MAC

What Can Municipalities Do To Prevent Residents from Moving Snow From Their Walks and Driveways Into the Highway?

Vermont law prohibits people from placing “obstructions” or “encroachments” within town highways that would hinder or prevent public travel or injure or impede a person traveling on the highway. 19 V.S.A. § 1105. Even more broadly, 19 V.S.A. § 1111(b) prohibits the “deposit[ing] [of] material of any kind within” town highway rights-of-way. While these laws do not specifically refer to snow, we think they are broad enough to include instances when private landowners are pushing or depositing snow into town highways.  

Violators of 19 V.S.A. § 1105(b) can be fined up to $1,000 and be held personally liable for the actual costs of repairing any damage and reasonable attorney’s fees. Similarly, a violation of 19 V.S.A. § 1111(b) can incur a fine of  $100 to $10,000 for each violation. A warning letter to the violator, describing the nature of the violation along with the potential penalties, may be enough to stop their practice. 

More specifically, the act of dumping snow into a town highway, shoulder, or sidewalk is also a violation of state law under 23 V.S.A. § 1126a: 

No person, other than an employee in the performance of his or her official duties or other person authorized by the agency of transportation (in the case of state highways) or selectboard (in the case of town highways), shall plow or otherwise deposit snow onto the traveled way, shoulder or sidewalk of a state highway or a class 1, 2 or 3 town highway. 

Law enforcement officers may enforce this state law by issuing a civil violation complaint (i.e., a ticket). 23 V.S.A. §1013.   

It may be more efficient, however, for towns to regulate snow removal and prohibit the depositing of snow on town highways by enacting a local highway or nuisance ordinance. In this way, towns may establish their own tailored violations and penalties and be in a better position to enforce the regulations. 

The town of Norwich settled with a resident over whether municipal groups (diversity, equity, & inclusion group; town and school budget groups; and finance group) formed to advise the selectboard and the town manager were in fact “public bodies” per the open meeting law (OML) and thus were subject to its requirements. At issue was where the line is between a “public body” subject to the OML and an informal group not subject to the OML. Under the Open Meeting Law, a “public body” is  

any board, council or commission of the State or one or more of its political subdivisions, any board, council, or commission of any agency, authority or instrumentality of the State or one or more of its political subdivisions, or any committee of any of the foregoing boards, councils, or commissions, except that public body does not include councils or similar groups established by the Governor for the sole purpose of advising the Governor with respect to policy. 1 V.S.A. § 310(4). 

In May 2023, the Windsor Division of the Vermont Superior Court denied the town’s motion for summary judgement, setting the stage for a trial in which the court could add some long-sought clarity on where exactly that line is. However, after spending roughly $100,000 on legal fees, the town of Norwich decided to settle by agreeing to direct all groups to comply with the OML rather than incurring further legal costs.  

This settlement, however, leaves open the question of whether gatherings of less than a quorum of a board are subject to the OML for the rest of the municipalities in the state. In its decision the superior court did note:   

The Town Budget and School Budget groups formed to divide the work of the Finance Committee; they were, by any measure, subcommittees of the Committee. As such, they fell squarely within the definition of “public body”: “any committee of any of the foregoing boards, councils, or commissions.” To conclude otherwise would make a mockery of the Open Meeting Law: any public body could avoid the obligations of the law by the simple artifice of dividing itself into subgroups. 

Because this decision was on a motion for summary judgement, it did not evaluate the numerous factors relevant to a determination of whether a specific subcommittee is in fact a “public body,” such as the number of members in the subcommittee or the officer or body from which the subcommittee was created. Instead, the decision evaluated the limited set of circumstances in the present case and whether those facts warranted dismissal. Additionally, this decision is binding only on the municipalities in Windsor County. Therefore, despite the rather pointed statement cited above, there remains considerable uncertainty regarding what exactly entails a subcommittee subject to the OML.   

This holding is in line with our guidance on the issue, which is that groups formed by another public body are clearly public bodies under the law. Beyond that, the law is less certain, but we continue to take the position that the informal gathering of less than a quorum of members to discuss the business of the public body does not constitute a “public body” under a plain reading of that law’s own definition of a public body.   

The outcome of this case, though not surprising, was still disappointing as we would much rather see a determinative outcome from the court regarding what constitutes a subcommittee subject to the OML. Because the court has not weighed in with a final decision on the matter, it will be incumbent on the legislature to provide some clarity on this issue.  Until then, or when a court does finally weigh in on the topic, our advice remains that all groups formed by another public body should hold public meetings in compliance with the Open Meeting Law. 

The Christopher Katucki v. Town of Norwich decision 

VTDigger article about this case: After Spending $100,000 Fighting Lawsuit, Norwich Agrees to Instruct Groups to Comply with Open Meeting Requirements