Supreme Court orders Lowell to hold special meeting to reconsider anti-wind article

The Vermont Supreme Court ordered the town of Lowell to hold a special meeting to reconsider an anti-wind project article passed over at Town Meeting 2012, relying on Civil War-era case law in affirming a lower court order.

The town appealed a decision in Orleans Superior Court-Civil Division, in which Judge Howard VanBenthuysen held that the select board was remiss in refusing to hold a special meeting to reconsider the passed-over article.

Resident Edward Wesolow, who was represented by Paul Gillies, and others signed a petition to have two articles included on the Town Meeting warning in March 2012. One article was moved and seconded, and then passed over by a two-thirds majority.

Within the statutory time limit, Wesolow and other residents submitted another petition to the select board asking the board to call a special meeting so that the article could be reconsidered.

But the select board, which was represented by Richard Saudek, decided that because the article was never considered by voters in the first place, it couldn't be reconsidered.

In his decision, VanBenthuysen wrote, "The court finds that the effect of the 'pass over' motion is that of a denial of an article and that a motion to reconsider is therefore appropriate."

VanBenthuysen, in granting summary judgment to plaintiff Wesolow, ordered the town of Lowell to hold a special meeting at that time, in the summer of 2013.

The town appealed the decision to the Supreme Court.

The text of the article follows:

"Shall the voters of the Town of Lowell express their opposition to the G.M.P. and Velco Wind Project, given that these companies have violated the rights of private property owners, destroyed federally protected stream headwaters, destroyed the ridge line; will cause clinical depression and/or stress for many of those that live around it; will be an eyesore that curtails tourism, destroys the area we call 'a national treasure'; threatens to turn the town into a slum town by depressing real estate values, future investments and development; raises electric rates, noise levels, and other inherent stressers that divide families in a community; exports huge sums of money out of the USA; may not even solve the problem of Carbon emissions; allows G.M.P. and Velco to not pay the town as much as promised, if at all, if the project does not go as well as they expected; and in the long run will increase the tax burden on the people of the town it was supposed to benefit?"

VanBenthuysen ruled that to accept the town's argument would effectively allow the select board to circumvent the applicable statute and avoid "reconsideration petitions altogether by passing over disfavored articles, instead of voting on them."

To answer that question, the Supreme Court considered the effect of passing over the article, a motion long entrenched in town meeting practice although not specifically mentioned by name in Robert's Rules of Order.
The court considered three older cases, two of which involved Orleans County municipalities, from 1867, 1854, and 1834.

In Livingston v. Town of Albany, voters met in 1864 to consider articles related to President Abraham Lincoln's call for 500,000 soldiers to serve in the Civil War, of which Albany's quota was 16.

One article, which passed, authorized the town to raise money to pay bounties to soldiers who enlisted to meet the town's quota, but voters passed over a second article that would have allowed the town to pay bounties to re-enlisted soldiers who had not been paid bounties.

Livingston was a re-enlisted soldier who had not been paid a bounty, and he appealed seeking a bounty, arguing that the first article authorized it.

The court ruled in that instance that there was no evidence that the voters passed over the article because they felt the first article covered the issue, but instead that the intent of voters was not to pay bounties to re-enlisted soldiers like Livingston.

"In this case, there is no evidence that the purpose was to defer consideration of the question until later in the meeting, or until a specified date or event," the justice wrote in their Tuesday opinion. "It is apparent from the record that the effect of the motion to pass over Article 8 was to effectively dismiss the article without further debate."

The statute referred to in this case is designed to enable voters to petition for reconsideration where a matter has been previously acted upon by voters, the justice wrote.

"The goals of the statute would be frustrated by an interpretation that suggested that the right of voters to petition for reconsideration of a question turns on the parliamentary procedure by which the question was defeated in the first instance," the justices wrote.

"The voters took action to effectively dismiss the article without further debate," they wrote. "We conclude on the record of this case that the voters' action in passing over Article 8 amounted to consideration of or a vote on the article for the purposes of the applicability" of the statute.

Accordingly, the petition for reconsideration was appropriate, the justices decided, and ordered to town to provide for a vote on the article.