|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 1 Number 11
|Table of Contents|
This is the season of giving thanks for the things we too often take for granted in our daily lives. In my life there is a great deal to give thanks for: a healthy and loving family, good friends, bright, energetic and committed staff, and, all of you who make serving as your Secretary of State the pleasure that it is.
While we have done and accomplished much this year -- re-instituting the Opinions newsletter, starting the Vermont Public Service Awards program, publishing a number of handbooks and pamphlets, creating a Task Force on Ethics, to name just a few -- what I understand now more clearly than ever is that this office works, and indeed, Vermont works because of its people. None of our accomplishments would have been possible without the assistance and support of the Staff here at the Secretary of States Office, and without the suggestions and encouragement we received from our advisory boards, task forces and from those of you who regularly use our services.
For further information,
A Voice from the Past
|The most prosaic duty of a selectboard is to make the budget. Everything else the
board does in December is a welcome distraction from this tiresome job. Watch closely: see
how their heads drop, their eyes glaze over, when the night grows long in the shank and
somebody makes a longwinded pitch for an appropriation.
Wake up, now, this is important. The budget is the most critical
document in the annual life of the town. Within the puts and takes of the budget process,
policy emerges. What are we going to do with the road crew? Is it time for
Ideally, every board starts with an open discussion about the needs of the town. Most selectboards know they can't sell a large increase in the tax rate, especially when school budgets may not be conservative, but a good working target a bottom line is essential preparation for the parade of prayers that follows from the various players (both individuals and boards) that make up the infrastructure of town government.
The best strategy is to hold back. Don't commit yourself to anything, not one cent, until you've heard from everybody about the town's needs for the coming year. This goes for meetings and for private conversations with a road crew member, the constable, or members of the public. From the perspective of those who want you to favor them the listers hoping for more per hour, the planning commission wanting to hire a consultant, the zoning administrator asking for more hours early commitment to their priorities is much preferable to the awful last hours of the budget process, when hard decisions and tough choices are made.
For the good of the town, reserve is required. Be like an old Vermonter, who seldom speaks and never reveals feelings in public. Show no preference for anyone, but be careful. You don't want to sound discouraging. Ask your questions, while remaining supportive and appreciative of what they've done for the town.
It makes complete sense to have a computer spreadsheet to work with, and someone able enough to make changes and print out new versions as needed. You don't want to add up columns more than once, and a little pinch here or little more there can change everything. Another good idea is to think about how the budget is arranged, and keep a close eye on how the categories of expenditure within the general and highway funds are changing, year to year.
Don't let any major changes in expenditure or appropriation go unexplained, because on the first Tuesday of March you are going to have to be able to explain and defend these changes. It is foolish to assume others are going to miss the hot spots in the budget come town meeting.
Once you've heard from everybody, there comes a time for decision. This is not going to be pleasant, however you try. You can't agree with everybody and you won't make everybody happy. When it gets right down to it, it's amazing how little discretion there is in a budget, but there are places where you can have an impact on town life. It doesn't take a lot to improve how townspeople feel about their community.
Nobody gets flowers or congratulations for writing good budgets. The
hard work doesn't show in the final product. You may find yourself having offended someone
inadvertently, who took your rejection of their request too
A dilemma is a hard choice between two unacceptable alternatives. A hard choice between two options, both of which are beneficial and worthy, is called an antinomy, and that's a fine word for the state of mind of most selectboard members during December. Hang in there, ladies and gentlemen of the board. Yours is the toughest job there is in government.
"Voice from the
Past" by Paul Gillies
|December Opinions "Table of Contents"||Secretary of State's Home Page|
|1. Act 60
Authorizes Limited Local Option Taxes. Vermont law permits certain towns to adopt
local taxes to ease school budget burdens created by Act 60. 24 V.S.A. § 138A. According
to section 138A, a town has until September 1, 2003 to adopt the local tax, and the tax
may only be collected until December 31, 2004. To adopt the tax, the town has to meet one
of three tests to show it has a school-funding problem: The education property tax rate in
1997 must have been less than $1.10 per $100.00 of equalized education property value; or
the equalized grand list value of personal property, business machinery, inventory, and
equipment must have been at least ten percent of the equalized education grand list as
reported in the 1998 Annual Report of the Division of Property Valuation and Review; or
the combined education tax rate of the municipality will increase by 20
percent or more in fiscal year 1999 or in fiscal year 2000 over the rate of the combined education property tax in the previous fiscal year.
