State of Vermont Office of the Secretary of State

Roughed Up But Still Smiling

This has been a long summer for Vermont towns. After a long and trying public process, Springfield voted to accept the prison. The proposed gas line in southwestern Vermont stirred many towns to action. Several towns in southern Vermont continue their resistance to Act 60.

Is it just my imagination, or has this year shown an increase in the number and intensity of such controversies in towns? It seems just about everywhere in Vermont this summer something was simmering, some public fervor over a law suit, a zoning decision, or other local decision (or state decision affecting local interests).

Try to explain it. These are good times for Vermont. There is low unemployment and a healthy economy. Because of this, perhaps people are less distracted with their personal interests and are feeling more connected to their communities. They have more at stake.

We should study this phenomenon closely, and particularly at how communities react to grand public collisions of interest. There are lessons to be learned about how they start, mature, and resolve themselves. Our goal would be to reduce the possibility of permanent damage as a result of these storms.

Although 95% of all municipal life is ministerial and non-controversial, it only takes one issue to set a community on fire with activity. It grows like a hurricane over the ocean, and when it hits it is usually divisive and unpleasant. As the positions of the participants polarize and harden, it puts a special strain on local officials.

The meetings and hearings are often the most interesting place to be in town on any given night. Nothing else has the immediacy and the drama of a good fight, played out at the town hall or the school gym between partisans of important causes. The tension fairly crackles, and nobody is sure what will happen.

When you’ve been to enough of these meetings, you begin to discern a pattern. The meeting usually starts slowly, and many of the strongest proponents or opponents tend to sit back and watch how the evening progresses before flexing their muscles. It’s always fascinating to hear how the argument changes, depending on the speaker, and how one speaker tries to trump the last one with a fresher idea or fact.

At the low end, some people can’t argue issues without attacking individuals. On the high end, some people have a talent to speak articulately in public. The best speakers know when to sit down.

As those from both sides of an issue rise and say what’s on their minds, you hear the purest democracy at work. They speak in so many different voices. Some are funny, almost silly; others are eloquent, almost wise. Every so often someone tries to change the discussion to something else; that one just missed the point. Someone is bound to say something so raw or to speak so long that others tell him to sit down.

As is the case in many of these meetings, the proponents and opponents may be a relatively small number in comparison to the great middle, made up of those who haven’t quite decided on a position. Some are offended that the controversy has risen to such volume and passion, and preach peace and conciliation. Some sound so cynical you wonder why they even bothered to show up if they felt that both sides were so wrong. But most just sit and listen to the arguments, nodding when something makes sense, making strange moaning sounds when they hear something they don’t like.

A public hearing that includes no formal vote on the issue is different from a town meeting where there is a formal list of questions to be answered. Without having a moment of truth, in the form of a voice or secret ballot vote, the evening just goes on until everyone has had a chance to speak, and then you go home.

There is, however, a singular moment toward the end of the evening, as unplanned as it is inevitable, and it’s the same everywhere. At that moment, someone stands and says something that so perfectly sums up the situation that the meeting essentially stops there, even if there are other speakers to come. Often it’s a selectboard member, or a former member. Usually it’s an elder of the town.

Unlike other speakers, this one doesn’t usually seem to have a strong position for or against the proposition being debated. But when he or she speaks, it all seems to come together. It’s the same if you watch a debate on the floor of the Vermont House or Senate, but at the town level the experience is far more special, because the speaker isn’t carrying water for any particular position and isn’t a professional politician, so the words that come out are directly from the heart, ripened with years of experience in similar meetings, and enriched by tradition, history, and common sense.

There will be other controversies, of course. Towns will be split down the middle by things they can’t entirely control, things that warrant a public discussion and a sense of consensus that is not easily forthcoming. Feelings will be hurt; people will have a hard time going to sleep after coming home from these meetings; people will talk about it at the town office, the post office, and the corner store for weeks to come.

But there is no harm in this. It is, for good or ill, what makes a community. Controversy won’t destroy our towns; only apathy can do that. Better a community engaged in some public issue than a community that doesn’t care.

