History of Incorporated Villages
From: Opinions: A Monthly Publication of Information and Advice on Elections and Other Public Matters; Office of the Secretary of State James H. Douglas; Vol. 7, Number 10; May 1, 1988
by Paul S. Gillies
In a recent advertisement for a condominium at Killington, the seller finished off his description of the property by highlighting the proximity of a "full amenity center" within walking distance to the condo. Vermonters use the more traditional name of "village," but the description in the advertisement may be more appropriate. That settled area you passed through on your way to the slopes, the place where you can rent video tapes, pick up the Sunday New York Times, and get a good deli sandwich, used to be a municipality, with its own officers, budget and checklist. But now, like so many other Vermont villages, it's all gone. The town took it over some years ago.
Vermont once had as many as 76 villages. Today there are 42 left, and many of these are in the process of assessing how to go out of business. Vermont's passion for centralizing former village, fire district and other functions into the town is almost as vigorous as its passion for creating multi-town districts to solve the problems of development, solid waste and others beyond the capacity of the town.
To understand the decline of sub-town districts in Vermont, we need to review how the process began.
Villages in Vermont were not mandated by the state; they were purely a local phenomenon. Before the first general village incorporation law was adopted, settled areas found common solutions to their problems by volunteerism and through private companies for water and fire services. Inhabitants thought of themselves as village residents, well before the village as a legal institution was created.
The first legislative grant of authority to organize as a village was a special charter, adopted in 1816, creating Middlebury Borough. (816, pp. 108-114). In 1818, Montpelier Village was also the subject of a bill; but in both cases the bills were contingent on the acceptance of those charters by the electorate. For the lack of a vote to accept the charters, the villages didn't begin municipal life until the mid-1830's, after bills to "revive" the charters were adopted by the General Assembly. (See 1832, p. 111; 1835, pp. 96-97).
General authority to incorporate as a village, without the need for legislative sanction, arrived in 1819. Seven freeholders could petition selectmen, who would lay out the boundaries of a village. (1819, pp. 33-35). The new village had limited authority, however. The 1819 law authorized only the regulation of the running of animals at large throughout an incorporated village between November 20 and May 20 of the year.
The running of animals at large was apparently a serious problem for Vermont towns and villages in the early years. The laws authorizing those who find stray animals to impound them and charge for the cost of their shelter and food or to sell them if owners are not found originate in Vermont as early as 1787. Still, it's difficult to imagine how the regulation of strays alone could justify the incorporation of a village.
The first serious municipal squabbles in early Massachusetts town life were battles over the use of the town commons. New villages came into being when the town outgrew the common, which was principally used in early days to fence in the livestock. Farmers left out of the commons had to move on to establish new communities with new commons. Several generations later, however, in Vermont, the village was the one place in the town where animals would not be allowed to run at large. An 1850 law went even further in authorizing selectmen in towns with unincorporated villages to fence in the town commons, plant trees and shrubbery for "shade or ornament," and prohibit "turn[ing] any cattle thereon." (R.S. Chapter 16, S 19).
Whatever the relative merit of laws authorizing the running of animals at large, the value of general incorporation laws to the Legislature cannot be understated. The amount of precious legislative time spent on municipal and other corporate charters equaled the time spent on all other legislation, if the size of the annual laws compilations is any measure. The General Assembly hoped that the system of incorporation could be self-sustaining, but in many respects this was a false promise, because of the Legislature's own unwillingness to free municipalities from close state oversight. Even with special charters, the charter usually insisted that villages so formed remain under the control of any future Legislature, to alter, amend, or repeal.
The failure to grant broad powers to villages by general law effectively promoted the development of incorporated (i.e., chartered) villages in Vermont. Especially in the early years, a special charter was necessary to accomplish the most basic municipal purposes.
A special charter also offered a municipality clearer authority to act than general legislation did, based on a constitutional theory of municipal life. Vermonters read Chapter II, Section 6 of the Vermont Constitution (" The General Assembly ... may ... grant charters of incorporation ..., constitute towns, boroughs, cities and counties ....") to mean that all power and authority springs from the Legislature, as derived from the freemen of Vermont, and that only explicit, direct legislatively-approved authority for villages or other political subdivisions of the state was legal and reliable.
The Vermont General Assembly had from its first year assumed that the legislative branch was the supreme governmental authority. The judiciary was not treated as an equal branch of government in the early years, and the Governor was regarded as a ceremonial officer. The Legislature even adopted the Vermont Constitution of 1786 as a special act, believing that only that body had the authority to make laws, including constitutions. (State Papers XII, 101).