If the town qualifies, then the selectboard has to vote in favor of a local tax, and then at an annual or special meeting, by a majority vote of those present and voting, the town can assess any or all of the following taxes: a one percent sales tax (excluding tax on telecommunications); a one percent meals and alcoholic beverages tax; or a one percent rooms tax. For taxes reported after 1999, 70 percent of the tax money goes to the town and the rest to the state treasurer.
2. Writ of Attachment is filed in the Land Records. A
"writ of attachment" is an order from a court that allows a creditor (the person
who is owed money or an item of value) to take a debtor's (the person who owes the money
or valuable thing) land in order to pay off a debt. Sometimes a court will issue a writ of
attachment at the start of a lawsuit, which prevents the landowner from selling the
property until the lawsuit is resolved. This is called a "pre-judgment" writ of
attachment. Whether it comes at the start or end of a lawsuit, a writ of attachment is
recorded in the land records. 24 V.S.A. § 1154. By recording the writ of attachment in
the land records, other people know not to buy the debtor's land because the creditor has
the right to own the property if the
5. Town Manager cannot act in place of the Trustees of a Municipal Library. Under 22 V.S.A. § 143, the trustees of a municipal library have the full power to manage the public library. This includes adopting bylaws, election of officers, and choosing a director or head librarian. While a town manager's powers are broad, under 24 V.S.A. § 1236 a town manager can not decide issues which have been specifically given to a particular municipal officer. Since the trustees have been given the full power over the public library, a town manager cannot perform the duties that the law has specifically given to the public library trustees.
6. Zoning Administrator is Custodian of Zoning Office Files. Under the Access to Public Records law, it is the responsibility of the custodian of a public record to make it available when a person wants to see it. If the record is not available because it is being used or because it is in storage, the custodian of the public record must say this in writing and must set a date and hour within one calendar week of the request when the record will be available for examination. 1 V.S.A. § 318. A town clerk, even if she or he has the key to the zoning administrator's office and file cabinets, does not have to open the zoning office and file cabinets and let a person see those files, even if the information is public. Instead, the town clerk can refer the person to the zoning administrator, and the zoning administrator can then open up his or her files as required under the public records law. In some towns, the clerk and zoning administrator have made a specific arrangement permitting the clerk to make available zoning files in the zoning administrators absence.
8. Act 250 and Zoning have different Rules for Adjoining Landowners. In Act 250, to be a party to the proceeding, an adjoining landowner must show how the proposed development will have a direct effect on his or her property under any of the 10 Act 250 criteria. Once granted party status, the adjoining property owner can only testify or provide other evidence related to those criteria for which he or she has party status. For example, if someone has party status under Criterion 1, air pollution, then he or she cannot present evidence that a development will cause traffic congestion (Criterion 5). 10 V.S.A. § 6085. In zoning, the test is whether the adjoining landowner is an "interested person." To be an interested person, a landowner in the immediate neighborhood of the proposed project must only state that the project does not conform with the zoning bylaw. If you are an interested person before the ZBA, then you have the right to appeal the ZBA decision to the
Environmental Court. 10 V.S.A. §§ 4464 and 4471.
10. Notice of Posted Land must be Recorded in Town Clerk's Office. During hunting season, the question usually comes up as to whether a landowner must file a copy of his or her "posted land" notice with the town clerk. Under 10 V.S.A. § 5201, as part of posting one's land, the landowner must annually record the posting notice in the town clerk's office of the town in which the land is located. The recorded notice must state how many acres are posted, the location in town, the date of posting, and must be signed by the landowner. The recorded notice is then recorded and is open to public inspection.
11. A document becomes a "public record" as soon as it is "acquired in the ordinary course of agency business". A petition, letter, or other document which is delivered to a municipality or public agency becomes a "public record" under 1 V.S.A. § 317(b) as soon as it is "acquired in the ordinary course of agency business". This means that, unless the document is exempt from disclosure, the Town Clerk or other municipal employee (or, indeed, the Secretary of State,) cannot withhold a document from the press or any other person requesting the document because the "signatures have not been verified" or someone else hasnt seen the document, or it is correspondence directed to a board, etc. If the document was received in the mail, or hand delivered or otherwise acquired in the ordinary course of business, that document can be requested and must be copied unless it fits into one of the exemptions listed in the statute. If a document is given to the press before a board or other intended recipient has received it, it is always advisable to give the board members or intended recipient a "heads up" so they have an opportunity to know in advance what may be in the papers the next day.
