New Hampshire Town and City
Petitioned Warrant Articles
New Hampshire Town and City, February 2004
The special status of petitioned warrant articles always raises questions during town meeting season, and some myths have developed about the sanctity of petitioned articles. Let’s take a look at some of the issues involving petitioned warrant articles and put some of the urban (rural?) legends to rest.
Q. By what authority can town meeting voters amend warrant articles?
A. RSA 39:2 states in part, “The subject matter of all business to be acted upon at the town meeting shall be distinctly stated in the warrant, and nothing done at any meeting …. shall be valid unless the subject thereof is so stated.” So while the general subject matter of a warrant article must be clearly stated in advance, there is no language in the statute limiting what actions the voters can take with respect to an article.
The authority of town meeting voters to amend warrant articles has been recognized at least as far back as 1875 when the New Hampshire Supreme Court ruled in the case of Pittsburg v. Danforth, 56 N.H. 272, “No doubt the subject-matter being plainly referred to, may properly include authority to act upon minute specifications and particulars included and necessarily involved in that ‘subject-matter,’ and which need not be in particular terms enumerated.” In other words, once the subject matter of the article is stated, the town meeting has authority add to the article or delete from it “minute” details and “particular terms.”
Again in 1882, the Court upheld the right of voters to amend warrant articles. “The position that the vote as recorded could not be taken under the article in the warrant, that the town could only vote to dismiss it, or to give a greater or a less per cent of its valuation upon the precise conditions and limitations expressed in the article cannot be sustained … Here the matter to be acted upon was the question of aiding the defendant to build its railroad. The town might grant its aid upon such terms as it saw fit. If the limitations expressed in the article had been omitted, all or any part of them might have been incorporated in the vote. Their insertion did not preclude the town from rejecting them, or from granting aid upon other and different conditions. A vote to build a town hall thirty feet by fifty, under an article to see if the town will build one forty feet by sixty, might as well be held unwarranted.” Sawyer & a. v. Manchester & Keene Railroad, 62 N.H. 135.
These court opinions are written in the flowery style of a long ago period in legal writing, but they mean that a warrant article must state the basic subject matter in a way that is as general or detailed as the selectmen or petitioners care to make it, and then it is up to town meeting voters to increase or decrease amounts of money, or add or delete details and conditions as they see fit.
Q. But can town meeting voters amend the wording of petitioned warrant articles?
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 is the source of the myth that petitioned articles can’t be amended?
A. Perhaps it comes from the language of RSA 39:3, which 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. But this prohibition applies only to the authority of the selectmen. RSA 39:3 does not limit the authority of the town meeting when it comes to consideration of petitioned warrant articles, nor does any other statute.
Q. Can petitioned warrant articles be amended in official ballot referendum (SB 2) towns and districts?
A. Yes. Obviously, the town meeting process is a little different in official ballot municipalities from the process followed in traditional town meeting municipalities in that the meeting is divided into two parts. RSA 40:13, which spells out the details of how the official ballot referendum process works, states that warrant articles may be amended at the first session as long as their wording is not prescribed by law. See RSA 40:13, IV, which also states that amended articles “shall be placed on the official ballot for a final vote on the main motion, as amended.” RSA 40:13, VI says basically the same thing. 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 selectmen. Again, RSA 39:2 applies – the subject matter 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. The meeting, in the case of official ballot referendum towns and districts, is the first, or deliberative, session. 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. When can a town meeting moderator refuse to accept a motion to amend a warrant article?
A. Once again, RSA 39:2 comes in to play. Since it invalidates any action taken at the meeting whose subject was not stated in the warrant, the moderator can refuse to accept an amendment that changes or is in some way not germane to the subject matter of the article as posted in the warrant.
Q. Can an amendment change the intent of the original warrant article?
A. Yes. It is important to keep in mind the difference between “subject matter,” on the one hand, and “intent” on the other. An article in the warrant, whether petitioned or not, may ask the voters to take some action on, for example, building an addition to the library. A voter may offer an amendment – it doesn’t matter whether it’s at a traditional town meeting or at the first session of an official ballot referendum meeting – to change the article so that it would ask the voters to build an addition to the fire station, arguing that expansion of the fire station is a higher priority that expansion of the library. The moderator should rule that amendment out of order because it changes the subject matter of the warrant article from the library to the fire station. But if an amendment was offered to appoint a committee to study whether or not an addition to the library is needed, rather than build the library addition, that amendment is germane to the original subject matter, although it may change the intent of the original article, and the moderator should allow it. This same reasoning applies in official ballot referendum towns and districts and applies to petitioned articles, as well. In 1997, the Hillsborough Superior Court ruled that petitioned warrant articles could be amended at the deliberative session of an official ballot referendum town meeting to change the intent, not the subject matter, of an article. Tucker v. Town of Goffstown (97-E-103, March 25, 1997). Note that this was a superior court case that was not appealed to the New Hampshire Supreme Court. In this case, the petitioned article asked the voters to sell the Grange Hall to a nonprofit organization for $1. The amendment, which was approved by the deliberative session, asked the voters to retain the Grange Hall. The amendment passed, and the article in its amended form was put on the ballot for a second session yes-no vote. The lesson here is to recognize the power of the deliberative session in official ballot referendum towns and districts.
Q. Can voters amend proposed 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. It gives the planning board authority to determine the final form, as it will be submitted to the voters, of an ordinance or zoning amendment that it proposes.
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, which can be either the same one on which the names of candidates for town offices appear, or a separate ballot. The ballot must include a notation of whether the planning board approves or disapproves of a petitioned zoning amendment. All towns that elect officers by official (Australian) ballot must vote on zoning amendments on that same or a separate official ballot. Zoning amendments cannot be debated and 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. In addition to electing town officers, RSA 40:13, VII gives authority to the second session of official ballot referendum meetings “to vote on questions required by law to be inserted on said official ballot and to vote on all warrant articles submitted by the first session.” 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 all towns that elect their officers by official ballot rather than from the floor of the town meeting. RSA 40:13, IV does not give the deliberative session any authority to amend proposed zoning amendment questions, only to determine the final form of warrant articles.
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 few towns and districts have established official ballot referendum voting under the provisions of a charter pursuant to RSA 49-D:3, RSA 52:2-a or RSA 197:5-b, rather than by adopting RSA 40:13. Are the rules on town meeting authority to amend warrant articles different in those municipalities?
A. The reason towns, village districts and school districts were permitted to adopt official ballot referendum voting via the charter process was to enable them to customize the process of having all warrant articles voted on by official ballot. Some of these charters may require a quorum or a certain number of voters to attend the deliberative session in order for it to have the power to amend warrant articles. However, these charter official ballot referendum towns do not have authority to permit the deliberative session to amend proposed zoning amendments.
Note: Some people seem to think it is unfair to the petitioners that town meeting voters can amend petitioned warrant articles. As a result, the legislature has considered bills--both last year and this year--that would restrict or prohibit the authority of meeting voters to amend petitioned articles. Keep an eye on NHMA’s Legislative Bulletin for the latest developments.