Redstone Building
26 Terrace Street, Drawer 09
Montpelier, VT  05609-1101
1-802-828-2363

Message from the Secretary

Table of Contents

Message from the Secretary

"Voice from the Past"
by Paul Gillies

Opinions of Opinions

The Opinions Zoning Page

A Message from Ellen

July’s Calendar

VT Notary Seminar

Bianchi II - A Guide to 1999 Legilsative Changes to the Bianchi Law

Bianchi II - Frequently Asked Questions and Answers

Van, a lawyer and former executive vice president of the trust departments of the Howard Bank in Bennington, and later, the Green Mountain Bank in Rutland, was dedicated to his community. He served on the selectboard for three terms and then served on the planning commission for many years. He was president of the Rotary and served on numerous community boards, including the District Environmental Commission and the Lake Champlain Land Trust. He was also a trustee for Champlain College and for the Mental Health Services of Chittenden County.

In towns across Vermont there are hardworking, committed local officials, like Mary and Van, who have dedicated a significant part of their lives to making their part of the world a better place. We know that these are the unsung heroes of Vermont – and we need to remember to take a moment every now and again to honor them. As it is important to honor those who have passed away, we need to keep their spirits alive through our continued commitment to our communities and to the state of Vermont.

For further information, please contact
Web Editor, Editor, Opinions at 802-828-2363 or email webeditor@sec.state.vt.us

Secretary of State's Home Page       

return to top of page

next page

A Voice from the Past
by Paul Gillies

At the meeting, they sit very quietly and listen, as a parade of citizens, lawyers, engineers, and developers explain what they need, hour after hour. Occasionally, they ask questions, but most of the time they just listen. That is the job: to listen to what people want, and decide whether to grant it or not. They are the legislative body, and they run our towns, cities and villages, by majority vote at a regular or special meeting.

Who are the people who serve as members of the selectboard, city council, or board of trustees? What leads them to the decision to serve?

It isn’t money or prestige. Most receive a small stipend, but nobody gets a special parking place, a low numbered license plate, or a stretch limo. You travel to the meeting in your own car or truck. There are no perks.

Well, there are perks, but not of a material nature. The attraction of serving on a selectboard comes from having a voice in important decisions. It’s the only explanation for serving. You could call it civic virtue, which is nothing more than a fancy name for that simple urge to give something back to your town in the way of public service. It is a duty, and those who hold the office do it selflessly.

Some serve because they were bred to it, because their parents and grand parents served. Some just wake up one morning and realize their turn has come to put in a few years on the board. Some get shanghaied by present board members who want to step down but feel an obligation to find a replacement.

However it happens, these offices are filled, year after year, by people selected by the town. Some stay a couple of terms; others seem to hold on for decades. They come in all sizes and backgrounds, but they all have the same basic qualities. It’s extraordinary, traveling from town to town, to see how much one selectboard has in common with another, as if holding the office molded the individual into something of an archetype.

There’s no need to make too much of this. They don’t look alike, after all, but there is a pervading sensibility shared by all selectboard members. The only word to describe it is cautious. It is the primary reaction of members at any meeting, after someone has made a pitch for the board’s support or vote.

The board’s natural inclination is to deny the request. In fact, if you try to follow the discussion among board members, you’ll see first how different members will pepper the room with reasons not to act. We don’t know enough. We ought to call somebody. That might set a precedent, and then we might come to regret having made this decision.

Only after rejecting every reason not to act will a board reluctantly get around to consider the request on its own merits. Only after assuring itself that the risk is slim in comparison to the benefit will a board act in favor of something proposed.

This is good government. We hire these three or five individuals to run the town because we think they’ll do a better job than a single person. We depend on a lack of unanimity among the board members, in order to pinch and weigh and wrestle every proposal to the ground. A board that can be made to say "yes" too easily is asking for trouble.