13. Minutes of meetings must include names of board members who are present at the meeting. Vermont law does not provide any requirements for "taking attendance" of elected officials at public board meetings. However, 1 V.S.A. § 312(b)(1) states that minutes shall include the names of the members of the board present. If a Selectperson is not attending meetings, you can speak to him or her to let them know that you are concerned, but there is nothing in the statutes to compel attendance.
14. Residents of gores are left out of union school and town
school district votes. Although gores and unorganized towns have been assigned to
supervisory unions for the purpose of administration of Act 60 (education funding), the
gores are still not members of a union school district or town school district. Therefore,
the law remains that residents of gores are added to a nearby town checklist for statewide
and federal elections only, but residents of gores cannot vote in local elections which
include town, town school district or Union School District elections.
17. The Town Treasurer Cannot Divest School District Treasurer Duties Without Vote of the District.
16 V.S.A. § 426(a) provides that the town treasure is also the school treasurer unless the voters vote to elect a separate school treasurer. This means that the town treasurer cannot "quit" as school district treasurer and remain town treasurer, unless the voters have voted to elect a separate school district treasurer. Likewise, if the town treasurer wants to resign as town treasurer but continue working as school treasurer, the town school district would need to call a special meeting to vote on the question of electing a town school district treasurer. If the town elects officials by vote from the floor, the treasurer could be elected at the same meeting. If the town votes to elect officials by Australian ballot, then a separate election will need to be held at a later meeting after time is allowed for candidates to file petitions and proper warning of the election.
20. Board Members May Not Discuss Pending Applications or Cases Outside of the Hearing or Deliberations. Members of quasi-judicial boards should do everything they can to avoid ex parte communications about pending matters before the board. It is not unusual, however, for an interested party or applicant to give a board member information or evidence outside of a hearing. In such a case, if the board member is present with the party, the board member should explain that he or she cannot receive evidence outside of a hearing, and tell the person how they can properly get the information to the board ("I cannot talk about this outside of the hearing you should feel free to present this evidence at the hearing.") The board member must fully disclose during the hearing the ex parte communication, providing all parties an opportunity to comment or rebut the evidence given outside of the hearing. If the evidence is written materials (i.e. a letter sent to the board members home), it should be entered on the record at the hearing and the opposing parties should have an opportunity to see it and comment on it. The fact that a board member receives an ex parte communication should not ordinarily result in that board member having to recuse him or herself from participating in the rest of the proceedings so long as there is full disclosure during the hearing.
22. Clerk may adopt a policy as to whether he or she will witness documents. Many clerks receive requests from members of the public to witness wills, living wills, deeds or other documents. Ordinarily the role of a witness is to verify the act of signing the document, and does not require the witness to read or understand the content of the document. Clerks should feel free to adopt their own office policies on whether or not they will be available to witness documents. Note that the town clerk is an ex officio notary public, and as such should feel comfortable notarizing documents on request.
Opinions of Opinions
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|December Opinions "Table of Contents"||Secretary of State's Home Page|
|This months zoning page takes a look at two recent zoning decisions by the
Vermont Supreme Court.
In the first case, In re Appeal of Dooley, No. 98-093 (11/5/99),
the appealed project was a gas station mini-mart at a site that had once been a bank, but
which was now just an ATM outlet. Located in South Burlington, the project needed zoning
board and planning commission approval. The planning commission denied the final design
approved by the zoning board. This forced the developer to appeal to the Environmental
Under the zoning bylaw, the amount of traffic using the site was limited to a set number of vehicle trips. The project's estimated traffic would go over the limit, but the zoning bylaw allowed for the higher amount if the project would result in a "net benefit for traffic in the area." Because the bank's site plan forced cars to take dangerous turns across busy streets, the developer had redesigned how cars would enter and exit from the project. Because these design improvements would get rid of dangerous traffic movements, the Court agreed that there would be a net benefit to traffic in the area. So, even though there would be more cars and traffic, overall safety would be improved by the project.
In the second case, Appeal of Gregoire, No. 98-508 (10/21/99), the narrow legal issue was whether a nonconforming use was abandoned. The Environmental Court had ruled that the Gregoires could re-build two summer camp buildings on a single lot where there were already four camps, even though the Colchester zoning bylaw allowed one building per lot. Because Colchester believed the two buildings had been abandoned, it appealed the decision. The Court reversed, ordering that the Environmental Court take a second look at whether the Gregoires abandoned the use of their land for the two camps. The Court looked at what is a nonconforming use under 24 V.S.A. § 4408(a)(1). Under this provision, a nonconforming use is the use of a structure or land that does not comply with the current zoning bylaw and was in existence prior to the bylaw's enactment. If a nonconforming use is not continuously used, then it is no longer exempt since it has been abandoned. Because the Environmental Court only looked at the use of the buildings as summer camps, and did not consider the use of the land, the Environmental Court was incorrect to rule that the Gregoires had not abandoned the two camps at the lot.
