Secretary of StateVermont Municipal Monthly, January, 1998
Secretary of StateIntroduction
As a byproduct of Act 60, all town offices soon will have state-of-the-art computers, which means we can explore more timely and efficient ways of communicating. There surely will be bumps in the road that leads to the Internet, but we are confident that, by working together, we can minimize frustrations and prepare to enter the new century with up-to-date methods of information exchange. If you become frustrated with the technology demands that are being made of you, give me a call at 828-2460 and we'll do what we can to help.
With this issue, Vermont Municipal Monthly returns, as a World Wide Web publication. Anyone who would like to be notified each time a new issue is posted may e-mail us with a request. To be sure that each municipal office receives this publication, hard copies are being mailed to each municipal clerk who is not yet ready to receive it electronically.
-- Jim Milne
Secretary of State
jmilne@sec.state.vt.us
- Thursday, January 22, 1998 -- all petitions for placing articles for the annual town or school district meeting must be submitted to the clerk on this day which is forty days before town meeting (March 3, 1998).
This is also the first day on which a warning may be posted.
- Monday, January 26, 1998 -- all petitions and consent forms for candidates running for office in towns which elect their officers by Australian ballot must be submitted to the clerk by 5:00 p.m. Petitions must be signed by 1% of the registered voters of the municipality or thirty voters, whichever is less. If a petition is found not to conform to the requirements, the clerk must inform the candidate within twenty-four hours of receipt of those petitions by the clerk.
- Wednesday, January 28, 1998 -- supplementary petitions must be filed by 5:00 p.m. Any candidate who wants to withdraw his or her nomination papers must do so by this deadline as well. Remember, a candidate cannot file supplementary petitions unless he or she initially submitted the required number of signatures on the petition.
- Sunday, February 1, 1998 -- the last day for posting your warning for town meeting (thirty days before).
- Wednesday, February 11, 1998 -- Ballots for local officers and local public questions must be available by this date. The ballots may be any color other than yellow, and the printing shall be black.
- Saturday, February 21, 1998 - deadline for application for addition to the checklist.
Last day to post sample ballots.
Nominating petitions must be signed by voters. Voters cannot sign more than one petition unless there is more than one nomination to be made for an office. If any office has two slots to be filled -- such as the two members of the school or select board serving one-year terms -- a voter could sign two petitions.Must candidates be voters? We would urge all prospective candidates to register to vote. The sole qualification for assuming a town or school office is that the officer-elect be a voter. It would be a shame to run for office and be unable to assume that office, because a candidate was not a registered voter.
Petitions should clearly state the office and the length of term the candidate is seeking. If a candidate cannot make up his or her mind, have the person carry around petitions for the two offices (or the two terms, as the case may be) so that when the wavering candidate finally decides, the proper petition will be ready for filing.
QUESTION: What constitutes a "survey" for purposes of 27 V.S.A. § 341(b)? This subsection reads as follows:
(b) A deed or other conveyance of land which includes a reference to a survey prepared or revised after July 1, 1988 may be recorded only if it is accompanied by the survey to which it refers, or cites the volume and page in the land records showing where the survey has previously been recorded.The issue is raised in a 1989 Information Bulletin to Vermont Municipal Clerks and Treasurers from the General Services Department (GSD), as it was then named. The bulletin states that when this provision of law was enacted in 1988, it was assumed that a survey map (plat) was part of the "survey" that had to accompany the deed when the deed was recorded. Regardless of this common reading of the statute, however, GSD advised clerks that this interpretation should no longer be followed.Rather, GSD opined to Municipal Clerks and Treasurers that:
... if you receive a deed that refers to a survey and the deed is not accompanied by a plat map, and it does not refer to where the survey was previously recorded but does have a written description of the property with its boundaries, you must accept the deed for recording.ANSWER:We disagree.
A survey is the measurement of land. The results of a survey can be shown in several ways, which include a map, a plat, a written statement or a combination of these items. Black's Law Dictionary, 5th Ed. However, it has long been held by courts that:
... the word "survey" applies as well to the map, plat, or chart exhibiting the result of an actual examination of the surface of the ground, as it does to the examination itself. Hahn v. Cotton, 37 S.W. 919 (Mo. 1896).27 V.S.A. § 341(b) is one of several sections that deals with the conveyance of real estate. The intent of this section is to ensure that there is sufficient material on record to determine exactly what land was conveyed in a transaction, or, in other words, to determine the boundaries of a particular parcel of land.
Should a dispute arise over boundaries, the deed and all available documentation will be reviewed to make this determination. Since a survey is the measurement of land, the results would be important to this determination. Therefore, in setting out the requirements for a deed that includes a reference to a survey, the Legislature enacted § 341(b) to require that the survey be recorded along with the deed, or, if the survey has been previously recorded, to require that the deed cite where in the land records the survey can be found.
This requirement ensures that if a survey has been performed on a parcel of land, it will be on record with the deed and preserved for future generations.
Problems arise when there are ambiguities in the deed and accompanying materials. If a dispute arises, these ambiguities may have to be resolved by the court to determine exactly what land the parties conveyed. Courts will look first to the language of the deed itself to determine the understanding and the intent of the parties. However, the Vermont Supreme Court has made it clear that:
...[w]here maps are referred to in a conveyance, they are regarded as incorporated into the instrument and given considerable weight in determining the true description of the land. Withington v. Derrick, 153 Vt. 598, 604 (1990).While it is true that a "survey" may consist of several forms of "data," the Supreme Court has held that maps are the best evidence of the description of land. The Court has also held that statutes should not be construed in a manner that would render them ineffective, or lead to irrational consequences. State v. Tierney, 138 Vt. 163, 165 (1980).In this context, we must conclude that the legislative intent behind 27 V.S.A. § 341(b) was to ensure that the best evidence as to the description of conveyed land be recorded with the deed. A survey map is likely the best evidence, and therefore, if the deed references a survey (prepared or revised after July 1, 1988), and a map was part of the data of the survey, we conclude that § 341(b) requires that the map accompany the deed or that the deed not be recorded.
In compliance with Act 159 of 1996, our Office reported to the Legislature this month that we have surveyed state and municipal agencies to determine the impact of the 'actual cost' provisions of the new law regulating access to public records. We reported that the General Assembly's intent to standardize charges for copies of the public record has largely been achieved.The full report is available at http://www.sec.state.vt.us/access/records/97report.htm. Some quotations:
Shortly after the law took effect in 1996, hearings were held and a fee schedule for copying was adopted by rule for state agencies. Pursuant to the law, the rule also is binding on any municipality that has not set its own cost-based fee schedule. As a result, the practice of basing copying charges on factors other than the actual cost of making a copy appear to have all but ended among those state and local agencies that responded to our survey.Copying costs are generally lower than before Act 159 but the lower costs apparently have not increased demands for copies. There remain, however, some wide variations in charges for electronic media among municipal agencies.
We do not recommend changes to the law. Variations in charges that seem to go beyond actual cost calculations can be addressed through continuing education by state agencies and municipal organizations, while the current law provides citizens with the means for learning how a municipality has arrived at its actual cost figure.
The impact of posting frequently requested records on World Wide Web sites was raised in the surveys. The one state agency that reported experience with such postings noted that on-line access to the records eliminated requests for the documents on disk. Our own experience is that our Web site, posted in April of 1996, made no appreciable difference during its first year, but that a significant number of people found their requests for forms and information satisfied on-line during 1997. This suggests that some of the concerns raised in our survey about the labor costs for providing copies of public records may be reduced as more records become available on-line.