Cautiousness is the appropriate tendency whenever you have the authority to spend other people’s money. That’s the bottom line, isn’t it? We pay over thousands of dollars in local taxes, and the board gets to spend it. They can’t be free or adventuresome with it. It wouldn’t be right. There’s just enough money there to keep the roads in shape and perform basic services to the residents. And that’s the way most taxpayers want it.

Money, of course, is not the only question. Otherwise, life on a selectboard would be easy. When the money ran out, you could take a break in meetings. The real problem is knowing how to calculate the cost of every positive or negative decision. It takes only a little gravel to save a highway from a washout.

Running a government takes a little luck and a lot of knowledge today. Common sense is still the best qualification for service on a selectboard.

The men and women who serve on town selectboards are a fascinating group of people. They have chosen on their own (and by a plurality of votes) to sit through long meetings, make tough decisions, and take responsibility for the affairs of the town. The selectboards of Vermont are the bedrock of government in this state. Without them there would be no order.

Visit their meetings and watch them in action. You cannot leave without feeling impressed with the people who serve you in this office.

"Voice from the Past"  by Paul Gillies
Opinions     Volume 1 Number 6     July 1999

return to top of page

Opinions of Opinions

1. Taxes From Prior Years May Be Abated. The board of abatement may abate, in whole or in part, taxes from prior years so long as one of the statutory reasons for granting abatement applies. There are six types of situations where abatement of taxes is permitted, including when a taxpayer dies insolvent, or a person has left the state, or when a person is unable to pay. If taxes from a prior year are abated, the board of abatement may choose to give the taxpayer a cash refund, or the board may provide a credit towards the current and future year’s taxes. 24 V.S.A. § 1535.

2. Missing Lister And Clerk Certificates To Grand List Re-Issued. When the grand list is lodged, the listers and town clerk include their certifications. If those certifications turn up missing, the listers and town clerk should re-issue their certifications, including thereon a brief explanation as to why they are being re-issued. Of course, when signing and notarizing the certificates, the officials must not backdate any of the signatures. 32 V.S.A. §§ 4262-4264.

3. Negotiation Of Contract Executive Session Exception Applies Until The Deal Is Signed. Under the Open Meeting Law, a board may discuss a contract in executive session. If the contract is still under negotiation, the board may continue to discuss it in executive session. When a board and prospective employee have agreed on all contract items except salary, and have not yet reached final agreement, the board may finalize the salary item under the contract negotiation exception to the Open Meeting Law. 1 V.S.A. § 313.

4. Planning Commission Is Restricted When Town Plan Amendments Are By Petition. When five percent of a municipality’s voters petition for an amendment to the town plan, the planning commission may not change the proposed amendment. After it receives the proposed amendment and petition, the planning commission may only correct technical deficiencies. The planning commission must still hold at least one public hearing and comply with all the other requirements that apply to the adoption of town plan amendments. However, because the proposed amendment was by petition, after the public hearing, the planning commission is again restricted to only making technical corrections. In contrast, when the planning commission proposes an amendment, it can make substantive changes. In either case, the amendment must still go before the legislative body for a hearing and review process. 24 V.S.A. § 4384.

6. Board Of Civil Authority Must Convene Hearing Within 14 Days. A property owner has fourteen days to appeal from the date of the listers’ appraisal decisions. The town clerk must call a meeting of the board of civil authority to hear the appeal -- and the board of civil authority must meet no later than fourteen days after the expiration of the appeal period. In sum, it is a twenty-eight day period from the listers’ decisions to when the board of civil authority must meet. 32 V.S.A. § 4404.

7. Town Clerk Must Be Open Second Saturday Prior To Special Town Meeting. The town clerk must be open on the second Saturday prior to an annual or special town meeting from no later than 10:00 a.m. until 12:00 noon, to allow people to apply for addition to the voter checklist. For annual town meeting day, this second Saturday comes 10 days before the meeting. Since a special town meeting does not have to be held on a Tuesday, this second Saturday may be more than 10 days prior to a special town meeting. For example, a special meeting on a Thursday means that the second Saturday is 12 days prior to the special town meeting. While people remember this rule as the "10-day" rule, it is not always the case. 17 V.S.A. § 2144(a).

