1. Planning Commission Decisions Are Appealed To Environmental Court. Vermont law provides that appeals from the decision of a planning commission are "in the same manner as provided in the statutes for appeals from a decision of the board of adjustment or development review board." 17 V.S.A. §4475. This means that, just like ZBA or DRB decisions, planning commission decisions are appealed to the Environmental Court.

2. Zoning Administrator May Take A Vacation. Every spring, as zoning administrators plan their vacations, we get panicked calls from towns wondering if all development must cease in the administrator's absence. Although the law is not specific, the planning commission, with the approval of the zoning board should appoint an "acting administrator" who will perform the duties of the administrator in his or her absence. It is not uncommon for a member of one of the boards to take on this position – however, a board member who does this must take care not to participate in an appeal of a decision that he or she participated in as acting administrator.

3. A Private Road Will Not Ordinarily Create A Subdivision. The existence of a right of way or private driveway through a parcel will not automatically create a subdivision of that parcel. The court will treat the issue on a case by case basis. It will look at whether the two neighboring parcels can be developed as a single lot. Generally the court will find a "subdivision" exists when a town or state highway bisects the lot. It is not so clear cut when it is a private right of way that bisects the property, and the court routinely finds that no subdivision exists. See Wilcox v. Village of Manchester, 159 Vt. 193 (1992).

4. Selectboard Oversee Personnel – Including The Zoning Administrator. The issue of who, if anyone, supervises the zoning administrator is often confusing because both the planning commission and selectboard have some authority over the zoning administrator. 24 V.S.A. § 1121 (legislative body oversees town employees); 24 V.S.A. § 4324 (planning commission administers the bylaws); 24 V.S.A. § 4442 (administrator appointed by the planning commission with the approval of the selectboard and removed by the selectboard after consulting with the planning commission.) Because the zoning administrator is governed by the personnel policies of the town and the ultimate hiring/firing authority is the selectboard it is the selectboard that has the authority to oversee the administrator – although this role might be delegated to a supervisor. In addition, there are some duties that are required by statute. For example, the zoning administrator may not exercise discretion, but must strictly enforce zoning bylaws. This means that a Court would likely not permit a supervisor to fire a zoning administrator who, against orders, insists on enforcing the bylaws.

5. Auditor's Work Sessions May Be Held In A Private Home.It is acceptable for the auditors to meet and do their work in a private home. 1 V.S.A. § 312(g) provides that "routine day-to-day administrative matters that do not require action by the public body, may be conducted outside a duly warned meeting, provided that no money is appropriated, expended, or encumbered." There may be work sessions at which members of the board review checkbooks and bank statements that can be considered day to day administrative matters. However, when the board comes together to discuss board policy, generate the town report or interview professional auditors it should do so at an open meeting of the board (which may be held in a person's home so long as the public are invited to attend.)

6.  Auditor's Records May Be Kept In A Private Home. The public records law requires the custodian of the public records (the auditors are the custodians of their own records) to make those records available for inspection upon request. There is no requirement that these records be kept in the clerk's office or the town office building. It may be more convenient, however, for board members to keep the records at the town office – particularly if there are regular requests for inspection of these records.

7.  Auditors May Choose Not To Audit School Accounts If School District Agrees. 24 V.S.A. § 1681 provides that "town auditors shall meet at least twenty-five days before each annual town meeting, examine and adjust the accounts of all town and town school district officers and all other persons authorized by law to draw orders on the town treasurer…However, if the town has not elected to eliminate the office of auditor, and town auditors and the school board concur, the town auditors need not conduct an audit of school district accounts as to school district fiscal years which are audited by a public accountant." It is up to the auditors to decide whether to conduct an audit of the school district accounts. The auditors may only choose not to conduct such an audit if the school district concurs.

8.  Board Members May Talk To Constituents About Town Business Unless It Is About A Pending Hearing. In a representative democracy it is important for board members to talk with and respond to their constituents. However, if a board member is involved in a quasi-judicial matter there is a rule that prohibits ex parte communications. This rule says that the only place the board members may take evidence (including hearing the opinions of "interested parties") in the matter is at a properly warned hearing. The people involved have a constitutional right to have decision-makers that are unbiased and who are basing their decision only on evidence presented during the hearing.

