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Wesolow v. Town of Lowell

Supreme Court of Vermont

January 14, 2014

Edward Wesolow
v.
Town of Lowell

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Orleans Unit, Civil Division. Howard E. Van Benthuysen, J.

Affirmed.

Paul S. Gillies of Tarrant, Gillies, Merriman & Richardson, Montpelier, for Plaintiff-Appellee.

Richard H. Saudek of Cheney Saudek & Grayck PC, Montpelier, for Defendant-Appellant.

Present: Reiber, C.J., Skoglund, Robinson and Crawford, JJ., and Morse, J. (Ret.), Specially Assigned.

OPINION

Robinson, J.

[¶1] This case raises the question of whether 17 V.S.A. § 2661 permits a petition

Page 899

for reconsideration of an article " passed over" by vote of town residents at town meeting. The trial court concluded that it does. We affirm.

[¶2] The facts are not in dispute. Plaintiff Edward Wesolow was among the signers of a petition to place two articles on the warning for the Town of Lowell's 2012 annual meeting. One of those articles was an advisory article expressing opposition to a wind power development in town. The Lowell selectboard warned the article, designated " Article 8," and the article was duly introduced at the town meeting. After a motion to accept the article, and a second, but before any discussion, a motion was made to pass over the article. That motion to pass over the article passed on a voice vote, and the article was not discussed further at the meeting.

[¶3] Pursuant to 17 V.S.A. § 2661, and within thirty days of that vote, a group of petitioners, including plaintiff, filed a new petition requesting reconsideration of the passed-over article. That petition had the required number of legal signatures. The selectboard declined to call a special meeting on the ground that the article was not actually considered at the March 2012 town meeting because it had been passed over. Because the article was never considered, and no action was taken, the selectboard reasoned, it was not subject to reconsideration.

[¶4] Plaintiff filed suit and a motion for summary judgment, and the Town filed a cross-motion for summary judgment. The trial court sided with plaintiff, reasoning that the practical effect of the motion to pass over the article was substantially similar to denying the article, and that reconsideration ...


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