Case Report: Adams v. Sudbury

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

2016 VT 11 No. 2014-465
Supreme Court On Appeal from
Superior Court, Rutland Unit, Civil Division

John T. Adams II v. Town of Sudbury

June Term, 2015 Cortland Corsones,

J. Peter H. Banse of Banse & Banse, P.C., Americus, Georgia, for Plaintiff-Appellant.

Cindy Ellen Hill, Middlebury, for Defendant-Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. REIBER, C.J. This case arises from the often complex struggle that Vermont towns have had with taxing parcels of land that lie in more than one town. It is also the latest episode in a decades-long dispute between taxpayer and the Town of Sudbury. Taxpayer owns three units in a condominium community that lies in both Sudbury and its neighbor, Hubbardton. Taxpayer objects to Sudbury’s tax assessment of the portion within its boundaries. He argues that the trial court erred in upholding: (1) the state law through which Sudbury made its tax assessment; (2) Sudbury’s valuation of the portion within its boundaries; and (3) Sudbury’s method of apportioning the tax burden among the owners of the condominium community. We affirm on all three issues. 2

¶ 2. The condominium community is known as Wanee Villas and Resorts (Wanee). It is located on the grounds of a former children’s camp and consists of twenty-one individually owned units—residential buildings and their footprints—and an expanse of common land. Wanee’s ownership and governance are detailed in two documents filed in the Sudbury land records: a 1978 declaration of protective covenants and a 1993 amendment to those covenants. These documents not only assign a percentage of ownership interest in the common land to each unit but also detail that each unit has an easement to access the common land. Moreover, they create a common interest community as defined by 27A V.S.A. § 1-103(7) and a condominium as defined by 27A V.S.A. § 1-103(8).

 ¶ 3. Wanee encompasses a total of 26.9 acres. The vast majority of this land— including all the privately owned units—lies in Hubbardton. The Sudbury portion consists solely of 1.29 acres of common land but includes 385 feet of prime frontage on Lake Hortonia, which greatly enhances the appeal of Wanee and its individually owned units. Taxpayer personally owns three units and further owns a substantial stake in Wanee Enterprises, which is the successor corporation to the former children’s camp and which itself owns eleven units.

¶ 4. In 1996, taxpayer appealed Sudbury’s tax assessment of the Sudbury portion of Wanee’s land to the state appraiser. Taxpayer and Sudbury stipulated to a valuation of $89,460 for the Sudbury portion, and the state appraiser entered this stipulation on the condition that this valuation would be listed for three years. In 2007, taxpayer again objected to Sudbury’s tax assessment of the land, arguing before the town’s Board of Civil Authority and, later, the trial court, that Sudbury could not tax the land because all the individually owned units lay within Hubbardton. Taxpayer voluntarily dismissed the case by agreement with Sudbury that it would not tax the units owned by taxpayer, Wanee Enterprises, or taxpayer’s mother for the years 2007- 2009. Sudbury adhered to this agreement for those three years and then continued to refrain 3 from taxing the land at all as it waited on clarification from the Legislature regarding how to tax common lands belonging to a condominium community whose units lie entirely in another town.

¶ 5. In 2012, the Legislature provided this clarification through an amendment to 27A V.S.A. § 1-105, which now states, in part: (a) In a condominium or planned community: . . . (2) if there is any unit owner other than a declarant, each unit shall be separately taxed and assessed, and no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights; provided, however, that if a portion of the common elements is located in a town other than the town in which the unit is located, the town in which the common elements are located may designate that portion of the common elements within its boundaries as a parcel for property tax assessment purposes and may tax each unit owner at an appraisal value pursuant to 32 V.S.A. § 3481. 27A V.S.A. § 1-105(a). Sudbury then reappraised the Sudbury portion as part of a town-wide reappraisal that it had begun two years prior and whose results and methods were approved by the Vermont Department of Taxes. Through this reappraisal—which used a systematic, multiple-factor formula derived from land tables, schedules, and adjustments—Sudbury valued the Sudbury portion at $177,445. In response to the recent amendment to § 1-105, Sudbury then levied taxes for the land against the individual unit owners. In doing so, it apportioned the tax burden among the unit owners in accordance with their percentage ownership of Wanee as specified in the 1978 declaration of protective covenants.

 ¶ 6. In response to this new tax assessment, taxpayer first appealed to Sudbury’s appraisers, then to the Sudbury Board of Civil Authority, and then, in November 2013, to the trial court. Taxpayer raised three arguments before the trial court. First, he argued that § 1-105 violates both the Equal Protection principle of the Fourteenth Amendment to the U.S. Constitution and the Proportional Contribution Clause of the Vermont Constitution. Next, he 4 argued that Sudbury’s valuation of the land at $177,445 was not supported by the evidence and does not represent the land’s fair market value. Finally, he argued that Sudbury must not apportion the tax burden among the unit owners in relation to their percentage interest in Wanee but instead must apportion the burden equally to each unit. After holding a bench trial, the trial court entered its order in November 2014, finding against taxpayer on each of these arguments. The trial court upheld the tax assessment in all respects except for remand to apportion the tax burden among the unit owners in accordance with the 1993 amendments to Wanee’s covenants rather than the original 1978 covenants. Taxpayer now bases his appeal on the same three arguments that he raised before the trial court. I. Constitutionality of 27A V.S.A. § 1-105

¶ 7. We begin with taxpayer’s first argument, which is that 27A V.S.A. § 1-105 violates both the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and the Proportional Contribution Clause of the Vermont Constitution. Specifically, taxpayer contends that the law creates a situation in which properties that have common land in more than one town may be taxed at higher total rates than those with common land in just one town. Indeed, he alleges that an owner in his situation “pays as much as twice.” Taxpayer further contends that this alleged situation violates the principle that any difference in tax burden between similarly situated citizens must have a reasonable and rational basis.

