|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 1 Number 4
Opinions of Opinions
Board Member May Not Vote By Proxy. A member of a local board was going to be out of
town at the next board meeting at which an important vote was going to be taken. She
wanted to know if she could cast her vote absentee or by proxy. Vermont law does not
permit a member of a board to vote if they are not present at the meeting. Note, however,
that a board can accommodate an absent board member who wishes to attend the meeting
long-distance by bringing a speakerphone into the meeting room so that the board member
can participate over the phone. 1 V.S.A. § 312(a) ("A meeting may be conducted by
audio conference or other electronic means so long as the provisions of this [law] are
met.") Over a speakerphone, the board member may count as part of the quorum, he or
she can hear and make motions, and the board member may participate in discussions and
2. School Must Allow Church Group To Use School Facilities After School Hours If It Allows Non-Religious Groups To Use Facilities In A Similar Manner. According to Federal Law, a public forum, including a school, may not discriminate against a group based on religion. [See Lambs Chapel v. Center Moriches Union Free School District, US Supreme Court, 508 US 384 (1993).] This means that if a school board adopts a policy to allow groups to use the school facilities it must apply that policy without regard to whether the group is conducting religious or secular activities.
3. Assistant Clerk/Treasurer Should Think Twice Before Serving
On School Board. According to the law of incompatible offices a town treasurer may not
also serve as a school director. 17 V.S.A. § 2647. This prohibition likely exists to
ensure that a separation of powers exists: the power to write the orders is held by the
school directors who, as a board, direct the treasurer to spend the taxpayers money
and the power to write the checks is reserved to the treasurer. But what about an
assistant treasurer? An assistant treasurer performs all of the duties of the treasurer in
his or her absence. 24 V.S.A. § 1573. Although the statute does not specifically prohibit
an assistant treasurer from serving as a school director, since the assistant may perform
all of the duties of the treasurer, it is probably not advisable for the assistant
treasurer also to serve as a school director.
5. Voters May Petition To Fill A Vacancy. When a vacancy occurs in any town office, within ten days the selectboard must post a notice of the vacancy in at least two public places and in the clerks office. The board may fill the vacancy at any time, and the appointed replacement will serve until an election is held. 24 V.S.A. § 961. If the voters do not like the board choice they may petition for a special town meeting for the purpose of electing a replacement.
6. Selectboard Sets Its Own Regular Meeting Schedule. A selectboard may schedule its regular and special meetings at a time that is convenient for the members of the board. It is not obligated to hold its meetings at a time that is convenient to any one individual or group of citizens. Note that a municipal charter can establish the regular meeting time and place of a board. 1 V.S.A. § 312(c). This rule should not be confused with the statutory requirements for setting the date and time of annual and special town meetings. 17 V.S.A. Chapter 55.
7. Non-Complying Structure Can Be Expanded In Ways That Do Not Increase The Non-Conformity. If a municipal zoning bylaw prohibits the expansion of non-conforming buildings this will not prevent a landowner from expanding the building in ways that do not increase the non-conformity. 24 V.S.A. § 4408. This means that if part of a building sits within a set back area, this building may only be enlarged on the sides of the building that do not encroach on the setback, and only to the extent that the alteration will conform to the bylaw. Note that, unless a bylaw provides otherwise, vertical expansions over the portion of the property that does not conform to the bylaw will be considered to increase the non-conformity, despite the fact that the buildings footprint may not change. This means that a porch that sits within the setback may not be converted into a two-story addition since this will increase the nonconformity.
8. Zoning Board May Not "Waive" Compliance With Bylaw. A zoning board member called because an important business applicant asked the board to waive certain provisions of the bylaw, and asked the board to consider its application on an expedited basis. The United States and Vermont Constitutions require a board to treat every applicant that comes before it in the same manner. This means that all of the provisions of the bylaw apply to every application, whether the applicant owns an important business in the community or is a stranger to the town. If the board wishes to provide an expedited review of an application it can do so, but only if it adopts a policy that will apply evenhandedly to other applicants who demonstrate the same circumstances of this particular applicant.
10. Appeals To A Zoning Board Of Adjustment From Zoning Administrator Decisions Are Public Hearings. When a board of adjustment convenes to take evidence on an appeal from a zoning administrator's decision or to hear a variance or conditional use application, it is conducting a "public hearing" under 24 V.S.A. § 4467. Public notice as described in 24 V.S.A. § 4447 (posting and publishing) must be given. At the public hearing, which is also a quasi-judicial proceeding under 1 V.S.A. § 310(5), the parties present evidence, cross-examine witnesses, and offer legal argument. Only interested parties may participate in the hearing, although the general public must be allowed to attend.
11. A Public Body's Quasi-Judicial Deliberative Session Is Not A Continuation Of The Public Hearing. After a zoning board of adjustment has concluded the public hearing held under 24 V.S.A. § 4467, it must then decide the case. When the board of adjustment meets to make a permit decision, it is meeting in deliberative session. By definition, a deliberative session is not an open meeting under 1 V.S.A. § 312 or a public hearing under 24 V.S.A. § 4467. Rather, the deliberative session is when the board of adjustment members meet in private to discuss the case. The deliberative session does not need to be warned, no public minutes need to be taken, and the public may be excluded.
