|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 2 Number 7
This past month our
office has been hard at work helping Vermont's towns
and cities prepare for new laws that will be coming into effect
on July 1st. We have revised The J.P. Guide to
include information about the new civil unions law and we
updated the provisions relating to the JP's notary role,
elections responsibilities and tax appeal obligations. The
format of the guide has also been changed, making it easier to read
and more user-friendly.
In the next month, materials will be available on Vermont's new ethics law.
These materials will include model provisions for towns that wish to
adopt binding rules of ethics.
I want to thank Paul Gillies and the Clerk's Advisory Board for their assistance in preparing these new publications. I want to also recognize our law student intern, Peter Truong, who wrote many of this months Opinions of Opinions.
Secretary of State's Home Page top of page
A Voice from the Past by Paul Gillies
After the Decision Is MadeYou tried to do the right thing. You gave the right notice of the hearing, heard the parties, took the evidence you needed, held the site visit (if one was required), and deliberated on and made a decision. Now all you need to do is send it out to the parties.
Not quite. The courts are telling us there is another, essential step in any decision. That is to inform the parties of their rights to appeal, and the consequences of an informed decision not to appeal. Last year it was a notice of violation in a zoning enforcement action that failed to support a conviction because of a lack of adequate notice about appeal. A few years ago it was a tax appeal decision, determined to be inadequate because it failed to explain the right to abate taxes before the board for abatement of taxes. Presumably any decision made by a town board or commission can be faulted if it fails to inform the parties of what happens next, whether they act or fail to act.
It isn't enough to end the decision with a simple statement giving the title and section of the statute that allows an appeal. You need to take the explanation one step further, and explain what happens if no appeal is filed.
Take a zoning case, as an example. The ZBA decides against an application for a variance or affirms the decision of the zoning administrator, telling a landowner she has failed to obtain proper permits for a new deck. In such cases, the decision ought to end with a statement such as this:
You have a right to appeal this decision to the Vermont Environmental Court, pursuant to 24 V.S.A. § 4471 and V.R.C.P. 76, in writing, within 30 days of the date this decision is issued. The fee is $150.00. If you fail to appeal this decision, your right to challenge this decision at some future time may be lost because you waited too long. You will be bound by the decision, pursuant to 24 V.S.A. § 4472(d) (exclusivity of remedy; finality).
Tax appeal decisions are even more demanding, since the board must explain not only the right to appeal but the right to request an abatement. In this case, the following would suffice:
You have a right to appeal this decision of the board of civil authority to the superior court of this county or the state appraiser, pursuant to 32 V.S.A. § 4461 and V.R.C.P. 74, in writing, within 30 days of the date of the decision. The fee for the appeal is $30. If you fail to appeal this decision, your right to challenge this decision at some future time may be lost because you waited too long. You will be bound to the decision as it affects the tax year for which the appeal is taken. You may appeal your appraisal in subsequent years, but for this tax year you will be bound by this decision unless you appeal.
You also have a right to request an abatement of taxes, for any one of the various reasons listed in 24 V.S.A. § 1535. This appeal is to the local board for abatement of taxes. Abatement is a different process than a tax appeal, as it seeks to relieve the taxpayer of taxes, and not to affect the tax appraisal of the property. Although there is no statutory period in which to apply for abatement, it makes sense to apply in this tax year, to enjoy the benefit of abatement as soon as possible. Contact the town clerk for more details.
Consider a decision to lay out, reclassify, or discontinue a highway. This is even more delicate, as the process for appealing is different, depending on the select board's decision. At the end of a decision not to lay out a highway, this notice should work:
You have a right to appeal this decision to the superior court of this county, in writing, within 30 days of the date of the decision, pursuant to 19 V.S.A. § 740 and V.R.C.P. 74. The fee is $150. If you fail to appeal within that time, you may lose your right to challenge this decision at some future time.
