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VERMONT SECRETARY OF STATE - Jim Condos | |||||||
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| State of Vermont Office of the Secretary of State http://www.sec.state.vt.us Volume 3 Number 6 |
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Once every ten years this office has the challenge of providing administrative support for the Legislative Apportionment Board. This board is charged with redesigning Vermont’s legislative districts based on changes in Vermont’s population. As a practical matter this means that Deputy Secretary Bill Dalton and State Archivist Gregory Sanford are spendingmore time than they ever expected going over maps and numbers,and travelling around Vermont to public hearings on proposed reapportionment plans. The Reapportionment Board is made up of five people, two of whom are appointed by the two major political parties. Two others – a Republican and a Democrat – are appointed by the governor, and the Chair of the board is appointed by the Chief Justice of the Vermont Supreme Court. This board has put in many hours going over proposed plans and hearing from members of the public. At some of the meetings emotions run high, but I have been impressed that, throughout the process, the board members have put their own personal politics aside in an effort to come up with plans that are good for Vermont and meet the requirements of the law. Our office is also here to help local boards of civil authority (BCAs) who are charged with reviewing and commenting on the reapportionment proposal. BCAs of some towns and multi-town areas that need to be subdivided into smaller districts will be called on to jointly propose a plan of division and submit that proposal to the Apportionment Board by August 1 st . (Recent legislation extended the deadline from July 1 st to August 1 st .) Our office will provide BCAs with maps of their districts, along with detailed instructions from the Legislative Apportionment Board. Your BCA should be hearing from us as soon as the Apportionment Board finalizes its tentative plan. Good luck with the work ahead of you! |
Message from the Secretary |
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A Voice from the Past |
"Voice from the Past" by Paul Gillies
Opinions
Volume 3 Number 6 June 2001
THE OUTSIDERS
It’s time to declare a truce, a cease-fire for all the newcomers, short-timers, and seasonal folk who live among us. The era of tar and feathers is over. It’s time we started treating them as if they had full rights to the tax assessments, zoning permits, public offices, and access to public officials and records that all natives and long-time residents have always enjoyed.
Of course they have those rights now, guaranteed by the constitution and the laws, but you’d never know it in some towns. The town treats strangers as if they were strangers. What would you expect? They are the people who bring development to the town, who want to build big houses or subdivide the pastures, or bring more traffic to rural areas. These are also the people who have chosen to live part of the year in the most beautiful place they’ve ever seen. Sometimes they feel distinctly unwelcome.
To some people, these new residents and business people are the ruin of Vermont. This opinion is protected by the constitution too, but not when it seeps into the fabric of local government.
Local government is designed to be cranky and conservative. It isn’t intended to give everybody everything they ask for. Saying no is its most likely response to any proposal, and that’s the way it should be. We want our government to be skeptical and crusty, to ask hard questions and ensure that change comes to the town slowly and respectfully.
But be that way equally to everybody. Friends and family should not enjoy any special advantages, everyone knows that. That isn’t the point. The way outsiders are treated is where the problem arises. Too often they get rough treatment in town, when they visit the selectboard, zoning board or planning commission. It’s not the same as the way the established resident is treated: it’s harder and less forgiving, and more likely to include harsher conditions or an outright denial.
At the heart of the problem is the mixing of two ways of thinking. There is political opinion and then there’s the public interest, which is something entirely different. Yes, of course, this is a democracy, but it’s a system of laws too, and sometimes laws restrain the open exercise of pure and direct democracy.
We don’t vote on permits at town meeting. We don’t set individual tax assessments. The reason is simple, because these are matters the law places in the hands of boards and commissions. And these good people in turn have to act impartially, basing their judgments on the facts and the law, not on what a majority of people think they should do.
Sometimes public opinion takes the form of community hysteria. Angry citizens call for the resignation of representatives they feel have abandoned the majority view, but in this they really ignore the purpose of assigning the job to a board of citizens, rather than a plebiscite of vocal residents. This position also ignores the law. To the ignorant, the law is the way you say "no" to people, but it’s not a game. Outcomes are never predetermined by the majority opinion, when you’re ruled by bylaws and statutes.
When he first moved to Walden Pond, Thoreau was surprised at how fast he could make paths in the woods. Going back and forth over the ground only a few times left a trace of where he had come from, and in a short time the grasses and plants gave way to dirt path. Years later he could still see his mark on the earth.
The same is true of our own lives. We can’t avoid the ruts in mud season, as much as we try to ride the high spots. It is our nature to be partisan, first to have positions and then to regard them as established and immutable. Rare is the person who has no opinion. But opinions get in the way of fact-finding, legal analysis and even fair decision-making. When that happens, the political overcomes the legal, and there is anarchy, albeit of a soft and familiar quality.
