1. Clerk Must Record Deed And Survey
Despite Neighbor’s Objection. The law requires the town clerk to
record a properly submitted deed and survey that conforms to
statutory requirements in 27 V.S.A. §341. The fact that an abutter
objects or claims that it contains incorrect information will not
alter the clerk’s obligation. The recording function is a
ministerial duty that allows the documents to provide notice to
others. If a correction needs to be made at a later date a new
corrected deed or survey can be submitted for recording.
2. Prisoners Register To Vote Where They
Last Lived. A person in a correctional institution must register
to vote in the last town in Vermont that the person resided in prior
to incarceration. 17 V.S.A. §2121 and 2122(a). The statute provides
that "a person can neither gain nor lose residency…while in a
correctional institution." For example, if a person resided in
Rutland, but is now incarcerated in Newport, the person must register
to vote in Rutland. There is also a more specific provision in 28
V.S.A. §807 that states that a person cannot register to vote in the
town where the correctional facility is located. While some attorneys
consider this provision to be unconstitutional, it has not been
challenged in court.
3. Voter Checklist Must Include Mailing
Address. Title 17 requires the voter checklist to include the
current mailing address of each voter. This means that the town’s
checklist should be updated to include the most recent postal address
changes. Towns that have not updated the mailing addresses recently
will want to do so this year so that the purge letters that must be
sent out after the checklist has been purged in September 2003 will be
sent to a voter’s most current mailing address.
4. Entrance Checklist Is Kept For 5 Years.
The entrance checklist from each election must be kept for five
years following the election and a copy shall be made available upon
request to the public. 17 V.S.A. §2590. Note that the ballots and
tally sheets from an election may be destroyed 90 days after a local
election and 22 months after an election including federal offices.
5. Town Can Only Charge Actual Cost Of
Attorney Hired To Assist With Tax Sale. Once a town begins to
collect its delinquent taxes it may charge the delinquent taxpayer for
the actual and reasonable attorney fees that it has incurred, up to
fifteen percent of the amount of taxes due. 32 V.S.A. §5258. This will
apply even if the property does not go to tax sale because the
taxpayer or mortgageholder decides to pay all of the back taxes,
penalty, and interest. Note that the law does not permit a town to
simply add on a 15% charge for legal assistance, but can only charge
the taxpayer for the actual, reasonable attorney fee it has incurred.
6. Bond Votes Have Special Requirements.
In addition to all of the regular requirements of warning and
conducting a special or annual meeting of a town or school district,
bond votes require some additional steps. To begin the process
for a bond vote the legislative body (selectboard or school board)
must pass a resolution of public necessity, or 10% of the voters must
petition for a bond vote. 24 V.S.A. §1755. Bond votes require special
public notice and warning, including publication for three consecutive
weeks and posting in at least five places in the municipality. The
statute governing notice, 24 V.S.A. §1756, should be read closely and
strictly followed. The vote must be by Australian ballot, with
the form of the ballot strictly conforming to the requirements of 24
V.S.A. §1758. Finally, if the bond vote passes, the legislative body
and town clerk must provide bond counsel with documentation that all
of the laws were followed. It is wise to confirm with bond counsel
that you have correctly prepared the required postings and newspaper
publications before the warning period begins.
7. Highway reclassification laws apply to
all changes in classification. 19 V.S.A. §§707-717 establishes
statutory procedures for reclassifying town highways. These rules will
apply whether the classification of a road is being upgraded, lowered
or whether a board is deciding to abandon a road.
8. Cost of Improving Road Can Be Shifted
If a road is reclassified from Class 4 to
Class 3 as the result of a petition from landowners, the selectboard
may order that the petitioners bear the cost of upgrading the class 4
town highway to the class 3 town highway standards. 19 V.S.A. §
9. No Town Meeting Vote Is Required For
Road Reclassification. Vermont law delegates town road decisions
to the selectboard. Appeals from these decisions go to the district
court who appoints a commission to recommend a result. This means that
the voters cannot petition for a direct vote on classification
decisions. On the other hand, to the extent that reclassification
decisions will impact the town highway budget the voters can have
input as to whether funds will be available to make the necessary
10. Selectboard Must Consider Petition For
New Road. Vermont law permits 5% voters and/or landowners to
petition the selectboard to lay out, alter, reclassify or discontinue
a highway.19 V.S.A. § 708. Once a petition
is received the law requires the board to "promptly appoint a time and
date both for examining the premises and hearing the persons
interested, and give thirty days’ notice to the petitioners, and to
persons owning or interested in lands through which the highway may
pass or abut, of the time when they will inspect the site and receive
testimony." Within sixty days after the examination and hearing, the
selectmen must make their decision and return the original petition
with a report of their findings to the town clerk’s office for
recording. 19 V.S.A. § 711.
11. 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. Voters may not
appreciate it if they are interested in attending all of the meetings,
so we do suggest coordinating with a "master calendar" before
scheduling, but the law does not require it.
