The plaintiff had requested emails between the VSBA, the Vermont Principal’s Association, and the Vermont Superintendents Association. The VSBA responded that it was a private nonprofit corporation, and, accordingly, not a “public agency” subject to the PRA. Plaintiff premised his PRA claim on the theory that the VSBA is the functional equivalent of a public agency and thus must be subject to the PRA.

The Court held that there is no general “functional-equivalency” concept applicable to the PRA. Instead, whether a non-governmental entity can be subject to the statute turns on whether the entity is an “instrumentality” – a term listed within the statute’s definition of “public agency” – of the state or a municipality. The Court said “the determination whether a particular entity is an ‘instrumentality’ must be made on a case-by-case basis.” The key determination is whether the entity has been “delegated responsibility for performing a uniquely governmental function.”

Although the VSBA is involved in aspects of public education, which is a fundamental governmental function, the Court reasoned that the VSBA does not provide public education but instead only provides services to member school boards. The Court thus held that the VSBA is not an instrumentality subject to the PRA because it has not been delegated responsibility for performing a uniquely governmental obligation. Going forward, the Court’s “instrumentality” analysis will serve as binding precedent for determining whether non-governmental entities are subject to the PRA.

While the Vermont Open Meeting Law (“OML”) was not discussed by the Court in its McVeigh decision, the case may have implications for that statute as well. The OML’s definition of “public body” includes an “instrumentality of the State or one or more of its political subdivisions.” Therefore, the Court’s holding in McVeigh as to what constitutes an “instrumentality” may guide resolution of OML disputes over whether a group is a “public body” subject to that statute.

The Supreme Court’s McVeigh opinion is available here.

After the issuance of the Act 250 permit on May 2, 2019, Montpelier residents opposed to the project appealed.  In their court filings in response, SP&F attorneys Joseph McLean and David Rugh argued that the parking garage portion of the project was development for municipal purposes on less than ten acres of land, and thus should not qualify as “development” under Act 250.

In a fifteen-page order, Superior Judge Thomas Walsh agreed and held that the proposed parking garage was development for a municipal purpose on less than ten acres of land.  Accordingly, the Court found that there was no Act 250 jurisdiction over the parking garage and dismissed the appeal.

For a copy of the Environmental Division’s April 15, 2020 Decision, or for assistance navigating Vermont’s myriad regulations pertaining to land development projects, contact David Rugh or Joseph McLean.

The Superior Court did remand the matter to the Selectboard to go back and review safety issues which the residents argued could be implicated if the road was to become private instead of public.  The Selectboard did as ordered and found that there was no evidence to suggest that turning-over maintenance of the road to the homeowners would create any safety hazards to the traveling public greater than when the road was a public road.  The Selectboard thus reaffirmed its decision to discontinue the road.  The homeowners appealed again, and the Superior Court ruled that the Selectboard’s decision was properly supported by the evidence it had reviewed.  The Court also rejected the homeowners’ charges of improper conduct and procedures on the part of the Selectboard.

In addition to challenging the discontinuance decision, the homeowners also sued the Town for monetary damages, claiming that the Selectboard’s action making the road private denied the homeowners reasonable access to their properties such that the action amounted to a “taking” without compensation.  The Court agreed with the Town’s analysis that cessation of maintenance of a road at public expense is not a taking of any property right of abutting property owners.  The homeowners also claimed that the town highway discontinuance statute, 19 V.S.A. § 710, is unconstitutional, but the Court agreed with the Town’s defense of the statute and rejected that claim as well.

The Town was represented by the Burlington law firm SP&F, which represents municipal clients statewide.  The property owners were represented by the law firm Monaghan, Safar & Dwight.  Copies of the Superior Court’s key rulings are available by contacting John Klesch.

In 2014, the United Church of Cabot (UCC) applied for a ten-thousand-dollar grant from the Town to assist with a portion of the cost of certain structural repairs. While UCC is a place of worship, it also makes its premises available for nonsectarian community events and it is considered “an important and historic building in the town.” The grant request was put to a vote on Town Meeting Day and the voters approved the grant.

The plaintiffs challenged the grant under the Compelled Support Clause of the Vermont Constitution and requested an injunction from the trial court to prevent the Town from making the award to the UCC. The trial court rejected the Town’s arguments that the plaintiffs lacked standing to bring the constitutional challenge and issued a preliminary injunction, finding the grant was analogous to the unrestricted tuition-payment system struck down in Chittenden Town School District v. Department of Education, 169 Vt. 310, 738 A.2d 539 (1999). The trial court also found that, in the absence of a preliminary injunction, the plaintiffs would suffer irreparable harm to their values arising from the UCC’s unconstitutional use of the grant funds during the pendency of the case.