All communities have a right to protect themselves from change they cannot handle. Good zoning and planning, fair hearings, and clear decisions are the tools to ensure that happens. Heatened public debates at town meeting are healthy. Passion anytime is welcome. But don’t let your fear of change and outsiders rule your decisions. It isn’t just unfair to them; it’s unfair to the process, and ultimately to you.
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Opinions of Opinions
Opinions
Volume 3 Number 6 June 2001
1. Selectboard Controls Town Buildings.
The selectboard has control over the town buildings. This means that the board may decide how the various spaces are used, whether and when repairs are made, etc . . . However, because the clerk has control over the records of the town the clerk has total control over the town vault. In some towns the selectboard feels the office must be made available to other local officials at times that the clerk is not ordinarily there. In such instances the board must work with the clerk to ensure that all of the records in her custody and the equipment of the office are protected. This might mean getting locking file cabinets and password protect programs on the town computer.2. Officials Are Elected by Majority Vote at Floor Meeting – But Plurality if By Australian Ballot. Vermont law provides that "When election is by ballot, a majority of all votes cast for any office shall be required for an election, unless otherwise provided by law; provided that when there is but one nominee for an office, unless objection is made, the legal voters may vote to instruct the town clerk to cast one ballot for such nominee and upon such ballot being cast he shall be declared elected. If no person has obtained a majority by the end of the third vote, the moderator shall announce that the person receiving the least number of votes in the last vote and in each succeeding vote shall no longer be a candidate, and the voting shall continue until a candidate receives a majority." 17 V.S.A. § 2660(b). Towns that vote by Australian Ballot elect their officers by plurality vote. (Whoever gets the most votes wins.) 17 V.S.A. § 2682(c).
3. Town Must Plan For A Transition After It Adopts Town MANAGER Form Of Government. When a town votes to adopt the town manager form of government, there is, by necessity, an interim period of time before a manager is hired when the board must nevertheless run the town. 24 V.S.A. § 1233. With a town manager form of government many of the selectboard responsibilities and all of the Road Commissioner responsibilities as well as others become the statutory responsibilities of the town manager and not the selectboard. 24 V.S.A. § 1240. Although the statues do not directly address a transition period, the selectboard should plan ahead for one. So long as the board is actively working to hire a manager, it is likely that a court would recognize the board’s continued authority to run the town as though there had been no vote to adopt the manager form of government, although the law does not clearly state this. In the alternative, the board can appoint an interim manager. The town might include in the article to adopt a town manager form of government, that the selectboard would continue until a town manager is hired but not longer than three months.
4. Selectboard member may not be interim manager. 17 V.S.A. § 2647 provides that a manager may not serve in any elected office in the town. This would prevent a member of the selectboard serving as an interim town manager. However a selectbaord’s assistant could be temporarily appointed.
5. Member of Public May Tape Meeting Even If Town Tapes. The fact that the town tapes its own meetings will not prevent an interested member of the press or public from also tape recording the meetings – so long as this can be done without unduly disrupting the meeting.
6. Minutes of Public Meetings Are Minimal. According to 1 V.S.A. § 312, (b)(1) "Minutes shall be taken of all meetings of public bodies. The law provides that minutes must cover all topics and motions that arise at the meeting and give a true indication of the business of the meeting. Minutes must include at least the following: the names of all members of the public body present, all other active participants in the meeting, all motions, proposals and resolutions made, offered and considered, and what disposition is made of same, and the results of any votes, with a record of the individual vote of each member if a roll call is taken. The minutes do not legally have to include a record of discussions that did not result in a proposal or motion – although many boards find it helpful to do so.
7. Only Landowner May Cut Growth in the Highway Right of Way Without Town Permission . 19 V.S.A. § 901 provides that "a person, other than the abutting landowner, may not cut, trim, remove or otherwise damage any grasses, shrubs, vines, or trees growing within the limits of a state or town highway, without first having obtained the consent of the agency for state highways or the board of selectboard for town highways." In some cases a utility may be given an easement that includes the right to trim or cut the shrubs and trees.
8. Town May Not Remove Shade or Fruit Trees From Highway Right of Way If Set out Or Marked by Abutting Landowner Unless Safety or Utility Requires. The selectboard of a town are required to remove trees and bushes which obstruct the view of the highway ahead or that cause damage to the highway or that are objectionable from a material or scenic standpoint. The law provides, however, that shade and fruit trees that have been set out or marked by the abutting landowners must be preserved if the usefulness or safety of the highway is not impaired. Young trees standing at a proper distance from the roadbed and from each other, and banks and hedges of bushes that serve as a protection to the highway or add beauty to the roadside, must also be preserved. 19 V.S.A. § 904.