 ¶ 8. A tax is constitutionally valid if it meets two requirements. First, it must have been established for a reasonable purpose and bear a reasonable relation to that purpose. See Lathrop v. Town of Monkton, 2014 VT 9 ¶ 13, 195 Vt. 564, 91 A.3d 378, 382 (“[A] legislative classification must bear a reasonable relation to the purpose for which it is established” (quotation omitted)); see also Andrews v. Lathrop, 132 Vt. 256, 259, 315 A.2d 860, 862 (1974) (“[I]f any reasonable policy or purpose for the legislative classification may be conceived of, the enactment will be upheld.”). Second, it must be fairly applied so that all within a given tax 5 classification are treated alike. See In re Prop. of One Church St. Burlington, 152 Vt. 260, 268, 565 A.2d 1349, 1353 (1989) (“Once fair classifications have been established, taxpayers within a given classification must be treated alike.”).

¶ 9. These two requirements apply identically to taxpayer’s Fourteenth Amendment and Proportional Contribution Clause arguments because we view the constitutional provisions as equivalent in the tax context. See In re Eddy, 135 Vt. 468, 472, 380 A.2d 530, 534 (1977) (“[A]s far as [tax] classifications are concerned, our proportional contribution clause is the practical equivalent of the equal protection clause of the Fourteenth Amendment to the United States Constitution.”). They also apply to § 1-105 because § 1-105 expressly creates two different tax classifications: one for common elements located entirely in one town and another for common elements located in two towns. Common elements located entirely in one town and for which a declarant has reserved no development rights may not be taxed separately at all. See § 1-105(a)(2) (describing that, generally, “no separate tax or assessment may be rendered against any common elements for which a declarant has reserved no development rights”). The value of this land is simply allocated to Wanee’s individual units, which themselves are then taxed. But common elements located in a town other than the town in which the units are located may be taxed. See id. (“ . . . [P]rovided, however, that if a portion of the common elements is located in a town other than the town in which the unit is located,” former may tax that portion).

¶ 10. We conclude that § 1-105 is constitutionally valid because it creates a tax regime that is not only reasonable but also results in fair and uniform tax treatment if implemented properly. Towns are prevented from taxing lands that lie outside their boundaries, but they are free to raise funds in accordance with the amount and value of land that lies within their boundaries. And assuming towns value their lands properly, landowners are treated uniformly because they pay like taxes, regardless of whether their lands lie in one town or multiple towns. 6

 ¶ 11. Section 1-105 also satisfies a second principle of the Proportional Contribution Clause: Vermont’s property tax system must be based on fair market value to ensure that the tax burden is shared proportionately. Barnett v. Town of Wolcott, 2009 VT 32, ¶ 4, 185 Vt. 627, 970 A.2d 1281 (mem.) (“The goal of property-tax appraisal is to ensure that no property owner pays more than his or her fair share of the tax burden; this is accomplished by listing all properties at fair market value.”); see also 32 VSA § 3481 (“The estimated fair market value of a property is the price which the property will bring in the market when offered for sale and purchased by another.”). This principle is reflected in our recent holding that when a contiguous piece of land lies in two or more towns, each of those towns may value and tax the portion within its boundaries so long as the combined valuation of each portion does not exceed the actual fair market value of the entire piece of land. See Vanderminden v. Town of Wells, 2013 VT 49, ¶ 20, 194 Vt. 96, 75 A.3d 598 (“The fair market value must be divided between the towns . . . the sum of the values attributable to the part of the parcel in each town cannot exceed the fair market value of the whole parcel.”) (citation omitted). Section 1-105 reflects this holding and the broader fair market value principle because it leaves towns free to consider not only the qualities of that portion that lies within their boundaries but also the fair market value of the entire contiguous piece of land. Id. ¶ 21(“[T]he correct valuation for property . . . includes both the fair market value of the property overall and of the portion in the town involved in the appeal.”).

¶ 12. Having concluded that § 1-105 is constitutionally valid, we further note that taxpayer offers no evidence to bolster his assertion that his particular property is valued or taxed at a rate higher than it would be if it were entirely located within just one town. Indeed, his own testimony was that he valued each of his units at $25,000 when considering their lakefront access, but at only $15,000 when not considering their lakefront access. Meanwhile, the trial court specifically found that Hubbardton assessed taxpayer’s units at just $12,800 each, “a clear indication that they are not assessing them as having lakefront access.” It also found that “the 7 property is not ‘double taxed’ as lakefront property.” This case is therefore unlike those in which towns have maximized the taxable value of the separate portions of land such that, when combined, they exceeded the actual fair market value of the land. See Vanderminden, 2013 VT 49 (rejecting town’s valuation of lakefront portion of property because it used model that placed primary value on lakefront, while neighboring town in which house was located used model that placed primary value on land immediately surrounding houses); see also Devon Energy Prod., L.P. v. Hockley Cnty. Appraisal Dist., 178 S.W.3d 879, 882-83 (Tex. Ct. App. 2005) (rejecting combined valuation of land by two towns amounting to 134-percent of land’s actual fair market value because “appraisal districts assessing property crossing county lines are entitled to ‘share it fairly but don’t take a slice of [the other’s] pie.’ ” (citing Pink Floyd, Money (Capitol Records 1973))).

