|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 3 Number 4
Every once in awhile we are asked about how the Secretary of State’s office began to publish opinions on issues of local government law. Opinions began as a formal publication in 1981 by then Secretary of State Jim Douglas, and his deputy Paul Gillies. The belief then was that by publishing questions and answers from the previous month, it would let people know what was going on in local government around the state, and would help officials learn from the experiences of others. They also hoped that this information would eliminate some of the telephone calls that can – and sometimes still do – consume this office.
I can tell by the number of calls and cards we have received in response to our re-institution of Opinions that local officials and citizens continue to value learning about the ever-changing landscape of local government law and practice. Perhaps it is because, when we see our own town’s challenges reflected in the stories of other communities, we feel less alone in our work.
Though I hope our Opinions are interesting to read and sometimes help you solve a problem or avoid a mistake, they are not rulings that are binding on towns or citizens like a decision of the court. Rather, when we issue opinions they are just that – our opinions. We have no power to force citizens or officials to do the right thing – to treat each other civilly - to follow the law. Rather, through our opinions, Deputy Secretary Bill Dalton, Director of Elections Kathy DeWolfe, and I share with you what we believe the law requires based on our best legal judgement and from our many years of observing Vermont’s local governments and following the decisions of our courts.
The thoughts expressed in our opinions also reflect our philosophy of openness and fairness in government and in the inherent value of local control. Whenever there is a question about what the law says or what is required of an official, our advice is conservative. We try to keep you out of trouble by counseling prudence over risk-taking, openness over secrecy and due process over bureaucratic expediency.
The citizen volunteers who run our local governments in Vermont deserve all the support we can give them. It is my hope that Opinions offers them that support and in doing so, helps to strengthen our town governments.
Deborah L. Markowitz
Secretary of State
In the new history of New York City, Gotham, by Burrows and Wallace, the authors tell a story of the town of Gotham in England, from the twelfth century. In those times, wherever the king walked became a public right-of-way, and he was heading for Gotham. The people feared the loss of their best fields; their private property was at risk. So they did what came naturally to them: they acted as if the whole town had become insane, driving the king and his entourage away before they stepped foot on their lands, thus saving themselves from the legal impact of the royal foot.
Times have changed, of course. We do things differently now. But the image of the public right-of-way being laid out by the footsteps of the government has lasting appeal. Today it takes a formal notice, site visit, hearing, written decision, and often a long excursion through the courts. Taking somebody’s property is serious business.
Property has rights, just as people do, and no conveyance happens easily these days, especially those that may be attempted without the consent of the owners. Nobody uses a weapon in these hearings. It’s a civil process.
What makes that process civil is the ceremony of the hearing. You see this in zoning, tax appeals, and even town meeting. The ceremonial aspect of these encounters between government and the landowner, voter, or taxpayer is formalistic and formulaic, and it serves an important function by depersonalizing the process, as much as a black robe depersonalizes a judge in a courtroom.
Town life is by definition and practice informal. We try to do things by the book, but common sense and common decency often come first, especially when the people are all local. Still, the ceremony of these meetings contributes to the digestibility of the outcome. It’s as if we were saying to our friends and neighbors, “This is serious. This isn’t our decision. It belongs to the law, and in the law’s rooms, we have to do the law’s business, even if that means disappointing you.”
So begins a struggle between the formal and the informal, both within the structure of the hearing and the process of deciding itself. How much should the history and personality of the people affected count toward the outcome? Alas, the law teaches us it should not count at all, but our hearts cannot always allow us to be that severe.
As a consequence, we take steps to soften the blow. We give those who appeal their taxes a little bit off the top, just for trying. We apologize to those who don’t get a variance, shrugging with shared exasperation, saying if it were only up to us, there would be a different outcome. We try to explain in person why the end sought by the citizen must be denied, and we blame the law, because it doesn’t have to live in this town after the decision is made.
The trouble comes when we give too much. We grant the variance, in spite of the law and the facts, only to discover the Environmental Court overturns it on appeal, because there was no basis to grant an exception. We twist the legal process to improve the chances of the citizen, as some small compensation for the law’s severity, but later discover what we did has no validity when tested in court. In these cases, we do no one any favor. In fact, we only put off until later the inevitable disappointment of the citizen.
