Download this document in MS Word format


AutoFill Template

House Calendar

SATURDAY, MAY 3, 2008

117th DAY OF ADJOURNED SESSION

House Convenes at 9:00  A M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

     Third Reading

J.R.S. 60  Request AG to Initiate Legal Action Re Price Fixing, Etc............. 2979

          Rep. Marcotte Amendment

NOTICE CALENDAR

Reports Committees of Conference

H. 615  Relating to Juvenile Judicial Proceedings.......................................... 2979

H. 711  Agricultural, Forestry and Horticultural Education............................. 3059

H. 859  Increasing Substance Abuse Treatment; Training & Housing............. 3083

H. 863  Affordable Housing and Smart Growth Development....................... 3100

H. 888  Miscellaneous Tax Amendments...................................................... 3168

S. 357  Relating to Domestic Violence.......................................................... 3085

S. 358  Relating to Enhanced Driver Licenses............................................... 3206

S. 365  Relating to Capital Construction and State Bonding........................... 3206

 

Ordered to Lie

H. 549  Establishing Waterfront Buffer Zones............................................... 3241

J.R.H. 68  Requesting Businesses to Refrain from Increasing Costs.............. 3241

 

 

 


 

ORDERS OF THE DAY

ACTION CALENDAR

     Third Reading

J. R. S. 60

Joint resolution requesting the Attorney General of Vermont to initiate legal action on behalf of the state and its citizens to seek reimbursement for the costs of illegal price-fixing, price-gouging, and conspiracy to restrain trade in retail gasoline and diesel fuel..

Amendment to be offered by Rep. Marcotte of Coventry to J. R. S. 60.

Moves to amend the resolution in the first resolve clause, by striking subdivision (6), and inserting in lieu thereof the following:

(6) “That if any congressional investigation results in a finding of excess oil company profits, then Congress should enact a new excess profits tax on the oil companies with the proceeds directed to the Low Income Heating Assistance Program.”

NOTICE CALENDAR

Reports Committees of Conference

H. 615

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon House Bill, entitled:  AN ACT RELATING TO JUVENILE JUDICIAL PROCEEDINGS

Respectfully report that they have met and considered the same and recommend that the Senate recede from its proposals of amendment, and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  33 V.S.A. chapter 51 is added to read:

Chapter 51.  GENERAL PROVISIONS

§ 5101.  Purposes  

(a)  The juvenile judicial proceedings chapters shall be construed in accordance with the following purposes:

(1)  To provide for the care, protection, education, and healthy mental, physical, and social development of children coming within the provisions of the juvenile judicial proceedings chapters.

(2)  To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide supervision, care, and rehabilitation which assure:

(A)  balanced attention to the protection of the community;

(B)  accountability to victims and the community for offenses; and

(C)  the development of competencies to enable children to become responsible and productive members of the community.

(3)  To preserve the family and to separate a child from his or her parents only when necessary to protect the child from serious harm or in the interests of public safety.

(4)  To assure that safety and timely permanency for children are the paramount concerns in the administration and conduct of proceedings under the juvenile judicial proceedings chapters.

(5)  To achieve the foregoing purposes, whenever possible, in a family environment, recognizing the importance of positive parent-child relationships to the well-being and development of children.

(6)  To provide judicial proceedings through which the provisions of the juvenile judicial proceedings chapters are executed and enforced and in which the parties are assured a fair hearing, and that their constitutional and other legal rights are recognized and enforced.

(b)  The provisions of the juvenile judicial proceedings chapters shall be construed as superseding the provisions of the criminal law of this state to the extent the same are inconsistent with this chapter.

§ 5102.  Definitions and provisions of general application  

As used in the juvenile judicial proceedings chapters, unless the context otherwise requires:

(1)  “Care provider” means a person other than a parent, guardian, or custodian who is providing the child with routine daily care but to whom custody rights have not been transferred by a court.

(2)  “Child” means any of the following:

(A)  An individual who is under the age of 18 and is a child in need of care or supervision as defined in subdivision (3)(A), (B), or (D) of this section (abandoned, abused, without proper parental care, or truant).

(B)(i)  An individual who is under the age of 18, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and was under the age of 16 at the time the petition was filed; or

(ii)  an individual who is between the ages of 16 to 17.5, is a child in need of care or supervision as defined in subdivision (3)(C) of this section (beyond parental control), and who is at high risk of serious harm to himself or herself or others due to problems such as substance abuse, prostitution, or homelessness.

(C)  An individual who has been alleged to have committed or has committed an act of delinquency after becoming ten years of age and prior to becoming 18 years of age; provided, however:

(i)  that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 10 but not the age of 14 may be treated as an adult as provided therein;

(ii)  that an individual who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 14 but not the age of 16 shall be subject to criminal proceedings as in cases commenced against adults, unless transferred to the court in accordance with the juvenile judicial proceedings chapters;

(iii)  that an individual who is alleged to have committed an act before attaining the age of 10 which would be murder as defined in section 2301 of Title 13 if committed by an adult may be subject to delinquency proceedings; and

(iv)  that an individual may be considered a child for the period of time the court retains jurisdiction under section 5104 of this title.   

(3)  “Child in need of care or supervision (CHINS)” means a child who:

(A)  has been abandoned or abused by the child’s parent, guardian, or custodian.  A person is considered to have abandoned a child if the person is: unwilling to have physical custody of the child; unable, unwilling, or has failed to make appropriate arrangements for the child’s care; unable to have physical custody of the child and has not arranged or cannot arrange for the safe and appropriate care of the child; or has left the child with a care provider and the care provider is unwilling or unable to provide care or support for the child, the whereabouts of the person are unknown, and reasonable efforts to locate the person have been unsuccessful.

(B)  is without proper parental care or subsistence, education, medical, or other care necessary for his or her well-being;

(C)  is without or beyond the control of his or her parent, guardian, or custodian; or

(D)  is habitually and without justification truant from compulsory school attendance.

(4)  “Commissioner” means the commissioner of the department for children and families or the commissioner’s designee.

(5)  “Conditional custody order” means an order issued by the court in a juvenile proceeding conferring legal custody of a child to a parent, guardian, relative, or a person with a significant relationship with the child subject to such conditions and limitations as the court may deem necessary to provide for the safety and welfare of the child.  Any conditions and limitations shall apply only to the individual to whom custody is granted.

