State of Vermont Office of the Secretary of State

A Voice from the Past
by Paul Gillies

Millennial Resolutions

It happened. We went to bed in one century, one millennium, and woke in another, and nothing had changed! All the clocks worked, the computer turned on without complaint; the world looked the same as it had the day before.

Now we need to get used to writing a new date, decided what to call the year in short hand (aught-aught isn't likely), and do what most people do with new years, and that's try to start over again with a new attitude, a new commitment, a new inspiration. We'sll lose weight, get plenty of sleep, read more good books, and be kinder and gentler to our friends and family. Some of it will happen.

So, for town officials, perhaps the time has come to do the same—to make some resolutions to improve the life of the town. You can think of your own: this list is just a trial balloon full of good advice, which may be taken or not.

1. Try harder to hold back. The debate rages. Tempers grow short. Finally, there's a motion and a second, and the chair is calling for a vote. Right now, you have one duty, and that'ss to stop the train for a moment, just to be sure it'ss heading where you want to go. Too often the worst decisions are made in haste. Every one of us has to learn about the value of a predecisional pause. It's essential, really, to reasoned decision.-making, and it will save the town from the embarrassment of having to take something back or correct it later on.

2. Raising replacements. After you've gone, there's no denying somebody will come next. But maybe you have a duty to cultivate a successor. Maybe you ought to try to persuade someone good to be ready when your turn is up to take your place. Sometimes it can take several years. It requires great care, akin to catching a brown trout on a lazy August afternoon.

3. Respecting boundaries . Where your duties end and other officers' duties begin is a fuzzy line in most instances. Those who cross it risk getting hurt. Knowing where the boundary lies is part of your responsibility. Good neighbors mark their boundaries, in common with the owner of the property on the other side. That'ss good advice for every public official. No trespassing, but let'ss talk about where the line lays.

4. Talking with each other. Boards ought to talk to other boards, but who has time? We've been to too many meetings already this year. So, invite them to your next meeting, or get on their agenda, soon. The selectboard needs to know the ZBA, and vice-versa. The school board ought to know the selectboard. The planning commission ought to know the ZBA. We'sre all in this together, and it'ss time we talked.

5. Relations with the state. Isn't it fun to watch state officials squirm? Well, when that happens, you are only hurting yourself. Because these people, including state representatives and state senators, want to help you improve the way the town works. It doesn't mean you have to agree with each other completely, but you'sll be surprised how grateful state officials are when they can see their way clear to help you. Perhaps more importantly, respecting their positions can only help the town get what it needs.

6. Planning, the larger view. There is planning, of course, through the town plan, but then there is planning for everything else. What is the plan for improvement of highways over the next five years? What is the plan for extending the sewer line? What is the plan for vehicle replacement? We need comprehensive planning. Crisis by crisis is no way to run a government. But who's doing it? Usually the answer is, nobody. Isn't it time to think about these things? Form a subcommittee. Make somebody responsible. Get going on it.

7. Thinking about the community. We conduct the business of the town. The community is beyond our authority. But there is no town without a community of interest, a closeness that links people to a place beyond geography. And it is not outside the authority of a selectboard or other public officers, or responsible citizens, to try to improve a community. It takes a little more effort, but it'ss worth it. Make strangers welcome; let them know when they'sve arrived in town. Sponsor public events for the town as a whole—a centennial or bicentennial, a party for the longest-serving official, a parade or public works project everybody can share in. We don't take enough time to keep a community running, and we should.

8. Enforcement. If you don't enforce your bylaws, ordinances, and regulations, abolish them. Unenforced rules, or partially-enforced rules, offend the fundamentals of due process. The laws should apply to everyone, equally.

9. Making town meeting work. A sour town meeting can bring on a public depression of the spirit that is long in restoring. Sure, you've done the report, the warning, the lining up of officials to work on election day, but don't stop there. Try to make it interesting. Try to keep people from walking out early. Keep the pace up. Invite public participation. Town meeting is the heart of a town, and it deserves care and feeding.

10. Thanking those who serve. It takes so little, and it means so much. It doesn't take dedicating a plaque or a cover of a town report. At town meeting, make sure somebody says thank you, and invites others to do the same. Our system of governance depends on volunteers, and volunteers need to be encouraged, or they will just stay home.

Some much good advice around, so why aren't we perfect? Because life is too short, and nobody gets it all right. But we try. That'ss what makes us hopeful. Have a terrific, productive New Year and New Millennium.