 ¶ 13. Here, taxpayer did not meet his burden of establishing that the combined valuations by Sudbury and Hubbardton exceeded the fair market value of Wanee. Notably, it is true that § 1-105 does not contain language that on its own prevents two towns from valuing portions of land such that the valuations combined exceed the fair market value of the total property, as occurred in Vanderminden and Devon. But the Proportional Contribution Clause of the Vermont Constitution, and the Equal Protection Clause of the U.S. Constitution require that the statute be applied in a way that does not subject taxpayer to taxation based on a total valuation in excess of the fair market value of the taxpayer’s property simply because the property straddles town lines. II. Valuation of the Sudbury Portion

¶ 14. We next address taxpayer’s second argument, which is that the trial court’s conclusion that the fair market value of the Sudbury portion was $177,445 is not supported by the evidence. Here, taxpayer objects to Sudbury’s method of calculating the land’s value and tax burden through the use of land tables, schedules, and adjustments that take into account multiple 8 factors affecting the value of the land. Notably, the formula includes an “easement” adjustment to reflect that the land is merely a small portion of a much larger parcel. Taxpayer argues that this adjustment is insufficient and that that this formula should not be applied to the land because it was developed to value stand-alone parcels, not portions of land that belong to larger parcels. Instead—without proposing an alternative method—taxpayer contends that the land should be ascribed a lower value because it cannot be independently developed, accessed, or sold apart from the larger parcel.

 ¶ 15. We have long recognized that Vermont towns have discretion to use different appraisal methods to value property according to fair market value. See City of Barre v. Town of Orange, 138 Vt. 484, 486, 417 A.2d 939, 941 (1980) (“[M]any different methods exist for determining fair market value.”). However, as a logical extension of our previous observation of the Proportional Contribution Clause, towns’ appraisal methods must reflect fair market value, and this can be accomplished only by taking into consideration all elements that combine to give value to a property. See also Bookstaver v. Town of Westminster, 131 Vt. 133, 137, 300 A.2d 891, 893 (1973) (noting that “[t]here is no one or controlling factor.”). Sudbury heeds our holdings concerning the importance of fair market value and multiple-factor assessments. Its method begins with a general land schedule provided by the State of Vermont and based on actual sales in the town over the previous three years. It then makes adjustments based on factors including terrain, accessibility, septic systems, and quality of structures. Notably, Sudbury’s assessment system has been accurate over the years; the trial court found that its assessed values are very comparable to actual sales.

¶ 16. In the specific case of Wanee’s assessment, the trial court found the following facts. Sudbury started with a schedule that was based on a finding that the average fair market value for a lot on Lake Hortonia is $1000 per linear foot of lake frontage. Applying this schedule to Wanee’s total lake frontage, it determined that the property’s value before 9 adjustments was $385,000. To this base value, Sudbury assigned factors of: (1) 0.80 for land quality because the beach front was overgrown; (2) 1.02 for depth factor because the parcel is slightly deeper than the average lot; (3) 0.70 for amount of lake frontage, which is above average in Wanee’s case, and the per-foot value of frontage decreases as the amount of frontage increases; and (4) 0.80 because the parcel has an easement on it for the community owners and cannot be developed. After accounting for these factors—a multiplication of each factor against the base value—and then adding $1500 to account for two dilapidated structures, Sudbury arrived at a final assessed value of $177,445.

 ¶ 17. The trial court found that the system used by Sudbury to value taxpayer’s land was accurate, and this finding was supported by the evidence. First, the starting schedule was based on actual sales data. Second, the adjustment factors for properties such as land quality, depth, and lake frontage reflect those elements that we have previously recognized as giving property a market value. Bookstaver, 131 Vt. at 136-37, 300 A.2d at 893 (“The fair market value of property is the price which the property will bring in the market when offered for sale and purchased by another, taking into consideration all the elements of the availability of the property, its use both potential and prospective, any functional deficiencies, and all other elements such as age and condition which combine to give property a market value.”). Finally, we find that the town uses proper bases for determining the degree of adjustment for each factor. The depth factor and lake frontage adjustments are based on numerical charts and the easement adjustment is equal to the easement adjustments for other properties. For the land quality factor, the use of judgment to consider multiple features of the land is reasonable in light of the difficulty of assessing land quality. Moreover, the estimated land values have closely matched historical sale prices. We therefore conclude that Sudbury’s appraisal method conforms to the Proportional Contribution Clause’s fair market value requirement. It is unlike those systems that we have struck down as being unreasonable or too simplistic. See Bloomer v. Town of Danby, 10 135 Vt. 56, 57, 370 A.2d 194, 195 (1977) (striking town’s formula for determining land value, which solely contemplated total acreage and did not adjust for location, type of land, accessibility, or sale of comparable property); Town of Barnet v. New England Power Co., 130 Vt. 407, 413, 296 A.2d 228, 232 (1972) (holding that it was error to restrict appraised fair market value to no greater than net book value).