(6)  “Court” means the Vermont family court.

(7)  “Custodial parent” means a parent who, at the time of the commencement of the juvenile proceeding, has the right and responsibility to provide the routine daily care and control of the child.  The rights of the custodial parent may be held solely or shared and may be subject to the

court-ordered right of the other parent to have contact with the child.

(8)  “Custodian” means a person other than a parent or legal guardian to whom legal custody of the child has been given by order of a Vermont family or probate court or a similar court in another jurisdiction.

(9)  “Delinquent act” means an act designated a crime under the laws of this state, or of another state if the act occurred in another state, or under federal law.  A delinquent act shall include 7 V.S.A. §§ 656 and 657; however, it shall not include:

(A)  Snowmobile offenses in subchapter 1 and motorboat offenses in subchapter 2 of chapter 29 of Title 23, except for violations of sections 3207a, 3207b, 3207c, 3207d, and 3323.

(B)  Motor vehicle offenses committed by an individual who is at least 16 years of age, except for violations of subchapter 13 of chapter 13 and of section 1091 of Title 23.        

(10)  “Delinquent child” means a child who has been adjudicated to have committed a delinquent act.

(11)  “Department” means the department for children and families.

(12)  “Guardian” means a person who, at the time of the commencement of the juvenile judicial proceeding, has legally established rights to a child pursuant to an order of a Vermont probate court or a similar court in another jurisdiction.

(13)  “Judge” means a judge of the family court.

(14)  “Juvenile judicial proceedings chapters” means this chapter and chapters 52 and 53 of this title.

(15)  “Juvenile proceeding” means a proceeding in the family court under the authority of the juvenile judicial proceedings chapters.

(16)(A)  “Legal custody” means the legal status created by order of the court under the authority of the juvenile judicial proceedings chapters which invests in a party to a juvenile proceeding or another person the following rights and responsibilities:

(i)  The right to routine daily care and control of the child and to determine where and with whom the child shall live.

(ii)  The authority to consent to major medical, psychiatric, and surgical treatment for a child.

(iii)  The responsibility to protect and supervise a child and to provide the child with food, shelter, education, and ordinary medical care. 

(iv)  The authority to make decisions which concern the child and are of substantial legal significance, including the authority to consent to marriage and enlistment in the armed forces of the United States, and the authority to represent the child in legal actions.

(B)  If legal custody is transferred to a person other than a parent, the rights, duties, and responsibilities so transferred are subject to the residual parental rights of the parents.

(17)  “Listed crime” means the same as defined in 13 V.S.A. § 5301.

(18)  “Noncustodial parent” means a parent who is not a custodial parent at the time of the commencement of the juvenile proceeding.

(19)  “Officer” means a law enforcement officer, including a state police officer, sheriff, deputy sheriff, municipal police officer, or constable who has been certified by the criminal justice training council pursuant to section 2358 of Title 20.

(20)  “Parent” means a child’s biological or adoptive parent, including custodial parents, noncustodial parents, parents with legal or physical responsibilities or both and parents whose rights have never been adjudicated.

(21)  “Parent-child contact” means the right of a parent to have visitation with the child by court order.

(22)  “Party” includes the following persons:

(A)  The child with respect to whom the proceedings are brought.

(B)  The custodial parent, the guardian, or the custodian of the child in all instances except a hearing on the merits of a delinquency petition. 

(C)  The noncustodial parent for the purposes of custody, visitation, and such other issues  which the court may determine are proper and necessary to the proceedings, provided that the noncustodial parent has entered an appearance.

(D)  The state’s attorney.

(E)  The commissioner.

(F)  Such other persons as appear to the court to be proper and necessary to the proceedings.

(23)  “Probation” means the legal status created by order of the family court in proceedings involving a violation of law whereby a delinquent child is subject to supervision by the department under conditions specified in the court’s juvenile probation certificate and subject to return to and change of legal status by the family court for violation of conditions of probation at any time during the period of probation.

(24)  “Protective supervision” means the authority granted by the court to the department in a juvenile proceeding to take reasonable steps to monitor compliance with the court’s conditional custody order, including unannounced visits to the home in which the child currently resides.

(25)  “Reasonable efforts” means the exercise of due diligence by the department to use appropriate and available services to prevent unnecessary removal of the child from the home or to finalize a permanency plan.  When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances.  If the court makes written findings that aggravated circumstances are present, the court may make, but shall not be required to make, written findings as to whether reasonable efforts were made to prevent removal of the child from the home.  Aggravated circumstances may exist if:

(A)  a court of competent jurisdiction has determined that the parent has subjected a child to abandonment, torture, chronic abuse, or sexual abuse;

(B)  a court of competent jurisdiction has determined that the parent has been convicted of murder or manslaughter of a child;

(C)  a court of competent jurisdiction has determined that the parent has been convicted of a felony crime that results in serious bodily injury to the child or another child of the parent; or

(D)  the parental rights of the parent with respect to a sibling have been involuntarily terminated.

(26)  “Residual parental rights and responsibilities” means those rights and responsibilities remaining with the parent after the transfer of legal custody of the child, including the right to reasonable contact with the child, the responsibility for support, and the right to consent to adoption.

(27)  “Shelter” means a shelter designated by the commissioner where a child taken into custody pursuant to subdivision 5301(3) of this title may be held for a period not to exceed seven days.

(28)  “Youth” shall mean a person who is the subject of a motion for youthful offender status or who has been granted youthful offender status.

§ 5103.  Jurisdiction  

(a)  The family court shall have exclusive jurisdiction over all proceedings concerning a child who is or who is alleged to be a delinquent child or a child in need of care or supervision brought under the authority of the juvenile judicial proceedings chapters, except as otherwise provided in such chapters.

(b)  Orders issued under the authority of the juvenile judicial proceedings chapters shall take precedence over orders in other family court proceedings and any order of another court of this state, to the extent they are inconsistent.  This section shall not apply to child support orders in a divorce, parentage, or relief from abuse proceedings until a child support order has been issued in the juvenile proceeding.

(c)  Except as otherwise provided by this title, jurisdiction over a child shall not be extended beyond the child’s 18th birthday.

(d)  The court may terminate its jurisdiction over a child prior to the child’s 18th birthday by order of the court.  If the child is not subject to another juvenile proceeding, jurisdiction shall terminate automatically in the following circumstances:

(1)  Upon the discharge of a child from juvenile probation, providing the child is not in the legal custody of the commissioner.