On interlocutory appeal by the Town, the Vermont Supreme Court held that the plaintiffs had municipal taxpayer standing to sue to enjoin the grant award to UCC. Despite the fact that the Town’s use of the funds was restricted by its agreement with HUD, the Court found the Town retained extensive control over the funds with little federal oversight and that the monies could otherwise be available for municipal expenditures. Although the funds were maintained in a separate municipal account, the Court found that the Town’s grant program contemplated the potential award of grant funds to municipal governmental agencies for capital projects and, therefore, the funds could not be “meaningfully divorced from their effects on municipal taxation.” The Court reasoned that the grant to “UCC may displace a grant to a tax-funded entity, with the potential consequences of affecting taxes.”

However, the Court vacated the preliminary injunction, finding that the trial court overstated the plaintiffs’ likelihood of success on the merits of their claims and erred in concluding they would suffer irreparable harm in the absence of the injunction. Regarding plaintiffs’ likelihood of success, the Court expressed skepticism of the argument “that the Compelled Support Clause embodies a categorical prohibition against any public funding for physical repairs to a place of worship” and noted that plaintiffs had not presented evidence sufficient to support a narrower claim. The Court explained that the critical question under the Compelled Support Clause is whether the funds are actually used to support religious worship, and the fact that the recipient of government support is a religious organization is not necessarily determinative. In fact, the refusal to afford a religious organization access to secular benefits made available to similar institutions solely because of its religious character may run afoul of the Free Exercise Clause of the First Amendment, as the U.S. Supreme Court recently held in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (2017).

The Court held public funds will not be considered as supporting worship within the meaning of the Compelled Support Clause if: (1) the funding is available on a neutral, nondiscriminatory basis to a diverse group of potential recipients for the purpose of promoting a secular goal of the community, (2) the funds are not intended to or do advantage religious groups or activities, and (3) the funds are used for structural repairs rather than to replace, repair or erect religious symbols. However, the Court noted that on remand the plaintiffs may be able to establish the Town’s grant program is not as neutral as it appears and that it advantages the UCC on the basis of its religious character, or that the funds will be used to support worship.

Regarding the trial court’s conclusion that plaintiffs would suffer irreparable harm in the absence of the injunction, the Court found that if plaintiffs prevailed on remand, the UCC would be ordered to repay the grant monies and that the alleged constitutional violation would then be remedied. Furthermore, there was no evidence that UCC would be unable to repay the grant if the plaintiffs should prevail. On these bases, the Court found it was error to conclude the alleged harm to plaintiffs was irreparable.

A copy of the decision is available here: Taylor v. Town of Cabot, et al. 2017 VT 92

For additional information about this case, or matters of municipal governance, please contact attorney Eric G. Derry at SP&F.

In the first case, captioned Petition of Vermont RSA Limited Partnership and Cellco Partnership, for a certificate of public good, pursuant to 30 V.S.A. § 248a, for the installation of telecommunications equipment in Waterbury, Vermont, Docket No. 8601, decided September 21, 2017, SP&F represented the Towns of Waterbury and Stowe in opposing the proposed siting and construction of a Verizon cell tower in an area identified in municipal planning documents as a critical wildlife corridor.  Working in conjunction with the Agency of Natural Resources and neighboring property owners, SP&F attorney Joe McLean presented evidence and argument on behalf of the Towns that the proposed project did not meet the criteria for siting telecommunication facilities.

Following an evidentiary hearing, the Public Utility Commission agreed with the project opponents and rejected Verizon’s CPG application.  In so doing, the Commission found that the project would have an undue adverse effect on rare and irreplaceable natural areas and necessary wildlife habitat.  Significantly, the Commission also concluded there was not sufficient “good cause” to reject the Waterbury Selectboard’s recommendation to relocate the project outside of the Town’s conservation zoning district to an area that was not critical wildlife habitat, which Verizon had refused to do.  Ultimately, the Commission concluded that the project would not promote the general good of the State and denied the CPG request.  Verizon did not appeal the Commission’s decision, which is now final.  This is an important case for Vermont municipalities because, after hundreds of CPG applications, it represents the first time that the Public Utility Commission has ever denied an application for a telecommunication facility and the first time that the Commission has relied on the recommendations of a municipal legislative body in doing so.