9. Lister May Serve As A Justice Of The Peace. There is no statutory incompatibility between serving as a lister and serving as a justice of the peace. A lister who is a justice may serve on the board of civil authority when it is addressing election matters, but may not sit on tax appeals. (The listers will not lose the opportunity to defend the appraisals in the tax appeal.) 32 V.S.A. § 4404. Note that a lister may also serve as a school board member, but may not also be a member of the selectboard. 17 V.S.A. § 2647.

10.  The Moderator May Serve In Any Office. There are no statutory incompatibilities for serving as a moderator for either the annual school district meeting or the annual town meeting. However, we recommend that someone seeking this office consider that the appearance of or potential for conflicts of interest may affect the smooth functioning of an annual meeting. For example, voters may be concerned that the local school principal serving as moderator could not rule in an impartial manner on motions affecting the school budget. While the moderator can step aside and a moderator pro tem can serve for certain articles, it may be better to have a different moderator for the whole meeting.

11.  In Union School Districts, The Vote To Use Australian Ballot Must Be Taken By Paper Ballot. When the electorate votes at a union school district meeting to establish its budget by Australian ballot in future meetings, this vote must be taken by written ballot. 16 V.S.A. § 711(e). "Written ballot" as used in this statute means a "paper" ballot during the course of the annual meeting, not an Australian ballot at the polling places.

12.  Selectboard May Purchase Equipment Without Specific Vote. In some instances, the selectboard can purchase equipment for the town without specific authorization by the voters. To do this there must be sufficient money in the budget to pay for the equipment in the year of the purchase. If the equipment or assets are to be financed for a term of five years of less, the voters at an annual or special meeting must approve the purchase. 24 V.S.A. § 1786(a). If a bond will be used, voters using the special provisions for bond votes must approve the purchase. 24 V.S.A. § 1758.

13.  Petition For A Bond Vote Takes 10%. In most cases when voters submit a petition to get an article on the warning, signatures of only 5% of the voters are required. However, petitions which ask the voters to decide whether to borrow money by bonding must be signed by 10% of the voters. Note that the legislative body can also choose to put the issue of whether to incur bonded indebtedness before the voters without a petition. 24 V.S.A. § 1755. It is an open question whether a petition to reconsider a bond vote will require the signatures of 5% or 10% of the voters.

14.  Adjourned Session Limited To Original Agenda. Because an adjourned session is a continuation of the original meeting, when an annual meeting is adjourned to a date certain to continue the meeting, the meeting can only complete the voting and discussion of articles that were in the original warning. New articles cannot be added during the recess. If there is enough time before the adjourned meeting the board can warn new articles to be discussed at a "special meeting" warned for the same time.

15.  Only Documents Produced Or Acquired In The Course Of Town Business Are Public Records. If your town did not produce or acquire a document or tape "in the course of town business", it is not a public document or public record and you have no responsibility to locate or copy the document or tape. This means that videotapes or tape recordings of a public meeting made by a citizen or the local public access group are not public records. If the board or a public official or employee produced the tape in the course of town business, then it is a public document and the town must make a copy available upon request.

16.  Generally, No Hearing Is Required For Ordinance Adoption. When a selectboard wishes to adopt an ordinance (except for Zoning and Subdivision Ordinances) it simply votes to approve the ordinance at one of its regularly scheduled or special meetings. The issue should be included on the agenda of the meeting – but no special notice of this action needs to be warned. However, Chapter 59 of Title 24 provides that after its adoption, the board within fourteen days, must post the ordinance in five locations in the municipality and publish in a newspaper of general circulation in the town, the full text or a summary of the ordinance with an explanation of the citizen's right to petition for a vote on the ordinance. Unless 5% of the voters petition for a referendum on the ordinance, the ordinance will become effective 60 days after its adoption. 24 V.S.A. § 1972.

