Last Wednesday the House Judiciary Committee devoted the entire day to a review of H. 403. Many of us that served on the ad hoc committee were present. There were a few questions raised by the legislators that sent many of us back to work to resolve. That meeting was held yesterday at the VBA. I wish I could say that everything is done and put away but there’s still some work to do. Judge Teachout is scheduled to address the committee this Friday. Because Judiciary spent so much time on H. 403, they delayed discussion of the extension of the foreclosure mediation procedure to all mortgage foreclosures to another day. That proposal has a lot of opposition and the proponents have yet to do the necessary legwork with the opponents. If mediation does move forward I’d like to see the two foreclosure bills move separately and not be combined into one.

Last Friday when many of us were enjoying the “Thaw” in Montreal (the coldest place on the planet every MLK Weekend) the Speaker of the House asked Chris D’Elia of the Vermont Bankers’ Association to convene a meeting of interested parties to discuss the Supreme Court’s decision in In Re: HS-122. We were represented by Jeff Kilgore. Chris sent me a copy of his report to the Speaker. Here it is:

Per your request, on Friday, January 13, the Vermont Bankers Association convened a meeting of stakeholders to discuss the Supreme Court's ruling about keeping state tax credit information private. Those participating in the meeting included: representatives from the town of Manchester; Clerks and Treasurers Association; bankers; lawyers; realtors; the Tax Department; League of Cities and Towns; and Senator Ann Cummings.

After careful consideration and deliberation of the many challenges created by the Court's ruling, the group agreed on the following recommendations:

1. The HS122 report should be confidential;
2: A property tax bill containing only a gross tax amount be public;
3. A property tax bill containing both gross and net tax amounts be confidential;
4. An exemption created for the following parties to have access to the tax bill
containing both the gross and net tax amounts: lawyers; bankers; escrow servicing companies; accountants; tax preparers; realtors; outside auditors; and municipal personnel on a need to know basis;
5. A penalty provision to ensure compliance with the exemption;
6. All other town records should maintain their current status of public versus
confidential.

Christopher D'Elia, Vermont Bankers Association
Alison Kaiser, Town Clerk, Stowe
Karen Richard, Town Clerk, Colchester
Christopher Rice, MacLean Meehan and Rice
Christopher MacDonald, Vermont Association of Realtors
William Johnson, Vermont Tax Department
Steve Jeffrey, Vermont League of Cities and Towns
Senator Ann Cummings
David Freteling, Town of Manchester

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Last week I reported on the hearing at the Senate Natural Resources Committee on the report on Improving Vermont’s Environmental Protection Process. While I was in House Judiciary on foreclosure VBA Environmental Section Chair Gerry Tarrant testified to the committee on the Section’s response to the proposals in the report. Instead of trying to paraphrase his report I am reprinting his email to the Section explaining the hearing. Here it is:

The Environmental Section is composed of 176 lawyers. While we do not always agree and there is no unanimous position on the Shems/Markowitz Report I have received a number of responses from lawyers and all of the membership has had an opportunity to see their responses. Based on those responses I stated:

The lawyers in the Environmental Section strongly favor retaining the Environmental Division – Superior Court because most all lawyers – whether they present environmental groups or applicants – desire the due process a court provides.

While not as strongly stated, I stated that most of the lawyers I have heard from do not seem to favor on the record review but generally or strongly prefer a de novo review before a court. (See Slason, Reynes, Goss, Grayck, Landis-Marinello, Kockman, Anderson, McNaughton comments.) I took the opportunity to read some of what Larry Slason wrote to me contained in the second bullet under Section II written by Larry. I read most of the third bullet and spoke to the need to present “substantial evidence on every single permit criteria and subcriteria.” The committee members seemed to appreciate this and thought most applicants would know whether or not various applications/issues would be appealed early on. Of course, as the applicant prepares he needs to decide whether to prepare before he files so Larry is probably right that the applicant would need to make a much stronger (and expensive) case before the District Commission in most cases. If most cases are not ultimately appealed then it might be argued that applicants have over spent on initial presentations before the District Commissions. I also mentioned that without court stenographers or videotaping the proceedings any tape would make a district commission hearing incomprehensible for an on-the record appeal. Consistent with many comments I mentioned that I thought it might take too much time and effort to overcome what would really be a recording or tape of a less structured hearing process run largely by lay boards with relaxed evidentiary standards. I didn’t think it would solve the problems people want solved.

I was asked by Sen. McCormick why the super panel wouldn’t work in those larger cases so they applicants could side-step the local boards or regional commission. I advised him that it wasn’t clear but it seemed that most of the comments I received did not favor this approach based on forum shopping, abuse of discretion, unequal treatment, etc. I also mentioned that some of our larger firms that do business in Maine do not think that process works well there.

I was asked by Sen. Brock why lawyers do not appear to favor on the record appeals while business representatives were telling him that’s what they want. The only answer I had was that I didn’t think the businesses had had an opportunity to review this with their counsel before they took a position (and that on the surface most people think that “on the record” appeals seem cheaper and quicker) and that those lawyers who have thought about it seemed to understand that “on the record” appeals would end up taking more time and costing more money for more applicants.

Sen. Lyons asked a question on professional boards. She felt I was comparing the Environmental Court with a lay board and she had in mind a professional board like the PSB. She wanted to know why a professional board couldn’t work and also provide other benefits. I agreed it could work but that the PSB was unique because it only regulated a handful of utilities and although they had a full docket they were funded by “bill backs” from the utilities so money isn’t a problem. Plus they have the DPS Public Advocate funded by bill backs. That isn’t something that is workable with an environmental panel or board. But Sen. Lyons seemed to really like the PSB model.

I supported making the process faster and stronger by the Legislature adopting a bill that would 1.) give the Court a magistrate or additional clerk(s) to help with work load; 2.) requiring the ANR to adopt a process (with notice to interested parties) to allow their permits to be given binding effect in the future which would expedite the Act 250 process; and 3.) that a Municipal Administrative Procedures Act should apply to all municipalities.

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Members of both the Environmental and Property Law Sections should pay some attention to the following bills:

H. 565, the revision of the licensed lender laws that caused and continue to cause so many questions and added expense to transfers of title.

H. 553, the conservation easement modification bill that the Property Law Section had quite a bit to say about late last year when I circulated a draft. The Environmental Law Section has so far been pretty quiet on this. It will get its first airing tomorrow afternoon in House Judiciary.

H. 497, energy performance disclosure required upon sale. This bill replaces H. 57 form last year’s session and is the product of a summer study committee.

This morning the House Ways and Means Committee spent time on hearing options on paying the education portion of the property tax directly to the state! I don’t know if this idea has legs but the bankers shot it down pretty quickly. I imagine title searchers might well agree!
Finally, as you may have learned through both print and TV media, yesterday I was involved in presenting the Final Report of the Post Irene Property Law Task Force to the entire Senate sitting as a “Committee of the Whole”. It was quite the day and since there has been so much coverage, I’ll leave it at that.

Thanks for reading.