12. New Budget Can Be Put To Voters With
11 Days Notice When Voted By Australian Ballot. The normal 30 to
40 day warning period for a special meeting or election does not apply
to Australian ballot budget votes when the budget failed at the first
annual meeting. When a town or school district or other municipal
corporation uses the Australian ballot system of voting for its
budget, if the budget is defeated, the legislative body may warn
another election on a revised budget with at least seven days warning.
Because the board must warn a public hearing on the revised budget for
at least 10 days, this means that 11 days is the shortest period of
time possible for an Australian ballot election on the revised budget.
17 V.S.A. §2680(c) and (g). The law requires the vote to take
place in the same location as the first vote. 17 V.S.A.§2680(c).
13. Clerks Office Must Be Opened To Accept
Applications To Checklist Before Reconsideration or Revote Is Held.
The law provides that "the town clerk’s office shall be kept open
on the second Saturday preceding the day of the election from no later
than 10:00 a.m. until 12:00 noon, for the purpose of receiving
applications for addition to the checklist." 17 V.S.A.
§ 2144. This rule will apply whether the
election is the annual meeting of the town or a special meeting to
reconsider the town meeting vote. Note that if the community is taking
advantage of 17 V.S.A. § 2680(g), (which
allows a board to put a new budget before the voters with only 11 days
notice when a budget has been defeated in an Australian Ballot vote),
this rule will only apply if the timing permits.
14. No Right to Reconsider Budget Failure
When Australian Ballot Vote. The rules of statutory construction
provide that when two statutes conflict the courts will apply the more
specific law over the general. For this reason, although the law
provides voters with a general right to petition for a special
election to reconsider an article that was considered at town meeting
(17 VSA § 2661(a)) we believe that this
right will not apply when a school budget that has been voted on by
Australian ballot fails. In this case we believe the more specific
rule will apply. 17 VSA 2680(c) and 16 VSA 711(e) say in pertinent
" If a budget voted on by Australian
ballot is rejected, the legislative body shall prepare a
revised budget. The legislative body shall establish a date for the
vote on the revised budget, and shall take appropriate steps to warn
the vote. The date of the vote shall be at least seven days
following the public notice. The vote on the revised budget shall be
by Australian ballot and shall take place in the same locations that
the first vote was taken. The budget shall be established if a
majority of all votes cast are in favor. If the revised budget is
rejected, the legislative body shall repeat the procedure in this
subsection until a budget is adopted."
Because the language of 2680(g) and 711(e)
are mandatory and because it would create an potentially inconsistent
result to permit the board to bring a new budget to vote while also
reconsidering the original budget, it is our opinion that no petition
for reconsideration is permissible.
15. Board Should Bring Revised Budget To
Voters After Defeat. When a budget voted on by Australian Ballot
is defeated the law requires the board to "prepare a revised budget"
for a new vote. 17 V.S.A. § 2680(g); 16
V.S.A. § 711(e). Although the courts have
not interpreted this language, it is our opinion that so long as the
budget is not exactly the same as the one that was defeated (shifting
internal costs) the board can submit the same bottom line to the
voters for a new vote.
16. A person who will be a resident on
Election Day can be added to the checklist. A nonresident may be
added to the town checklist by filing an "intent to register" under 17
V.S.A. §21 so long as the voter will be a resident on the day of
election. This provision was added 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 second Saturday before
the election deadline by filing an "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 then add the person to the
17. Fence Viewers Must Be Appointed By
Board. Vermont law requires every selectboard to appoint three
fence viewers who are voters of the town. The fence viewers must be
sworn into office and all of their decisions must be certified and
recorded by the town clerk. 24 V.S.A. §
831, 871, 3811.
18. Vermont Fence Viewers Still Have Work
To Do. Although fence viewers no longer play the active role in
town life that they once played, every year some fence viewers are
called upon by their selectboard to examine a fence line between
adjoining properties to determine what part of the fence must be
repaired, maintained or built by each landowner. Fence viewers also
decide where a fence should be placed in the event that a fence cannot
be built squarely along a property line (as when a stream divides a
property.) 24 V.S.A. chapter 109.
19. Fence Viewer Cannot Apportion Costs To
Homeowner. Although 24 V.S.A. §
3802 provides that "owners or occupants of adjoining lands, where the
lands of both parties are occupied, shall make and maintain equal
portions of the division fence between their respective lands," a
fence viewer may not apportion costs of maintaining a fence to a
landowner who has no livestock. In1989 the Vermont Supreme Court held
that it is unconstitutional to require abutting landowners that own no
livestock to pay a portion of the costs to maintain a fence that
separates his or her property from the neighboring parcel.
Choquette v. Perrault, 153 Vt. 45 (1989).
20. Voters Can Petition To Hire CPA To
Assist Auditors. When 5% of the voters petition the board must
hold a special meeting, or include in the warning of the annual
meeting an article asking whether the town will instruct the
selectboard or trustees to hire an accountant to help the auditors
perform their duties. 24 VSA § 1690. Of course, even if this article
passes the auditors are not required to use the services of the CPA.
