSIS
This bill provides that municipalities shall have home rule authority to exercise powers which are not prohibited by the state constitution, state statute, or common law. Any municipal ordinance or bylaw shall become effective no sooner than 60 days after its adoption, except where the general court has otherwise vested that power in the municipality's governing body. Under this bill, changes in the law resulting from the passage of this bill shall not become effective unless an amendment to the New Hampshire constitution providing that municipalities shall have such home rule authority is adopted by the voters in the 2000 general election.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
25may99.....1351h
99-0642
08/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord One Thousand Nine Hundred and Ninety-Nine
AN ACT relative to the home rule powers of municipalities.
Be it Enacted by the Senate and House of Representatives in General Court convened:
278:1 Powers and Duties of Towns; Power to Make Bylaws. RSA 31:39 is repealed and reenacted to read as follows:
31:39 Declaration of Purpose. The purpose of this subdivision is to further define the home rule powers granted to municipalities by the New Hampshire constitution. It is not intended to impliedly repeal existing state laws and regulations nor to limit the authority granted to cities and towns pursuant to predecessor versions of RSA 31:39-43.
278:2 New Section; Powers and Duties of Towns to Make Bylaws and Ordinances. Amend RSA 31 by inserting after section 31:39-a the following new section:
31:39-b Bylaws and Ordinances. Any municipality, through the adoption, amendment or repeal of ordinances or bylaws by its legislative body, may exercise any power or function pertaining to its government and affairs which are not prohibited by the state constitution, state statute, or common law. The following provisions shall apply:
I. There is a rebuttable presumption that any ordinance or bylaw enacted under this section is a valid exercise of a municipality's home rule authority.
II. The legislature shall not be held to have implicitly denied any power granted to municipalities under this section unless the exercise of that power is inconsistent with a detailed and comprehensive program of statewide regulation.
III. Any local ordinance or bylaw hereafter adopted by a municipality, except where the general court has vested that power in the governing body, shall become effective no sooner than 60 days after its adoption. Unless otherwise specified, an effective date of 60 days after adoption shall be presumed.
IV. Except as otherwise provided by law, penalties established by ordinance or bylaw shall be recovered by the municipality for its use.
V. All ordinances and bylaws affecting the form of local government shall conform to laws adopted to implement part 1, article 39 of the New Hampshire constitution. No municipal charter shall be adopted or modified except in accordance with procedures delineated in those laws.
VI. This subdivision, being necessary for the welfare of the municipalities and their inhabitants, shall be liberally construed to effect its purposes.
278:3 Powers of City Councils; Bylaws and Ordinances; Declaration of Purpose. RSA 47:17 is repealed and reenacted to read as follows:
47:17 Declaration of Purpose. The purpose of this chapter is to further define the home rule powers granted to municipalities by the New Hampshire constitution. It is not intended to impliedly repeal existing state laws and regulations, nor to limit the authority granted to cities and towns pursuant to predecessor versions of RSA 47:17.
278:4 New Section; Powers of City Councils; Bylaws and Ordinances. Amend RSA 47 by inserting after section 17 the following new section:
47:17-a Bylaws and Ordinances. Any municipality, through the adoption, amendment or repeal of ordinances or bylaws by its legislative body, may exercise any power or function pertaining to its government and affairs which are not prohibited by the state constitution, state statute, or common law. The following provisions shall apply:
I. There is a rebuttable presumption that any ordinance or bylaw enacted under this section is a valid exercise of a municipality's home rule authority.
II. The legislature shall not be held to have implicitly denied any power granted to municipalities under this section unless the exercise of that power is inconsistent with a detailed and comprehensive program of statewide regulation.
III. Any local ordinance or bylaw hereafter adopted by a municipality, except where the general court has vested that power in the governing body, shall become effective no sooner than 60 days after its adoption. Unless otherwise specified, an effective date of 60 days after adoption shall be presumed.
IV. Except as otherwise provided by law, penalties established by ordinance or bylaw shall be recovered by the municipality for its use.
V. All ordinances and bylaws affecting the form of local government shall conform to laws adopted to implement part 1, article 39 of the New Hampshire constitution. No municipal charter shall be adopted or modified except in accordance with procedures delineated in those laws.
VI. This subdivision, being necessary for the welfare of the municipalities and their inhabitants, shall be liberally construed to effect its purposes.
