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 To Petitioners.

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. § 711(b).

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 improvements.

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 part:

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 checklist.

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. § 3581(e)(3).

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. § 312.

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. VRCP 6.

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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