¶ 18. We further note that this same analysis applies to taxpayer’s argument that Sudbury’s formula should not be applied at all to the land because it was developed to value stand-alone parcels, not portions of land that belong to larger parcels. On this point, taxpayer argues that the Sudbury portion is worth almost nothing because it cannot be sold on its own. But this ignores the trial court’s finding that the Sudbury portion certainly added value to the whole when viewed as part of a larger property. It also ignores our long-standing precedent that contiguous lands should be treated as one under appropriate circumstances. We outlined those circumstances in Neun v. Town of Roxbury, 150 Vt. 242, 244, 552 A.2d 408, 410 (1988): All relevant factors must be considered in determining whether or not property should be assessed as a single parcel, including whether the property was conveyed in one deed, the character of the land and the purposes for which it is used, whether separately deeded tracts are contiguous, and whether the property currently functions as one tract for the owner. We have since reaffirmed those circumstances in several cases concerning the tax treatment of lands lying in more than one town. See Vanderminden, 2013 VT 49, ¶ 12 (holding that taxpayer’s land should be treated as one parcel because “[i]t is covered in one deed, used for one common purpose, and functions as a single tract.”); Bullis v. Town of Grand Isle, 151 Vt. 503, 504, 561 A.2d 1359, 1360 (1989) (affirming that parcels of land that are between a quarter of a mile and one mile apart should not be treated as contiguous for tax purposes). We see no reason to diverge from this precedent. Moreover, we find that the Sudbury and Hubbardton portions together function as one tract; the Sudbury portion enhances the whole by providing the units 11 with lakefront access. We therefore conclude that it is proper to value Wanee’s Sudbury portion as part of the whole parcel. The evidence supports the trial court’s conclusion about its fair market value. III. Taxation of the Ownership Interests

¶ 19. We finally address taxpayer’s third argument, which is that the trial court erred by upholding Sudbury’s apportionment of the tax burden among the unit owners in relation to their percentage interest in Wanee. He contends that this method is unreasonable and therefore violates both the Fourteenth Amendment and the Proportional Contribution Clause. He further contends that this method does not reflect the actual value that the common property adds to each unit and therefore violates the principal that property tax appraisal value should be proportionate to fair market value. In place of this method for apportioning the tax burden, taxpayer proposes that the tax burden arising from the common property in Sudbury should fall equally on each unit.

¶ 20. We disagree. Sudbury’s method of apportioning the tax burden according to ownership interest rather than equally to each unit is reasonable because it takes into account the benefits and burdens of condominium ownership. It comports with the fair market value principle of the Proportional Contribution Clause for the same reason; it reflects the actual value that the common property adds to each unit. Under Vermont law, common expenses in a condominium are charged according to the unit owners’ interests in the common area. See 27 V.S.A. § 1310 (“[T]he common expenses shall be charged to[] the apartment or site owners according to the percentage of the undivided interest in the common areas and facilities.”). This burden is balanced by the actual benefit of having an ownership interest. Upon termination of the condominium, the unit owners gain an interest in the property owned in common according to their previous ownership interest of the condominium. See 27 V.S.A. § 1316 (“[T]he property shall be considered to be owned in common by the apartment or site owners. The undivided 12 interest in the property owned in common which shall appertain to each apartment or site owner shall be the percentage of undivided interest previously owned by the owner in the common areas and facilities.”). Tax is a common expense, so it is reasonable for Sudbury to allocate this burden across the different units according to percentage of ownership interest. It is therefore consistent with the Fourteenth Amendment and the Proportional Contribution Clause.

 ¶ 21. This allocation also reflects the historical and prevalent practice in Vermont. In our state, the common area of a condominium community is not taxed as if it is completely independent of the units that own easements to it. Rather, it is allocated to the individually owned units that comprise the condominium, and then those units are taxed. This principle is explained in 27 V.S.A. § 1322, which reads, in part: Each apartment or site and its percentage of undivided interest in the common areas and facilities shall be considered to be a parcel and shall be subject to separate assessment and taxation by each assessing unit and special district for all types of taxes authorized by law . . . . Neither the building, the property nor any of the common areas and facilities shall be deemed to be a parcel. 27 V.S.A. § 1322. This practice is well established in our state, and condominium owners like those in Wanee have advance notice of it. We further note that, despite taxpayer’s argument to the contrary, Sudbury’s method comports with § 1322. The statute prohibits taxing common areas as a separate parcel only if those common areas lie in the same town as the community’s units. It does not prohibit taxing common areas that lie in a wholly separate town from the units. Here, none of Wanee’s units lie within Sudbury, so Sudbury may tax the portion of common area lying within its boundaries.

Affirmed. FOR THE COURT: Chief Justice

Compulsory Speech:
The Silent Side of the First Amendment

An noted athlete sits out the Pledge of Allegiance...  Since this was done in the context of his work for a private employer, responses to this act of expression have more to do with contract law than with the First Amendment. However, the incident has provided a grand opportunity for the public to discuss whether the First Amendment to the United States Constitution protects your right to not say anything at all....