What good does it do anyone, other than to erect some kind of shield against being accused of making a decision people don’t like? “It isn’t my fault,” you want to say, “it’s the court.” But in fact it is the law, and you are the law, at that first hearing, and doing the right thing at the earliest possible moment is not only just but it’s really the fairest thing you can do for everyone concerned.
Watch where you walk. There are consequences in every step.
"A Voice from the Past" by Paul Gillies
Opinions Volume 3 Number 4 April 2001
top of this section April Opinions "Table of Contents" SOS HOME
A Special Congratulations to...
Town Clerks Wendy Eramo of Granville,
Joanne Foster of Walden and Marie Betterley of Stowe
Each of whom have retired after many years of service to their towns. Wendy, Joanne and Marie have each served their communities and the State of Vermont well. We will miss them and hope they continue to stay involved in town government.
Opinions of Opinions
- GROWING TOWN CAN ADD JUSTICES AT NEXT ELECTION.The Vermont Constitution, Ch. 2, § 52 provides that Justices of the Peace are elected by the voters of their respective towns. The constitution sets out the maximum number of justices each town may elect, with towns having less than 1,000 inhabitants electing up to five; towns with 1,000 and less than 2,000 inhabitants electing up to seven; towns having 2,000 and less than 3,000 inhabitants electing up to ten; towns having 3,000 and less than 5,000 inhabitants electing twelve; and towns having 5,000 or more, inhabitants electing fifteen Justices of the Peace. When a town has grown so that it may elect more justices an article can be placed on the annual meeting warning to vote to increase the number of J.P‘s. The new number of J.P.’s will be elected at the next general election. proceeds.
- GROWING TOWN MUST VOTE AGAIN TO HAVE BYLAWS ADOPTED BY THE PEOPLE.The recent census figures showed the population of one town exceeding 5000 for the first time. With a population of less than 5000 that town had previously elected to be considered a rural town so that it would adopt its bylaws, amendments or repeals by vote of the people. 24 V.S.A. § 4303 (10). Now that the town has grown to exceed the 5000 in population it must vote its bylaws as an “Urban Municipality.” 24 V.S.A. § 4303(12).
In an urban municipality zoning or subdivision bylaws, amendments or repeals are adopted by a majority of the members of its legislative body. 24 V.S.A. § 4404(c). However, the voters can still have a chance to vote on adoption if, within twenty days of the adoption by the board, the voters bring in a petition of five percent of the voters requesting a municipal meeting to reconsider the adoption. 24 V.S.A. § 4404 (f).
- ZONING/SUBDIVISION VOTES ARE BY AUSTRALIAN BALLOT.One town votes its budget, officers and public questions on the floor. They were surprised to find that votes on their bylaws were required to be by Australian ballot. For routine adoption in rural towns the law specified that “a proposed bylaw, amendment or repeal of a rural town shall be adopted or rejected by the vote of that town by Australian ballot at the next regular or at a special meeting duly warned and held after the final public hearing.” 24 V.S.A. § 4404(a)(1)(d). In addition, an urban municipality that petitions for a vote on the bylaws must also vote by Australian ballot. 24 V.S.A. § 4404(f).
- NO LAW REQUIRES ZONING ADMINISTRATOR TO SIGN “BIANCHI” STATEMENT.One zoning administrator asked whether he was required to research the permit and violation history of a property and then fill out and sign a questionnaire presented to him by a prospective purchaser of the property. While it is possible for a town to adopt a policy of doing this research and signing a statement of compliance there is no requirement in Vermont’s law of land use regulation that would require this.
Vermont’s public record law makes the zoning records public. The “Bianchi” laws require the town to file all municipal land use permits or notices of violation, or notices of municipal land use permits with the town clerk, and those records, as well as the records kept by the zoning administrator must be made available for public inspection. It is a nice courtesy to sign statements of compliance, insofar as it may make it easier for people to buy and sell property in the town; however it can also have some important legal ramifications if an error is made. A Town should consult its attorney when deciding whether the zoning administrator should conduct searches or sign statements that a particular parcel of land complies with all land use regulations of the town.