The issue was confidence. While we had a general law authorizing village incorporation without the direct involvement of the General Assembly, historically only one village—Albany—relied on the general law alone for authority. Each of the remaining 75 villages created in Vermont has sought special legislative authority for its actions. Many were first incorporated under general law, but later turned to the Legislature for validation of their existence or for special charters or acts which would allow them to do what they needed to do, in spite of the limitations of the general law.
When the inhabitants of Benson wanted to form a village in 1869, they came to the General Assembly for special authority to allow five freeholders, instead of the seven the general law required, the right to petition selectmen to lay out the boundaries of the village. (1869, No. 127). (Our records show that even this was not enough, and that Benson Village never came into being, even under these more generous terms.) Benson wanted a variance from the general law, and the General Assembly was willing to grant it. This willingness some call acquiescence to local control. While the Legislature remained paramount, it listened to the pleas of municipalities, and granted them special privileges.
As liberal as the General Assembly may have been in specific cases, granting charters to municipalities on request, its record in offering all municipalities the rights and privileges granted to specific communities was much more reserved. The general village law did not authorize villages to raise taxes until 1863. (G.S. Chapter 16, § 4). Even general municipal authority to issue bonds was not granted until 1917. (1917, No. 106).
A village that wanted to operate a fire department, for instance, needed special authority to do so before 1863. (G.S. Chapter 16, § 7). The general authority to establish a police department was withheld from villages, except by special charter, until 1865. (1865, No. 47). Without special charter authority, a Vermont village was not authorized to provide water prior to 1945 or sewer services to its residents prior to 1947. (1945, No. 49.; 1947, No. 51. 24 V.S.A. § 1310).
The conservatism of the General Assembly in granting general powers to municipalities, however, does not entirely explain the phenomenon of special village charters. The last Vermont village—Essex Center Village—was chartered in 1947, and this was done by special act. (1947, No. 302). A close reading of the charter reveals that the authority requested by the village was for the most part already available through general state law.
It seems clear that municipalities and their legal advisers traditionally favored specific legislative authority to the general, as a defense against a legal challenge based on the constitutional problems associated with general municipal law as it is applied to villages. The problem is the improper delegation of legislative authority to villages and other political subdivisions.
A Legislature that assumes to itself the full powers of government is a strong, but very busy branch. Originally, the adoption of general statutes delineating the powers of villages was intended to avoid the need for special charters for every village (and to relieve the Legislature of the busy work that goes with charter reviews), but this experiment, to be fair, was a failure. By 1910, the General Assembly was tired of reviewing charters and charter amendments. Twenty new villages had been created between 1901 and 1910 alone.
The General Assembly decided in 1910 that the Public Service Commission (now the Board) ought to review and ratify all city and village charters and their amendments. (1910, No. 115). But shortly thereafter the Vermont Supreme Court concluded, in an advisory opinion, that the act was unconstitutional: the Legislature had improperly delegated its authority to a state agency. In re: Municipal Charters , 86 Vt. 562 (1912). The power to "constitute towns, boroughs, cities, and counties" is) according to the court, "a trust, and requires the exercise of judgment and discretion in its execution, and no authority is given to delegate it."
In the interim between the passage of the act and the Court's decision, the P.S.C. incorporated the fledgling village of Peacham, but given the hard judgment on the enabling law, Peacham seems to have emerged stillborn, and never saw life as a municipality.
As a reaction to the frustrations of the General Assembly in failing to relieve itself of the charter burden, Section 69 of the Vermont Constitution was adopted in 1913. "No charter of incorporation shall be granted, extended, changed or amended by special law, except for such municipal, charitable, educational, penal or reformatory corporations as are to be and remain under the patronage and control of the State; but the General Assembly shall provide by general law for the organization of corporations hereafter to be created. All general laws passed pursuant to this section may be altered from time to time or repealed."
The adoption of this amendment signaled the end of the General Assembly's workload in approving charters and amendments of private corporations. Today this is done administratively, through the Secretary of State's Office. The basis for that change is the sentence, "but the General Assembly shall provide by general law for the organization of corporations hereafter to be created." In that light, perhaps this section of our Constitution could be read to be a now forgotten home rule amendment. Must "patronage and control" mean specific charter review by the Legislature? Perhaps a general law would be sufficient, as long as there was general state authority for municipalities to adopt charters and amendments on specific subjects.