278:5 Regulation of Use of Highways, etc. Amend RSA 41:11 to read as follows:
41:11 Regulation of Use of Highways, etc. Unless regulated by the commissioner of the department of transportation as provided in RSA 236:1, the selectmen may regulate the use of all public highways, sidewalks, and commons in their respective towns and for this purpose may exercise all the powers conferred [on city councils by RSA [47:17, VII, VIII, and XVIII, and by any other provisions of the laws upon the subject] as follows:
I. USE OF PUBLIC WAYS. To regulate all streets and public ways, wharves, docks, and squares, and the use thereof, and the placing or leaving therein any carriages, sleds, boxes, lumber, wood, or any articles or materials, and the deposit of any waste or other thing whatever; the removal of any manure or other material therefrom; the erection of posts, signs, steps, public telephones, telephone booths, and other appurtenances thereto, or awnings; the digging up the ground by traffic thereon or in any other manner, or any other act by which the public travel may be incommoded or the town subjected to expense thereby; the securing by railings or otherwise any well, cellar, or other dangerous place in or near the line of any street; to prohibit the rolling of hoops, playing at ball or flying of kites, or any other amusement or practice having a tendency to annoy persons passing in the streets and sidewalks, or to frighten teams of horses within the same; and to compel persons to keep the snow, ice, and dirt from the sidewalks in front of the premises owned or occupied by them.
II. TRAFFIC DEVICES AND SIGNALS.
(a) To make special regulations as to the use of vehicles upon particular highways, except as to speed, and to exclude such vehicles altogether from certain ways; to regulate the use of class IV highways within the compact limits and class V highways by establishing stop intersections, by erecting stop signs, yield right of way signs, traffic signals and all other traffic control devices on those highways over which the governing body has jurisdiction. The erection, removal and maintenance of all such devices shall conform to applicable state statutes and the latest edition of the Manual on Uniform Traffic Control Devices.
(b) The commissioner of transportation shall only approve the installation and modification of traffic signals as to type, size, installation, and method of operation.
III. AUTOMOBILE PARKING CONTROLS. The governing body shall have the authority to adopt such bylaws and ordinances as are necessary to control the parking, standing and stopping of automobiles within the town limits, including ordinances allowing for the towing or immobilization of automobiles for nonpayment of parking fines and creating parking fines recoverable by means of civil process.
278:6 Food Service Licensure; Exemptions. Amend RSA 143-A:5, I to read as follows:
I. Food service establishments and retail food stores licensed by city health officers [under RSA 47:17].
278:7 Food Service Licensure; Exemptions. Amend RSA 143-A:5, III to read as follows:
III. Temporary food service establishments and occasional food service establishments which are not under the jurisdiction of city or town health officers [under RSA 147:1 and RSA 47:17].
278:8 Solid Waste Management Planning. Amend RSA 149-M:17, II(b) to read as follows:
(b) [Notwithstanding RSA 31:39, III,] Towns are authorized to levy civil penalties up to $3,000 for each act which violates the bylaws enacted pursuant to this paragraph. For violations for which any penalty provided in the bylaws is $500 or less, the official designated in the bylaws as the enforcement authority may issue a summons and notice of fine as provided in RSA 502-A:19-b, except that a copy of the fines for violations of the local bylaws shall be substituted for the uniform fine schedule. Defendants who are issued such summons and notice of fine may plead guilty or nolo contendere by mail by entering a plea as provided in RSA 502-A:19-b. If the plea is accepted by the court, the defendant shall not be required to appear unless directed by the court.
278:9 Entertainment and Entertainers. Amend RSA 179:19, V to read as follows:
V. On-sale or off-sale licensees may install amusement machines on their premises. Nothing in this paragraph shall be construed in any way to limit the powers of municipalities [under RSA [31:41-d] to adopt bylaws relative to licensing amusement machines and to determining the number, location, and types of machines allowed in the municipality.
278:10 Parking Enforcement Provisions. Amend the introductory paragraph of RSA 231:132-a to read as follows:
Notwithstanding any other provision of law, a municipality which installs parking meters pursuant to RSA 231:130, or which establishes other parking restrictions [pursuant to RSA 41:11 or [47:17] or which seeks to enforce the stopping, standing and parking restrictions set forth in RSA 265:68-74, may utilize the following provisions in the enforcement of such parking restrictions and parking charges established through parking meters:
278:11 Equipment of Vehicles; Special Permits. Amend RSA 266:24, I to read as follows:
I. Any person wishing to move objects having a weight, width, height or length greater than prescribed by this chapter, or wishing to move vehicle and load of which the weight, width, height, or length cannot be so distributed that it will meet the requirements of this chapter, may apply to the commissioner of transportation for a permit to move said object or said vehicle and load upon a way. The commissioner of transportation, with the approval of the director, may grant a permit for the moving of said object or vehicle and load upon a specified way and at a specified time if, in [his] the commissioner's opinion, it will not be detrimental to the preservation of the [said] way and the public use thereof. Provided, that the applicant, if required by [said] the commissioner and director, shall file a bond to cover any possible damage to the ways or to the bridges over which the object or vehicle and load to be moved may pass and shall fulfill such rules as may be prescribed by [said] the commissioner of transportation and director; and further provided that the commissioner of transportation or the director of the division may require a hearing before granting [said] the permit. This section shall not be construed to limit the powers of the commissioner of transportation, selectmen of towns, and city council of cities to make rules for the protection and to prevent the abuse of ways and bridges as provided by RSA 236:1, RSA [47:17] 47:17-a and RSA 41:11. Any person who violates the conditions of any permit issued pursuant to this section shall be guilty of a violation.