- TOWN PLAN IS VALID DESPITE FAILURE TO HOLD HEARING WITHIN TIMEFRAME.Vermont law requires that “not less than thirty nor more than 120 days after a proposed plan or amendment is submitted to the legislative body of a municipality . . ., the legislative body of a municipality with a population of 2500 persons, or less shall hold the first of one or more public hearings, after public notice, on the proposed plan or amendment . . . .“ In one such town the board failed to hold its public hearing until well after the 120-day period and now wonders if its plan is valid. 24 V.S.A. § 4385 specifically provides that “[failure to hold a hearing within the 120 days shall not invalidate the adoption of the plan or amendment.”
- THE LEGISLATIVE BODY MAY CHANGE THE PLAN WITHOUT NEW HEARINGS BY THE PLANNING COMMISSION.If the selectboard wishes to make changes to a proposed plan it may do so not less than 15 days prior to the final public hearing on the plan. If the changes are substantial it must warn a new public hearing. In all cases where a proposal is altered by the board, it must file a copy of the changed proposal with the clerk of the municipality, with any individual or organization requesting a copy in writing, and with the planning commission. The planning commission must submit to the legislative body at or prior to the public hearing a report that analyzes the extent to which the changed proposal, when taken together with the rest of the plan, is consistent with the legislative goals of Act 200. 24 V.S.A. § 4385.
- THE TOWN PLAN IS EFFECTIVE UPON ADOPTION AND NO PETITION FOR PUBLIC VOTE IS ALLOWED AFTER ADOPTION.According to 24 V.S.A. § 4385(c), plans and amendments to town plans are effective upon adoption. Unlike bylaws, the voters cannot petition for a referendum vote on a plan adopted by the legislative body. Rather, if it wishes to vote directly on the plan, the voters must elect at a regular or special meeting of the voters duly warned, to adopt or amend municipal plans by Australian ballot. This procedure will then apply unless rescinded by the voters at a regular or special meeting similarly warned and held.
- VOTERS MAY FORCE VOTE ON PROPOSED BY-LAW AMENDMENT IF NO ACTION FOR A YEAR.Section 4404 (i) of Title 24 provides “If the proposed bylaw, amendment or repeal is not approved or rejected . . . within one year of the date of the final hearing of the planning commission, it shall be considered disapproved unless five percent of the voters of the municipality petition for a meeting of the municipality to consider the bylaw or amendment, and the petition is filed within 60 days of the end of that year.” If a petition is filed either sixty days before or after this one year period the town must warn a meeting for an Australian Ballot vote on adoption of the bylaws, amendment or repeal. Note, however, that a proposed bylaw or amendment may only be adopted by the town if the town has in place a valid town plan.
- PLANNING COMMISSION DOES NOT HAVE TO ACCEPT DUPLICATIVE PETITION.In one town a planning commission received two petitions for repeal of zoning bylaws. Although there is no statute that directly addresses this issue, we believe a court would hold that that while the first petition for repeal is pending there is no need to begin planning commission proceedings related to the second petition so long as both petitions ask for the same action. See Whitman V. Brown et al., 128 V.S.A § 384 (1970) (selectboard does not have to put to vote a frivolous or illegal petition.)
- ZONING BOARD MEMBER WHO MOVES DOES NOT NEED TO RESIGN.Nothing in the law requires a member of the zoning board to be a resident of the town. Therefore, the fact that a board member moves out of the town will not disqualify him or her from continuing to serve on the board. If the selectboard wishes they can ask the board member to resign. If the board member refuses, a selectboard could try to remove the board member “for cause” after a hearing. 24 V.S.A § 4461. It is an open question whether no longer residing in town is sufficient reason for removal from the board.
- PERSON WHO MOVES TEMPORARILY MAY STILL RUN FOR OFFICE.In order to run for local office a person must be on the voter checklist. In one town, a person running for school board temporarily moved to a neighboring community as the result of a divorce. The person fully intended to move back and was actively looking for housing. Vermont law allows a person who temporarily resides out of the town to stay on the checklist so long as he or she has a definite plan to move back to town (not some vague or indefinite plan.) Ordinarily, so long as the person remains on the checklist he or she can be nominated and elected to serve in local office. Whether a person is entitled to stay on the checklist must be decided on a case by case basis.
