|VERMONT SECRETARY OF STATE - Jim Condos|
|State of Vermont
Office of the
Secretary of State
Volume 3 Number 12
All of us who have lost loved ones know how much they
live on through memories, and through the work and the spirit of their
family and friends. This past month we lost three very hard working local
officials – three of Vermont’s long serving local officials. Selectboard
member and former State Senator from Fairfield, Francis Howrigan, Former
Wolcott Town Clerk and Treasurer, Clifford Randall and long time Tax
Collector and Constable of Woodford, Rosalie Wright. Their passings are a
great loss to their families, their communities and to the State of
Francis, Clifford and Rosalie were each very different from one another – but each of them served as great role models for others in their communities and across the state. As different as they were in personality, all three of these individuals had in common an uncommon commitment to their communities. Each of them dedicated a significant part of their lives to making their communities and the State of Vermont a better place. We know that without people like Francis, Clifford and Rosalie, the work of our towns would not get done. They will be missed!
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A Voice from the Past
"Voice from the
Past" by Paul Gillies
Opinions Volume 3 Number 10 October 2001
A SURPRISE MEETING
We held a special meeting last month in Berlin to vote on a proposal to grant tax stabilization to a possible purchaser of a large retail building. It was a contentious issue, and the town was split on whether stabilization was a good idea or not.
Stabilization means forgiving tax revenues from a landowner, in this case over a ten-year period, involving tens of thousands of dollars. The idea raises a host of questions about what’s fair. Every other taxpayer would see a proportionate increase in taxes during those years, so it’s not an academic question. Many felt it would be wrong to provide a special benefit to a single landowner.
The meeting began in the school library, not the usual place for town meetings, but a meeting space with more intimacy than the school gym that is usually used. More than 80 people attended. They used up all the chairs, and many had to stand or sit on the floor. No one was shy about speaking.
For almost 90 minutes the discussion continued. Those who opposed the plan were adamant in believing the town should not commit to stabilization. It would set a bad precedent. We should hold out for another offer, one that didn’t require such a sacrifice. Why were we funding a commercial enterprise? Why was the town involved in helping one business anyway?
The proponents were just as strenuous in arguing for stabilization. The building, at the heart of the built-up area in town, is an eye-sore, and its revitalization would benefit all business activity along that stretch of highway. The decision would hardly serve as a precedent. The town had voted in a tax stabilization agreement only once in its history, more than a generation ago, and that had not spawned other tax breaks. Agreeing to stabilization meant an immediate repayment of back taxes amounting to $400,000, and since the town had purchased the building at a tax sale the tax program would return it to private ownership and a prosperous future.
There were no harsh words, no accusations against the integrity of anyone, no rancor, just thoughtful questions and probing opinions from the assembly. You could see the difficulty of the decision on the faces of the voters. They were engaged in what Robert’s Rules calls a deliberative process. They reasoned together, but they were far from unanimity when someone finally asked for a vote on the question.
This vote required two-thirds approval from those present and voting. Seven people asked that the vote be taken by paper ballot, and suddenly everyone was ripping small pieces of paper and forming a line at the table with the checklist.
In the midst of this tense town meeting, as voting began, and then as the counting of ballots was done, something magical happened. A second town meeting broke out. It was marvelous to see. It was a meeting of people, no longer bound to their chairs, but bound together as members of a community. After voting, the issue that divided us no longer seemed important. We were the town, and we were a kind of family.
For 20 minutes, people talked to each other, then moved on to talk to others. Everyone seemed engaged. People who hadn’t seen each other for months caught up on the news. They laughed at the jokes, and asked about where your children are now, and about the health of older friends and neighbors.
No one planned this meeting within a meeting. It wasn’t on the agenda. But here, in the middle of a small Vermont town, in the middle of a war, most of us still shell-shocked by the tragedies and the horrors of terrorism on our shores, we came together. We reached out to one another with handshakes and hugs, or the gentle squeezing of an elbow. It didn’t matter what your position was on tax stabilization. That was just the reason we gathered together in the first place, but this second meeting was the more important one.