21. Town Can Vote To Eliminate Board of
Auditors. A town may vote to eliminate the board of auditors and
replace the board with a CPA. When the office of auditor is eliminated
the terms of office of any auditors of the town will expire 45 days
after the vote, or when the selectboard or trustees contract with an
accountant, whichever comes first. The selectboard will be responsible
for preparing the town report.
22. Town Cannot Require Listers To Use
Appraiser For Town-wide reappraisal. The law makes it the listers'
responsibility to "examine property that they are required to appraise
as will enable them to appraise it at its fair market value." 32 V.S.A.
§ 4041. The law also provides that "when a
board of listers are of the opinion that expert advice or assistance
is needed in making any appraisal required by law, they may, with
approval of selectmen or by vote of the town, employ such assistance."
Nothing in the law permits the selectboard or the voters to require
the board of listers to accept the assistance of an appraiser.
23. Petitions That Don’t Force Vote Are
Still Useful. Not all petitions signed by 5% or more of the voters
will force a board to warn a special meeting of the town. For example,
a petition cannot force the board to conduct road repairs in a
particular manner. That is because the statutes delegate the
responsibility for decisions on road repairs to the selectboard. The
voter’s petition cannot force the board to exercise its discretion in
a particular way. However, a petition of the voters can still serve an
important function of expressing the feelings of people in the town,
and hopefully, persuading the board to take those concerns into
account when making its decision. expressing the feelings of people in
the town, and hopefully, persuading the board to take those concerns
into account when making a decision.
24. Treasurer Can Often Serve As Assistant
Clerk. In towns that have two different people serving as clerk
and treasurer it is not uncommon for the two officials to serve as
eachother’s assistants. This is acceptable so long as the assistant
clerk does not keep the records of the town orders. 24 VSA § 1622
provides that "the chairman of the board of selectmen shall keep or
cause to be kept a single record of all orders drawn by the board
showing the number, date, to whom payable, for what purpose and the
amount of each such order. All other officers authorized by law to
draw orders upon the town treasurer shall keep a like record . . .. If
the records of orders named in this section are made by an assistant
clerk, the assistant clerk shall not be the town treasurer, or the
wife or husband of such town treasurer, or any person acting in the
capacity of clerk for the town treasurer." The purpose of this law is
to ensure there is a proper audit trail – ensuring that the person who
keeps the records of orders is different from the person writing the
checks on those orders.
25. Dogs Must Be Vaccinated For Rabies
Every Two Years. This time of year we get many calls from
veterinarians and towns about what is required for licensing dogs.
Although the rabies vaccination given by Vermont’s vets last three
years, Vermont law provides that "for the purposes of licensing a dog
or wolf-hybrid, a current vaccination against rabies means that . . .
a dog or wolf-hybrid of two or more years has been vaccinated within
the preceding 24 months." 20 V.S.A. §
26. Superintendent May Keep Oaths.
When school board members take an oath of office the law requires them
to swear an oath before beginning as board members. 16 V.S.A.
§ 561. The board is required to appoint one
of their member to be the clerk of the board who must keep the
permanent record of the board. Because no mention is made as to where
that record is to be kept it is reasonable for the board member to
decide to keep the record, including the oaths of office, in the
superintendent’s office. These are public records, and, on behalf of
the board the superintendent will be responsible for ensuring public
access to those records.
27. Minutes Of Meetings Are Not
Transcripts. Vermont law requires minutes to be kept of all
public meetings. The minutes are the legal record of the action taken
at the meeting. Accordingly, the minutes must note all topics and
motions that arise at the meeting. At a minimum the law requires the
minutes to list 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." 1 V.S.A.
§ 312(b). The minutes should not be a
transcript of the meeting or reflect what was said by individuals in
discussion because this often causes confusion and disagreement and it
is not required for the legal record.
28. Minutes Do Not Require Approval.
While it is good practice to approve the minutes of the previous
meeting of a board, Vermont law does not require this approval.
Approval of minutes will give the minutes a greater presumption of
accuracy if at a later date the minutes are needed to prove legal
action of the town. However, failure to have approval will not, alone,
call into question the legality of the board’s decisions.
29. Minutes of Meetings Do Not Need to Be
Posted. The law does not require minutes of meetings to be posted
in the municipality. Rather, minutes must be available to the public
on request within five working days of the meeting. 1 V.S.A.
30. Computing Time. Vermont law
provides that "when time is to be reckoned from a day, date or an act
done, such day, date or day when such act is done shall not be
included in the computation, unless otherwise provided in law." 1
V.S.A. § 138. If the law requires an action
to be taken in 11 days or less, unless the law provides otherwise,
this is presumed to exclude Saturdays, Sundays and legal holidays.
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 only
and should not replace the advice of legal counsel.
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