- UNION SCHOOL DISTRICT BOARD VACANCY FILLED BY SELECTBOARD.When a vacancy occurs on the union school district board of directors, the board clerk must immediately notify the selectboard of the town which elected the board member who has created the vacancy. Within 30 days of the receipt of that notice the selectboard, with the advice of the school board of the town or incorporated school district, must appoint a person who is otherwise eligible to serve as a director from that district to fill the vacancy until an election at a special or annual district meeting is held. 16 V.S.A. § 706l.
- UNION SCHOOL OFFICIAL VACANCY – OTHER THAN BOARD MEMBER – FILLED BY BOARD.When a vacancy occurs in a district office other than on the board of directors, it is temporarily filled by the board of school directors of the union school district as soon as practicable after the vacancy occurs. The temporary appointee serves until the district, at its next meeting, fills the vacancy for the remainder of the unexpired term. 16 V.S.A. § 706l.
- THE SAME PERSON SHOULD NOT SERVE AS UNION SCHOOL TREASURER AND DIRECTOR.The law provides that "a school director shall not be . . . town treasurer" (who also serves as school treasurer 17 V.S.A. § 2647. Although there is no similar law that applies to union high school treasurers, 16 V.S.A. § 701a (b) provides that "The provisions of general law relating to . . . the election, appointments, powers, duties and liabilities of school officers, . . .shall apply to . . .similar school officers." This law would indicate that the same person should not be both union school director and union school treasurer. However, because the law is not crystal clear, until a court rules on this issue, we would not know with certainty that section 2647 would extend to union schools. However, the same reason for the incompatibility exists whether it is a town school district or a union school district -- to ensure that the person who signs the check is different from the person who authorizes the orders.
- TAX BILL SENT TO OWNER AS OF APRIL 1st.Every year people who purchase property after April 1st want to know why the tax bill is sent to the prior owner. This is because Vermont law provides that “Taxable real estate shall be set in the list to the last owner or possessor thereof on April 1 in each year in the town, village, school and fire district where it is situated. 32 V.S.A. § 3651. Some towns send a duplicate bill to the new owner as a courtesy. It is also common for the year’s taxes to be paid in full at the closing of the sale.
- BCA MAY INCREASE, DECREASE OR SUSTAIN LISTER’S APPRAISAL.Upon appeal to the Board of Civil Authority (BCA) from the listers’ decision, the BCA may decrease, increase or sustain the appraisal. Once the taxpayer raises the issue of the property’s valuation, the BCA must make findings to support what the BCA believes to be the correct valuation of the property, even if it results in an increase. The same is true for further appeals to the State Board of Appraisers or the Superior Court. 32 V.S.A. § 4409.
- VICTORIOUS TAXPAYER IS ENTITLED TO CREDIT.If a taxpayer succeeds on appeal, and it is determined that he or she has been over-assessed, then the taxpayer is entitled to a credit from the municipality. If the municipality has voted to collect interest on delinquent taxes, then the taxpayer must be repaid interest at the same rate. 32 V.S.A. §§ 4469, 5136. A municipality can choose to pay the taxpayer in a lump sum, but cannot be forced to do so as the statute only mandates a credit toward future tax liability.
- THE TIME FOR DOG LICENSING AND TAGS IS HERE.Just a brief reminder that dogs must wear the “license” tag required by the Vermont Statutes, and that the license tag is sufficient proof that the dog has been vaccinated for rabies. An additional “rabies” tag is not required. 20 V.S.A. § 3581(a).
- WHILE 17 V.S.A. § 2661 PROVIDES A METHOD FOR RECONSIDERATION OF PUBLIC QUESTIONS AND BUDGETS, THE ELECTION OF OFFICERS CANNOT BE RECONSIDERED BY FILING A PETITION WITH THE LEGISLATIVE BODY.The only way to challenge or contest an election of an officer, is by filing a petition with the appropriate Superior Court. 17 V.S.A. § 2603. The statute requires that either errors are alleged sufficient to change the outcome of the election, fraud in the process sufficient to change the result, or that for any other reason, the election is not valid.
- THE LEGISLATIVE BODY MUST CALL A SPECIAL MEETING WITHIN 60 DAYS OF THE SUBMISSION OF PROPERLY FILED PETITIONS TO RECONSIDER.We hope that town, school, and union school officials will all coordinate the setting of special meeting dates to minimize voter confusion. 17 V.S.A. § 2661.