Stabilization passed, by a vote of 57 to 25, just two over the needed two-thirds. No one returned to their chairs after the voting began, and after the results were announced the mass of people slowing moved toward the door. But for another half-hour there were still groups of people in the library, the hall or in the parking lot, talking to each other, almost reluctant to go home. We need more town meetings like this, or at least more opportunities to get together as a community. There is a value to a meeting far beyond what we decide by votes.Secretary of State's Home Page
Opinions Volume 3 Number 10 October 2001
1. Generally, Majority Must Vote In Favor for Action. Vermont law requires that a majority of the number of the full board must vote in favor of a particular action in order to take that action (unless there is specific statutory language that provides otherwise, such as for certain school board actions or for boards of civil authority in some instances.) Therefore, a zoning board or development review board that is composed of nine members, must have concurrence of at least five members to approve a permit application. 1 V.S.A. § 172.
2. Board Vacancies Will Not Affect Quorum Requirements. When determining what is a majority of a board we must look at the board as legally constituted. The number required for action does not change even if the full number of board members have not been appointed to fill the seats. This means that if a board, as created, has seven members, even if there are three vacancies on the board, four members must concur in order for that board to act. 1 V.S.A. § 172.
3. Delinquent Tax Warrant And Levy Must Be FileD With Clerk. The law requires that the warrant and levy for delinquent taxes must be filed in the Town Clerk’s Office. 32 V.S.A. § 5252. It was mistakenly believed in one town that only the final report of the tax sale needed to be recorded. However, the law is clear that the warrant, levy and notice of tax sale must also be recorded.
4. Person elected to fill vacancy fills out term. When there is a vacancy in an elective town office 5% of the legal voters can petition the selectboard to fill a vacancy by election at a special meeting. A person who is elected to fill the vacancy will serve out the remaining term of the person who created the vacancy. For example, if the resigning selectperson had just been elected last March for a three year term, then the person elected this fall at a special election will serve the remaining 2 ½ years until March 2004. When the selectboard appoint a person to fill a vacancy, that person only serves until the next election. 24 V.S.A. § 962-63.
5. Board Has Complete Discretion When Appointing Zoning and Planning Board Members. Because the selectboard is given complete discretion when it appoints members of the zoning and planning board, there is no requirement that they post notice of the vacancies, take applications or interview candidates. In addition, no law would require them to give a reason for appointing or not appointing a particular individual. (The appointment decision is made in open session – although discussion of particular candidates can be done in executive session.) 24 V.S.A. §§ 4323, 4461.
6. Notice Must Be Posted When Vacancy in Elective Office. Whenever there is a vacancy in an elective office the board must post a notice of the vacancy. The purpose of this notice is to allow the citizens to petition to fill the vacancy by election. The board does not have to go through a formal receipt of application and interview -type process and they can appoint whomever the want to appoint to fill the position until the next election. 24 V.S.A. § 962-63.
7. Only US citizens may vote. A person must be a U.S. citizen in order to apply for addition to the checklist. 17 V.S.A. § 2121. Some new town clerks are discovering that people have wrongly been added to their town’s checklist because former boards of civil authority mistakenly believed that green cards created citizenship. A "green card" or any other type of work or student visa does not make a person a U.S. citizen or confer voting rights. In addition, even if a person has lived in town for most of his or her life they will not have voting rights if he or she has not also gone through the federal immigration process required to become a US citizen. Our new application for the checklist forms now require that a person affirmatively check a box to state that he or she is a citizen.