For reclassification or discontinuance of a highway, use a different form, since those appeal routes are not expressly listed in 19 V.S.A. § 740. This should work:
You have a right to appeal this decision to the superior court of this county, in writing, within 30 days of the date of the decision, pursuant to V.R.C.P. 75. You need to serve the town, as you would do in any civil action, through a constable or sheriff, or using the alternative first class mail method explained V.R.C.P. 4(l). Merely sending a written notice of appeal is not enough. The fee is $150. If you fail to appeal within that time, you may lose your right to challenge this decision at some future time.
These extra sentences at the end of any quasi-judicial decision by a town board or commission can save a taxpayer, landowner, or person aggrieved and the town as well unexpected headaches later on. You want your work to be respected by the court. You want to accomplish something for all your effort at making the right decision the right way. To be fair to the parties and efficient in rendering a decision that will be honored on appeal, there really is no alternative than an extra paragraph or two, altering those affected to the method of appealing and the consequences of failing to do so.
Some might regard this as bad public policy, as it may incite some people to appeal where they wouldn't have done so without the notice, but how much less efficient would it be if, when you come around to relying on the decisions you make, the courts don't respect the decisions because of what you failed to include in the decision.
It takes so little effort, and it means so much, to include this information in your decisions.
"Voice from the
Past" by Paul Gillies
Opinions Volume 2 Number 7 July 2000
top of this section July Opinions "Table of Contents" Secretary of State's Home Page
Errata: Correction To A June Opinion
- Listers Need Permission From Property Owners To Enter Property.32 V.S.A. § 4041 does not expressly grant listers the authority to enter homes and other buildings for appraisal purposes. Rather, the law allows listers to “take up such inventories and make such personal examination of the property which they are required to appraise as will enable them to appraise it at its market value.” Because listers do not have express “legal authority” to enter property without permission, they can be faced with charges of unlawful trespass. 13 V.S.A. § 3705. Note, however that if the property owner refuses to allow a lister to enter the property, then the lister may simply appraise only the exterior of the property (in which case the property may not be valued as high as if a thorough appraisal were done) or the lister may obtain a search warrant to enter the property.
- The Board of Civil Authority Must Inspect Any Property To Which Its Appraisal Is Being Appealed.32 V.S.A. § 4404 requires that "each property, the appraisal of which is being appealed, shall be inspected by a committee of no less than three members of the board who shall report to the board within 30 days from the hearing on the appeal and before the final decision pertaining to the property is given." The committee must perform a full inspection of the property, including the interior and exterior of all structures on the property. If the property owner, after notice, refuses to allow the inspection, the appeal "shall be deemed withdrawn."
- Zoning Administrator May Go On To Public Portion Of Property To Investigate Violation.24 V.S.A. § 4445. A zoning administrator must investigate possible violations whenever he or she reasonably believes that one exists. However, the zoning administrator may not trespass and must obtain permission from the property owner to enter the property to investigate. If the property owner refuses to allow the zoning administrator to gain entry, the administrator has a number of recourses. The zoning administrator can travel onto the public portions of a property, such as driving up the driveway or walking up to the front door (or back door if it is obvious that this is the primary access), to determine whether there is a violation. The zoning administrator can obtain a search warrant to enter private property to search for a violation. And lastly, the zoning administrator can issue a "Notice of Violation" to the property owner based on his or her reasonable belief that a violation exists. If appealed to the Zoning Board, the refusal of the property owner to allow an inspection of the premises may be considered when determining whether a violation exists
- Reclassification Of Highways Decisions Subject To Selectboard's Discretion.A reclassification of a highway from class 4 to 3 (or vice versa) are subject to the same formal notice, site inspection, hearing, report with findings, survey, certificate of opening, and notice to the property owners as for laying out or discontinuing highways. 19 V.S.A. § 708(a). The selectboard members perform a quasi-judicial function when they hear and decide classification petitions. Hansen v. Town of Charleston, 157 Vt. 329, 597 A.2d 321 (1991). Although the selectboard members have broad discretion, they must keep the interests of the town in mind when making their decision. In deciding whether to reclassify a highway, the board should consider whether the increased traffic and development likely to result from the reclassification is in accordance with the town plan. 19 V.S.A. § 708(b).