9. Timber Cut From Right Of Way May Belong To Underlying Landowner. One town asked whether timber cut by a utility company and lying on a roadside is owned by the town or the owner of the property? The law is not specific. However, if the town only has a right of way or easement (and has not been deeded the land outright) - depending on the language of the easement the timber will belong to the landowner. The town must look at the deeds to know for sure.
10. Long Term Maintenance of Class Four Road Does Not Guarantee Future Maintenance. The law does not require a town to maintain a class four roads so that it can be passable in all seasons of the year. Even if the road has been so maintained in the past – the selectboard may reconsider this use of town resources and choose not to continue the maintenance. 19 V.S.A. § 302.
11. Landowners Can Petition For Reclassification. 19 V.S.A. § 708 (a) provides that voters and/or landowners in a town can bring in a petition of 5% of the voters to force the selectboard to consider reclassifying a particular highway in the town. The law is clear that a class 4 highway need not be reclassified to class 3 merely because there exists within a town one or more class 3 highways with characteristics similar to the class 4 highway, and if the town decides to reclassify it can require the landowners who petitioned for the reclassification to pay all or part of the cost of upgrading the road. If the selectboard decide against reclassification the landowners can appeal the decision to court which might order reclassification if it believes that the selectboard’s decision was discriminatory.
12. Town Plan Can Effect Road Decisions. In considering whether to reclassify a class 4 highway to class 3, the selectboard or commissioners may consider whether the increased traffic and development potential likely to result from the reclassification is desirable or is in accordance with the town plan. 19 V.S.A. § 708(a).
13. Board May Change Meeting Schedule Mid-Year. In one town the selectboard decided it needed to meet more than once a month. By resolution of the board, it may add a second "Regularly Scheduled" meeting. 1 V.S.A. § 312(c)(1). It should post a notice of this change in the Clerk's office and might also think about advertising the addition of the extra meeting so that the public will be apprised of the additional meeting. The board should also notify any media editors who have requested notification of special meetings during the calendar year. 1 V.S.A. § 312(c)(5)
14. Selectboard May Grant Temporary Access To Landlocked Land To Remove Lumber. 19 V.S.A. § 958 gives the selectboard the authority to lay out a temporary right of way for the purpose of allowing access to landlocked land for the removal of lumber, wood, or other material. The selectboard shall follow procedures set out by law (19 V.S.A. § 923,) and they must fix the length of time and conditions of use for the right-of-way. And of course, the person using the right of way must restore it to its original condition at the completion of the time period (and can be required to post a bond to ensure this is done adequately.) Note that the Supreme Court has held that a landowner does not have the right to this permission - it is totally up to the discretion of the selectboard.
15. No Emergency Is Required For Interim Zoning. The selectboard may, at any of its regularly scheduled meetings, after a public hearing on the matter, adopt a proposed amendment to the bylaws as interim zoning so long as the municipality has begun to study adopting a permanent bylaw amendment of the same nature. Although the statutes provides that " such interim bylaws shall be adopted, reenacted or extended or amended by the legislative body of the municipality after public hearing upon public notice as an emergency measure . . ." selectboard’s are not required to establish that an emergency exists in order to adopt interim zoning. Rather, the purpose of interim zoning is to allow the selectboard to ensure that while the community considers a permanent bylaw that the town is not subject to a flurry of permit applications designed to circumvent the proposed change. 24 V.S.A. § 4410.
16. PETITION MAY NOT BE WITHDRAWN. In one town a petition of 5% of the voters was submitted to the clerk and then the organizers changed their mind about the petition. However, once submitted to the town clerk the petition organizers may not withdraw a petition if it is signed by sufficient voters. (Generally 5%). That is because the petition is from everyone who signed it – not just the organizers.
17. Voters Can Remove Names From Petition. The Vermont Supreme Court has recognized that voters who sign a petition may ask to have their signatures struck from the petition before action has been taken on the petition by the selectboard. This means that if petition organizers wish to withdraw a petition it can do so by asking a sufficient number of signators to have their names struck so that the petition would not have the required number of signatures to be valid. Walker v. Dorset, 139 Vt. 227 (1981).
18. BCA Designates Voting Place Unless the Voters Vote To Designate the Location Of Polling Places at an Annual or Special Town Meeting. Each polling place must be in a public place in the voting district (unless all districts in your town vote at one polling place) as designated by the Board of Civil Authority; however, the voters may designate different polling places by vote at an annual or special meeting. 17 V.S.A. §§ 2501, 2502. We strongly encourage Boards of Civil Authority and/or town voters to do everything possible to choose polling places that are ADA accessible and that are nonsectarian whenever possible. Although rulings in court cases in other states have upheld the use of a church all-purpose room when absolutely no other public place is available, it is a best practice to designate a truly public place to be a voting location.