Selectboard May Reallocate Funds Within A Budget. The selectboard may spend money for services or purchases that were not contemplated at the time the budget was passed by the voters when it believes that it is necessary for the safety, convenience and health of the community. So long as the total budget amount voted would not be exceeded, no additional vote is required. Note also that the selectboard is specifically authorized to exceed the budget when necessary for the emergency repair of roads or bridges. However, highway fund monies cannot be reallocated to fund general expenses of the town, and where a special, separate article is voted for a particular purpose, (i.e. the clerk’s or lister’s budget) the funds cannot be reallocated.
Retreats Or Strategic Planning Sessions Of Town Boards Must Comply With The Open Meeting Law. The open meeting law applies to all meetings of a public body. 1 V.S.A. � 310(2) defines meeting as "a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body…." In a retreat or strategic planning session the board discusses the business of the public body, therefore, so long as a quorum of the board is present, the open meeting law will apply. The same principal applies to in-service workshops. While it may be theoretically possible for a quorum of a board to attend a workshop comprised primarily of other local officials and discuss a generic topic with no overflow into discussions of how the topic is handled in their own town, it would be a surprising group. Therefore, it is generally the wiser course to anticipate that discussion of town business will creep into a "workshop" and so warn, open doors, and take minutes as in all public meetings.

Of course, there are truly generic workshops such as those sponsored by the UVM Extension Centers, VLCT, VSBA, or other associations, where the sessions provide education and guidance but which do not include discussions of a particular board’s business. Attendance at these sessions even by a quorum of the board does not meet the definition of "meeting" in the open meeting law, and therefore does not require warning or other compliance with the open meeting law.

3. Clerk May Only Accept Survey Plats That Comply With 27 V.S.A. � 1403. Section 1406 provides that a town clerk may not accept a survey plat for filing unless it complies with statutory requirements. The relevant statute is 27 V.S.A. � 1403 which sets out requirements for an acceptable survey plat. This means that even when your favorite local engineer suggests that his survey "is good enough for other clerks", if a survey plat does not contain one or more of the required items listed in section 1403, you must return the offered survey plat as nonconforming. This is an exception to the general rule that the clerk must simply file or record what is given to him or her without concern for its legal sufficiency.

A "Discovery Request" Governed By The Rules Of Civil Procedure Is Different Than A Request For Public Documents Under The Open Records Law. Occasionally public officials receive written requests for documents from either an attorney or a citizen acting "pro se" (a person who has filed a lawsuit on his own behalf without using legal counsel) in a civil court matter. It is important that you distinguish between the two types of requests before you respond. Any "discovery requests", even from a pro se plaintiff, should be referred immediately to the attorney representing your municipality. The town attorney can then direct you to produce documents to him or her, not directly to the opposing party. A "discovery request" will be in writing, and will frequently contain language asking you to "continually update or supplement the information" as your office receives new information. (This type of continuing obligation is a way to recognize a "discovery" request, if the court case is not specifically referred to in the letter). If a request is truly an open record request, then the statute contemplates that the person will come into the office and identify the documents which he/she would like to have copied. [1 V.S.A. � 316(a)]. You have no responsibility to "discover" or do extended research for the requestor under the public records law, other than making documents available. However, in civil litigation, at the request of your attorney, you do have a responsibility to research and produce the specific documents listed in a discovery request.

5. The Listers May List Property On The Grand List To The Owner Or possessor as of April 1. The statute and case law in Vermont give the listers several options for selecting the person to name on the grand list and thereafter the tax bill. 32 V.S.A. � 3651; Brattleboro v. Smith, 117 Vt. 425 (1952) and Robtoy v. City of St. Albans, 132 Vt. 503 (1974). Case law makes it clear that the listers may list property to any person with an ownership interest in the property or to the possessor. However, with the new property rebate statutes, there may be some reasons to update your grand lists when requested. Changing the grand list, and thus revising where the tax bill is sent, may also encourage timely payment of taxes. Although the listers and town clerks are not statutorily required to honor a request by a person with an ownership interest who requests that the tax bills be sent to him/her, you may want to listen to why the request is being made, for it may save you or your town clerk more work in the long run. It’s your choice, but look at the big picture as well as short term in making your decision. (See also 1999 Listers Handbook, p. 36).

A "Certificate of Name Change" may be filed with the Town Clerk, and the Town Clerk shall record and index the certificate in the land records. Just a reminder to all town clerks that 27 V.S.A. � 350 which was passed in 1994 provides a method for any person or corporation to show a name change in land records in Vermont without going through the old "strawman" conveyance method. The statute does not include a specific form, but a form has been developed by town clerks around the state, who have kindly provided a copy to our offices. If you need a copy of the form, you can contact us. The statutory language is mandatory, so town clerks must accept, record, and index a certificate when properly prepared and submitted.

