4. What is the process for adopting, amending, or repealing a bylaw in a rural town?
     Answer

5. If the selectboard in a rural town approves a resolution to give authority to the voters to amend or repeal bylaws via Australian ballot, can the selectboard take it back?
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6. Can the selectboard in a rural town give voters this authority for just one year?
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7. Can the voters petition to overturn a vote of the selectboard if the selectboard voted down an ordinance?
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8. Can a municipality adopt changes to its bylaws on a piecemeal basis?
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9. Is a zoning bylaw in jeopardy if the municipal plan expires?
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10. What if a bylaw amendment doesn't further the objectives of the municipal plan?
     Answer

11. Can a municipality adopt freestanding flood plain regulations without a municipal plan?
     Answer

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Between now and September 1, 2005, each town amending bylaws will need to evaluate whether its currently existing bylaw spells out a procedure for amending bylaws. If so, that bylaw procedure will apply until September 1, 2005. See 24 V.S.A. § 4480, as well as FAQ #2. Towns amending their bylaws should consult with legal counsel for guidance on which procedure applies.

The general rule is that a bylaw, amendment, or repeal must be adopted by a majority of the members of the legislative body. 24 V.S.A. § 4442(c)(1). In rural towns, the legislative body, or the town, may elect to require amendments or repeals be adopted by Australian ballot. 24 V.S.A.§ 4442(c)(2). However, because of the omission of a comma in section 4442(c)(2), there is a question as to whether rural towns can adopt new bylaws by Australian ballot. At this time, the Vermont Land Use Education and Training Collaborative advises rural towns that the clearly permissible method of bylaw adoption is by vote of the legislative body. If a rural town adopts a bylaw by Australian ballot, it risks legal challenge to the bylaw.

The process for revising bylaws was made more efficient by granting municipalities the ability to regularly update their bylaws without requiring that the voters vote on every change to the bylaw. However, voter authority was preserved by permitting the voters to petition to consider any vote of the selectboard. Also, the voters may petition to retain the right to vote by Australian ballot. 24 V.S.A. §§ 4442(c)(2), (d).

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No. Once a rural town elects to amend or repeal its bylaws by Australian ballot (either by action of the selectboard or by town vote), only the voters may return this authority to the selectboard. 24 V.S.A. § 4442(c)(2).

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No. If a selectboard elects to require that the voters approve amendments or repeals by Australian ballot, then the town must do so until the voters vote otherwise. The selectboard has no authority to grant this power for a limited period of time. 24 V.S.A. § 4442(c)(2).

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While currently an open question of law, the answer is likely yes. Unlike the permissive referendum process for voting on traditional municipal ordinances, which allows the voters to "disapprove" an ordinance, five percent of the voters can petition to "consider" a zoning bylaw, amendment, or repeal. This subtle difference in language leads the Collaborative to believe that it is possible for the voters to reverse the decision of the legislative body, whatever it may have been. 24 V.S.A. § 4442(d).

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Yes. There is no law that mandates wholesale changes to a bylaw if a municipality only seeks to change a few provisions. However, the bylaw amendment process is the opportunity to consolidate many of the necessary changes to your bylaw into one event, which should speed up the process and allow towns to focus on the possible aspects of zoning, rather than solely on the mandates.

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No. When a municipal plan (also referred to as a town plan or master plan) expires, it can still be enforced and administered as if it had not expired. However, if the plan expires, a municipality cannot amend its bylaws, including the changes required by the new law. 24 V.S.A. § 4387(c).

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There is a new requirement in local zoning that bylaw provisions be adopted in conformance with an adopted municipal plan. 24 V.S.A. § 4441(c). A definition of conformance was also added. 24 V.S.A. § 4303(6). If a municipality amends a bylaw in a way that doesn't conform with the plan - or worse, conflicts with the plan - it risks the validity of the bylaw provision being questioned.

It is a case-by-case determination as to whether a bylaw conforms to a municipal plan. In some cases, municipalities may find it necessary to adopt bylaws that don't conform to the plan. For example: Not many existing plans contain provisions concerning affordable housing (even though this is now a required plan element in 24 V.S.A. § 4382(10)), yet state law now requires that bylaws not exclude affordable housing from the municipality.

In such a case, the planning commission, in submitting its report on the bylaw amendment, should explain that the amendment does not further a provision of the municipal plan, yet it is a necessary amendment based on the requirements of state law. The report should also describe the planning commission's vision for eventually amending the plan, so that it conforms to state law.

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No. A municipality without zoning regulations can adopt freestanding flood plain regulations, but they must conform to a valid municipal plan. 24 V.S.A. § 4424. It is important to note that flood plain regulations that were adopted in towns without bylaws prior to the enactment of Act 115, will continue in full force and effect and are not impacted by the recent changes to the law, until 2011. Those flood plain regulations will be rendered invalid on September 1, 2011, if they are not based on a town plan. In the meantime, if a municipality seeks to amend that bylaw, it will need a valid town plan on which to base that new bylaw.

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