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These Frequently Asked Questions have been compiled by VLCT staff to help answer some common queries. Click on a question to be directed to the answer.
How does the selectboard temporarily limit motor vehicle travel on town highways?
A selectboard is authorized under 19 V.S.A. § 1110(a) and 24 V.S.A. § 2291(4) to adopt a resolution providing for temporary restriction of the use of town highways. During a state of emergency, additional authority is granted to municipalities to “make, amend and rescind such orders, rules, and regulations as may be necessary for emergency management purposes ... not inconsistent with any orders, rules or regulations promulgated by the governor or by any state agency exercising a power delegated to it by him or her.” 20 V.S.A. § 16. Depending upon the urgency of the need, a resolution to close a highway or bridge could be adopted by a selectboard at an emergency meeting or special meeting, or at a regular meeting – notwithstanding that the resolution was not included on the meeting agenda – either under “other business” or by a motion and majority vote at the beginning of the meeting to amend the agenda.
A copy of the selectboard’s resolution should be posted in at least two public places in town and signs should be posted at each end of the closed roads informing travelers of the restriction (e.g., “Road Closed Except to Local and Emergency Traffic”). If these steps are taken, violation of the rules should be enforceable as a traffic offense, and the violator can be fined up to $100 for violation of the closure. 19 V.S.A. § 1110(b).
A simple resolution would look like this:
RESOLUTION FOR TEMPORARY HIGHWAY CLOSURE
TOWN of __________, VERMONT
WHEREAS, unprecedented weather conditions have caused substantial damage to highways and bridges in the Town of __________, and
WHEREAS the Selectboard has significant concern for the safety of residents of the Town and for the condition of these Town highways and bridges, and
WHEREAS, the Selectboard is authorized under 19 V.S.A. § 1110(a) and 24 V.S.A. § 2291(4) to regulate the use of motor vehicles on Town highways and to adopt rules to prevent damage to Town highways,
NOW THEREFORE, the _________ Selectboard does RESOLVE that all motor vehicle travel on the following Town highways is prohibited, except for local and emergency vehicle traffic, until further notice:
1. Town Highway No._____, also known as ________ Road from ___________ to _________________.
2. Town Highway No. _____, also known as _______ Road from _____________ to _________________.
DATED this __ day of September 2011.
What can the selectboard do in an emergency if it needs to relocate a bridge or reconstruct a town highway outside the existing highway right-of-way?
If a town highway is made impassable or its width reduced to prevent safe travel, or if a bridge is swept away by a flood, the selectboard is authorized by statute to change the location of the highway or bridge. The selectboard “may take, damage, or affect such land as may be necessary at the location of the slide, or washout, for the purpose of re-establishing, repairing, rebuilding or protecting the highway or bridge, and may proceed immediately to build or rebuild the highway or bridge and open the highway or bridge for work and travel.” 19 V.S.A § 935.
The law requires that the selectboard follow procedures in 19 V.S.A. § 923 for giving notice, inspecting property, determining need, awarding damages and satisfying appeals. 19 V.S.A. § 936. That statute provides:
In order to protect the rights of property owners and the public, the process described in this section shall be used whenever so provided by other provisions of this title. As used in this section, “interested person” means a person who has a legal interest of record in the property affected.
(1) Notice. Written notice by certified mail shall be given to the property owner or any interested person describing the proposed activity affecting the property. The notice shall include a date and time when the board of selectmen shall inspect the premises. The notice shall precede the inspection by 30 days or more except in the case of an emergency.
(2) Inspection of premises. The selectmen shall view the area and receive any testimony pertinent to the problem including suggested awards for damages, if any.
(3) Necessity. The selectmen shall decide on the necessity for the activity or work proposed and establish any conditions for accomplishing it. This includes the award of damages, if applicable. The decision and the reason for it shall be announced within 10 days of the inspection unless formally delayed by the selectmen in order to receive more testimony.
(4) Notifying parties. The selectmen shall notify the property owner and other interested parties of their decision. They shall file a copy of their decision with the town clerk within 10 days of its announcement.
(5) Appeal. If an owner is dissatisfied with the award for damages he or she may appeal using any of the procedures listed in chapter 5 of this title. Notice or petition for appeal shall not delay the proposed work or activity.