1. Auditors May Include Update on 18 Month Budget in Town Report. Unless a town votes otherwise, its fiscal year is the same as the calendar year. When a town votes to go to a fiscal year, such as July 1 through June 30, it will adopt an 18-month budget beginning January 1 and running until June 30 of the following year. Because of this, for one town report, the auditors will not be able to include their customary report. 24 V.S.A. § 1683. Instead, for the town report which is due during the course of the 18-month budget, the auditors may include an update on the 18 budget, but not the full report.

2. Union School District Annual Meeting Must Be Held Between February 1st and June 1st. The annual meeting for a union school district must occur each year. At this meeting the district elects its officers and adopts its budget and when the voters have an opportunity to discuss policy issues that effect the district. By statute, the date of the annual meeting cannot be earlier than February 1 nor later than June 1. 16 V.S.A. § 706j(a)(5).

3. Clerks may refuse a deed that references a survey that is not recorded. 27 V.S.A § 341(b) provides that " A deed or other conveyance of land which includes a reference to a survey prepared or revised after July 1, 1988 may be recorded only if it is accompanied by the survey to which it refers, or cites the volume and page in the land records showing where the survey has previously been recorded." Ordinarily a clerk is required to record what is given to him or her - without question. However, since 341(b) specifically prohibits recording the deed that does not reference an appropriate survey, the clerk acted reasonably when she rejected the deed. On the other hand, because an argument can be made that it is the attorney that is bringing in the record that is "recording" the deed, so that the obligation not to record a deed without survey is on the attorney, if the clerk had accepted the deed under the circumstances she described it also would have been okay. Until a court rules on the issue, or the legislature clarifies the law, clerks can exercise discretion in these matters.

4. Town Clerk will Confirm Survey Plat'ss Compliance with Law. Another public record which the town clerk must review before recording is a "survey plat." A "survey plat" is a map or plan drawn to scale of one or more parcels, tracts or subdivisions of land, showing, but not limited to, boundaries, corners, markers, monuments, easements and other rights. A town clerk cannot accept a survey plat for filing unless it complies with 27 V.S.A. §§ 1401-1406. However, when a survey is not intended to be a survey plat, that is, it does not meet the definition of a survey plat in § 1401, then the town clerk should go ahead and record the survey. Not every survey is required to be a survey plat, and only a survey plat must comply with the survey plat law.

5. Vote To Use Australian Ballot Is a Public Question. The Australian ballot system can be used for votes on the election of municipal officers, budgets, and public questions other than the budget. A town can use the Australian ballot system for any one or all three types of these election issues. Unless required by law, the Australian ballot system cannot be used unless a municipality votes to adopt the system. The vote to adopt the system must be from the floor at an annual or special town meeting unless the town has already voted to consider public questions by Australian Ballot. 17 V.S.A. § 2680.

6. Vote to Repeal Use of Australian Ballot is a Public Question. Once a town votes to use the Australian ballot system for the election of officers, it must continue to do so until it votes to discontinue the system's use. How the municipality goes about the repeal vote--whether by floor vote or by Australian ballot--depends upon how the town decides this kind of public question. Just because the Australian ballot is used for the election of officers does not mean a repeal vote must be by Australian ballot. The repeal vote is itself a public question, and if the town still votes this kind of public question from the floor, then the repeal vote must be from the floor, even though officers are elected by Australian ballot. The repeal vote is by Australian ballot only if the town has elected to vote this kind of public question by Australian ballot.

7. Any Clerk in County may Issue Marriage License to Non-resident Bride and Groom. When out-of-towners come to Vermont to get married, the question often comes up as to where should they get their marriage license. If the bride and groom are not Vermont residents, then the answer is a town clerk in the county where the marriage is to be solemnized. 18 V.S.A. § 5131(a). This means that even if the marriage is to take place in, say Danville, the couple could go to the Peacham town clerk for their marriage license. However, it probably makes most sense for the bride and groom to go to the town clerk of the town in which they are to be married, just because it will be easier for the couple to remember where to go years later if they ever need a copy of their marriage certificate.

8. Selectboard should fill Appointed Positions. It may be hard to believe that the law still calls for fence viewers, inspectors of lumber, shingles and wood, and weighers of coal, but that is exactly what is in 24 V.S.A. § 871. Remember though, these are appointed positions, not elected ones. While it may be hard to fill these positions, the selectboard should still at least make an effort to fill them since that is what the law requires. Of course the selectboard can appoint themselves to fill these positions.