More than 50 years later, the General Assembly adopted a suggestion made in the comprehensive revision of the charter of South Burlington (at that time, a town), and established a "passive" charter review process. (1963, No. 120; see 24 V.S.A. S 703, now repealed). This process required proper notice, a hearing and a vote on charters and amendments in the municipality; the mailing of copies of the proposal to the Secretary of State, who turned them over to the Legislature and to the Attorney General; the opportunity for a petition objecting to the proposal by the Attorney General or five percent of the legal voters of the municipality; and the adoption of the charter or amendment either by vote of the General Assembly, if petitioned, or by inaction after the passage of 30 days. In 1984, for reasons of antitrust liability and the constitutional delegation issue, the passive review method was abandoned and replaced with explicit requirements for legislative ratification or validation of all charters and amendments. (1984, No. 161).
We have come full circle, and the Legislature is back again in the business of reviewing municipal charters. This time, however, the process seems a little different. The old matter of acquiescence, for instance, seems to be gone now. The Legislature has had a difficult time keeping its hands off charter proposals that are presented for review. Because these bills have no greater status than any other legislative proposal, the committees that review charters have not hesitated to change the proposals and at times even parts of charters that are unrelated to the amendment.
Where every charter and amendment that was adopted by the Legislature throughout the 19th Century and well into the 20th included a requirement that the act not take effect until it had been accepted by the voters of the village, no charter or amendment since 1984, with one exception, has provided for public referendum on the proposal, even when the proposal has been changed by the Legislature. Nearly every proposed charter amendment has been the subject of a vote by the electorate before the proposal comes to Montpelier, but the General Assembly’s interest in a ratification vote back home after a charter has been changed legislatively appears to have waned in recent years.
This was to be the year of municipal home rule. The Senate Government Operations Committee never voted the idea out of committee, but the proposal was to allow municipalities to adopt charter amendments on their own, without legislative review or ratification. The senators saw this as a dive for independent municipal taxing authority, but many of its supporters felt that a home rule amendment to the Vermont Constitution would free municipalities from the hegemony of legislative review of charters and amendments—a freedom municipalities such as villages enjoyed prior to 1984, through the adoption and amendment of special charters.
So what happened to all the villages? Six (Barre, Montpelier, Newport, Rutland, St. Albans, and Winooski) became cities, by special acts of the General Assembly. Twenty-one (Brattleboro (1927), Chester (1967), Concord (1967), Essex Center (1947), Fair Haven (1955), Glover (1973), Hardwick (1988), Middlebury (1966), Newport Center (1931), Pittsford (1988), Plainfield (1985), Proctor (1967), Proctorsville (1987), Randolph (1984), Readsboro (1986), St. Johnsbury (1965), Springfield (1947), West Glover (1973), Wilmington (1959) and Windsor (1967) merged into their respective towns. Two (Groton and Townshend) simply voted to abandon the village, without any formal ratification of the dissolutions or mergers by the General Assembly. Two (Lyndon, 1951; West Barnet, 1961) were converted into fire districts. The other “lost” villages—villages not active today, but once chartered—remain a mystery, which we will continue to try to resolve.
Vermont’s experience with the village as a unit of governance has had mixed success. Some villages work well; some are still trying to dissolve; many gave up municipal existence (as a village), for reasons as diverse as the cost of liability insurance for officials, notorious confrontations between town and village interests, or even the end of revenue sharing.
For the future, we suspect there may come a time when the village comes back into its own in Vermont. The growth legislation being reviewed this year in the Senate includes as legislative goals, the following:
(i) Strip development along highways and scattered residential development not related to community centers cause increased cost of government, congestion of highways, the loss of prime agricultural lands, overtaxing of town roads and services and economic or social decline in the traditional community center,
(ii) Provision should be made for the renovation of village and town centers for commercial and industrial development, where feasible, and location of residential and other development off the main highways near the main village center on land which is other than primary agricultural.
If public policy, and the machinations of the regulatory process, succeed in forcing new inhabitants of the state into existing population centers, and in discouraging residential or other development elsewhere, the high concentration of people in village areas will create an inevitable demand for additional water, sewer and highway capacities. Deciding who will bear these additional costs will inevitably lead to renewed interest in some form of political subdivision that will allow those served by these systems to vote on the budget and make other critical decisions.
Note: The best source for locating what villages are still active is Vermont Municipalities: An Index to Their Charters and Special Acts, edited by D. Gregory Sanford, which is found in the 1985-86 Legislative Directory or is available as a separate publication from the Secretary of State's Office.