(2)  Upon an order of the court transferring legal custody to a parent, guardian, or custodian without conditions or protective supervision.

(3)  Upon the adoption of a child following a termination of parental rights proceeding.

§ 5104.   Retention of jurisdiction over youthful

                offenders    

(a)  The family court may retain jurisdiction over a youthful offender up to the age of 22.

(b)  In relation to the retention of jurisdiction provision of subsection (a) of this section, any party may request, or the court on its own motion may schedule, a hearing to determine the propriety of extending the jurisdictional time period.  This hearing shall be held within the three-month time period immediately preceding the child’s 18th birthday, and the order of continued jurisdiction shall be executed by the court on or before that birthday. In determining the need for continued jurisdiction, the court shall consider the following factors:

(1)  the extent and nature of the child’s record of delinquency;

(2)  the nature of past and current treatment efforts and the nature of the child’s response to them;

(3)  the prospects for reasonable rehabilitation of the child by use of procedures, services, and facilities currently available to the court; and

(4)  whether the safety of the community will best be served by a continuation of jurisdiction.

(c)  A hearing under subsection (b) of this section shall be held in accordance with the procedures provided in section 5113 of this title.

§ 5105.  Venue and Change of Venue 

(a)  Proceedings under the juvenile judicial proceedings chapters may be commenced in the county where:

(1)  the child is domiciled;

(2)  the acts constituting the alleged delinquency occurred; or

(3)  the child is present when the proceedings commenced, if it is alleged that a child is in need of care or supervision.

(b)  If a child or a parent, guardian, or custodian changes domicile during the course of a proceeding under the juvenile judicial proceedings chapters or if the petition is not brought in the county in which the child is domiciled, the court may change venue upon the motion of a party or its own motion, taking into consideration the domicile of the child and the convenience of the parties and witnesses.

§ 5106.  Powers and duties of commissioner

Subject to the limitations of the juvenile judicial proceedings chapters or those imposed by the court, and in addition to any other powers granted to the commissioner under the laws of this state, the commissioner has the following authority with respect to a child who is or may be the subject of a petition brought under the juvenile judicial proceedings chapters: 

(1)  To undertake assessments and make reports and recommendations to the court as authorized by the juvenile judicial proceedings chapters.

(2)  To investigate complaints and allegations that a child is in need of care or supervision for the purpose of considering the commencement of proceedings under the juvenile judicial proceedings chapters.

(3)  To supervise and assist a child who is placed under the commissioner’s supervision or in the commissioner’s legal custody by order of the court.

(4)  To place a child who is in the commissioner’s  legal custody in a family home or a treatment, rehabilitative, detention, or educational facility or institution subject to the provisions of sections 5292 and 5293 of this title.  To the extent that it is appropriate and possible siblings in the commissioner’s custody shall be placed together. 

(5)  To make appropriate referrals to private or public agencies.

(6)  To perform such other functions as are designated by the juvenile judicial proceedings chapters.

§ 5107.  Contempt power   

Subject to the laws relating to the procedures therefor and the limitations thereon, the court has the power to punish any person for contempt of court for disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders.

§ 5108.  Authority to issue warrants  

(a)  The court may order a parent, guardian, or custodian to appear at any hearing or to appear at the hearing with the child who is the subject of a petition.

(b)  If, after being summoned, cited, or otherwise notified to appear, a party fails to do so, the court may issue a warrant for the person’s appearance. 

(c)  If the child is with the parent, guardian, or custodian, the court may issue a warrant for the person to appear in court with the child or, in the alternative, the court may issue an order for an officer to pick up the child and bring the child to court.

(d)  If a summons cannot be served or the welfare of the child requires that the child be brought forthwith to the court, the court may issue a warrant for the parent, guardian, or custodian to appear in court with the child.  In the alternative, the court may issue an order for an officer to pick up the child and bring the child to court during court hours.

(e)  A person summoned who fails to appear without reasonable cause may be found in contempt of court.

§ 5109.  Subpoena 

Upon application of a party or on the court’s own motion, the clerk of the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers at any hearing under the juvenile judicial proceedings chapters.

§ 5110.  Conduct of hearings 

(a)  Hearings under the juvenile judicial proceedings chapters shall be conducted by the court without a jury and shall be confidential.  

(b)  The general public shall be excluded from hearings under the juvenile judicial proceedings chapters, and only the parties, their counsel, witnesses, persons accompanying a party for his or her assistance, and such other persons as the court finds to have a proper interest in the case or in the work of the court, including a foster parent or a representative of a residential program where the child resides, may be admitted by the court.  This subsection shall not prohibit a victim’s exercise of his or her rights under sections 5333 and 5234 of this title, and as otherwise provided by law. 

(c)  There shall be no publicity given by any person to any proceedings under the authority of the juvenile judicial proceedings chapters except with the consent of the child, the child’s guardian ad litem, and the child’s parent, guardian, or custodian.  A person who violates this provision may be subject to contempt proceedings pursuant to Rule 16 of the Vermont Rules for Family Proceedings.

§ 5111.  Noncustodial Parents    

(a)  If a child is placed in the legal custody of the department and the identity of a parent has not been legally established at the time the petition is filed, the court may order that the mother, the child, and the alleged father submit to genetic testing and may issue an order establishing parentage pursuant to subchapter 3A of Title 15.  A parentage order issued pursuant to this subsection shall not be deemed to be a confidential record.

(b)  If a child is placed in the legal custody of the department, the department shall make reasonably diligent efforts to locate a noncustodial parent as early in the proceedings as possible, and notify the court of the noncustodial parent’s address.  A hearing shall not be delayed by reason of the inability of the department to locate or serve a noncustodial parent. 

(c)  The court may order a custodial parent to provide the department with information regarding the identity and location of a noncustodial parent.

(d)  As soon as his or her address is known, a noncustodial parent shall be served with the petition and a copy of the summons.  Thereafter, the court shall mail notices of the hearing to the noncustodial parent.  The noncustodial parent shall be responsible for providing the court with information regarding any changes in address.

§ 5112.  Attorney and guardian ad litem for child  

(a)  The court shall appoint an attorney for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters. 