12. A Quasi-Judicial Deliberative Session Is Different From An Executive Session. A deliberative session is not the same as an executive session. See 1 V.S.A. § 312, 313. An executive session is a closed portion of an open meeting. The public body must move and then vote to go into executive session for a limited purpose as authorized by law. When it has completed its executive session business, the public body then exits executive session and returns to open meeting session. No votes may be taken, or business transacted in executive session. In contrast, a deliberative session is where a public body weighs, examines, or discusses the reasons for or against an act or decision based upon the evidence received at a public hearing held in connection with a quasi-judicial proceeding. 1 V.S.A. § 310(1).
14. The Legislative Body establishes Planning Commission And Zoning Board Of Adjustment Fees. The legislative body of a municipality sets fees for subdivision review as well as for all zoning permits and appeals. 24 V.S.A. § 4420, 4462. All that is required is for the selectboard, at a regular or special meeting, to adopt a resolution setting the fee amounts. Note that the amount of the fees must be related to the costs of the zoning/planning program. When a municipality is adopting a subdivision ordinance or zoning bylaw, avoid including a fee schedule. Otherwise, the ordinance or bylaw may have to be amended to change the fee schedule even though the law authorizes the legislative body to set subdivision and zoning fees.
15. Town Must Follow Statutory Procedure To Sell Real Estate. When a municipality decides to sell real estate, it must follow the procedures set forth in 24 V.S.A. § 1061, unless its charter provides otherwise. Under this provision, the selectboard has two options. The selectboard may give notice of the proposed sale by posting the terms in three or more public places in the municipality and publish a notice in a newspaper of general circulation in the town. If a petition signed by at least 5% of the voters is not presented to the clerk within thirty days of the public notice, the board may complete the sale of the property. In the alternative, the selectboard may simply put the matter to a vote at an annual or special meeting. In contrast to the choice given to selectboards, school districts that wish to sell school property must put the matter to the voters. 16 V.S.A. § 562(7).
16. Only One Australian Ballot Question For Town Manager System. Under 24 V.S.A. Chapter 37, a municipality may elect to have a town manager. Under 24 V.S.A. § 1243, if a town elects it officers by Australian Ballot, it must do the same to employ a town manager. The ballot question for the adoption or rejection of the town manager is specifically set forth at § 1243. This means that, whether a town is voting to originally adopt the town manager system or eliminate it after having adopted it, the exact same ballot question is put to the voters.
17. Governor Fills Justice Of The Peace Vacancy. When there is a justice of the peace vacancy, the governor appoints a successor. The governor may request a recommendation from the town committee of the political party to which the incumbent belonged, but the governor is not obligated to do so.
18. Justice Of The Peace May Notarize Documents If Registered As A Notary (No Fee Required). A justice of the peace is an ex-officio notary public. Despite the ex-officio nature of the position, justices must still apply, take the oath of office, as any other notary, for each new term the justice is appointed to. A justice will not be assessed the $15.00 fee. Once signed up and sworn in, the justice may perform all of the duties of a notary.
20. Motion To Go Into Executive Session May Include Many Items. When a motion is made to go into executive session a board must list all of the topics it will be discussing. For example, "I move we go into executive session to discuss: personnel, a student issue, and para-professional contracts." Some boards take the issues one at a time, moving to go into executive session on the first matter, then coming out of executive session, and then moving to go into executive session again to discuss the second matter. This practice is fine, although some boards find it easier do it all as one motion. So long as the motion includes everything that is to be discussed in executive session - and so long as each item is a permitted subject for executive session, the board is operating properly. Remember that no matter how many items are discussed in executive session, no action may be taken on any of them until the board is back in open session!
21. Mobile Home May Not Be Moved Unless The Years Taxes Are Fully Paid. According to Vermont law no mobile home may be moved over the highways of the state unless a Uniform Mobile Home Bill of Sale has been endorsed by the town clerk in the town where the mobile home is located. 9 V.S.A. § 2602. The town clerk may sign the release only if all of the real or personal property taxes on the mobile home have been paid. This means that, if a mobile home is to be moved any time after April 1st, the entire property tax for the year must be paid. This is true even if the taxes on the mobile home are not yet due. This law does not always make sense, particularly in those instances in which the grand list has been lodged (April 1st) but the tax rate has not yet been set. In such cases town clerks often simply charge at the previous years rate.
22. Unused Burial Plot Can Revert To Cemetery If Owner's Whereabouts And Heirs Are Unknown For More Than Twenty Years. When a cemetery plot has not been used for more than twenty years, and the owner and the owner's heirs cannot be located, ownership of the plot may "escheat" (revert) to the cemetery. However, the reversion is not automatic. Under 18 V.S.A. § 5532-5537, the cemetery must petition the Probate Court which will publish a newspaper notice and hold a hearing.
23. Voting Public Questions By Australian Ballot Will Not Permit Vote Of Budget By Australian Ballot. 17 V.S.A. § 2103(27) defines public question as "any question, issue or proposition, or referendum . . . submitted . . . to the voters of the [town] for a decision." Although this definition includes budget questions, the law that regulates how a town adopts Australian Ballot voting separates budget questions from other public questions. This means that in order to vote the town budget by Australian Ballot it is not sufficient for a town to vote to "adopt all public questions by Australian Ballot." 17 V.S.A. § 2680(d) explicitly states that this question will enable the municipality to use the Australian Ballot system for "public questions other than the budget." To vote the budget by Australian Ballot the town must specifically vote to "adopt the budget by Australian Ballot."
The Secretary of States Office, in conjunction with the Vermont Department of Libraries, will be setting up a summer task force to study the laws regulating libraries to try to clarify the relationship between the library and the town. If you wish to participate on this task force please contact
Deb Markowitz at 802-828-2148 or e-mail firstname.lastname@example.org.
Vermont Secretary of
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