- The Landowners Seeking The Highway Upgrade Pay The Costs.If individual property owners (rather than the town) petition to reclassify a highway from class 4 to class 3, 19 V.S.A. § 711(b) authorizes the selectboard members to require the petitioners to bear the cost of the upgrade as a condition to reclassification.
- Town Has A Very Low Burden When Acquiring Public Land Through Condemnation.Condemnation is the act of a state or town government taking private land for public purposes, such as relocating or reconstructing highways. 19 V.S.A. § 502. If the private property owner does not agree to the taking, the town must prove that it is necessary for the public good. This burden of proof is very low. The law defines necessity as "a reasonable need which considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner." 19 V.S.A. § 501. The test for necessity is to determine if the taking is "reasonably necessary to the accomplishment of the end in view under the particular circumstances." Agency of Transportation v. Wall Management, 144 Vt. 640, 482 A.2d 1270 (1984).
- Property Cannot Be Taken By Town Without Compensation.Once the land is condemned for public use, the private property owner is entitled to compensation. Generally, the town and property owner can agree on the amount of compensation. Generally, the amount is determined by the difference between the fair market value of the entire tract before the taking and the fair market value of the residue after the appropriation. Dunn v. State Highway Board, 135 Vt. 26, 370 A.2d 626 (1977). If the private property owner is dissatisfied with the amount offered, he or she can appeal to a superior court, and the court will decide the amount of compensation due. 19 V.S.A. § 513.
- Towns Have The Power To Discontinue A Highway's Use.Vermont law gives the selectboard the authority to "discontinue a highway or bridge wholly within the town after following the procedures of sections 708-711 of this title." 19 V.S.A. § 771. Under sections 708-711, persons who are either voters or landowners in the town may apply by petition in writing to the selectboard members to have a highway discontinued. The selectboard members must give adequate notice of hearing to all interested parties. They must examine the premises and hear testimony of all interested parties before they can make a decision. If the board decides to discontinue the highway, the discontinuance must be in writing, giving a complete description of the highway. 19 V.S.A. § 710. The selectboard members" order discontinuing the highway must be recorded in the town clerk's office. 10 V.S.A. § 711.
- Discontinued Highway Reverts To Adjoining Landowners Unless Designated a Trail.When a town highway is discontinued, the actual ownership of the right-of-way reverts to the owners of the adjoining land so long as the discontinued road is not designated as a trail. 19 V.S.A. § 775. If the road is located between the lands of two different landowners, it is returned to the lots to which it originally belonged. And if this cannot be determined, then the highway right of way will be divided evenly between the owners of the lands on each side. However, If the selectboard members designate a discontinued road as a trail, then the town continues to hold the right-of-way. Keep in mind that a trail is not considered a highway and the town is not responsible for maintaining it. 19 V.S.A. § 302(c).
- Public Meetings Are For Public Business Only.Under the open meeting law, a public meeting occurs when a quorum of a public body meets to discuss public business. However, if a majority of the members of the public body want to meet for a social occasion or take a class together, they can do so without it being an open meeting so long as no public business is discussed. There is nothing wrong with the board members enjoying each other’s company at a holiday party, camping in the White Mountains, or going to an educational seminar.
- What Exactly Is An Executive Session?An executive session occurs within a public meeting from which the public is excluded. The open meeting law has a specific section, 1 V.S.A. § 313, dedicated to addressing how a public body enters into executive session. There must be a motion made to enter into executive session and the subject to be discussed must be disclosed in an open meeting. A majority vote of municipal board members will suffice. “No formal or binding action shall be taken in executive session except actions relating to the securing of real estate options…” 1 V.S.A. § 313(a). Minutes of the executive session need not be taken. The law also provides a short list of what are permissible subjects to discuss in executive session. Remember that executive sessions should only be used for extraordinary circumstances. The reasons for executive sessions must be clear, explicit and must be consistent with the statutory checklist. Keep in mind that the intent of the open meeting law is to allow citizens to stay informed and to participate with their local public body. The Vermont Supreme Court has also stated that any exceptions will be narrowly construed.