17.  Board Decision To Upgrade (But Not Reclassify) A Road Does Not Require Hearing. If a board wishes to reclassify a town highway from class four to class three it must provide notice to a variety of potentially interested parties and  hold a public hearing on the matter. See 19 V.S.A. § 708 et seq. However, if the board only wishes to upgrade the roadbed without reclassifying the road it may do so without holding a public hearing.

18.  Town Can Choose To Make A Trail Rather Than Discontinuing Road. A town that wishes to
discontinue a road can choose instead to reclassify the road as a trail. A trail is not be considered a highway and the town is not responsible for any maintenance including culverts and bridges. However, the public maintains a right of way and can use the trail for recreation. 19 V.S.A. § 302.

19.  Selectboard Needs Traffic Study To Set Local Speed Limit Below 35 MPH. If the legislative body wishes to set a speed limit of not more than 50 miles an hour or not less than 35 miles per hour it can do so without an engineering or traffic investigation, but only after consideration of neighborhood character, abutting land use, bicycle and pedestrian use, and physical characteristics of the highways. If a board wishes to set the speed limit below 35 miles per hour the board must first do engineering and traffic investigation, and find that such investigation supports such a change.
19 V.S.A. § 1007.

20.  Taxpayer's Personal Property Tax Inventory Records Are Confidential. 32 V.S.A. § 4009 was amended in 1999 to provide that "the town clerk shall not allow a person [who is not statutorily authorized] to examine such inventories. An official or person entitled to examine an inventory or any other person possessing such information by or through the town offices other than the reporting taxpayer, who, in a manner not provided for in this chapter, discloses any information so possessed shall be fined not more than $100.00." This statute permits personal property tax inventories to be inspected and copied by specific officials including, in part, the attorney general, the state's attorney, listers, selectboard members, treasurers, collectors of taxes, town grand jurors, attorneys for the town and any person designated by the town to assist the town in appraising the fair market value of the property identified on the inventory form as well as the taxpayer.

21.  Voters May Not Vote To Appoint A Delinquent Tax Collector. The Vermont statutes control
Vermont town government. This means that the town, and its voters or selectboard, have only those rights specifically granted by the legislature. See e.g., Robes v. Town of Hartford, 161 Vt. 187 (1993). Accordingly, because the Vermont statutes do not permit the selectboard or voters to appoint a delinquent tax collector, the collector must be elected according to law (unless the legislature approves a town charter – or a special law that permits the appointment of the delinquent tax collector.) 17 V.S.A. § 2646. In addition, if the town fails to elect a delinquent tax collector then the first constable becomes the collector by operation of law. 24 V.S.A. § 1429. Note that if the town has a town manager, then the voters can elect to have the manager collect the taxes for the town (current and delinquent).

22.  The Selectboard May Fill Vacancies In The Tax Collector's Office. Note that if the collector resigns while in office, or if he or she becomes unable to discharge the duties of the office, the selectboard can appoint to fill the vacancy until the next election. 32 V.S.A. §§ 4799, 4674.

23.  Notice Of Tax Sale Should Include Notice Of Right To Apply For Abatement Of Taxes. A recent superior court decision ordered a town to return property obtained at tax sale because it believed the town violated the taxpayer's right to due process by not clearly notifying the person of her right to seek an abatement of the taxes. The fact that the town included a copy of the abatement statute with the notice of sale was not deemed sufficient to satisfy due process. Although a decision of the Superior Court is not binding on other courts, it is advisable that towns conducting tax sales avoid the challenge and include a notice of the right to apply for abatement.

24.  Board May Reject A Petition For Inadequate Signatures. When a town receives a petition the clerk will ordinarily check it to make sure those signing are voters of the town. If the clerk identifies problems with the signatures (for example many signatures written in the same handwriting) the clerk should alert the board who can then decide whether to accept or reject the petition. Note that petitions must be signed by the voter (a husband may not sign for a wife or parent for adult child).

 

In our monthly Opinions we provide what we believe the law requires based upon our legal judgment, years of observing Vermont's local government practices, and Vermont Court decisions. This information is intended as a reference guide. This information is not intended to replace the advice of legal counsel.

Opinions of Opinions
   Opinions       Volume 2  Number 5    May 2000

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