9. Appeal from Planning Commission Site Plan Approval is Separate from ZBA Appeal. Two recent Vermont Supreme Court decisions make clear that an appeal from a zoning board'ss conditional use decision is separate from an appeal from a planning commission'ss site plan approval. The decisions are Wesco, Inc. v. State, Nos. 98-454 and 98-455 (9/3/99) and In re Appeal of Miller, No. 97-463, (10/8/99). In the latter decision, the Court said that, the law treats site plan review and conditional use review as separate--albeit related--proceedings. Since they are separate appeals, a person must file a timely notice of appeal from each decision with the Environmental Court.

10.Selectboard Does Not Approve Water Department Budget. The budget of the water department is not generally included in the selectboard'ss budget voted on at town meeting because the tax rate of the town is not affected by the finances of the department. 17 V.S.A. § 2664. State law gives water commissioners authority over raising and spending money for the water department. 24 V.S.A. § 3313 (a). Accordingly, the selectboard has limited control over the budget of the water department. It is clear, however, that the town auditors, must audit the water department accounts, and include their findings in the town report.

11. Civil enforcement through the Judicial Bureau doesn't always make sense for zoning violations. The Judicial Bureau was not initially created with enforcement of zoning violations in mind. Rather, as an afterthought this legislation was expanded to allow civil enforcement of zoning. The Judicial Bureau process was intended only for violations that result in relatively small fines, where no injunction was required. For this reason, the Bureau is limited to considering fines of only $500 or less. If a violation is a "continuing violation" (one that doesn't stop day to day - like a porch built within a set back) which results in fines over $500, or if an injunction is required, the action must be brought in Superior Court. With these types of restrictions it is not surprising that few towns use the Judicial Bureau for zoning enforcement. However judicial bureau enforcement can come in handy to penalize landowners and builders who time and again fail to come in for a necessary permit. The Judicial Bureau ticket process allows the administrator to fine the perpetrator and discourage future violations of this nature (otherwise the seven-day notice allows the builder to get the permit and avoid sanction.)

12. Deadlines which fall on a weekend or holiday extended to next working day. Under Vermont's Election Laws, if a date for filing of petitions, consent forms, or other documents falls on a Saturday, Sunday or legal holiday, then the deadline is extended to 5 p.m. on the next day which is not a Saturday, Sunday or legal holiday. We have had a number of calls regarding petitions for reconsideration or other petition filing deadlines. This is the rule for any filings that are covered by Title 17, and you must accept a petition on the next day. 17 V.S.A. § 2103(13).

13. When Saturday is a holiday, clerk may open office Monday for additions to checklist. Although not strictly a filing deadline, we think that similar reasoning as described above can be used when the second Saturday before an election falls on a holiday and the Town Clerks Office is to be open from 10 am to Noon. We advised clerks in fire districts to consider posting a notice on the door on Saturday, January 1 stating that due to the holiday, their office would be open on Monday evening to allow voters to apply for addition to the checklist. This follows the spirit of the law, allowing voters a "last chance" to register and avoids staffing the office on a holiday when it would be unlikely that you many interested citizens would appear.

14. Town clerk must be open for voter registration prior to Union School District elections. Town clerks whose towns are members of a union school district must be open for voter registration on the second Saturday before the Union School District Elections, and then must provide an authenticated copy of the checklist as updated to the Clerk of the Union School District. 16 V.S.A. § 706u provides the particulars regarding the checklist for union district meetings. This section incorporates by reference the provisions of Title 17 that require the Town Clerk to have office hours on the second Saturday before each election to allow residents to register to vote.

15. There is no special language that is required for citizens's to petition the Selectboard or School Board to place articles on the warning for town meeting. 117 V.S.A. § 2642 states that if 5% of the voters of the municipality file a petition with the Town Clerk that the Warning shall include the article. Vermont Supreme Court cases tell us that an inclusion of a petitioned article is not mandatory if the article is frivolous, illegal, or pertaining to a matter which is not within the authority of the electorate of the town to decide. For wording, we generally suggest:

The undersigned petitioners, legal voters of the town of ANYWHERE, Vermont, hereby petition the Selectboard to include the following article on the warning for the next town meeting on March 7, 2000:

Article 1. Shall the voters of the Town of Anywhere vote to..."include here the subject matter of the petition." , i.e., "increase the membership on the Selectboard from 3 to five members with the two new members each to serve a two year term."

