Wesolow v. Town of Lowell, 2014 VT 3.
By Nicole Killoran
Today’s case offers a small lesson in what happens when citizens’ concerns get ignored at Town Meeting.
For those of you unfamiliar with this tradition, at least once a year in March the governing bodies of all 251 Vermont towns hold a town meeting. The body (usually the town selectboard) holding sway generally employs parliamentary rules such as Robert’s Rules to conduct town business. This involves, among other things, articles, motions, seconds, and votes on all manner of issues, from town business to extra-town business town citizens want to discuss.
The particular town meeting at issue in this case took place in March 2012 in the Town of Lowell. As you may know, Lowell is the site of the controversial Lowell Mountain wind project. Prior to Lowell’s 2012 Town Meeting, a number of citizens, including today’s citizen, signed a petition to put on the agenda an article discussing opposition to the wind project. At the meeting, the article was introduced. A motion to accept the article was made, and seconded, but before it got any further someone moved to pass over the article, and the motion passed by a voice vote. No further discussion.
Our irritated anti-wind-project-plaintiff citizen, Mr. Wesolow, and several other town members signed a petition requesting reconsideration of the article. They relied on a statutory provision, 17 V.S.A. 2661, which requires a town to vote on a petition to reconsider a vote on an article that was “considered or voted on” at a previous meeting. The selectboard denied the petition because it concluded the article was passed over, not considered or voted on. Mr. Wesolow filed suit and won on summary judgment. The Town appealed.
On appeal, the issues are simple—did the pass-over vote amount to a dismissal of the article on its merits? Quoth the SCOV—uh, yeah.
As you might imagine, Vermont does not have an extraordinarily deep body of law on this question. For reference in making its conclusion, the SCOV digs into a dusty old Town Meeting case from the Civil War—Livingston v. Town of Albany. At the Albany Town Meeting in 1864, faced with an enlistment quota from President Lincoln to fill, the voters considered two related articles—one authorizing the Town to pay bounties to soldiers who voluntarily enlisted, and another authorizing the Town to pay bounties to re-enlisted soldiers who hadn’t gotten bounties.
The good voters of Albany passed the first article, but passed over the second. A re-enlisted soldier who wanted his bounty made a stink, and it eventually got up to the SCOV. The SCOV concluded that, unless there was some indication otherwise, a pass-over is a “judgment of the town upon the merits of the question, as fully obtained as if the motion and vote had been to dismiss the article.”
Apply this to the 2012 Lowell Town Meeting, and you can guess how the SCOV comes out. There is no indication that the voters were putting off the wind project article until later, or that it was considered to be redundant. The effect of the pass-over was essentially to dismiss the article without further debate, even if it wasn’t technically a vote on the merits in parliamentary procedure. If a procedural technicality is allowed to prevent reconsideration, then the purpose of the statute at issue here will be frustrated. Sorry, Lowell—the pass-over amounted to consideration of or a vote on the wind project article. The SCOV orders the Town to hear the petition and vote on it again.