8. Person Must Sign Petition Him or Herself. In order for a person to sign a petition to get an issue or candidate on the ballot, the person must sign him or herself. There is no mechanism in the law to permit e-mail permission or digital signatures, and no law permits a husband to sign for a wife, or a parent for a child, etc. . . . The only exception will be when a person – because of a disability is unable to perform the mechanics of a signature. In that situation the Americans with Disabilities Act would require a reasonable accommodation to be provided, including allowing someone other than the individual to sign on his or her behalf.
9. Ownership of property in a town is not enough to create residency for voting purposes. 17 V.S.A. § 2122(b). Vermont law defines residency for voting purposes: "resident" shall mean a person who is domiciled in the town as evidenced by an intent to maintain a principal dwelling place in the town indefinitely. A person can only apply to be added to the checklist in one place—the location of the principal dwelling.
10. Justice should resign when he or she moves out of town.Although the law does not require a Justice of the Peace to resign if he or she moves from town, it is a best practice to do so. This is because if the Justice does not resign, there is no vacancy that can be filled, and it does not make sense for a non-resident to be involved in making decisions on elections and tax appeals, etc . . .
11. A dog must be licensed in the town where it is kept. Vermont law requires dogs to be licensed where they are kept – and not simply in any town in which the owner of the dog happens to own property. 20 V.S.A. § 3581. If the dog and dog’s owner move during the year, the license may be transferred by the clerk to the new town clerk. 20 V.S.A. § 3591. An out of state dog may be brought into Vermont for a period not exceeding 90 days without obtaining a Vermont license, provided that the dog is licensed in the other state and the owner possesses a certificate signed by a licensed veterinarian or state official of the other state that the dog has received a rabies vaccination that is current for the 90 days. 20 V.S.A. § 3587.
12. Curb cut or access permits must be obtained from the Selectboard for town highways. 19 V.S.A. § 1111. The selectboard are required to issue curb cut permits. The law does not permit them to delegate this responsibility to another town official. However, the selectboard can and should request input from the zoning administrator, fire chief, road foreman/public works director, or any other town officials that might have information relevant to the decision. The selectboard may make reasonable rules to carry out the provisions of section 1111 and to adequately protect the safety of the public, maintain reasonable service levels, and protect the public investment in the highway infrastructure. We recommend that selectboards keep copies of section 1111 available for reference when acting on access permits as there have been several recent amendments that reference compatibility with the municipal or regional plans.
13. We Recommend Creation of Board of Alternates. The selectboard may create a board of alternates to serve on the board of adjustment or development review board in situations when one or more members of the board are disqualified or otherwise unable to serve. 24 V.S.A. § 4461. However, this does not mean that the selectboard has the authority to declare that a member of the zoning board is disqualified to serve on a particular matter. It is still the responsibility of the zoning board or DRB member to recuse him or herself for a conflict or bias.
14. Vermont law does not require that a local health officer must be a resident of the town or city. 18 V.S.A. § 601. The selectboard can recommend any person to the Commissioner of the Health Department for appointment as the local health officer of the town. The Commissioner makes the appointment based on the selectboard’s recommendation. The health department suggests that, even though the law does not require it, whenever possible, it is a good practice for health officers to be a resident of the town in which they serve.
15. Planning Board Site Inspection Subject to Open Meeting Law. When the planning commission makes a site inspection as part of a subdivision application hearing the inspection is part of the public hearing and is therefore subject to the open meeting law. This means that members of the public who wish to go along on the visit must be allowed to do so. If a landowner refuses to permit citizens to go on the property the planning board members may not proceed with the site visit. In such a case the board would be able to deny the subdivision if it wishes to do so. 1 V.S.A. § 312.
16. Tax Appeal or Abatement Site Visit is Not A Public Meeting. When three members of the Board of Civil Authority inspect property as part of a tax appeal or if members of a board of abatement choose to make a site visit, this inspection – whether it is done all together, or each at different times - will not be considered a public meeting. This is because 1 V.S.A. § 312(g) provides that the open meeting law will "not apply to site inspections for the purpose of . . . making tax assessments or abatements."