7. Town has fiduciary obligations to taxpayers in actions involving tax sales, redemption, and reselling of property acquired at tax sale by the Town. If your town decides to sell property it acquired through tax sale, the town remains accountable to the taxpayer for the profit that exceeds the expenses of the town including taxes, interest, cost of collection, legal fees, staff time in managing the property, etc. Bogie v. Town of Barnet, 129 Vt. 46, (1970). Therefore, if the selectboard decides to sell the property at a later date, it must accept the highest bona fide bid, and cannot accept a lower bid to
punish the taxpayer.

The Selectboard and other public boards are under a statutory duty to keep minutes and to make them available to the public upon request. [1 V.S.A. � 312 (b)(1)]. We receive several calls each month
about public boards that fail to keep minutes or whose minutes do not include a "true indication of the business of the meeting" as required by the statute. Minutes need not be overly detailed, but must include the four things required in the statute:

(A) listing of the members of the public body present;
(B) listing of other active participants in the meeting;
(C) all motions, proposals, and resolutions offered and considered, with the disposition of the same; and
(D) the results of any votes.

1 V. S.A. � 314(a) makes it a misdemeanor for "a person who is a member of a public body and who knowingly and intentionally violates the provisions of this subchapter...". Section 314(b) provides that any aggrieved person or the attorney general may apply to superior court for injunction relief or for a declaratory judgment. Let’s all comply voluntarily.
A "special assessment" may help a community provide services which benefit a limited area of a municipality. A town that wishes to provide special services to a particular area of town, such as water or sewer services, may use either a special assessment or may create a fire district. The creation of a fire district under 20 V.S.A. � 2481 et seq. may allow more flexibility for ongoing operation of systems, but when there is a specific public improvement which needs to be made that will not have significant operating costs or whose costs are predictable and stable over time, a special assessment may be a much simpler approach. 24 V.S.A. � 3251 – 3256. A special assessment avoids the creation of new "districts", new public bodies (with vacancies to fill), and a separate administrative system. It makes sense for the selectboard and interested residents to explore both options, before selecting the one that best fits your specific project.

10. A Town may only assess impact fees if it has a current town PLAN and a capital budget. All town plans automatically expire after 5 years according to 24 V.S.A. � 4387. In order to assess impact fees, a town must have in place a town plan which includes a utility and facilities plan [24 V.S.A. � 4382(a)(4)], and the selectboard must also adopt a capital budget (24 V.S.A. � 4404a). Only when a town has both a town plan and capital budget adopted, may it assess impact fees. (24 V.S.A. � 4426).

Successful Tax Appeal for Current Year Does not Mean Abatement of Prior Years Taxes. An appeal by a taxpayer of his or her appraisal is a challenge of the current year’s tax bill. A successful appeal which results in a lower appraisal for the current year’s taxes does not entitle the taxpayer to a refund of taxes paid in prior years, even if those payments were based on an appraised amount which has now been reduced. While not entitled to a refund, there is nothing to stop the taxpayer from seeking abatement of the taxes paid in the prior years at the higher appraisal amount; however, the board of abatement is not required to grant an abatement.

12. Request for Copy of Signature is Not a Request for a Public
Record. A public record or document is a paper, report, person’s salary
or any other written or recorded matter produced or acquired in the course of the governmental agency’s business. A request that a public agency provide a copy of a person’s signature is not a request for a public record or document. Rather, it is a request for an "element" of a public record or document which the governmental agency does not have to provide. If a person wants a copy of another person’s signature, then a public record or document which contains the signature must be requested.

Selectboard May Require Reconsideration Vote At Any Time. The voters of a town have thirty days following an annual or special town meeting to file a petition for reconsideration. If no such petition is filed, then the voters have no further opportunity to force a vote on any matter voted on at the town meeting. In comparison, the selectboard has the authority to call for a reconsideration vote on its own motion at any time after the town meeting. Unlike the voters of a town, the selectboard is not limited to when it can require a reconsideration vote.
Tape-recording of Selectboard Meeting Should Be Kept for Six Months. As a matter of convenience, to help with the preparation of minutes, the clerk to the selectboard may tape-record the selectboard’s meetings. While the minutes become the official record of the meeting once they are approved by the selectboard, the tape-recording itself is a public record along with the meeting minutes. The tape-recording, based on the guidelines issued by the Public Records Advisory Board, should be retained for at least six months after the minutes have been approved by the selectboard.

