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Challenge to Act 46
Justices hear arguments in Act 46 appeal

MIDDLEBURY — Constitutional and other questions involving the compelled consolidation of dozens of Vermont school districts are now squarely before the state’s highest court following an historic hearing at Middlebury College on Wednesday.

The Vermont Supreme Court took center stage — literally and figuratively — as a college auditorium was converted into a makeshift courtroom that attracted a considerable crowd.

The audience included two former justices — John Dooley and Marilyn Skoglund — and former governor Jim Douglas. It also included a mix of college and high school students, as well as residents, who traveled from Franklin and Dummerston and pretty much everywhere in between.

As expected, no one left with a better sense of how or when the consequential case may end, though a ruling isn’t expected any time soon.

The hour-long hearing opened when justices strode onto the stage in Wilson Hall and ended when David Kelley ran out of time even as the lawyer representing 33 separate school districts complained the concept of forced mergers turned “something fundamental about Vermont and democracy upside down” and urged justices to “correct that error.”

Kelley and Assistant Attorney General David Boyd took turns standing at a podium with their backs to the audience while addressing the five justices who will collectively decide whether to turn back the clock on a law — Act 46 — that encouraged, motivated, and last year compelled school district mergers.

It’s the latter aspect of the now-five-year-old law that remains in dispute more than six months after new districts created by order of the state Board of Education were launched.

Kelley, who got the first and last word during Wednesday’s hearing, argued that should never have happened. Kelley cited what he characterized as “five reversible errors” for the court should consider.

Reiterating arguments rejected by Superior Court Judge Robert Mello last year, Kelley claimed the state board violated the plain language of Act 46, as well as decades-old education laws, and various provisions of the Vermont Constitution.

Using up most, but not all of his allotted 30 minutes, Kelley maintained the state board never made what he argued was a required finding that the forced mergers that affected his clients were “necessary.”

“The plain, unambiguous language of Act 46 required forced mergers to be necessary,” he said — an assertion that was later rebutted by Boyd and the source of questions from justices who quizzed, and occasionally corrected, both lawyers during their presentations.

Kelley delivered a more emotional performance, and was fact-checked more frequently by justices for some of his assertions.

According to Kelley, mergers were compelled and in many cases debt was transferred without the consent of local voters and often despite their decision to remain separate.

“A right as fundamental as much of the bedrock of democracy as the right to vote does not get repealed by implication,” he said. “If we are going to repeal the right to vote we need to do it forthrightly, in the sunlight, not in the shadows by implication.”

Citing statements made by some senators at the time, Kelley noted the intention wasn’t to merge districts wherever possible and the expectation was districts that could demonstrate they were meeting the goals of the law would be left alone. Moreover, he maintained the state board was ill-suited to essentially create new municipalities.

“We don’t delegate this kind of discretion to an executive agency,” he said.

Justice Karen Carroll, noted that has been the case with respect to voluntary mergers long before Act 46, while Justice Harold Eaton wondered whether some of the constitutional questions raised by Kelley would have been cured if the Legislature had voted to approve the statewide plan prepared by the state board.

“I think that would have been constitutional,” Kelley replied.

Justice Beth Robinson twice corrected Kelley for statements that were oversimplified to the point of inaccuracy.

At one point Kelley asserted the forced merger in what was the Washington Central Supervisory Union led to East Montpelier transferring $8 million in debt to Calais.

Numbers aside, Robinson noted that wasn’t what happened. The debt, she said, was absorbed by the new five-town district of which Calais was one.

Robinson also sought to clarify Kelley’s assertion that a merger of differently sized school districts would allow voters in large towns to close school in smaller ones, noting the decision to close a school would be made by voters in the unified district.

Kelley said that didn’t make those small schools any less vulnerable in the estimation of his clients.

“I don’t believe that’s the Vermont way,” he said. “We have been a state where neighbors have stood by each other, not on top of each other.”

Boyd was comparatively brief. He argued Kelley’s contention that forced mergers must be “necessary” was inaccurate and noted educational interests of regions and the state — not individual districts — were weighed when evaluation potential mergers.

Boyd also noted the quotes from senators suggesting high-performing districts needn’t worry about merger involved a Senate bill that did not pass — not the House version that did.