- A Memo From The Road Commission Addressing Traffic Patterns Can Be Discussed in Executive Session.1 V.S.A. § 313 (a) provides a very explicit list of permissible subjects that can be discussed in executive session. One such subject is to discuss records which are exempt from the public records law. Under the public records law, an interdepartmental memo covering other than primarily factual material, if it is preliminary to a policy decision of the board is exempt from disclosure. A memo detailing the town's general traffic patterns with suggestions about maintenance schedule would likely fall under this provision, and could therefore be discussed in executive session. However, any votes on road maintenance policy must be made in open session.
- Citizen Who Wishes To Be Added To The Checklist Cannot Refuse To Take The Voter's Oath.In 1972 when the court struck down Vermont's durational residency requirement as unconstitutional, the court upheld the constitutional requirement that voters take an oath. Voters only need to take the oath once, but each citizen must take it before being added to the checklist for the first time in Vermont. (A voter who moves to a new town in Vermont does not need to take the oath again.)
- Permit Required For Large Events.The organizers of a commercial public event or gathering expecting 2,000 or more attendees must apply for a permit from the department of public safety at least 30 days before the event is held. The Department of Public Safety may grant the permit, deny the permit, or grant the permit with conditions, such as providing a bond or other financial security. If a town wants to regulate smaller assemblies, the town needs to enact local ordinances or regulations.
- Treasurer's Accounts Are Public Records.247 V.S.A. § 1571. This means that if a citizen has questions about town spending, the citizen can visit the treasurer's office and review the accounts or ask for copies of the records.
- There Is No Recall Of Elected Public Officials In Vermont.Vermont law does not allow voters to recall elected officials. This means that in most situations, the only recourse for an unhappy citizen is political if a public official has failed to carry out his or her statutorily mandated ministerial duties. Note however, that the new ethics law allows towns to adopt an ordinance which includes consequences for violations. These remedies could conceivably include removal after due process. 13 V.S.A. § 3006 allows a prosecutor to file a complaint for willful neglect of duty by a public official. This last approach is generally reserved for serious, willful neglect that will cause harm to either the municipality or some of its citizens.
- A Friendly Reminder To Town Clerks That Each Town Party Chair Is Entitled To One Free Copy Of The Checklist.Vermont law requires clerks to provide town political party chairs with a free copy of the voter checklist. The purpose of this law is to ensure the parties have an opportunity to review and challenge the eligibility of any voter. Of course other people, whether a campaign person or salesperson can request a copy of the checklist which must be provided, at cost, upon request.17 V.S.A. § 2141.
- The Law On Incompatible Offices For Towns Found In 17 V.S.A. § 2647 Also Applies To Village Offices.1 V.S.A. § 139 provides that the laws that apply to towns in Vermont also apply to all municipal corporations including villages. Accordingly, just as a selectperson cannot be the tax collector, a trustee cannot be the village tax collector.
- Voter May Simultaneously Request Addition To The Checklist And Absentee Ballot.Vermont law provides that if a resident submits a request for application to the checklist along with a request for an absentee ballot not later than 17 days before the election, the town clerk must mail an application to the checklist together with a full set of absentee ballots to the person who has applied for absentee ballots and addition to the checklist. If the completed application to the checklist is returned to the town clerk before noon on the second Saturday before the election, all such applications for addition to the checklist which are received by the town clerk prior to the close of the polls on election day must be acted upon by the board of civil authority before the ballots are counted on election day. If the application is approved and the name added to the checklist, the absentee ballots cast by the voter must be counted as valid absentee ballots. 17 V.S.A. § 1532(c).