16. The Selectboard should avoid duplicative articles for town meeting warning. The selectboard should exercise its discretion in preparing Articles for the warning in order to avoid two articles, one petitioned and one from the selectboard, which cover the same topic and confuse the voters. For example, in a town that has previously voted to elect road commissioners the Selectboard wants to go back to appointing the commissioner and prepares an article for the warning "Shall the voters of the town vote to have the road commissioner appointed by the selectboard rather than elected." (See 17 V.S.A. § 2651(a)). Citizens in town hear that the selectboard is considering such an article so they circulate a petition that frames the same issue as "Shall the voters of the town vote to continue to have the road commissioner elected by the voters?" The selectboard should consider that if both articles are included the voters could easily become confused and there could be two articles passed which have conflicting results. In such a situation, the selectboard could withdraw their proposed article as a no vote on the petitioned article would mean that the voters want the road commissioner to be appointed.

17. Title 24 does not provide a specific route of appeal from a decision by the Board of Abatement. If a taxpayer believes the Board of Abatement has abused its discretion in denying his or her request, case law in Vermont suggests that an appeal can be taken through Rule 74 or Rule 75 of the Rules of Civil Procedure. Appeals taken under these rules are not de novo and generally only review the proceedings below for abuse of discretion, but the avenue for a limited appeal does exist despite the silence in the statute. However, remember that the Vermont Supreme Court has held that abatement requests cannot be a substitute for an appeal of a property assessment by the listers which must be appealed through the grievance and tax appeal process.

18. Emergency meeting may not be called for authorizing payroll. Under the open meeting law, a board is permitted to hold an emergency meeting to respond to what the law calls "an unforeseen occurrence or condition requiring immediate attention by the public body." 1 V.S.A. § 312(c)(3). Since the town should be able to anticipate the need to pay its employees, an emergency meeting to authorize the payments to employees is not appropriate. Emergency meetings are designed to be rare - for example, when there is a flood in the town, nobody expects the selectboard to respect the formalities of the open meeting law before calling for help. The law exempts a board from formal posted public notice for emergency meetings, but requires that some notice be given. Emergency meetings should never be used as a substitute for planning ahead!

19. Meeting continued to a new date does not need new warning. When a meeting or a hearing goes on for too long, or if additional information must be obtained, a board can choose to "adjourn," the meeting. An adjourned meeting is one that has been continued to a new time and/or place. An adjourned meeting is not considered a new meeting so it does not require additional notice, so long as the time and place of the new meeting is announced before the first meeting is closed. 1 V.S.A. § 312(c)(4).

20. A Manager's Contract is Public Record. All records of a municipality must open for public inspection unless there is an exemption in the public records law that permits a record to remain confidential. 1 V.S.A. § 317 exempts from public disclosure many different types of records, including, for example, information about personnel that is of a personal nature, contract negotiations, and records designated as confidential by court order. Unless the town can prove that the particular contract of employment falls within one of the stated exceptions to the public records law, the contract must be disclosed.

21. No law prevents a board member from disclosing what occurred in executive session. There is no law that prohibits a member of a board from disclosing to the public or the media what occurred in executive session. Note however that this disclosure can have very bad consequences for a community. Presumably, executive session is entered into to protect the legal interests of the community or the privacy of an individual. Disclosure that harms an individual could result in a lawsuit and liability for the town. In addition, disclosure by a dissenting member of the board usually creates bad feelings among board members and can contribute to a lack of trust and general dysfunction within the board.

The Zoning Administrator

Communities regularly have questions about who hires, fires, sets the salary or oversees the zoning administrator in a town. Like many appointed officials, much of the zoning administrator's duties are governed by statute, however, he or she is also an employee of the town subject to the rules and regulations of the personnel policy. Below we discuss three employment issues that are effected by the unique statutory context of this employment relationship, and we review the basic duties of the zoning administrator.

1. Appointment / Removal. The zoning administrator is appointed by the planning commission, with the approval of the selectboard and serves a term of 3 years. 24 V.S.A. § 4442.