278:12 Dog Control Law; Referendum. Amend RSA 466:30-b, V to read as follows:
V. A town or city which either does not adopt, or rescinds its adoption of, RSA 466:30-a, may adopt other ordinances pertaining to dogs running at large [under RSA 31:39 or RSA 47:17, XI].
278:13 Municipal Courts; Duties of Clerk; Disposition of Fines. Amend RSA 502:14 to read as follows:
502:14 Duties of Clerk; Disposition of Fines. The clerk shall receive all fines and forfeitures paid into the municipal court from any source. After deducting court seal, record books, printing blanks, and such other expenses as may be legally incurred in the maintenance and conduct of said court, the clerk shall, except in cases otherwise provided, pay the same over to the commissioner of administrative services, or to such department or agency of the state as the law provides, within 14 days. After deduction of expenses enumerated above, fines and forfeitures collected by the clerk for violations of municipal ordinances, codes, or regulations, except those adopted [pursuant to RSA 31:39, I(g); RSA 41:11; RSA 47:17, IV, VI, VII, or VIII;] under RSA 41:11, and those regulating operation of vehicles, use of public ways, and traffic devices and signals, and those adopted under RSA 105:6-7, shall be remitted within 14 days to the treasurer of the municipality prosecuting said violations, for the use of the municipality. All expenses related to the processing of parking violations and the administrative collection of parking fines shall be the responsibility of the local unit of government, and all fines collected shall be retained in their entirety by the local unit of government.
278:14 District Courts; Duties of Clerks; Disposition of Fines. Amend RSA 502-A:8 to read as follows:
502-A:8 Duties of Clerk; Disposition of Fines. The clerk shall receive all fines and forfeitures paid into the district court from any source. The clerk of any district or municipal court may accept payment of the fine by credit card in lieu of cash payment. Any transaction costs assessed by the issuer of the credit card shall be paid out of the portion of the fine amount which is deposited in the general fund and not out of the penalty assessment charged by a district or municipal court. After deducting court seal, record books, printing blanks, and such other expenses as may be legally incurred in the maintenance and conduct of said court, the clerk shall, except in cases otherwise provided, pay the same over to the commissioner of administrative services, or to such department or agency of the state as the law provides, within 14 days. After deduction of expenses enumerated above, fines and forfeitures collected by the clerk for violations of municipal ordinances, codes, or regulations, except those adopted [pursuant to RSA 31:39, I(g); RSA 41:11; RSA 47:17, IV, VI, VII, or VIII;] under RSA 41:11, and those regulating operation of vehicles, use of public ways, and traffic devices and signals, and those adopted under RSA 105:6-7, shall be remitted within 14 days to the treasurer of the municipality prosecuting said violations, for the use of the municipality. All expenses related to the processing of parking violations and the administrative collection of parking fines shall be the responsibility of the local unit of government, and all fines collected shall be retained in their entirety by the local unit of government.
278:15 Repeal. The following are repealed:
I. RSA 31:39-a, relative to conflict of interest ordinances.
II. RSA 31:40, relative to taxicabs.
III. RSA 31:41, relative to open-air motion picture theatres.
IV. RSA 31:41-a, relative to motor vehicle race tracks.
V. RSA 31:41-b, relative to hazardous embankments.
VI. RSA 31:41-c, relative to electioneering.
VII. RSA 31:41-d, relative to pinball machines and coin operated amusements.
VIII. RSA 31:41-e, relative to bylaws on drug-free zones.
IX. RSA 31:42, relative to regulation by selectmen.
X. RSA 31:43, relative to continuation of bylaws.
278:16 Applicability. If a constitutional amendment to the New Hampshire constitution providing that municipalities shall have home rule authority to exercise any powers not specifically prohibited by the state or federal constitutions is adopted by the voters in the 2000 general election, then sections 1-15 of this act shall take effect January 1, 2001. If such a constitutional amendment is not adopted, then sections 1-15 of this act shall not take effect.
278:17 Effective Date.
I. Section 16 of this act shall take effect upon its passage.
II. The remainder of this act shall take effect as provided in section 16 of this act.
(Approved: July 14, 1999)
(Effective Date: I. Section 16 effective July 14, 1999
II. Remainder effective as provided in section 16)
Original page appeared at: http://www.ci.merrimack.nh.us/homerule1.htm