(b)  The court shall appoint a guardian ad litem for a child who is a party to a proceeding brought under the juvenile judicial proceedings chapters.  In a delinquency proceeding, a parent, guardian, or custodian of the child may serve as a guardian ad litem for the child, providing his or her interests do not conflict with the interests of the child.  The guardian ad litem appointed under this section shall not be a party to that proceeding or an employee or representative of such party.

§ 5113.  Modification or vacation of orders 

(a)  An order of the court may be set aside in accordance with Rule 60 of the Vermont Rules of Civil Procedure.

(b)  Upon motion of a party or the court’s own motion, the court may amend, modify, set aside, or vacate an order on the grounds that a change in circumstances requires such action to serve the best interests of the child.  The motion shall set forth in concise language the grounds upon which the relief is requested.

(c)  Any order under this section shall be made after notice and hearing; however, the court may waive the hearing upon stipulation of the parties.  All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value, even though not competent in a hearing on the petition.

§ 5114.  Best interests of the child 

(a)  At the time of a permanency review under section 5321 of this title, a modification hearing under section 5113 of this title, or at any time a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, the court shall consider the best interests of the child in accordance with the following:

(1)  The interaction and interrelationship of the child with his or her parents, siblings, foster parents, if any, and any other person who may significantly affect the child’s best interests.

(2)  The child’s adjustment to his or her home, school, and community.

(3)  The likelihood that the parent will be able to resume or assume parental duties within a reasonable period of time.

(4)  Whether the parent has played and continues to play a constructive role, including personal contact and demonstrated emotional support and affection, in the child’s welfare.

(b)  Except in cases where a petition or request to terminate all residual parental rights of a parent without limitation as to adoption is filed by the commissioner or the attorney for the child, the court shall also consider whether the parent is capable of playing a constructive role, including demonstrating emotional support and affection, in the child’s welfare.

§ 5115.  Protective order 

(a)  On motion of a party or on the court’s own motion, the court may make an order restraining or otherwise controlling the conduct of a person if the court finds that such conduct is or may be detrimental or harmful to a child.

(b)  The person against whom the order is directed shall be served with notice of the motion and the grounds therefor and be given an opportunity to be heard.

(c)  Upon a showing that there is a risk of immediate harm to a child, the court may issue a protective order ex parte.  A hearing on the motion shall be held no more than 10 days after the issuance of the order.

(d)  The court may review any protective order at a subsequent hearing to determine whether the order should remain in effect.

(e)  A person who is the subject of an order issued pursuant to this section and who intentionally violates a provision of the order that concerns contact between the child and that person shall be punished in accordance with 13 V.S.A. § 1030.

§ 5116.  Costs and expenses for care of child 

(a)  The commissioner may incur such expenses for the proper care, maintenance, and education of a child, including without limitation, the expenses of medical, surgical, or psychiatric examination or treatment, as the commissioner considers necessary in connection with proceedings under the juvenile judicial proceedings chapters.

(b)  The costs of any proceeding under the juvenile judicial proceedings chapters incurred under the provisions of Title 33 shall be borne by the court.

(c)  The court may, in any order of disposition under the juvenile judicial proceedings chapters, make and enforce by levy and execution an order of child support to be paid by the parent of the child.

(d)  The court may delegate to the office of magistrate its authority to make and enforce an order of child support to be paid by the parent of a child.

(e)  A child support order shall only remain in effect as long as the child who is the subject of the support order is in the legal custody of the commissioner and placed with someone other than the parent or parents responsible for support.

(f)  Except as otherwise provided in section 5119 of this title, orders issued pursuant to this section shall not be confidential.

(g)  Notwithstanding subsection 5103(b) of this title, an order terminating a parent’s residual parental rights ends that parent’s obligation to pay child support.  However, in no event shall an order terminating residual parental rights terminate an obligation for child support arrearages accrued by the parent prior to the date of the termination of parental rights order.

§ 5117.  records OF JUVENILE JUDICIAL PROCEEDINGS  

(a)  Except as otherwise provided, court and law enforcement reports and files concerning a person subject to the jurisdiction of the court shall be maintained separate from the records and files of other persons.  Unless a charge of delinquency is transferred for criminal prosecution under chapter 52 of this title or the court otherwise orders in the interests of the child, such records and files shall not be open to public inspection nor their contents disclosed to the public by any person.  However, upon a finding that a child is a delinquent child by reason of commission of a delinquent act which would have been a felony if committed by an adult, the court, upon request of the victim, shall make the child’s name available to the victim of the delinquent act.  If the victim is incompetent or deceased, the child’s name shall be released, upon request, to the victim’s guardian or next of kin.

(b)(1)  Notwithstanding the foregoing, inspection of such records and files by the following is not prohibited:

(A)  A court having the child before it in any juvenile judicial proceeding.

(B)  The officers of public institutions or agencies to whom the child is committed as a delinquent child.

(C)  A court in which a person is convicted of a criminal offense for the purpose of imposing sentence upon or supervising the person, or by officials of penal institutions and other penal facilities to which the person is committed, or by a parole board in considering the person’s parole or discharge or in exercising supervision over the person.

(D)  Court personnel, the state’s attorney or other prosecutor authorized to prosecute criminal or juvenile cases under state law, the child’s guardian ad litem, the attorneys for the parties, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the child.

(E)  The child who is the subject of the proceeding, the child’s parents, guardian, custodian, and guardian ad litem may inspect such records and files upon approval of the family court judge.

(F)  Any other person who has a need to know may be designated by order of the family court.

(2)  Files inspected under this subsection shall be marked: UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.

(c)  Upon motion of a party in a divorce or parentage proceeding related to parental rights and responsibilities for a child or parent-child contact, the court may order that court records in a juvenile proceeding involving the same child or children be released to the parties in the divorce proceeding.  Files inspected under this subsection shall be marked:  UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE OF UP TO $2,000.00.  The public shall not have access to records from a juvenile proceeding that are filed with the court or admitted into evidence in the divorce or parentage proceeding.

(d)  Such records and files shall be available to state’s attorneys and all other law enforcement officers in connection with record checks and other legal purposes.

(e)  Any records or reports relating to a matter within the jurisdiction of the court prepared by or released by the court or the department for children and families, any portion of those records or reports, and information relating to the contents of those records or reports shall not be disseminated by the receiving persons or agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section.

(f)  This section does not provide access to records sealed in accordance with section 5119 of this title unless otherwise provided in section 5119.