9. Special Meeting Agenda Serves As Notice. Under the Open Meeting Law, a municipal public body must post notices of special meetings in or near the municipal clerk’s office and in at least two other public places in the municipality, at least 24 hours before the meeting. If the special meeting agenda states the time, place and purpose of the special meeting, then posting the agenda as the notice is sufficient. In addition to the notice, the special meeting must also be publicly announced. This means that notice is given to an editor, publisher or news director of a newspaper or radio station serving the area in which the public body exists, and to any editor, publisher or news director who has requested to be notified of special meetings. 1 V.S.A. § 312.

10. Board Has 15 Days To Decide When In Next 40 Days To Hold Special Meeting. When a school board or selectboard receives a petition for a special meeting, it has 15 days to act on the petition. If the petition is valid, then the board must schedule the special meeting to occur not less than 30 nor more than 40 days from the 15th day after the petition’s receipt. The reason for this is that the special meeting must be properly warned and noticed as required by 17 V.S.A. § 2641(a). Do not be confused by 17 V.S.A. § 2645(a) which requires that a special meeting "be called" within 15 days of receipt of the petition. The fifteen-day period is the time frame in which the board has to act on the petition, including deciding when to hold the special meeting. The maximum time limits for a special meetings is for the board to meet 15 days after receipt of the petition, and for the special meeting to be held 40 days thereafter.

12. Budget Workshops Are Considered Open Meetings. According to Vermont's Open Meeting Law all meetings of a public body, defined as "a gathering of a quorum of the members of a public body for the purpose of discussing the business of the public body or for the purpose of taking action," are to be open to the public at all times with few exceptions. 1 V.S.A. § 310. If the matters discussed at the workshop will eventually be the subject of a later vote, and the members are a subcommittee or appointed group of the board, then all discussions between members of a quorum of the workshop should take place exclusively in an open meeting, duly warned.

13. A Meeting Must Begin At Time For Which It Was Warned. Vermont's Open Meeting Law prohibits a public body from intentionally excluding citizens from meetings of a public body. 1 V.S.A § 314(a). A meeting must begin at the time for which it is warned in order to allow citizens the appropriate access to such meetings. Beginning a meeting prior to the time warned is equivalent to holding a closed meeting without public notice in violation of the Open Meeting Law.

14. All Parties To Conveyance Must Sign Property Transfer Return. Unless specifically exempted, both parties to a conveyance must sign the property transfer tax return. Town clerks should carefully review all property transfer tax returns to ensure that all parties sign them. A return not signed by all parties would not be "complete and regular on its face" as required by law, and should not be acknowledged. Instead, a return not signed by all parties should be returned for proper signature. 32 V.S.A. §§ 9606(b) and 9607.

15. Interest May Be Charged On Overdue Tax Installments If the Town Votes To Do So. 32 V.S.A § 5136 provides that a municipality may vote to collect interest on delinquent tax installments. The town may collect interest at the rate of not more than one percent per month for the first three months and thereafter 1.5 percent per month from the due date of the delinquent tax installment. The town may collect the full one percent per month on the first day that the installment is overdue. The taxpayer only owes interest on taxes due and the law does not give the collector the authority to collect interest on interest owed, nor on any penalty owed.

17. Voters In A Fire District Must Be On The Voter Checklist. Fire districts are governed by the town checklist. If you reside within the fire district and are a voter at town meeting you may be a voter at a fire district meeting. 20 V.S.A. § 2484.

19. A Selectboard Member May Introduce A Petition To Change The Zoning Bylaws. According to 24 V.S.A.  § 4403(a) "[a]n amendment or repeal of a bylaw may be prepared by the planning commission or by any other person or body." A selectboard member is a citizen of the town and in this case may partake in the political process as any other citizen. Note that unless a petition accompanies the bylaw proposal the planning commission may choose to reject the proposal.