17. Tax Appeal Can Be Denied If Access To Home Is Denied. When conducting a Tax Appeal, the entire parcel must be looked at when considering whether to grant the appeal – and not just the narrow issue raised by the property owner. This means that even if the appellant is only arguing that the value placed on the land or on an outbuilding is incorrect, the site visit can include a walk through the entire property. If a property owner denies access to any part of the property under appeal, the appeal should be denied.
18. No Law Requires A Professional Audit of Town Books.Vermont law requires the elected board of auditors to conduct a yearly audit, unless the town has eliminated the office of town auditor. 17 V.S.A. § 2651b. In the event the office has been eliminated, the law requires a professional audit of the town books every year. Unless the town has elected to eliminate the office of auditor there is no requirement that the town ever conduct a professional audit, however, we recommend a professional audit in every town at least every two or three years.
19. Voters May Elect To Require Professional Audit. If the selectboard does not choose to conduct a professional audit of town books, the citizens may force the board to hire an accountant to assist the board of auditors. To do this, the voters must submit a petition of 5% of the voters "to see if the town or village will vote to instruct the selectmen or trustees to employ a certified public accountant or public accountant to aid the work of the auditors." 24 V.S.A. § 1690.
20. Town Wishing To Allow Sales of Alcohol Must Vote. Vermont’s voters have the power to decide whether alcoholic beverages will be sold in their town. Moreover, the town can decide whether just beer and wine, or also "spirituous liquors" can be sold in a particular town. 7 V.S.A. § 161 provides that upon a petition of not less than five percent of the legal voters of any town the warning of the annual or special meeting shall contain an article asking the voters to authorize licenses for the sale of alcoholic beverages. If no vote has ever occurred on this issue in a town, the voters must vote to allow sales of beer and wine, or beer, wine and liquor in a town before a license for the sale of such alcohol may be issued in that town. Once voted, the vote will stand until the town votes otherwise. This means that a town can revisit an earlier decision and decide to no longer sell alcohol in a town.
21. Modified Paper Ballots Are Used To Decide Whether Town is "Wet" or "Dry". When a town votes on the issue of sale of alcohol, the law requires the election to be held as part of an annual or special meeting – and as a modified paper ballot with the ballot box being "open" from the start to finish of the meeting. Since the balloting can go on throughout the course of the meeting we advise that no discussion of the issue be permitted since this would violate the prohibition against politicking in the polling place. Rather, we suggest that towns hold a public hearing on the issue in advance of the voting as it would do for Australian Ballot measures.
22. Town Only Has To Sell Less Than Entire Parcel if Delinquent Taxpayer Requests Before Sale With Proof of Compliance With Laws. When the tax with costs and fees is not paid before the day of sale, the real property on which the taxes are due must be sold to pay such taxes, costs and fees. However, the law provides that if the owner of the property being sold requests in writing, not less than twenty-four hours prior to the tax sale, that a portion of the property be sold, the delinquent tax collector must attempt to sell the smaller portion. As part of the request the taxpayer must clearly identify the portion of the property to be sold, and must include a certification from the district environmental commission and the town zoning administrative officer that the portion identified may be subdivided and meets minimum lot size requirements. In the event that the portion identified by the taxpayer cannot be sold for the tax and costs, then the entire property may be sold to pay such tax and costs. 32 V.S.A. § 5254 (a).
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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Sunday, November 11
1 V.S.A. § 371Thursday, November 22
1 V.S.A. § 371
Tip of the month
From the VMTCA
By Clyde Jenne, Town Clerk of Hartland
Some of us get a tad behind in recording, especially in small offices. I used to have trouble with my "box of un-booked" documents, i.e. somehow they would get out of order even though stamped and dated on the envelopes. I do assign Book and Page upon receipt but things still floated around the box.
So I bought one of those milk crate type files and put in date labeled hanging folders for each days mail. Now things stay where they belong as long as people can read.Secretary of State's Home Page