§ 5118.  Limited exception to confidentiality of records

               of juveniles maintained by the family court 

(a)  For the purposes of this section:

(1)  “Delinquent act requiring notice” means conduct resulting in a delinquency adjudication related to a listed crime as defined in 13 V.S.A.

§ 5301(7).

(2)  “Independent school” means an approved or recognized independent school under 16 V.S.A. § 166.

(b)  While records of juveniles maintained by the family court should be kept confidential, it is the policy of the general assembly to establish a limited exception for the overriding public purposes of rehabilitating juveniles and protecting students and staff within Vermont’s public and independent schools.

(c)  Notwithstanding any law to the contrary, a court finding that a child has committed a delinquent act requiring notice shall, within seven days of such finding, provide written notice to the superintendent of schools for the public school in which the child is enrolled or, in the event the child is enrolled in an independent school, the school’s headmaster.

(d)  The written notice shall contain only a description of the delinquent act found by the court to have been committed by the child and shall be marked: “UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE UP TO $2,000.00.”  The envelope in which the notice is sent by the court shall be marked:  “CONFIDENTIAL:  TO BE OPENED BY THE SUPERINTENDENT OR HEADMASTER ONLY.”

(e)  The superintendent or headmaster, upon receipt of the notice, shall inform only those persons within the child’s school with a legitimate need to know of the delinquent act, and only after first evaluating rehabilitation and protection measures that do not involve informing staff or students.  Persons with a legitimate need to know are strictly limited to only those for whom the information is necessary for the rehabilitation program of the child or for the protection of staff or students.  “Need to know” shall be narrowly and strictly interpreted.  Persons receiving information from the superintendent or headmaster shall not, under any circumstances, discuss such information with any other person except the child, the child’s parent, guardian, or custodian, others who have been similarly informed by the superintendent or headmaster, law enforcement personnel, or the juvenile’s probation officer.

(f)  The superintendent and headmaster annually shall provide training to school staff about the need for confidentiality of such information and the penalties for violation of this section.

(g)  The written notice shall be maintained by the superintendent or headmaster in a file separate from the child’s education record.  If the child transfers to another public or independent school, the superintendent or headmaster shall forward the written notice in the original marked envelope to the superintendent or headmaster for the school to which the child transferred.  If the child either graduates or turns 18 years of age, the superintendent or headmaster then possessing the written notice shall destroy such notice.

(h)  If legal custody of the child is transferred to the commissioner, or if the commissioner is supervising the child’s probation, upon the request by a superintendent or headmaster, the commissioner shall provide to the superintendent or headmaster information concerning the child which the commissioner determines is necessary for the child’s rehabilitation or for the protection of the staff or students in the school in which the child is enrolled.

(i)  A person who intentionally violates the confidentiality provisions of this section shall be fined not more than $2,000.00.

(j)  Except as provided in subsection (i) of this section, no liability shall attach to any person who transmits, or fails to transmit, the written notice required under this section.

§ 5119.  Sealing of records  

(a)(1)  In matters relating to a child who has been adjudicated delinquent on or after July 1, 1996, the court shall order the sealing of all files and records related to the proceeding if two years have elapsed since the final discharge of the person unless, on motion of the state’s attorney, the court finds: 

(A)  the person has been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent of such an offense after such initial adjudication, or a proceeding is pending seeking such conviction or adjudication; or 

(B)  rehabilitation of the person has not been attained to the satisfaction of the court. 

(2)  At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed pursuant to subdivision (1) of this subsection, the court shall provide such person’s name and other identifying information to the state’s attorney in the county in which the person was adjudicated delinquent.  The state’s attorney may object, and a hearing may be held to address the state’s attorney’s objection. 

(3)  The order to seal shall include all the files and records relating to the matter in accordance with subsection (d) of this section; however, the court may limit the order to the court files and records only upon good cause shown by the state’s attorney.

(4)  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 1996, but before

July 1, 2001 shall be completed by January 1, 2010.  The process of sealing files and records under this subsection for a child who was adjudicated delinquent on or after July 1, 2001 but before July 1, 2004 shall be completed by January 1, 2008. 

(b)  In matters relating to a child who has been adjudicated delinquent prior to July 1, 1996, on application of the child or on the court’s own motion and after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds: 

(1)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication; and 

(2)  the person’s rehabilitation has been attained to the satisfaction of the court. 

(c)  On application of a person who, while a child, was found to be in need of care or supervision or, on the court’s own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records related to the proceeding if it finds: 

(1)  the person has reached the age of majority; and

(2)  sealing the person’s record is in the interest of justice.

(d)  Except as provided in subdivision (a)(3) and subsection (h) of this section or otherwise provided, orders issued in accordance with this section shall include the files and records of the court, law enforcement, prosecution, and the department for children and families related to the specific court proceeding that is the subject of the sealing. 

(e)(1)  Except as provided in subdivision (2) of this subsection, upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.  Copies of the order shall be sent to each agency or official named in the order. 

(2)(A)  Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed.  This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding which was the subject of the sealing.  The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to subsection (f) of this section. 

(B)  Access to the special index shall be restricted to the following persons: 

(i)  the commissioner and general counsel of any administrative department; 

(ii)  the secretary and general counsel of any administrative agency;

(iii)  a sheriff;

(iv)  a police chief; 

(v)  a state’s attorney; 

(vi)  the attorney general; 

(vii)  the director of the Vermont crime information center; and

(viii)  a designated clerical staff person in each office identified in subdivisions (i)–(vii) of this subdivision (B) who is necessary for establishing and maintaining the indices for persons who are permitted access. 

(C)  Persons authorized to access an index pursuant to subdivision (B) of this subdivision (2) may access only the index of their own department or agency. 

(f)(1)  Except as provided in subdivisions (2), (3), and (4) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named in the record. 

(2)  Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (d) of this section, the court may permit the department or agency to inspect its own files and records if it finds circumstances in which the department or agency requires access to such files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records.  The files and records shall be unsealed only for the minimum time necessary to address the circumstances enumerated in this subdivision, at which time the records and files shall be resealed. 

(3)  Upon a confidential motion of the department for children and families, the court may permit the department to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the department provides a compelling reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed. 