19. Special town or special school district meetings may be held on any day chosen by the legislative body, so long as appropriately warned. If other town or school boards happen to be meeting on the same day, the meeting places need to be separated, but there is no prohibition to prevent several meetings from being scheduled simultaneously. To avoid conflicts and to encourage voter participation we suggest coordinating with a "master calendar" before scheduling!
20. The School Board may Borrow Money From the Town. The selectboard and school board may loan money to each other secured by a note signed by the selectboard or school board as the case may be. 16 V.S.A. §429. The note shall stipulate the terms and the notes shall be payable upon demand or mature within three months from the date of issue. Obviously, the boards need to have the funds available and be willing to cooperate, but we felt it was worth a reminder that this option may be helpful in some communities.
21. If No Oath Is Taken A Vacancy Occurs. With elected offices in local government an oath must be taken before a person can enter into his or her office. There is no law that specifies at what point the office would be considered vacant if a person fails to take the oath, however it would be reasonable for the selectboard to contact the person who was elected and failed to take the oath to set a reasonable deadline after which the selectboard would assume that the person did not accept the office and that there was therefore a vacancy to fill. 24 V.S.A. §831.
22. Selectboard Appoints Zoning Board Members. Zoning Board members are sometimes invited to recommend candidates to the selectboard to fill unexpired terms on the board. However , the statute is clear that the selectboard has the sole responsibility for appointing members of the zoning board. 24 V.S.A. § 4461. The selectboard also decides the number of board members and their term lengths. When a vacancy occurs, the selectboard must post a notice of the vacancy. Although the statute does not specify the particular procedures to use, many selectboards will solicit letters of interest or resumes and will interview candidates before they make a decision. So long as the procedure is consistent and fair the selectboard can decide how best to fill the vacancy.
23. A person cannot be added to the checklist in your town by filing an "intent to register" unless the voter will be a resident on the day of the election. 17 V.S.A. § 2144(b) was added to Vermont law in order to allow a person who knows they will be closing on a house or moving into a town on November 1st or March 1st to meet the election registration deadline. It allows that person to file and "intent" or application with the town clerk. On Election Day, if the person has become a resident, the BCA members present at the polling place can accept an application and add the person to the checklist. Note that a person cannot submit such an application simply because they are looking for an apartment in town, or they want to live in your town but haven’t yet found a residence.
24. The Selectboard or School Board can warn a special meeting to reconsider the same Article as many times as it wishes during a year. Petitions by 5% of town voters requesting reconsideration can only be done once on the same Article or issue during a twelve-month period. The legislative body can take an issue back to the voters more than once during the same year if they believe that passage of the article is in the best interests of the Town. 17 V.S.A. § 2661
CLARIFICATION:
May Opinion #17 states in part that "SECRETARY OF STATE HAS NO AUTHORITY OVER LOCAL OFFICIALS. In Vermont there is local control of town affairs. This means that neither the Secretary of State’s Office nor the Department of Education has authority to investigate complaints or force local officials to take particular actions. However, if a local official fails to perform mandatory duties the State's Attorney or the Attorney General can bring an action against the official." Note that school district officials have a special relationship with the department of education that gives the department authority over certain matters. The education statutes and the constitutional interpretation of the state's role in educational matters require the Department of Education to oversee and enforce the education laws to which local officials are subject. See 16 V.S.A. §§ 164 and 212(5). In some cases the Commissioner has the authority to issue, with the advice of the Attorney General, legally binding decisions. 16 V.S.A. § 563(2). The Department of Education also has extensive responsibilities to ensure that state and federal funds are spent in accordance with statutory and regulatory requirements.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.
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What’s happening in…
JUNE
Opinions Volume 3 Number 6 June 2001
Friday, June 1
Deadline for Listers to lodge personal property inventories with Town Clerk. 32 V.S.A. § 4007
Monday, June 4 (Within 60 days of petition) If a petition for reconsideration or rescission of a question considered or voted at Town Meeting has been filed, this is the last day in which a municipal vote may be held at a duly-warned meeting. 17 V.S.A. § 2661(b)
Tuesday, June 5 (90 days after Town Meeting election) In towns using Australian Ballot, Town Clerk may open and destroy used Town Meeting ballots and tally sheets, except as otherwise provided by law. 17 V.S.A. § 2590(d)
Saturday, June 30 End of fiscal year for all school distric, charter provisions not withstanding, and for municipalities that have adopted July 1 through June 30 fiscal year calendar. 32 V.S.A. § 1, 24 V.S.A. § 1683(b)(c)
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June's Calendar
Opinions
Volume 3 Number 6 June
2001
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