20. Selectboard May Permit Landowner To Cross To Landlocked Land In Order To Remove Lumber. 19 V.S.A. § 958 permits the selectboard to lay out a temporary logging road over private property to allow a landowner to access a wood lot. The board must follow the hearing and notice procedures set out in 19 V.S.A. § 958, and should require the person who removes the lumber to restore the road to its original condition when the removal of lumber is complete.

22. Class Four Road Does Not Have To Be Maintained Except for its Bridges and Culverts. All highways that are not designated class one, two or three are considered class four highways. A class four highway is a public right of way that the town is not required to maintain during the winter months, and is only required to provide maintenance to bridges and culverts during other seasons of the year. However, if the town chooses not to maintain the bridges and culverts the road must be designated a "trail." 19 V.S.A. § 302.

Opinions of Opinions
Opinions     Volume 1 Number 6     July 1999

return to top of page

The Opinions Zoning Page

ACT 250

Across the great divide of local planning and zoning, and Act 250, there are three places where they actually do meet. For communities that want less Act 250 review, and more control over their town’s destiny in Act 250 proceedings, the key is knowing where and how local planning and zoning and Act 250 come together.

The first meeting place is Act 250 jurisdiction. Act 250 jurisdiction over most development is horizontal – that is, whether you need an Act 250 permit depends upon the size of the land to be developed, and not the size of the new building. In towns that have both zoning bylaws and subdivision regulations, a development needs an Act 250 permit if it is built on 10 or more acres. Because of this rule, towns that have both zoning bylaws and subdivision regulations are called "10 acre towns." In contrast, when a town lacks both, then a development needs an Act 250 permit if it is built on 1 or more acres. Not surprisingly, these towns are referred to as "1 acre towns." There is a dramatic difference between 1 and 10 acre towns. In a 10 acre town, a major grocery store can be built without Act 250 review since it can fit on less than 10 acres. However, the same project in a 1 acre town will need an Act 250 permit. The moral of the story: for more local control and less Act 250 review, adopt zoning bylaws and subdivision regulations and become a 10 acre town.

The second major place where zoning and planning meet up with Act 250 is under Criterion 10 of Act 250. Under this part of Act 250, in addition to other requirements, a development must comply with the town plan. Because of a landowner’s right to develop property, the local plan must be specific about what is prohibited. When a plan is very general, or ambiguous, then Act 250 review under Criterion 10 depends upon the zoning bylaws. For example, suppose a town plan allows business development in the commercial area, but is ambiguous as to whether such development is allowed in residential areas. Whether business development in a residential area complies with Criterion 10 will depend upon whether the project is allowed under the zoning bylaws. If the zoning bylaws say yes, then Act 250 is obligated to say yes under Criterion 10. The moral of the story: a specific town plan must be followed in Act 250; an ambiguous town plan means that the zoning bylaws will control.

Finally, the third place where zoning and planning meet up with Act 250 is under Criterion 8 of Act 250. This is the famous (infamous) "Queeche Lakes Aesthetics" part of Act 250. Before a project can be issued an Act 250 permit, it must be shown that there will not be an "undue adverse effect on aesthetics." In the Environmental Board’s Queeche Lakes decision, the Board adopted a two part test. One component of the test is whether the project’s aesthetic qualities violate a clear, written community standard intended to preserve the aesthetics or scenic beauty of the area. A town plan or the zoning bylaws may contain such a standard. This means that a town can identify scenic areas of special importance and require that development in those areas do no harm to the scenic resource. The moral of the story: if you want to protect something as special, say so in your town plan or zoning bylaws.

While Act 250 can be very frustrating and mystifying, towns can control their own local destiny with the right combination of a specific town plan, zoning bylaws, and subdivision regulations.

The Opinions Zoning Page
Opinions     Volume 1 Number 6     July 1999

return to top of page

previous page