- . ALTHOUGH THE LAW DOES NOT SPEAK DIRECTLY TO REQUESTING ABSENTEE BALLOTS FOR RECONSIDERATION OF AN ARTICLE BY AUSTRALIAN BALLOT, WE SUGGEST THAT FAIRNESS DICTATES THAT THE TOWN CLERK SEND ABSENTEE BALLOTS FOR THE RECONSIDERATION TO ALL VOTERS WHO HAD REQUESTED ABSENTEE BALLOTS FOR TOWN MEETING.A reconsideration is really an extension of that Town meeting, and we believe that absent voters should continue to participate.
- SELECTBOARD CANNOT CONTROL ELECTED CONSTABLE.Vermont law gives most elected officials independence – making them accountable only to the electorate. This means that even if the selectboard is unhappy with the performance of a constable it cannot tell a constable how to perform – or not perform – his or her duties. Unless a salary is voted at town meeting, the board can control what the constable is paid. However, there are many instances of constables continuing to perform their functions for no pay. 17 V.S.A. § § 2646, 2651(a).
- CONSTABLE MUST POST A BOND TO HOLD OFFICE.In an extreme situation the selectboard of a town can create a vacancy in the constable’s office by giving the bonding company enough information about the constable for them to revoke his or her bond. Vermont law provides that if the constable’s bond is revoked he must produce a bond within ten days (at the town’s expense) or there is a vacancy in the office. 24 V.S.A. § 832.
- VOTERS MAY VOTE TO RESTRICT LAW ENFORCEMENT AUTHORITY OF CONSTABLE.Vermont law permits a town to vote at a special or annual town meeting to prohibit constables from exercising any law enforcement authority; or to prohibit constables from exercising any law enforcement authority without having successfully completed law enforcement training. 24 V.S.A. § 1936a. Constables who do not have law enforcement authority may still serve civil or criminal process, destroy animals, in accordance with Vermont’s animal control law, kill injured deer, when required by law, provide assistance to the health officer in the discharge of the health officer's duties, serve as a district court officer, remove disorderly people from town meeting, and collect taxes, when no tax collector is elected.
- MUNICIPALITY MAY ALLOW CONSTABLE IN NEIGHBORING COMMUNITY TO WORK IN TOWN.24 V.S.A. § 1936a (d) permits a municipal legislative body to vote to allow a constable elected or appointed in another municipality to exercise law enforcement authority in its municipality, so long as that constable is not prohibited from exercising law enforcement authority in his or her own community and so long as the constable has completed the training requirements for a full-time or part-time law enforcement officer, and the legislative body adopts policies and procedures establishing the circumstances under which the authority may be exercised.
Announcements and Upcoming Workshops
Some Open Meeting Law Pointers1 V.S.A. § 310 et. seq.
Vermont’s Open Meeting Law requires that all meetings of public bodies be open to the public. The public must be allowed to attend these meetings and they must be given a reasonable opportunity to comment on matters considered by the board, subject to reasonable rules set by the chair of the board.
While boards conduct meetings in many different ways, and the chair of the board has the authority to set reasonable rules to keep order, ordinarily a board must allow public comment before it votes on a particular matter since one of the objects of the open meeting law is to ensure that the public has meaningful input into the business of the board. Note however that boards routinely reserve public comments about “other business” to the end of the meeting.
In addition to making the meeting accessible to the public and allowing for meaningful public comment, the open meeting law requires that the board make an agenda of its regular meetings available prior to the meeting so that the public can have reasonable notice of what will be discussed. The board is not limited to discussing the agenda items, but we advise that before taking action on a significant matter, the issue should generally appear on an agenda so that the public can speak to the matter before final action is taken.
Finally, the open meeting law requires that minutes be taken at all public meetings. Minutes must at least include the names of all members of the public body present at the meeting, and other active participants, and all motions, proposals, and resolutions made, and their dispositions, and the results of any votes taken. Minutes are public records, which must be available for public inspection within five days after the meeting. It is not necessary for the board to post meeting minutes; however, the minutes should be available for public inspection at the town clerk’s office.