In non-emergency situations, the statute requires written notice be given to the affected property owner by certified mail 30 days prior to an inspection. 19 V.S.A. § 932(1). In situations where such delay is not practical, VLCT advises that the selectboard hold an emergency or special meeting and convene a hearing on the site, giving actual verbal notice of the hearing to the affected property owners at the site. The notice to the property owners should include a verbal description of the relocation or reconstruction activity being considered by the town.
The selectboard should open the emergency hearing, inspect the site, and receive testimony “pertinent to the problem.” 19 VSA § 923(2). After taking this testimony, the board must decide that the proposed activity or work is necessary and establish any conditions for accomplishing the work. 19 VSA § 923(3). In this context, “necessity” does not mean absolute or imperative necessity, but only “a reasonable need which considers the greatest public good and the least inconvenience and expense to the [town] and to the property owner.” 19 V.S.A. § 501(1).
The selectboard’s decision can be made verbally at the conclusion of the hearing, but must be followed up with a written decision that describes the reasons for the work, the statement of necessity, and any conditions for accomplishing the work. The written decision must be filed with the town clerk within 10 days. 19 V.S.A. § 923(4). The selectboard should let the parties know that the written decision will be in the clerk’s office and that the town will also send a copy in the mail.
VLCT recommends that the selectboard withhold any decision on damages until the town’s work has been completed. To this end, the selectboard should announce at the emergency hearing that the hearing will reconvene at a date and time certain (preferably at least 15 days later to ensure that the work has been completed) to take additional testimony regarding damages. The date and time for reconvening the hearing should also be set out in the written decision. At the reconvened hearing the selectboard will take testimony and make a decision regarding the value of the property taken or damaged.
In the short term, how do we pay for flood-related expenses?
In the shortest and most immediate term, a selectboard can authorize transfers of money between line items to make funds available for flood-related expenses. In doing so, the board should make sure that transfer and use of these funds is not legally restricted. The most well-known example of such a restriction is the prohibition against using moneys raised from town highway taxes for other, non-highway purposes. 19 V.S.A. § 312. No such restriction exists the other way (i.e., general fund moneys can be used for highway purposes), but other limitations can apply. For example, there are restriction on the use of conservation funds (24 V.S.A. § 4505), impact fees (24 V.S.A. §5203), trust moneys (24 V.S.A. §2431), water and sewer funds (24 V.S.A §§ 3616, 3313), and grant moneys. The Municipal Assistance Center can answer specific questions about the temporary use of restricted funds for non-authorized purposes.
In the longer term, selectboards have authority to borrow money to pay for current municipal expenses without voter approval, so long as the term of the loan does not exceed one year. 24 V.S.A. § 1786. Under this authority, selectboards should be able to secure a non-revolving line of credit from a lender which the selectboard can draw upon to pay flood-related expenses. As federal and state reimbursements and insurance settlements become available, they can be used to pay down the line of credit. If at the end of the year such reimbursements and settlements are not sufficient to cover the entire balance of the town’s obligation, an appropriation to retire the resulting deficit can be made through the next annual municipal budget or at a special town meeting, or the debt can be refinanced by borrowing or bonding in accordance with the processes set out in Chapter 53 of Title 24. If none of these occurs, the selectboard is authorized, when making up the next annual tax bill, to impose a mandatory deficit curing tax to “provide sufficient revenue to liquidate such deficit.” 24 V.S.A. § 1523(a).
Are donations made to a town for emergency management purposes tax-deductible?
Most likely, yes. Municipalities are authorized under 20 V.S.A. § 17(b) to receive donated funds for purposes of emergency management. Under Section 170 of the Internal Revenue Code, charitable deductions can be taken by a person who makes a contribution or gift exclusively for public purposes to any state political subdivision. 26 U.S.C. § 170(c)(1). Contributions to support a municipal fire department or rescue squad or even to assist in the cost of repairing town buildings or infrastructure damaged as a result of the flooding should be deductible.
Residents have asked about making cash donations to the town for redistribution to local individuals, families and businesses impacted by the flooding. Would donation made to a town flood relief fund be tax deductible?
Probably not. Donations made to a municipality for redistribution to specific individuals, families and business likely will not meet the public purpose standard in Section 170 of the Internal Revenue Code. VLCT recommends that donors wishing to make a deductible gift be encouraged to support one of the numerous charitable organizations working to assist Vermont flood victims.