“The plaintiffs are asking the court to rewrite Act 46 based on statements of senators who asked the Legislature to do just that and the Legislature declined,” he said.

Boyd fielded his share of probing questions from justices.

“Other than a lawsuit, what’s the check on the state board’s decision to order a forced merger?” Eaton asked at one point.

Boyd said the answers was electing legislators who think differently from the ones responsible for passing Act 46.

“This is fundamentally a democratic process,” he said. “The state Legislature decided there was a statewide problem they needed to address — a major decline in enrollment that was unevenly distributed around the state.”

Their answer, Boyd said, was a law some may not like, but he believed lawfully directed the state board to craft a plan for dealing with that problem that necessarily involved creating larger school districts.

david.delcore @timesargus.com

jebcas / Jeb Wallace-Brodeur / Staff Photo  

Living History

Members of Col. Seth Warner’s Extra-Continental Regiment, a volunteer group of living historians, stand at attention Wednesday during the raising of the Green Mountain Boys Commemorative Flag outside the State House in Montpelier. The flag is raised every Jan. 15 to honor the Revolutionary War fighters.

Proposed Changes to Act 250
Testimony: Loss of public participation feared

MONTPELIER — Proposed changes to the structure of Act 250 wouldn’t hurt local input as some fear they would, says the environmental group that suggested them.

Last week, the Vermont Natural Resources Council, alongside the Scott administration, proposed a bill to the House Committee on Natural Resources, Fish, and Wildlife that would change how Act 250 permits are administered, doing away with District Commissions and replacing them with a central three-member Natural Resources Board with two regional per diem members, said Jon Groveman, policy and water program director at VNRC.

He said VNRC offered testimony again on Tuesday.

Groveman said Wednesday that after the last legislative session, the Scott administration approached VNRC because it felt it and the VNRC had some common ground on changes to Act 250 — the state’s signature land use law passed back in 1970.

Groveman said the VNRC wasn’t happy about the Act 250 Environmental Board being eliminated in 2004, as the board worked as an appellate board for Act 250 applications and was useful in providing guidance and clarity to the local District Commissions.

“We wanted to see the Environmental Board put back, the governor was opposed to that,” said Groveman.

The proposed compromise is to create a Natural Resources Board that would hear all “major” Act 250 permit applications. Right now, applications go before three-member District Commissions made up of people nominated by legislators and appointed by the governor. Appeals, rather than go to the Environmental Court and then to the Vermont Supreme Court, would go straight to the Vermont Supreme Court.

Groveman said it will be district coordinators deciding what constitutes a “minor” application and what counts as a “major” application. He said 80% of Act 250 applications are classified as minor.

The three-member Natural Resources Board would then be joined by two regional members from whatever region a project in question is being built in. This is where there would still be local oversight, said Groveman.

Some have said this setup bears similarities to how the Public Utility Commission, which oversees cell phone towers and solar fields, among others, is structured. For them, that’s not a good thing.

“As I said in my testimony yesterday, the District Commissions are the place for citizens to be effective in an informal setting, and the whole idea of creating a PUC-like structure for a contested case, it makes no sense at all,” said Annette Smith, executive director of Vermonters for a Clean Environment. “The PUC is an enormous problem for public participation, and I guess this is what happens when you get lawyers writing proposals for public process. They write a process that works for lawyers, but as we’ve seen with the PUC process, it’s impossible for citizens.”

Smith said even though the District Commissions are important, there’s room for improvement, namely with how their members are appointed. They could also stand to be more citizen-friendly, she said.

She rejected claims that the District Commission decisions have been inconsistent, saying that what might be right for one county wouldn’t necessarily be appropriate in another.

Groveman said it’s his hope that people’s concerns about local participation will be alleviated once more about the proposal is known. He said those applying for major projects will have to notify abutting landowners, regional planners, state agencies, and the municipality, and have an informal meeting before submitting the application. That, plus the two regional NRB members will maintain local participation.

“From our perspective, you get a stronger Act 250 with an independent board of professionals who are well-vetted, it’s separate from the Executive Branch, it’s not political, they have the resources to deal with complicated issues, it involves regional input, so you maintain the regional input but it’s basically a body that will have more ability to deal with these issues,” he said.