(4)  Upon a confidential motion of a law enforcement officer or prosecuting attorney, the court may permit the department or agency to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in public safety clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling public safety purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the law enforcement officer or prosecuting attorney provides a compelling public safety reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances, at which time the files and records shall be resealed. 

(5)  The order unsealing a record must state whether the record is unsealed entirely or in part and the duration of the unsealing.  If the court’s order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both. 

(g)  On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed under the laws of this state prior to attaining the age of majority, or on the motion of the court having jurisdiction over such a person, after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:  

(1)  two years have elapsed since the final discharge of the person;  

(2)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after the initial conviction, and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court. 

(h)(1)  In matters relating to a person who was charged with a criminal offense on or after July 1, 2006 and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed.

(2)  In matters relating to a person who was charged with a criminal offense prior to July 1, 2006 and prior to the person attaining the age of majority, the person may apply to seal the files and records of the court applicable to the proceeding.  The court shall order the sealing, provided that two years have elapsed since the dismissal of the charge. 

(i)  Upon receipt of a court order to seal a record relating to an offense for which there is an identifiable victim, a state’s attorney shall record the name and date of birth of the victim, the offense, and the date of the offense.  The name and any identifying information regarding the defendant shall not be recorded.  Victim information retained by a state’s attorney pursuant to this subsection shall be available only to victims’ advocates, the victims’ compensation program, and the victim and shall otherwise be confidential. 

(j)  For purposes of this section, to “seal” a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.  A “sealed” file or record is retained and shall not be destroyed unless a court issues an order to expunge the record. 

(k)  The court shall provide assistance to persons who seek to file an application for sealing under this section. 

(l)  Any entities subject to sealing orders pursuant to this section shall establish policies for implementing this section and shall provide a copy of such policies to the house and senate committees on judiciary no later than January 15, 2007.  State’s attorneys, sheriffs, municipal police, and the judiciary are encouraged to adopt a consistent policy that may apply to each of their independent offices and may submit one policy to the general assembly. 

§ 5120.  Indian Child Welfare Act

The federal Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., governs any proceeding under this title that pertains to an Indian child, as defined by the Indian Child Welfare Act, and prevails over any inconsistent provision of this title.

§ 5121.  CASE PLANNING PROCESS

The department shall actively engage families, and solicit and integrate into the case plan the input of the child, the child’s family, relatives and other persons with a significant relationship to the child.  Whenever possible, parents, guardians and custodians shall participate in the development of the case plan.

§ 5122.  MISCONDUCT DURING COURT PROCEEDINGS

A person who engages in misconduct while participating in a court proceeding under the juvenile judicial proceedings chapters may be subject to appropriate sanctions, including criminal charges, as provided by relevant law, regulation, rule, or employment policy.  The confidentiality requirements of subsection 5110(c) of this title shall not apply to the extent necessary to report and respond to allegations of misconduct under the juvenile judicial proceedings chapters.  This section shall not be construed to create a private right of action or a waiver of sovereign immunity.

Sec. 2.  33 V.S.A. chapter 52 is added to read:

Chapter 52.  DELINQUENCY PROCEEDINGS

Subchapter 1.  Commencement of Proceedings

§ 5201.  Commencement of Delinquency Proceedings  

(a)  Proceedings under this chapter shall be commenced by:

(1)  transfer to the court of a proceeding from another court as provided in section 5203 of this title; or

(2)  the filing of a delinquency petition by a state’s attorney.

(b)  If the proceeding is commenced by transfer from another court, no petition need be filed; however, the state’s  attorney shall provide to the court the name and address of the child’s custodial parent, guardian, or custodian and the name and address of any noncustodial parent if known. 

(c)  Consistent with applicable provisions of Title 4, any proceeding concerning a child who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 14, but not the age of 18, shall originate in district or superior court, provided that jurisdiction may be transferred in accordance with this chapter.

(d)  If the state requests that custody of the child be transferred to the department, a temporary care hearing shall be held as provided in subchapter 3 of this chapter.   

(e)  A petition may be withdrawn by the state’s attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.

§ 5202.  Order of adjudication; noncriminal

(a)(1)  An order of the juvenile court in proceedings under this chapter shall not:

(A)  be deemed a conviction of crime;

(B)  impose any civil disabilities sanctions ordinarily resulting from a conviction; or

(C)  operate to disqualify the child in any civil service application or appointment.

(2)  Notwithstanding subdivision (1) of this subsection, an order of delinquency in proceedings transferred under subsection 5203(b) of this title, where the offense charged in the initial criminal proceedings was a violation of those sections of Title 23 specified in subdivision 801(a)(1), shall be an event in addition to those specified therein, enabling the commissioner of motor vehicles to require proof of financial responsibility under chapter 11 of Title 23.

(b)  The disposition of a child and evidence given in a hearing in a juvenile proceeding shall not be admissible as evidence against the child in any case or proceeding in any other court except after a subsequent conviction of a felony in proceedings to determine the sentence.

§ 5203.  Transfer from other courts

(a)  If it appears to a district court that the defendant was under the age of 16 years at the time the offense charged was alleged to have been committed and the offense charged is not one of those specified in subsection 5204(a) of this title, that court shall forthwith transfer the case to the juvenile court under the authority of this chapter.

(b)  If it appears to a district court that the defendant was over the age of 16 years and under the age of 18 years at the time the offense charged was alleged to have been committed, or that the defendant had attained the age of 14 but not the age of 16 at the time an offense specified in subsection 5204(a) of this title was alleged to have been committed, that court may forthwith transfer the proceeding to the juvenile court under the authority of this chapter, and the minor shall thereupon be considered to be subject to this chapter as a child charged with a delinquent act.

(c)  If it appears to the state’s attorney that the defendant was over the age of 16 and under the age of 18 at the time the offense charged was alleged to have been committed and the offense charged is not an offense specified in subsection 5204(a) of this title, the state’s attorney may file charges in a juvenile court or the district court.  If charges in such a matter are filed in district court, the district court may forthwith transfer the proceeding to the juvenile court under the authority of this chapter, and the person shall thereupon be considered to be subject to this chapter as a child charged with a delinquent act.

(d)  Any such transfer shall include a transfer and delivery of a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case.  Upon any such transfer, that court shall order that the defendant be taken forthwith to a place of detention designated by the juvenile court or to that court itself, or shall release the child to the custody of his or her parent or guardian or other person legally responsible for the child, to be brought before the juvenile court at a time designated by that court.  The juvenile court shall then proceed as provided in this chapter as if a petition alleging delinquency had been filed with the court under section 5223 of this title on the effective date of such transfer.