In the second case, captioned Investigation pursuant to 30 V.S.A. §§ 30, 209, and 248 regarding the 2.2 MW solar plant owned by Charlotte Solar, LLC in Charlotte, Vermont, Docket No. 8638, decided October 23, 2017, attorney Joe McLean represented the Town of Charlotte in an enforcement action against a solar developer who had failed to comply with the aesthetic mitigation requirements of its CPG approval and a prior stipulation with the Town.  After the developer admitted non-compliance and negotiated the details of a new landscaping plan, the parties – which included the developer, the Town, the Department of Public Service, and a neighbor – failed to agree on an appropriate penalty.  The developer argued for a fine of $5,000, while the other parties argued for a significantly higher penalty.  The Town also sought to recover its attorney’s fees in connection with the enforcement action under the bad faith exception to the “American Rule,” which applies where a party is forced to endure a second round of litigation to secure a “clearly defined and established right which should have been freely enjoyed” without the need for further judicial intervention.   Following an evidentiary hearing, the Commission’s Hearing Officer recommended an enforcement penalty of $20,000 and also awarded the Town almost all of its attorney fees.  Ultimately, the parties entered into a post-hearing memorandum of understanding, approved by the Commission, that included a stipulated penalty of $30,000 (instead of the $20,000 recommended by the Hearing Officer) and payment to the Town of its attorney’s fees. The case sends a strong message to developers of renewable energy projects that there may be a steep price to pay for failure to honor agreements with municipalities regarding aesthetic mitigation or landscaping plans that are incorporated into CPG approvals.

Please contact Joe McLean, who represented the towns in the above-referenced cases, with any questions regarding Public Utility Commission matters.

Attorney Eric Derry represented the Town of Charlotte in its opposition to the project, working together with the Agency of Natural Resources and the Department of Public Service. The project opponents successfully argued that, given the dramatic rise in elevation of Mount Philo, and the project’s close proximity to the base, it would be virtually impossible to adequately screen the project in the location proposed by the applicant. Furthermore, the opponents established that the project would be a dominant element in the surrounding landscape, particularly as seen from the western summit of Mount Philo, due to the lack of any similar development in the vicinity of the project site.

In denying the application, the Commission agreed with the project opponents, finding that the western viewshed from the summit is a primary attraction of the Park and that sightseeing that view “is precisely the kind of activity the enjoyment of which would be significantly degraded by the presence of the project.” A copy of the final decision in Case Number NM-6691 is available through the Public Utility Commission’s electronic case management system.

For additional information regarding the Public Utility Commission process, including issues with the siting of alternative energy or telecommunications infrastructure, please contact our office.

The Firm served as local bond counsel to both of these communities, providing advice and legal counsel on the warning and approval of the debt, as well as the content and structure of the related documents.

Feel free to call Bob Fletcher if your community or exempt organization is considering tax-exempt financing for eligible projects

On these facts, the Montpelier City Assessor notified the College that Schulmaier Hall was not exempt.  The College filed a complaint for declaratory judgment, but did not grieve or appeal the City Assessor’s decision.

The City, represented by Bob Fletcher and Eric Derry, and the College each moved for summary judgment. The College claimed that exhaustion of the administrative appeal process was not required and that Schulmaier Hall was exempt either as a “public school” or, as a property devoted to “public use” based on its non-profit ownership and occupancy by the state government.  The City argued that failure to exhaust the administrative remedies deprived the court of subject matter jurisdiction and that, in any event, the use of Schulmaier Hall failed to meet the requirements for either of the claimed exemptions. The Superior Court Civil Division granted summary judgment in favor of the City on all issues.

On appeal, the Supreme Court noted first that the exhaustion requirement “serves the dual purposes of protecting the authority of the administrative agency and promoting judicial efficiency.” It held, therefore, that a local board of civil authority has statutory authority to decide exemptions from taxation, and that exhaustion is required before resorting to the courts.

The Supreme Court also held that college property rented to unaffiliated tenants precludes exemption for the property as “lands owned or leased by colleges, academies or other public schools.” Citing the companion cases of Burr & Burton Seminary v. Town of Manchester, 172 Vt. 433, 782 A.2d 1149 (2001) and Berkshire Sch. v. Town of Reading, 172 Vt. 440, 781 A.2d 282 (2001), the Court held that the “public schools” exemption is precluded regardless of the fact that the rental revenues are used to further an educational purpose.

Finally, the unanimous Court clarified the nexus between a nonprofit owner and an unaffiliated nonprofit (or nontaxable) tenant under the test established in American Museum of Fly Fishing, Inc. v. Town of Manchester, 151 Vt. 103, 557 A.2d 900 (1989). It noted that its prior decisions had endorsed exemption of property involving nonprofits only where they shared a single nonprofit mission. It reaffirmed the “single mission” holding, essentially limiting exemption to cases where the nonprofit tenant is a subsidiary sharing a single nonprofit mission with the owner.

A copy of decision is available here: Vermont College of Fine Arts v. City of Montpelier, 2017 VT 12

For additional information regarding property taxation and issues of exemption, please contact our office.

The FAQ is a follow up to the DOJ’s previous technical assistance bulletin- Revised ADA Requirements: Service Animals which was issued in 2011.

The 2015 FAQ can be found here:FAQ Service Animals

The 2011 DOJ technical Assistance Document can be found here: 2011- Revised ADA Requirements-Service Animals

If you have questions regarding Service Animals and the ADA or how the ADA impacts on your municipality or school, please contact Dina Atwood or Patti Page