Updated Vermont Municipal Guide to Land Use RegulationAvailable On Line www.sec.state.vt.us
The Vermont Municipal Guide to Land Use Regulation is the product of many years of experience helping local officials around the state navigate the complex laws and procedures that govern local zoning and subdivision. It seeks to provide an easy to understand, step-by-step guide to those who are called upon to create, implement and enforce local land use regulations. It attempts to strike a balance between making the manual simple and easy to understand, while also addressing some of the more complex and subtle legal issues that arise.
This web version of the Vermont Municipal Guide to Land Use Regulation has been updated to take into account changes in Vermont statutes and case law since the handbook’s original publication in 1998. Additional updates will be posted from time to time on this website under “What’s New”. Feel free to print off copies of the chapters to share with your board members and members of the public, or to replace the outdated text of the original handbook.
Leadership Workshop for Local Board Chairs
This session will bring together chairs of Local Boards to discuss such topics asSpeakers will include Secretary of State, Deborah L. Markowitz, Attorney and experienced board chair Paul Gilles, with a special welcome from Lieutenant Governor, Douglas Racine and House Speaker Walter Freed.
- Who is the boss in local Government?
- Open Meeting Law
- Efficient and effective meetings
- Dealing with the pressPlease RSVP to Martha Trombley by April 18, 2001 at (802)828-2363
- Monday, April 23, 2001, 3:00 – 5:00 p.m.
- Reception to follow
- Vermont State House, Room 11
Justice of the Peace WorkshopOverview of the J.P. Duties
Secretary of State, Deborah L. Markowitz,
Paul Gillies, Esq., and Charles Merriman, Esq., Vermont Tax Dept.
Monday, April 2, 2001, 4-6 p.m.
Rutland Town Offices, Rutland, VT
Wednesday, April 4, 2001, 7-9 p.m.
Danville Town Offices, Danville, VT
Tuesday, April 10, 2001, 7-9 p.m.
Springfield Town Offices, Springfield, VT
Thursday, April 12, 2001, 4-6 p.m.
Fisher School, Arlington, VT
Monday, April 16, 2001, 7-9 p.m.
Williston Town Offices, Williston, VT
Wednesday, April 18, 2001, 4-6 p.m.
Swanton Village Municipal Complex, Swanton, VT
For more information, and to register, please contact Melanie Jacobs (800)439-8683.
"Upcoming Workshops and Announcements"
Opinions Volume 3 Number 4 April 2001
top of this section April Opinions "Table of Contents" SOS HOME
Sunday, April 1
Last day for dog or wolf-hybrid licensing. 20 V.S.A. § 3581
Base date for setting appraisal value and determining ownership of real and personal property. 32 V.S.A. § 3482
Last day for Town Clerk to furnish Listers with transfer book for preceding 12-month period. 32 V.S.A. § 3485(a)
Wednesday, April 4
(22 days after warning; warning within seven days after election) Last day a run-off election may be held. 17 V.S.A. § 2682(e)
Thursday, April 5
(Within 30 days of Town Meeting) Last day Legislative body can accept petition signed by five percent of the registered voters requesting reconsideration or rescission of a Town Meeting article. 17 V.S.A. § 2661(b)
Sunday, April 15
Last day for Selectboard to notify Commissioner of Social Welfare of Appointment of Town Service Officer. 33 V.S.A. § 2102
Friday, April 20
Last day for return of personal property inventories to Listers. 32 V.S.A. § 4004
Wednesday, April 25
State withholding tax return is due (actual date by which return must be post marked is shown on the return) if reporting less than $600 per quarter; more than $600 requires monthly report. 32 V.S.A. § 5842
Monday, April 30
Last day for Listers to receive applications for tax exemption due to disabled veteran status 32 V.S.A. § 3802(11)
Last day to file Form 941 (quarterly withholding return) with the IRS.
April 2001 Calendar
Opinions Volume 3 Number 4 April 2001
top of this section April Opinions "Table of Contents" SOS HOME
Looking ahead to May….
Tuesday, May 15
Last day for Town Clerks to remit to State Treasure an accounting of dog and wolf-hybrid licenses sold and remit the license fee surcharge for an animal and rabies control program 20 V.S.A. § 3581(f)
Wednesday, May 30
Last day to file form 941 (quarterly withholding return) with the IRS.
For further information, please contact
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