Opinions of Opinions
Opinions Volume 2 Number 7 July 2000
top of this section July Opinions "Table of Contents" Secretary of State's Home Page
RECORDS CARE GRANT AVAILABLE
The Vermont State Archives and the Vermont Historical Records Advisory Board (VHRAB) will be offering records workshops and providing grants to improve the preservation of, and access to, historical records. Of interest to municipal clerks are grants to provide on-site collection surveys through which an archival consultant will review and report on your facility and records practices. You would then be responsible for providing an action plan based on the consultant's recommendations. The action plan can be used as a planning and budget tool for addressing your short and long term records needs. For more information (including application forms) on this and other grant programs visit the Vermont Historical Records Advisory Board section of the State Archives website within the Secretary of State's homepage. Or you can write to VHRAB, c/o Michael Sherman, 20 College Street Montpelier, VT 05602 or call 802 223 2632 or e-mail:email@example.com. Application deadlines will be the first work day of each month.
The State Archives and VHRAB are offering two, two-day workshops on caring for historical records. The workshops will be at the Mid-State Regional Library, Berlin, VT on June 27 and July 25 and at the Park-McCullough House in North Bennington on June 29 and July 27 . Cost is $35 which covers the two days plus educational material; checks should be made payable to the Secretary of State. Though some topics covered during the workshops are designed for local historical societies, many directly relate to municipal clerk responsibilities, including managing an archives, basic archival principles and practices, preservation, resources, and collection management tools. To register send your name, title, organization, address, telephone number, plus the check and indication whether you will be attending the Berlin or North Bennington workshops to Louise Corliss, Vermont State Archives, 26 Terrace St., Drawer 9 Montpelier, VT 05609-11013. Registration deadline is June 19th.
Message from the State
Opinions Volume 2 Number 7 July 2000
VERMONT PUBLIC SERVICE AWARDS
Gordon A. Bent, Sr.
Joyce W. Ferris
George J. Kendall, Jr.
Janice L. Thresher
Bert T. Holland, Jr.
John G. Learmonth, Jr.
Willard B. Martin
Guy Miller, Sr.
John A. Pierson, Jr.
Francis J. Roderick
Leon C. Marsh, Jr.
Kenneth Alger, Sr.
Charles H. Bailey
Stanley P. Brock
Gerry E. Brooks
Signa C. Carbee
Russell O. Haviland
Kathleen W. Knight
Gavin A. Reid
Albert D. Stevens
Elsie F. Beard
Rita R. Bisson
Margaret C. Richardson
Doris M. Bowman
Richard I. Burstein
Thomas E. Rogers
David K. Brown
Charles H. Brown
Russell K. Batten
George R. Hodge
William R. Hodge
Ruth E. Morrison
Harvey B. Otterman
Bernie Powers, Jr.
Fred E. Smith
Raymond W. Tillotson
Donald G. Milne
WELLS RIVER VILLAGE
Dr. Harry M. Rowe
James G. Thomas
Notary Education Seminars 2000
All seminars ar from 6:30 to 9:00 PM. Please contact Kathy Watters at
802-828-2363 for further information.
Monday, July 17
109 State Street
Tuesday, July 18
Burlington City Hall
Orleans Superior Court
The law requires the regular presiding officer of each town or an assistant designated by the Board of Civil Authority to attend at least one workshop every two years (17 V.S.A. § 2457). There are only five workshops remaining to choose from to fulfill this requirement. MARK YOUR CALENDAR NOW! August 2000 Five Elections Workshops for Town Clerks Board of Civil Authority members, and other election officials. Paul Gillies joins Kathy DeWolfe for these workshops.
For more information, please contact Melanie Jacobs at 802-828-0175.
New PublicationsBoth the Vermont Guide to Civil Unions and the JP Guide are now available. To order your copy, please contact the Elections Division of the Secretary of State’s office at 802-828-2363. The Guides are also available on the web at http://www.sec.state.vt.us under “What’s New.”
Copies of the Vermont Guide to Civil Unions have been sent to each town clerk. The JP Guide will also be sent to each Justices of the Peace.
Five copies of the 2000 Election Perspectives will be sent to each town clerk. Additional copies can be requested by contacting Renita Jacobs in the Elections Division at 802-828-2464.
Opinions Volume 2 Number 7 July 2000
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