The First Amendment to the United State Constitution states that “Congress shall make no law…abridging the freedom of speech, or of the press…”.  The First Amendment is most commonly invoked to support the unfettered expression of ideas, such as voicing political opinion or creating artistic and literary works. However, First Amendment law also holds that “free speech” means that the government cannot compel you to say things that you do not wish to say. The freedom of speech includes the freedom of silence.

A Small Vermont Example...

The issue of compulsory speech rose in Vermont a few years ago in regards to the new vaccination exemption law. Last winter, the Vermont legislature amended the state’s long-standing statutory process for enrolling unvaccinated children in school.  The law previously required parents to submit to the school a statement “in writing … that the person, parent or guardian…has religious beliefs or philosophical convictions opposed to immunization.”

The amended law required parents to annually complete a form created by the Vermont Department of Health which not only attest to a religious or philosophical opposition to immunizations, but also attesting that the parent or guardian:

--has reviewed and understands evidence-based educational material provided by the department of health regarding immunizations, including information about the risks of adverse reactions to immunization;

--understands that failure to complete the required vaccination schedule increases risk to the person and others of contracting or carrying a vaccine-preventable infectious disease; and

--understands that there are persons with special health needs attending schools and child care facilities who are unable to be vaccinated or who are at heightened risk of contracting a vaccine-preventable communicable disease and for whom such a disease could be life-threatening.

A number of parents, through Attorney Mitch Pearl of Langrock, Sperry and Wool in Middlebury, have objected to the Vermont Department of Health, asserting that the form comprises compulsory speech in violation of their First Amendment rights because the latter two provisions of the form require parents to swear or affirm that they hold certain beliefs about the nature, cause and transmission of disease and the role and effect of vaccinations.

As Attorney Pearl masterfully argued in his letter to the Department of Health, the issue is not a question of the state of scientific, empirical study on vaccinations and disease.  In other words, it does not matter whether or not the two paragraphs in question are true. The Constitutional issue is whether the State can compel individuals to attest to something they may not personally believe, as a prerequisite for participating in a governmental program—in this case, their children’s schooling.

The Pledge of Allegiance

Compulsory speech issues relative to schooling are not new. In 1943, the U.S. Supreme Court ruled in West Virginia State Board of Education v. Barnette that under the First Amendment, public school students cannot be forced to salute the flag or say the pledge of allegiance. An interesting facet of that case is that the Supreme Court did not hinge its decision on protection of the students’ rights of religious expression, even though the students’ families had brought the lawsuit on the grounds that, as Jehovah’s Witnesses, their religion precluded them from saluting icons or partaking in oaths.

Had the Supreme Court ruled on grounds of religious exemption, every student asserting their right to abstain from reciting the pledge would need to demonstrate adherence to a religion which has tenets precluding such an action. By basing their decision on grounds of compulsory speech, the Supreme Court acknowledged a broad-based Constitutional protection which applies regardless of the content of the statement or the nature of the religion of the person asserting the right. 

[This author was unaware of the 1943 Supreme Court ruling when she refused to say the pledge of allegiance in kindergarten in 1969 out of her belief that it seemed inappropriate to engage in such acts of nationalism while so many young men were dying in the Viet Nam war. The teacher’s screaming invectives suggest that she, too, was not up-to-date on the Supreme Court decision. The school principal, however—a military veteran--was familiar with the case, and quickly negotiated a compromise by which said kindergarten student would stand respectfully silent while others who chose to do so recited the pledge. It was, as they say, a teaching moment.]

Other Compulsory Speech Cases

School is not the only venue for compulsory speech conflicts. For example, in 1977, the U.S. Supreme Court ruled in Wooley v. Maynard that the State of New Hampshire could not compel its citizens to display the “Live Free or Die” logo on their license plates. Regardless of the popularity or populist sentiment of the expression, the government cannot force citizens to vocalize or display a message which they do not care to express.

The Supreme Court has been less impressed by First Amendment arguments asserting that citizens cannot be compelled to contribute funds that pay for a government-sponsored message with which the citizen may disagree. In 2005, the Supreme Court determined that the First Amendment rights of grass-fed beef growers were not violated by the terms of the 1985 Beef Act, which requires all cattle raisers to pay $1-per-head into a fund which engages in the generic eat-more-beef advertising campaign. Specialty beef ranchers did not want to participate in generic marketing, as it undercuts their efforts to portray grass-fed beef as better than other categories of beef. The Supreme Court ruled that much as citizens’ tax dollars can be used to buy library books or fund wars with which the taxpayer may not agree, the government may compel payments into a government ad campaign for which the contributor may disagree with the message.

Conclusion

The Vermont immunization form issue was resolved, at least for the moment, after thoughtful dialogue led to changes in the required form.  The issue will no doubt arise again in this immunization context, however, as across the nation the pressure mounts to make failure to comply with these programs punishable by civil and even criminal penalties.  

In other spheres of our lives, compulsory speech issues will likely be increasing as polarization politics adopts leads increasingly to 'litmus tests' of patriotism and loyalty.  False dichotomies are poor logic, and an even poorer basis for democratic governance.  Requiring one to swear to a specific mindset or phrase to obtain government jobs or services leaves the realm of democracy all together. 