He said while the proposal streamlines things in some ways, it also adds criteria for the NRB to consider, such as impacts to climate change, and forest fragmentation. It restricts development along ridge lines, creates river corridor regulations, address sprawl near interstate interchanges, and waives certain requirements for developments in designated downtown areas to encourage development there.

What actually changes with regard to Act 250 remains to be seen.

“Today, or sometime this week when we have time, my committee will discuss what our next steps are and who else we need to hear from,” said Rep. Amy Sheldon, D-Middlebury, chair of the House Committee on Natural Resources, Fish, and Wildlife.

She said her committee’s version of Act 250 also calls for the creation of a strong NRB, and she’s heard the comparisons to the Public Utility Commission. She said she doesn’t want to see public participation in the Act 250 process wane or become more difficult.

Sheldon said the Act 250 work being done, which began last session with information gathering, is a huge undertaking and there may be elements that move forward while some remain to be worked on. Her goal is to get much of it ready to be sent over for consideration in the Senate.

“It’s a big undertaking that we have here, it’s fine that it’s taking two sessions,” she said. “I don’t think anyone was surprised about that. You wouldn’t want to do it in a hurry.”

keith.whitcomb @rutlandherald.com

Testimony taken on homelessness

MONTPELIER — Advocates and supporters descended on the State House Wednesday to lobby lawmakers to do more to address the growing crisis of homelessness in the state.

A resolution submitted by Reps. Tom Stevens, D-Washington-Chittenden, and Ann Pugh, D-Chittenden 7-2, was approved by the House, designating the day as Homelessness Awareness Day at the State House.

In it, they noted that the 2019 Point-In-Time Count on a single night last January found that there were 1,089 Vermonters without secure housing, 23% of whom were children.

It also noted that the 2019 Housing Opportunity Grant Program reported that the average shelter stay for the homeless was 52 days, the longest in more than 18 years. And the Out of Reach 2019 report noted that a wage of $22.78 an hour would be needed to afford the average two-bedroom apartment in Vermont, the resolution added.

Stevens and Pugh heard testimony about the needs of the homeless and there was a memorial vigil outside the State House to remember homeless people who had died. Legislative leaders attending pledged to push for more funding and support services for the homeless.

In 2017, Stevens also submitted a Bill of Rights for the Homeless, H.492, that sought to prohibit discrimination.

In November, Vermont Interfaith Action of Central Vermont presented a four-year report, “Ending Homelessness in Washington County by 2020.” The report noted that in the four years since VIA was launched, the homeless population of Washington County had risen from 8% to 13% — an anomaly compared with the rest of the state which has seen the homeless population decrease. VIA church leaders have been critical of legislators for not allocating enough resources to deal with homelessness, leaving it to the interfaith community to respond to the need.

Services for the homeless in central Vermont include the year-round Good Samaritan Haven in Barre with 30 beds, which also oversees overflow winter shelters at the Hedding United Methodist Church in Barre with 14 beds and the Bethany Church in Montpelier with 20 beds. Another Way on Barre Street in Montpelier, a peer-led nonprofit that helps support the homeless, unemployed or people suffering with addiction or mental health problems, provides a daytime facility to help keep the homeless warm, along with evening warming shelters at local churches.

Efforts to address homelessness in the Capital City led to the formation of the Montpelier Homelessness Task Force Committee last year. The City Council recently agreed to allocate $45,000 in its fiscal year 2020-21 to provide services for the homeless in the city.

Speaking after hearing testimony in the House chamber about homelessness, Stevens said he was sympathetic to the suffering and the need to respond.

“Homelessness gets emphasized in the first portion of our year because it’s winter when the negative outcomes of being homeless are exaggerated because of the weather,” Stevens said. “It’s always good for us to know that and it’s always good for us to hear from providers, from people with shared, lived experience to humanize the issue because it all comes down to capacity.

“Sometimes it’s financial, sometimes it’s a building and a place to put people. As Sue Minter, (executive director of Capstone Community Action in Barre), said, ‘I’d like to stop giving out mylar blankets.’ A day like this does what it says: it keeps us aware and it keeps us focused on working through our bills, working through the appropriations’ process to make sure that no Vermonter gets left behind,’” Stevens added.