The Court acknowledged that there are limits to the view that zoning ordinances must be
allowed to eliminate nonconforming uses. Because a single lot can be the source of more
than one nonconforming use, the Court ruled that the best approach was a dual approach.
Municipalities should be allowed to say that some nonconforming uses have been lost
without having to prove that all nonconforming uses have been lost, and property owners
should not have to fear that the loss of one nonconforming use means that all have been
lost. So, when the issue is nonconforming uses, be sure to look at all the uses, whether
they be land or
The Opinions Zoning
By Mary Jane Grace, Property Evaluation and Review
There have a number of questions lately on how to make changes to the grand list when there have been "errors and omissions." If the listers find listing errors, these can be corrected, but the procedures vary according to the type of error and the timing.
From the time that the listers first compile and lodge the list with the town clerk for public inspection until the date it is lodged with the town clerk a second and final time, it is called the "abstract of individual lists," or just the "abstract." You may also hear it called the preliminary grand list. After grievances are closed, the book is turned over to the town clerk and it becomes the "grand list."
The statutes direct different procedures for correcting different types of errors. Very often, errors are discovered during grievance hearings. They may be corrected according to the provisions for amending an abstract, and notices must be sent to the taxpayers. 32 V.S.A. § 4224.
If the listers discover an error or omission in the listing of property before the grand list has become final, they can correct it without asking for approval from the selectboard. 32 V.S.A. § 4111(f). The listers must send written notice to any affected taxpayers allowing them to grieve.
If the listers discover a procedural error affecting the validity of the abstract of individual lists (such as missing a deadline or a defective notice), the listers can correct this on or before February 1 of the following year according to the procedures in 32 V.S.A. § 4112 et seq.
If the listers discover an error or omission in the listing of property after the grand list has become final, having been turned over to the town clerk, the approval of the selectboard is needed to make a correction. Such errors or omissions of individual property listings may be corrected until December 31. 32 V.S.A. § 4261.
The listers make their request to the selectboard. If the selectboard approves, the information on such changes is provided to the town clerk by the selectboard. The town clerk makes the changes in the grand list book. For those towns with computerized grand list data, the changes can also be made to the grand list file, but it is not recommended that a complete new grand list report be printed.
Most of the above comes from page 41 (blue pages) of the Listers' Handbook. If you have questions on this procedure, contact Mary Jane Grace, Property Valuation and Review Division,Vermont Dept. of Taxes, 802-828-5863or your Property Valuation District Advisor.
Fixing Errors - A
How-To for Listers
For Presidential Primary and Town Meeting
March 7, 2000
If your town has purchased VOTING MACHINES AT ANY TIME AFTER THE 1998
Later this month we will be mailing you a complete Elections Bulletin
including the 2000 Election
Calendar, Supply Order form, Justice of the Peace Oaths, and one Petition for Local Office form in a
separate mailing. We will mail the Warnings, tally sheets, summary sheets, and ORVs closer to the
For OPTEC towns, please note that we will be using a three column
ballot for the presidential
primary for all parties. The Towns are responsible for having the machines programmed to read both the presidential primary ballots and the town ballots. It will save money for programming if all OPTEC ballots are done as three column ballots.
Wednesday, December 1,
Tuesday, December 14, 1999
The Office of the Secretary of State will be closed!
|Tuesday, December 28, 1999
First day to warn the first public hearing if a charter adoption, amendment or repeal is to be voted on at Town Meeting. 17 V.S.A. §§ 2641(a), 2645(a).
December 30, 1999
Last day for Listers to correct real or personal estate omission or obvious error in grand list, with approval of Selectboard. 32 V.S.A. § 4261.
|Friday, December 31, 1999
Town fiscal year ends, unless voted otherwise. 24 V.S.A. § 1683(c).
The Office of the Secretary of State will be closed!
Legislature reconvenes. Vt. Constitution Ch. 2, Section 7.
|Friday, January 7, 2000
Last day to warn the first public hearing if a charter adoption, amendment or repeal is to be voted on at Town Meeting. 17 V.S.A. §§ 2641(a), 2645(a)(6).
Please check your elections supplies and fax or mail your orders in to us now.
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