Town Cannot Force Land Transactions to be Recorded. The acceptance of real estate documents for recording is one of the most significant functions served by the town clerk. While it is rare that people will not want to record these documents, there are instances where real estate transactions are not recorded. Even if it is common knowledge that a person is creating multiple residential subdivisions through long-term ground leases, there is no authority for the town to compel the recording of these leases. In contrast, municipal land use permits such as a zoning permit must be recorded in the land records.

16. Planning Commission’s Site Plan Approval Cannot Be Revoked Years Later. As part of the regulation of land use, a town may adopt bylaws that require site plan approval for any use other than one or two family homes. After a planning commission approves a site plan, there is a thirty-day time limit for an appeal of the planning commission’s decision. Once the appeal period expires, the planning commission’s approval is final and binding. Years later, the planning commission cannot revoke the approval simply because it was less than a wise decision to grant the approval in the first place. While there may be enforcement issues related to the failure to properly comply with the planning commission’s site plan approval, the time to carefully consider a project and its potential ramifications is before it is approved, not after.

17. Planning Commission Has Sixty Days to Act on Application for Site Plan Approval. When the planning commission receives an
application for site plan approval, it must approve or deny the application within 60 days. If no action is taken, then the application is deemed approved. 24 V.S.A. � 4407(5). Some planning commissions which prefer that zoning approval be sought before site plan approval will seek to avoid deemed approval by denying the site plan application "without prejudice." By denying without prejudice, the planning commission is denying the application, but also allowing the appliant to come back with the same application after obtaining zoning approval. It is not absolutely clear that a court would uphold this practice given the deemed approval language in � 4407(5). Instead, if an applicant insists on first seeking site plan approval before receiving zoning approval after being advised to the contrary by the zoning administrator, then the planning commission should evaluate the site plan application on its merits and approve or deny it within the 60 day time limit.

Town Holds Right-of-Way to Town Trail. When a town properly reclassifies a town highway to a trail, or when it creates a trail, the town holds the right-of-way. A trail is a public right-of-way that formerly was a town highway, or is originally laid out as a trail to provide access to abutting properties or for recreational use. When a town highway is discontinued, the actual ownership of the right-of-way reverts to the owners of the adjoining land only if the discontinued road is not designated as a trail. If a town designates a discontinued town road as a trail, then the town continues to hold the right-of-way.

Appeal from Listers Denial of Property Tax Exemption is to Superior Court. Real estate may be exempt from taxation if it is used for charitable or pious purposes under 32 V.S.A. � 3802(4). A taxpayer that wants to claim this exemption may challenge the listers’ appraisal decision by filing a declaratory judgment action in superior court. It is incorrect to appeal from the listers to the board of civil authority, and from the board of civil authority to the Division of Property Valuation and Review. This is the result of a recent Vermont Supreme Court ruling in Subud of Woodstock, Inc. v. Town of Barnard, Docket No. 98-311, May 10, 1999.

20. Town School District May Have its Own Treasurer. Unless a town school district votes to elect its own treasurer, the town treasurer is the school district treasurer. If a school district wants to elect its own treasurer, it must first vote to elect its own treasurer. If the article passes, then a treasurer can be elected. If the school district votes from the floor, the two votes can occur at the same school district meeting. If the vote is by Australian Ballot, the district cannot elect a treasurer at the same meeting at which it authorizes the election since there would be no 30-day warning of the election.

ENFORCEMENT

The zoning administrator is required by law to enforce all violations of zoning and subdivision bylaws. 24 V.S.A. � 4445. The enforcement process is as follows:

Identifying and Investigating Violations: The zoning administrator must identify when and where violations have occurred in the municipality. The administrator identifies violations by directly observing a breach of the bylaws, or by following up on a complaint by a neighbor, or as part of a site visit to property that has obtained a permit. Under the Bianchi court ruling, violations were being pointed out by landowners that needed to clear the title to their property before was sold. Under the new law the purchaser may get out of a purchase and sale contract if there is a permit violation on the property. This means that in the future, real estate buyers may have a greater incentive to find out if a particular property complies with the bylaws.

Notice of Violation and Opportunity to Cure: Once the zoning administrator identifies a violation he or she may try to informally resolve the problem, or the administrator may immediately issue a notice of violation which gives the landowner an opportunity to come into compliance with the bylaw or permit conditions within seven days of the notice being issued. This notice of violation may be appealed to the zoning or development review board within fifteen days of its being issued by the administrator. 24 V.S.A. �� 4444, 4464.