Top Ten Tips for Towns

SOLAR ELECTRIC GENERATION FACILITIES:
Things to Consider Requesting in 
MOU Negotiations and CPG Proceedings

When a project developer applies for a §248 Certificate of Public Good to build a solar electric generation facility in your Town, how can you help ensure that the project, if approved, will benefit your community? These tips suggest some items that you might consider requesting be included in any CPG issued for a solar project, or in an MOU with the developer that is entered into the PSB record and included as an enforceable condition of the CPG. Your leverage for successfully negotiating favorable conditions to a CPG is increased if you are prepared to fight the project through the PSB process and on to appeal at the Vermont Supreme Court if agreement is not reached.

1. Setbacks.
Check the setbacks required by H.40. These are now mandatory -- but you can also consider waiving them if something about the particular site would make this more appropriate. For example, tucking a project right up against a side property line if the ground drops off steeply there might make the project less visible from a roadway or adjoining residence. Consider what the Town’s required setbacks are for the same area, and whether it would be more appropriate to request those. Site plans often do not include GPS coordinates for the proposed project, or the property lines of the parcel. Be sure to request this information as soon as a pre-filing notice comes in so that you can accurately determine on the ground and on Google Earth where the project is proposed to be built, and make an assessment of what setbacks would work best.

2. Screening.
Does your town have a screening bylaw as authorized by H.40? If so, H.40 says that the PSB is supposed to defer to it unless it is unreasonable. If not, does your Town have other clear screening standards in the Town Plan or zoning bylaws that you can request?

3. Agreement with neighbors and payment for landscape architects.
In appropriate circumstances, consider taking the position that the Town will not oppose the project if the developer works out agreement with the project neighbors regarding siting, screening or other mitigating measures. When a Town or neighbors wants better screening options than those presented by the developer, the Town and neighbors are often pressed to come up with their own aesthetic mitigation plan. This means hiring someone with landscaping expertise to devise a siting and screening plan. Consider requesting instead that the project developer be required to pay for a landscape architect to work with the Town and neighbors to devise an appropriate plan that all can agree on.

4. Information, compliance and costs regarding construction.
Although solar electric generation facilities are built swiftly in most cases, don’t forget to request information, compliance, and potentially costs and fees regarding construction-related activity. This could include road access permits and driveway upgrades within the Town right-of-way; overweight truck permits; limits on hours of construction work; personnel to direct traffic during construction (especially where the construction access driveway is at a difficult-to-see location).

5. MOU for payment in lieu of taxes, or other economic concessions.
Be sure that you fully and accurately understand the amount of property taxes that the project will generate for the Town. Because of steeply discounted tax rates set by the State, the property taxes paid by solar generation facilities may well be significantly less than you anticipate. Depending on siting, the project may also result in a reduction of surrounding property values and a corresponding drop in property tax revenue to the state. Consider requesting, in MOU discussions, an annual payment in lieu of taxes from the developer, or a one-shot payment to help compensate the Town for the cost of reviewing and addressing the proposed development.

6. Contribution to local firefighters due to the unique fire hazards of solar facilities.

Solar arrays present unique hazards to firefighters. Solar arrays generate power whenever there is a light source -- including, according to UL, emergency light banks -- and can not be switched off. This means that when there is a fire, firefighters face a serious risk of electrocution. Consider asking the developer for a contribution towards training or equipment for local fire services.

7. Public education regarding archaeological, historic or environmental resources.
If the project implicates cultural or environmental resources like wetlands, consider asking the project developer to have their related consultants prepare informational or educational materials regarding that resource for display in the local library, town offices or school, or to create a public or school workshop. Some developers may welcome the chance to generate good public relations as well as contributing to local knowledge about Town cultural and environmental resources.

8. Contribution to land conservation efforts.
Consider asking the project developer to mitigate negative project impacts by contributing to land conservation efforts. This could involve buying a conservation easement for a buffer area around the project, or contributing to the Town purchase of parkland at another location to make up for the loss of open space. There can be room for creativity where the landowner of the parcel underlying the project may be able to take a tax credit for donating a conservation easement to the Town which can help offset the income from the lease or sale of the property to the developer.

9. Agreement that there will be no additional projects by this developer.
Solar projects have a troubling tendency to experience ‘mission creep’: a small one goes in, then another right next door, then another 50 yards away, then another by the same developer on the next parcel over. Consider requesting in MOU negotiations that the developer agree that there will be no further expansion of the proposed project, and no additional solar development by that developer (be sure to include all their related personnel, LLCs and other entities) within the Town.

10. Decommissioning and site restoration.
Decommissioning solar electric generation facilities is being given short shrift in most PSB solar proceedings. At present, there are no solar panel recycling facilities, and it is quite unclear how solar panels -- which contain a number of toxic and hazardous materials -- will be disposed of. Since most solar facilities are built and owned by single-purpose LLCs created to take advantage of tax breaks, it is also unclear who will even own the array by the time it reaches the end of its useful life or if panels malfunction. Request a clear, enforceable, and amply capitalized decommissioning fund along with strong guarantees that the site will be restored to its prior condition. Think about whether the construction access should be removed or remain in place. Consider requesting a provision in the CPG mandating that the parcel not be used for subsequent commercial and industrial development; this may help prevent bootstrapping, where a developer proposes a new use for the parcel based on the fact that it’s been in industrial energy production for some time.