(e)  Motions to transfer a case to family court for youthful offender treatment shall be made under section 5281 of this title.  

§ 5204.  Transfer from juvenile court 

(a)  After a petition has been filed alleging delinquency, upon motion of the state’s attorney and after hearing, the juvenile court may transfer jurisdiction of the proceeding to district court, if the child had attained the age of 10 but not the age of 14 at the time the act was alleged to have occurred, and if the delinquent act set forth in the petition was any of the following:

(1)  arson causing death as defined in 13 V.S.A. § 501;

(2)  assault and robbery with a dangerous weapon as defined in 13 V.S.A. § 608(b);

(3)  assault and robbery causing bodily injury as defined in 13 V.S.A.

§ 608(c);

(4)  aggravated assault as defined in 13 V.S.A. § 1024;

(5)  murder as defined in 13 V.S.A. § 2301;

(6)  manslaughter as defined in 13 V.S.A. § 2304;

(7)  kidnapping as defined in 13 V.S.A. § 2405;

(8)  unlawful restraint as defined in 13 V.S.A. § 2406 or 2407;

(9)  maiming as defined in 13 V.S.A. § 2701;

(10)  sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (a)(2);

(11)  aggravated sexual assault as defined in 13 V.S.A. § 3253; or

(12)  burglary into an occupied dwelling as defined in 13 V.S.A.

§ 1201(c).

(b)  The state’s attorney of the county where the juvenile petition is pending may move in the juvenile court for an order transferring jurisdiction under subsection (a) of this section within ten days of the filing of the petition alleging delinquency.  The filing of the motion to transfer jurisdiction shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the juvenile court may deny the motion to transfer jurisdiction.

(c)  Upon the filing of a motion to transfer jurisdiction under subsection (b) of this section, the juvenile court shall conduct a hearing in accordance with procedures specified in subchapter 2 of this chapter to determine whether:

(1)  there is probable cause to believe that the child committed an act listed in subsection (a) of this section; and

(2)  public safety and the interests of the community would not be served by treatment of the child under the provisions of law relating to juvenile courts and delinquent children.

(d)  In making its determination as required under subsection (c) of this section, the court may consider, among other matters:

(1)  The maturity of the child as determined by consideration of his or her age, home, environment; emotional, psychological and physical maturity; and relationship with and adjustment to school and the community.

(2)  The extent and nature of the child’s prior record of delinquency.

(3)  The nature of past treatment efforts and the nature of the child’s response to them.

(4)  Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.

(5)  The nature of any personal injuries resulting from or intended to be caused by the alleged act.

(6)  The prospects for rehabilitation of the child by use of procedures, services, and facilities available through juvenile proceedings.

(7)  Whether the protection of the community would be better served by transferring jurisdiction from the juvenile court to the district court.

(e)  A transfer under this section shall terminate the jurisdiction of the juvenile court over the child only with respect to those delinquent acts alleged in the petition with respect to which transfer was sought.

(f)  The juvenile court, following completion of the transfer hearing, shall make written findings and, if the court orders transfer of jurisdiction from the juvenile court, shall state the reasons for that order.  If the juvenile court orders transfer of jurisdiction, the child shall be treated as an adult.  The state’s attorney shall commence criminal proceedings as in cases commenced against adults.

(g)  The order granting or denying transfer of jurisdiction shall not constitute a final judgment or order within the meaning of Rules 3 and 4 of the Vermont Rules of Appellate Procedure.

(h)  If a person who has not attained the age of 16 at the time of the alleged offense has been prosecuted as an adult and is not convicted of one of the acts listed in subsection (a) of this section but is convicted only of one or more lesser offenses, jurisdiction shall be transferred to the juvenile court for disposition.  A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of crime, and the entire matter shall be treated as if it had remained in juvenile court throughout.  In case of an acquittal for a matter specified in this subsection and in case of a transfer to juvenile court under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.

(i)  The record of a hearing conducted under subsection (c) of this section and any related files shall be open to inspection only by persons specified in subsections 5117(b) and (c) of this title in accordance with section 5119 of this title and by the attorney for the child.

§ 5205.  Fingerprints; photographs

(a)  Fingerprint files of a child under the jurisdiction of the court shall be kept separate from those of other persons under special security measures limited to inspection by law enforcement officers only on a need-to-know basis unless otherwise authorized by the court in individual cases.

(b)  Copies of fingerprints shall be maintained on a local basis only and not sent to central state or federal depositories except in national security cases.

(c)  Fingerprints of persons under the jurisdiction of the court shall be removed and destroyed when:

(1)  the petition alleging delinquency with respect to which such fingerprints were taken does not result in an adjudication of delinquency; or

(2)  jurisdiction of the court is terminated, provided that there has been no record of a criminal offense by the child after reaching 16 years of age.

(d)  If latent prints are found at the scene of an offense and there is reason to believe that a particular child was involved, the child may be fingerprinted for purposes of immediate comparison, and, if the result is negative, the fingerprint card shall be immediately destroyed.

(e)  No photograph shall be taken of any child when taken into custody without the consent of the judge unless the case is transferred for criminal proceeding.

(f)  A person who violates this section shall be imprisoned not more than six months or fined not more than $500.00, or both.

Subchapter 2.  Petition, Merits, and Disposition

§ 5221.  Citation and Notice to Appear at Preliminary

               Hearing 

(a)  Citation.  If an officer has probable cause to believe that a child has committed or is committing a delinquent act and the circumstances do not warrant taking the child into custody pursuant to subchapter 3 of this chapter, the officer may issue a citation to appear before a judicial officer in lieu of arrest.

(b)  Appearance in court.  A child who receives a citation described in this section shall appear at the court designated in the citation at the time and date specified in the citation unless otherwise notified by the court.

(c)  Notice to parent.  The officer who issues the citation shall also issue or cause to be issued a notice to the child’s custodial parent, guardian, or custodian.  The notice shall indicate the date, time, and place of the preliminary hearing and shall direct the responsible adult to appear at the hearing with the child.