Ordinance Bureau Alternative: Municipalities may choose to enforce some zoning violations in the Traffic and Municipal Ordinance Bureau, using the process set out in 24 V.S.A. � 1977, which involves issuing a ticket ("Municipal Complaint") that may be appealed to the Traffic and Municipal Ordinance Bureau. This process is an alternative to the procedure set out in chapter 117, and therefore, when using this process it is unnecessary to provide the landowner with a seven day opportunity to cure the violation before the ticket is issued. Note, however, that the Traffic and Municipal Ordinance Bureau process is not appropriate for many common zoning violations because this process cannot be used for continuing violations with fines of more that $500.00, and will not afford injunctive relief.

Court Action: Zoning enforcement actions may be brought in Superior Court, or Environmental Court, District (criminal) Court or in the Traffic and Municipal Ordinance Bureau. 24 V.S.A. � 4470(c) & 24 V.S.A. � 1974a(d). An action in Environmental or Superior Court is instituted by filing a summons and complaint. Motions may be filed and an evidentiary hearing held before the matter is decided by the court. The town’s attorney will work closely with the zoning administrator to prepare the case.

Penalties: According to 24 V.S.A. � 4444, any person who violates a bylaw may be fined up to fifty dollars per offense - with each day a violation continues being treated like a new offense. When a fine is requested in the complaint, and is provided for in the ordinance, the court must set the fine amount for each day that the violation has continued. If a town requests an injunction to prevent a zoning violation from continuing, the court in most cases will be required to issue the injunction. The fines are paid to the town, but rarely compensate the town for its expenses and attorneys fees related to enforcement of the matter.

Statute of Limitations: A Municipality May Only Enforce a Violation Related to a Municipal Land Use Permit Violation for 15 Years after the Violation First Occurred. 24 V.S.A. � 4496. The property owner carries the burden of proving the date the alleged violation first occurred. In addition, the law does not prevent the municipality from bringing an action, injunction or other enforcement proceeding under any other authority it may have, including its authority to abate or remove public health risks or hazards.

October's Calendar
October Banner

Monday, October 11, 1999

Columbus Day

Tuesday, October 25, 1999

State Withholding Tax Return is due (actual date by which return must be postmarked is shown on printed form) if reporting less than $600 per quarter; more than $600 requires monthly report. 32 V.S.A. � 5842.

Sunday, October 31, 1999 Halloween

Last day to file Form 941 (Quarterly Withholding Return) with the IRS.

Clipart Clipart

VERMONT PUBLIC SERVICE AWARDS
Refreshments to follow.
Event is open to the public!
For more information, please contact
Thuy (Twee) at 1-800-439-8683 or email to webeditor@sec.state.vt.us

Wednesday, October 20, 1999

Vermont Public Service Awards
Grand Isle County
7 PM
North Hero Town Hall
North Hero, Vermont

Wednesday, October 27, 1999
Vermont Public Service Awards
Franklin County
7 PM
Bellows Free Academy Auditorium
St. Albans, Vermont

Vermont Public Service Awards (VPSA)

Who qualifies for the VPSA? — A Guide To Nominating Local Officials

MEETNG THE QUALIFICATIONS
In order to qualify for the Vermont Public Service Awards, the person being nominated must meet the
following criteria.

He or she has served their town for a total of twenty or more years. (see FAQ # 4)

He or she has either been appointed or elected as a LOCAL PUBLIC official. (see FAQ #2 & #3)

Frequently Asked Questions

If a person has moved out of town, but meets the qualifications for the award, can he or she still be nominated? ABSOLUTELY!

Does a district representative or senator qualify for the award? NO. They are not considered
local town officials but rather state officials. They would only qualify if they have served as a local official (selectman, town clerk, etc.) in addition to being a district representative or senator.

What do you mean by local official? A local official is anyone who has been appointed or elected to a public position in a town. He or she can be a library trustee or the fire chief of a municipal library or fire department. Private organizations do not qualify.

Can a person who has served both as town clerk and zoning administrator during the same
period of time meet the criteria of twenty years or more? NO. He or she must have served for a total of twenty individual years. This means that if he or she served as town clerk from 1979 – 1989 and treasurer from 1979 – 1985, the total number of years that qualify for the award would only be 10 years instead of 16 years.

If a person volunteered with the fire department or other town organizations, does he or she qualify for the award? NO. The person must have been either APPOINTED OR ELECTED to office.

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