Hill Attorney PLLC 802-989-6906 hillattorneypllc@gmail.com

Top Ten Tips for Towns

SOLAR ELECTRIC GENERATION FACILITIES:
Responding to Solar Facility Applications 
to the Vermont Public Service Board

Responding to a solar facility pre-filing notice or application to the PSB can be a daunting task, especially if you don’t see many of them. Towns and neighbors often feel disempowered by the state-level administrative process. PSB rules are far more mysterious than ordinary court rules, and often the rule says one thing but in practice something different happens. These tips should help you get started and feel a bit more confident about municipal participation in the §248 Certificate of Public Good process for solar electrical generation projects.

1. Carefully review the applicant identity and site information.
Check the applicants’ name against the Vermont Secretary of State corporations database to ensure that they are a Vermont-registered entity. Determine if address of the project site is a 911 listed address in your town, and that you can associate that address with a parcel number. Note any conflicting subdivision, easement or development permits as well as if there are any other solar arrays on the same parcel. It can be difficult to determine from an application where a project is being proposed for construction. Promptly request clarification -- GPS coordinates, stakes in the ground, parcel numbers, etc. Also check the abutters list -- did the applicant serve everyone required to be served?

2. Compare the proposed project to your Town Plan and zoning bylaws.
Does your town have specific standards for this area or zone? Clearly stated goals regarding development? Special concerns like scenic viewsheds? Have you adopted a screening bylaw as authorized by H.40?

3. Promptly calendar your response deadlines.
Deadlines in matters before the Vermont Public Service board run from the date something was filed with the Board, to the date the Board receives your response. This means if an applicant sends you a pre-filing notice for a 150kW solar array, your 30-day timeline for commenting runs from the date that notice was filed with the PSB -- which might be several days before you received it. By close of business on the 30th calendar day from when it was filed, your comments must be in the PSB’s hands. Overnight mail in Vermont frequently does not get there overnight. You must make sure your comments get there in time, which often means hand-delivering them. Given that most Town boards especially in small Towns may meet infrequently, it’s critical to determine the deadlines the minute a pre-filing notice or application arrives.

4. Submit comments even if the Town approves of the project.
Your Town may approve of the project as presented on the application. However, projects are not always built the way they are presented on the application. They may install the array at a different location on the parcel; they may use larger panels than indicated; they may never plant the screening, or the landscaping may die. Frequently site plans show trees for screening that would scale out to 40’ across in the real world. Consider submitting comments indicating that the Town approves of the project -- but only if built exactly as indicated in the application file. This gives you standing to challenge or enforce against changes later.

5. Comment on both the pre-filing notice and the application.
You’ll receive a pre-filing notice as well as the application on solar arrays larger than those that serve a single house. If you comment on the pre-filing notice, be sure to re-submit comments, or at least send a letter re-confirming your earlier comments, when the application is filed. This ensures that the comments are entered into the appealable record.

6. Check the application for project changes.
The project proposal may well change between the pre-filing notice and the actual application. Project proponents may respond to agency or neighbor issues or to market forces -- such as buying larger, cheaper panels -- so the application may look different than the pre-filing notice. Don’t assume that they are the same -- compare them carefully.

7. Assert your party status.
H.40 gave town Selectboards and Planning Commissions party status in solar energy projects. Previously, Towns had to apply for intervenor status, the granting of which was in the discretion of the PSB. It will be a few years before cases work their way through the Vermont Supreme Court establishing the parameters for exactly what that party status means. In the mean time, clearly state on your pre-application comments and on your application comments that your Town is a party to the proceedings.

8. Check for impacts on Town assets and property.
It is generally assumed that the Vermont pre-emption law precludes Towns from regulating solar facilities. While this question has not yet been clearly litigated to the Vermont Supreme Court, there is no indication that PSB matters are exempt from municipal regulation on non-land-use issues. For example, if the project construction and maintenance will require access to the parcel from a Town road, the Town may require a road-access permit, and overweight truck permits for hauling construction equipment into the site. A project that would involve access over Town- owned lands would also require Town permission.

9. Assemble a working team to address a §248 Checklist.
Solar and other energy facilities are reviewed by the PSB for compliance with the criteria listed in 30 VSA §248. Some of those criteria have been conditionally waived for smaller solar projects under PSB rules. Put together a team of town officials and residents who can review solar applications with knowledge about these criteria -- aesthetics, historic structures, public safety -- and offer expert testimony if necessary. Expert witness costs can often be minimized when knowledgeable local residents lend a hand.

10. Be certain that you understand economic impacts on the Town.
Most Town interventions on solar development proposals relate to aesthetics and orderly development. Be sure that you understand the economic impacts of the project as well. Speak with your lister about how much the project will be paying in property taxes to the Town. Given favorable state treatment of these facilities, it will not be much money. Also examine whether surrounding property values will go down -- will nearby homes be reduced in assessment value given the change in their view, thus lowering the Town tax revenue?

Hill Attorney PLLC 802-989-6906 hillattorneypllc@gmail.com

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FAQs for Towns Addressing
Solar Electric Generation Facilities

What can the Town do to help project neighbors participate in the application process?

Neighbors’ interests and Town interests often diverge -- one may want to negotiate a settlement, perhaps involving landscaping or other screening, or moving an access driveway to another location, which may be at odds with the position of the other. That said, however, there is much a Town can do to assist project neighbors. The Town to facilitate a public informational meeting where neighbors can ask the applicant questions about the project and the process. The Town can incorporate the comments or concerns of project neighbors into Town comments on the project. Towns and neighbors can share expert witness costs and coordinate litigation strategy if the project goes to a PSB hearing.