Minter also provided testimony about the lack of accommodations for homeless families, and other critical needs.

“There’s building more affordable housing, there’s helping to subsidize to help folks to get into apartments ... and there’s providing wrap-around services, because their challenges are acute,” Minter said.

Stevens echoed the need for support services for mental health issues and families with children. But he also expressed concern about the Scott administration taking property transfer taxes out of the “dedicated” Housing and Conservation Fund for more affordable housing programs.

“We think a dedicated fund should be dedicated to the need,” Steven said. “The appropriators in the administration see this as a pot of cash, and it is, but the cash does more work for affordable housing and conservation than it can ever do any place else.”

Rep. Joseph “Chip” Troiano, D-Caledonia-2, also expressed concern after hearing testimony about the plight of the homeless, particularly in rural areas.

“A lot of the resources are going to the more urban areas of the state, rather than the rural areas,” Troiana said. “In one week, I heard issues about children living in cars and going to school cold and hungry — that can’t happen, that’s not what our society is about.”

Stephen Murphy, of Burlington, said he was at the State House to address the needs of homeless veterans that may be displaced by a reduction in services at Canal Street Veterans Housing in Winooski.

“It’s a project where there were four floors for transitional veterans who could transition to the upper floors and have sustained housing, and now we’re hearing that they’re moving furniture out and they haven’t approved an application for a veteran since 2018 — this is extremely disturbing to me,” Murphy said.

Ken Russell, chairman of the Montpelier Homeless Task Force Committee, said there was testimony by Murphy about the need of civic leaders and law enforcement to recognize the rights of the homeless to camp on public land if homeless shelters are full, without penalty, after the U.S. Supreme Court refused to hear a lower court decision that protected the homeless from being moved on.

“A lot of people want (the homeless) to go away or ‘not in my back yard’ ... or go elsewhere,” Russell said. “There’s this right to exist ... people who have trauma and they need help and support.”

At the memorial vigil outside the State House for homeless who had died, legislative leaders pledged to provide more funding and services for the homeless. Among the participants were a group of fourth-grade students from Founders Memorial School in Essex Junction who have been studying the problem of homelessness.

“It’s fantastic to see more young people stepping up and saying, ‘This is the Vermont we want to create, this is what’s right for our state and want speak out about it,’” said House Speaker Mitzi Johnson, D-Grand Isle-Chittenden. “I don’t know how many years I’ve been coming to this and I continue to hold the same hope ... that next year is our first annual celebration of being without homelessness in our state.”

Other speakers included Senate President Pro Tem Tim Ashe, D/P-Chittenden, who said he did not want to “manage poverty” or “manage homelessness.” Lt. Gov. David Zuckerman, D/P-Chittenden, echoed Johnson’s regret at the repeat yearly cycle of addressing the issue, adding: “It becomes a broken record, but we shouldn’t be here every year, and I do feel that same sentiment, that managing homelessness, managing economic distress, managing challenges that people are facing is not a goal — our goal is to end it.”

In downtown Montpelier, Mark Phillips said he was homeless before being admitted to a temporary housing program in the city.

“People are (still) hanging out on the streets and street corners, sleeping on benches or behind buildings,” Phillips said. “I just wish they can get a message out that they too are human, and they too need a place, just like everybody else.”

Wednesday’s event was organized by the Vermont Coalition to End Homelessness, the Chittenden County Homeless Alliance and the Vermont Housing Coalition.

Disclosure: Editor and Publisher Steven Pappas is the chair of the board of directors of Capstone Community Action.

stephen.mills @timesargus.com


“We were glad to see Elizabeth Warren make a forceful case for a female president during Tuesday night’s debate. It seems idiotic that, as a nation in 2020, we would need a female candidate for the presidency to defend such a thing. It should be a given.”

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In the news

Democrats worry a rift in the party between Elizabeth Warren and Bernie Sanders could cost them the election in November. A2

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Reception, talk

Mark Barry celebrates the gift of time and his deep appreciation of life — and the viewer quickly realizes it is contagious. Exhibit runs through Feb. 16. 5-6 p.m. Highland Center for the Arts, 2875 Hardwick St., Greensboro, boxoffice@highlandartsvt.org, 533-2000.