All potential donors should review Internal Revenue Service Publication 526 www.irs.gov/publications/p526/ar02.html#en_US_publink1000229641) and consult with their own tax advisor. The best person for municipalities to contact with questions regarding charitable deductions is Fran Reina, Specialist for the IRS Office of Federal, State and Local Governments, at (315) 793-2932.
Who’s in charge during a natural disaster?
At the state level, the Department of Public Safety has an Emergency Management Division. The director of Emergency Management is charged with coordinating all emergency management efforts within the state. 20 V.S.A. § 3.
At the local level, each municipality is directed to establish a local organization for emergency management. The selectboard (or mayor) may appoint an emergency management director who is responsible for the organization, administration, and coordination of the local organization for emergency management, subject to the direction and control of the selectboard (or mayor). If no director is appointed, the selectboard (mayor) is the director. The emergency management director is subject to the direction and control of the municipality’s selectboard (or mayor). In towns that have a town manager form of government, the town manager is the emergency management director. Each local emergency management organization is charged with performing the emergency management functions within the territorial limits of the town or city, and in neighboring communities under certain circumstances defined by statute. 20 V.S.A. § 6.
“Emergency functions” include “services provided by the Department of Public Safety, fire fighting services, police services, sheriff’s department services, medical and health services, rescue, engineering, emergency warning services, communications, evacuation of persons, emergency welfare services, protection of critical infrastructure, emergency transportation, temporary restoration of public utility services, other functions related to civilian protection, and all other activities necessary or incidental to the preparation for and carrying out of these functions.” 20 V.S.A. § 2(4). “Emergency management” means the “preparation for and implementation of all emergency functions, other than the functions for which military forces or other federal agencies are primarily responsible, to prevent, plan for, mitigate, and support response and recovery efforts from all hazards. Emergency management includes the equipping, exercising, and training designed to insure that this state and its communities are prepared to deal with all hazards.” 20 V.S.A. § 2(6).
Each municipality must participate in the development of an all-hazards plan with the local emergency planning committee and the public safety district. 20 V.S.A. § 6(c). The local emergency planning committee is appointed by the state emergency response commission and should be comprised of representatives from the fire department; local and regional emergency medical services; local, county, and state law enforcement; media; transportation; regional planning commissioners; hospitals; industry; the national guard; the Department of Health district office; an animal rescue organization; and other interested public or private organizations. This committee is responsible for preparing a local emergency response plan in coordination with the Vermont State Emergency Operations Plan (SEOP).
A local Emergency Operations Plan (EOP) allows individual communities to coordinate disaster responses. A basic EOP includes the following steps in response to an emergency:
Note that the selectboard may adopt, amend, and rescind orders, rules, and regulations as necessary to carry out emergency management functions within the community, so long as they are consistent with those established by the governor or any state agency exercising a power delegated by the governor. 20 V.S.A. § 16.
It is the responsibility of the director to coordinate all emergency actions within the community. As a practical matter, this means that in an emergency, the director helps to ensure that all of the town services are coordinated. For example, the police and fire departments may need to coordinate with the utility departments.
The carrying out of these functions is immune from liability. According to statute, “except in the case of willful misconduct or gross negligence, the ... local emergency planning committees ... involved in ... emergency management activities shall not be liable for the death of or any injury to persons or loss or damage to property resulting from an emergency management service or response activity, including the development of local emergency plans and the response to those plans.” 20 V.S.A. § 20(a).
For more information, contact the Division of Emergency Management, Department of Public Safety, 103 South Main Street, Waterbury, VT, 05671-2101 (802-244-8721 or 800-347-0488). For the Hazardous Materials Hotline, call 800-641-5005.
On August 27, 2011, Vermont Governor Shumlin declared a state of emergency in anticipation of the damage created by Tropical Storm Irene. This declaration enables the governor to exercise additional powers for as long as he determines the emergency exists. These powers include, among others, assuming direct operational control of all emergency management personnel in the affected areas, coordinating the activities of municipalities with public highways and streets, to prescribe the speed, sizes and weights of motor vehicles traveling in the state, to utilize the services and facilities of the state, municipalities, and its officers, directing local boards of health, to order evacuations, and exercise any other powers and duties as may be necessary to promote and secure the public’s safety. 20 V.S.A. §§ 9, 11. Upon the termination of the state of emergency the Governor’s emergency powers cease and the local authorities again resume control. 20 V.S.A. § 17.