If the Town opposes a project, what’s the best way to get a hearing?

Be sure that your comments are clear, thorough, and tied substantively to specific §248 review criteria. Be sure to clearly state, perhaps even in a separately filed document, that you are requesting hearing. The PSB rules do not clearly state what type of evidence must be submitted to support a request for a hearing, but you can strengthen your comments by submitting affidavits, exhibits, or even formal prefiled testimony.

Do we need an attorney?

Not necessarily, but there are times when it makes a lot of sense to be represented by counsel. If your Town has ample knowledgeable officials or staff available to respond to solar facility applications, and if you don’t have too many of them at once, and if you simply want to submit comments but are not actively opposing a project or requesting a hearing, then there’s no particular reason why the Town can’t meaningfully participate by submitting comments without an attorney.
When you are facing several solar project applications at once, or one that is large or has complex issues, the assistance of legal counsel can help to ensure that all steps and deadlines are met in order, and all issues are addressed in a timely fashion. When a project is contentious, an attorney can provide a bit of a buffer between disputatious parties, which can help reduce the anxiety of participating in a complex legal process. And finally, when a Town is strongly requesting a hearing and actively opposing a project, an attorney can help ensure that a proper legal record is created for appeal, that testimony is submitted in an appropriate admissible fashion, and that legal issues are thoroughly briefed.

What other resources might help?

--Read the Citizen’s Guide to the Vermont Public Service Board’s Section 248 Process, available free on the PSB website. Print it out and share it with project neighbors and Town staff.
--Talk to your Regional Planning Commission. Their staff may be able to help you negotiate aesthetic mitigation like landscaping plans, as well as provide guidance for drafting town plan and screening bylaw language.
--Reach out to other Towns that have been involved in numerous solar cases. Most will share copies of their filings and other materials that you can use as guidance to build your own responses.

Hill Attorney PLLC   hillattorneypllc@gmail.com  802-989-6906

Expungement in Vermont: What Firearms Owners Should Know

     In 2012 Vermont adopted, for the first time, a procedure by which a limited number of Vermont state criminal convictions may be expunged.  Under the expungement law, 13 VSA §7601, many types of misdemeanor convictions and two types of felony convictions may be expunged.

     All misdemeanor convictions qualify for expungement EXCEPT: stalking, domestic assault, reckless endangerment, violation of abuse prevention orders or similar orders, prohibited acts under 13 VSA §2632, abuse of vulnerable adult, unlawful restraint or neglect of vulnerable adult, DUI, and attempts to commit any of these.

     The only two felony offenses that qualify for expungement are unlawful mischief with damage exceeding $1000, and grand larceny.

     A person convicted of an offense qualifying for expungement can not apply for expungement until 10 years since the date of successful release from probation for the conviction, with no other criminal convictions in the intervening 10 years.  If there is any intervening conviction, the person must wait 20 years from successful release from probation.

     A person seeking expungement must file a petition with the court of conviction, together with an $80 filing fee.  This petition is also served on the prosecutor’s office. If there is no timely objection from the prosecutor’s office, the Court may go ahead and expunge the conviction.  If there is an objection from the prosecutor’s office, the Court will schedule a hearing, and will then issue an order granting or denying the expungement based on the testimony and evidence presented at the hearing.

The instructions regarding petitioning for expungement may be found HERE

And the Petition form may be found HERE

     Under federal law, any person convicted of a crime that has a potential sentence of 1 year or more, or which is classified by a state as a misdemeanor but has a potential sentence of 2 years or more, is prohibited from possessing firearms.  Additionally anyone convicted of a misdemeanor crime of domestic violence is also prohibited from possessing firearms under federal law. (Note that these are only a few of the 9 categories of persons prohibited from possessing firearms under federal law.)

     The Vermont expungement process can help some--but by no means most--Vermonters with prior criminal convictions regain their ability to lawfully possess firearms under federal law.

     Anyone with a Vermont felony unlawful mischief or grand larceny conviction is presently prohibited from possessing firearms under federal law.  If they otherwise qualify -- released from probation at least 10 years ago, and no intervening convictions -- and have no other disqualifications under federal or state law, then an expungement would restore these individuals to their lawful firearms possession rights.

     Individuals with domestic violence misdemeanor convictions are prohibited from possessing firearms, and do not qualify for Vermont expungement. Under federal firearms law, those individuals are prohibited from possessing firearms even if the charges were amended to simple assault or disorderly conduct rather than domestic assault, unless the underlying facts of the case were also amended to eliminate the reference to the qualifying domestic relationship.   However, individuals who were originally charged with domestic assault, but pled guilty or were found guilty of another charge such as simple assault or disorderly conduct, may qualify for Vermont expungement and thus restore their firearms rights.

     The expungement process and petition is designed so that Vermont residents can complete and submit it without needing an attorney. However, having an attorney review the petition to assure that you are eligible, and to engage in any necessary conversations with the prosecutor’s office or court clerks, as well as represent you at hearing if one is scheduled, can help ensure that your rights and interests are protected and relieve some of the anxiety of dealing with court processes.  A Vermont criminal defense attorney would be most familiar with the expungement process and be able to help you obtain and interpret your court records.