According to law, the zoning administrator "may hold any other office in the municipality." 24 V.S.A. § 4442. This means he or she may also be the health officer or a member of the selectboard. Note that although it may be legal, membership on the zoning board should be avoided since conflicts of interests and appearances of impropriety will occur whenever a decision of the administrator is appealed to this board.
The planning commission may appoint, with the approval of the legislative body, an acting administrative officer who shall have the same duties and responsibilities as the administrative officer in his absence. 24 V.S.A. § 4442.

The zoning administrator may be removed from office before the end of his or her term by the
selectboard, after consultation with the planning commission, for good cause. 24 V.S.A. § 4442.

2. Salary. The zoning administrator's pay is determined either by vote of the town at town meeting or by the selectboard. 24 V.S.A. § 932. If the salary is set by the selectboard, the board may alter the administrator's salary and benefits so long as it is permitted by the town's personnel policy or collective bargaining agreement.

A few of the smaller towns choose to pay their zoning administrator by allowing him or her to retain permit fees (or some percentage of the fee). This is acceptable so long as the town withholds federal income tax and social security from this "pay". This means that all fees must be paid to the treasurer who will then issue a check to the zoning administrator.

3. Supervision. The selectboard or municipal manager has the authority to supervise the personnel of the town unless the statutes provide otherwise. In this case there are no clear statutes that shift the supervision of the zoning administrator. Although, an argument could be made that the planning commission supervises the administrator because they appoint him or her, and by law, have the duty to "administer the bylaws," this appointment cannot happen without the selectboard's approval. Further, not only does the selectboard approve of the appointment, but it is only the selectboard that can remove the administrator. Accordingly, unless a court indicates otherwise, the safest bet is to assume that it is the selectboard or manager who supervises the administrator.

4. Duties of the Zoning Administrator.

a) Issuing Permits. The administrative officer issues zoning permits and occupancy permits. He or she must administer the bylaws literally, and only has authority to permit land development which strictly conforms to the town's bylaws. 24 V.S.A. § 4443.

b) Assistance to Applicants. The administrative officer provides landowners and other members of the public with the necessary forms to obtain any municipal permit or other municipal authorization required under local zoning or subdivision bylaws, or under other laws or ordinances that relate to the regulation by municipalities of land development. 24 V.S.A. § 4443.

c) Provides information about land development regulations. If other municipal permits or authorizations are required, the administrative officer helps to coordinate a unified effort on the behalf of the municipality in administering its development review programs. 24 V.S.A. § 4443. The administrative officer also informs any person applying for municipal permit or authorization that the person should contact the regional permit specialist employed by the agency of natural resources, in order to assure timely action on any related state permits. 24 V.S.A. § 4443. Note that this will not change the applicant's obligation to identify, apply for, and obtain relevant state permits.

d) Administrative functions. The zoning administrator performs many administrative functions for the town. These functions may vary depending upon whether there are other paid staff working with the zoning and planning boards. Many zoning administrators act as the clerks of the zoning, planning or development review board and are charged with ensuring that those boards have the assistance and information that they require to perform their duties. These functions, however, are not required by statute. Certain administrative functions are required by law to be performed by the administrator. 24 V.S.A. § § 4442, 4443, 4470. They are:

Assisting landowners and interested parties with required forms and providing information about permit requirements.
Issuing permits and certificates of occupancy.
Within three days following the issuance of a zoning permit, the administrative officer must deliver a copy of the permit to the listers of the municipality.
Within three days following the issuance of a zoning permit, the administrative officer must post a copy of the permit in at least one public place in the municipality, until the expiration of fifteen days from the date of issuance of the permit.
Record notice of permits, violations and permit denials with town clerk.
Answer public information requests. The zoning administrator, as the custodian of permit
records must assist individuals who are researching the permit history of a property.
Enforcing all violations of the ordinance.

e) Enforcement. The zoning administrator must act to stop or prevent violations of the land use bylaws. To do this, the administrative officer must institute in the name of the municipality any appropriate action, injunction or other proceeding to prevent or abate violations. 24 V.S.A. § 4445. The zoning administrator has no discretion, and must enforce all violations in the municipality. See In re Fairchild, 159 Vt. 125 (1992).

f) Appeals. Actions of the zoning administrator are appealed to the zoning board of adjustment. The zoning administrator must participate in the appeal by explaining his or her act that is under appeal, and by presenting evidence to support the act. In addition, the administrator may question any witness or evidence presented during the hearing.

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