(d)  Form.  The citation to appear shall be dated and signed by the issuing officer and shall direct the child to appear before a judicial officer at a stated time and place.  The citation shall state the name of the child to whom it is addressed, the delinquent act that the child is alleged to have committed, and a notice that the child is entitled to be represented by an attorney at the hearing and that an attorney will be appointed for the child if the parent or guardian is indigent and cannot afford an attorney.

(e)  Filing of citation.  The issuing officer shall sign the citation and file the citation and an affidavit as to probable cause with the state’s attorney.

§ 5222.  Petition; contents

(a)  The petition shall be supported by an affidavit as to probable cause.   The petition shall contain the following:

(1)  A concise statement of the facts which support the conclusion that the child has committed a delinquent act, together with a statement that it is in the best interests of the child that the proceedings be brought.

(2)  The name, date of birth, telephone number, and residence address, if known, of the child and the custodial and noncustodial parents or the guardian or custodian of the child, if other than parent.   If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so specify.

(b)  If a temporary care order has been issued or the state is requesting that custody be transferred to the commissioner, the petition shall contain jurisdictional information as required by the Uniform Child Custody Jurisdiction Act, 15 V.S.A. § 1032 et seq.

(c)  A petition alleging a delinquent act may not be amended to allege that a child is in need of care or supervision, and a child who has been adjudged a delinquent child as a result of a delinquency petition may not be subsequently adjudged a child in need of care or supervision, unless a separate petition alleging that the child is in need of care or supervision is filed.

§ 5223.  Filing of Petition 

(a)  When notice to the child is provided by citation, the state’s attorney shall file the petition and supporting affidavit at least ten days prior to the date for the preliminary hearing specified in the citation.

(b)  The court shall send or deliver a copy of the petition and affidavit to all persons required to receive notice, including the noncustodial parent, as soon as possible after the petition is filed and at least five days prior to the date set for the preliminary hearing..

§ 5224.   Failure to Appear at Preliminary Hearing  

If a child or custodial parent, guardian or custodian fails to appear at the preliminary hearing as directed by a citation, the court may issue a summons to appear, an order to have the child brought to court, or a warrant as provided in section 5108 of this title.

§ 5225.  Preliminary Hearing  

(a)  A preliminary hearing shall be held at the time and date specified on the citation or as otherwise ordered by the court.  If a child is taken into custody prior to the preliminary hearing, the preliminary hearing shall be at the time of the temporary care hearing. 

(b)  Counsel for the child shall be assigned prior to the preliminary hearing. 

(c)  At the preliminary hearing, the court shall appoint a guardian ad litem for the child.  The guardian ad litem may be the child’s parent, guardian or custodian.  On its own motion or motion by the child’s attorney, the court may appoint a guardian ad litem other than a parent, guardian or custodian. 

(d)  At the preliminary hearing, a denial shall be entered to the allegations of the petition, unless the juvenile, after adequate consultation with the guardian ad litem and counsel, enters an admission.

(e)  The court may order the child to abide by conditions of release pending a merits or disposition hearing.

§ 5226.  Notification of conditions of release to victim in

               delinquency proceedings

A victim in a delinquency proceeding based on a listed crime shall be notified promptly by the prosecutor’s office when conditions of release are initially ordered or modified by the court and of the identity of the child when the conditions of release relate to the victim or a member of the victim’s family or current household.  A victim in a delinquency proceeding based on an act that is not a listed crime shall be notified promptly by the court when conditions of release are initially ordered or modified by the court and shall be notified promptly of the identity of the child when the conditions of release relate to the victim or a member of the victim’s family or current household.  Victims are entitled only to information contained in the conditions of release that pertain to the victim or a member of the victim’s family or current household.

§ 5227.  Timelines for pretrial and merits hearing  

(a)  Pre-trial hearing.  At the preliminary hearing, the court shall set a date for a pretrial hearing on the petition.  The pretrial hearing shall be held within 15 days of the preliminary hearing.  In the event there is no admission or dismissal at the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.

(b)  Merits hearing.  Except for good cause shown, a merits hearing shall be held and merits adjudicated no later than 60 days from the date of the preliminary hearing.

§ 5228.  Constitutional Protections for a Child in

               Delinquency Proceedings

A child charged with a delinquent act need not be a witness against, nor otherwise incriminate, himself or herself.  Any extrajudicial statement, if constitutionally inadmissible in a criminal proceeding, shall not be used against the child.  Evidence illegally seized or obtained shall not be used over objection to establish the charge against the child.  A confession out of court is insufficient to support an adjudication of delinquency unless corroborated in whole or in part by other substantial evidence.

§ 5229.  Merits Adjudication  

(a)  The parties at a merits hearing in a delinquency proceeding shall be limited to the state’s attorney and the child who is the subject of the petition.  A merits adjudication hearing shall not proceed forward unless the child who is the subject of the delinquency petition is present in court.  

(b)  The state shall have the burden of establishing beyond a reasonable doubt that the child has committed a delinquent act. 

(c)  If the child who is the subject of the delinquency petition enters an admission to the petition, the court shall not accept the admission without first addressing the child personally in open court and determining that:

(1)  the plea is voluntary;

(2)  the child understands the nature of the delinquent act charged, the right to contest the charge, and the rights which will be waived if the admission is accepted by the court; and

(3)  there is a factual basis for the delinquent act charged in the petition.

(d)  A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence. 

(e)  If the merits are contested, the court, after hearing the evidence, shall make its findings on the record. 

(f)  If the court finds that the allegations made in the petition have not been established beyond a reasonable doubt, the court shall dismiss the petition and vacate any orders transferring custody to the state or other person or any conditional custody orders.

(g)  If, based on the child’s admission or the evidence presented, the court finds beyond a reasonable doubt that the child has committed a delinquent act, the court shall order the department to prepare a disposition case plan within 28 days of the merits adjudication and shall set the matter for a disposition hearing.  In no event, shall a disposition hearing be held later than 35 days after a finding that a child is delinquent.

(h)  The court may proceed directly to disposition providing that the child, the custodial parent, the state’s attorney, and the department agree.

§ 5230.  Disposition Case Plan

(a)  Filing of case plan.  The department shall file a disposition case plan no later than 28 days from the date of the finding by the court that a child is delinquent.  The disposition case plan shall not be used or referred to as evidence prior to a finding that a child is delinquent.

(b)  Content of case plan.  A disposition case plan shall include, as appropriate:

(1)  An assessment of the child’s medical, psychological, social, educational, and vocational needs.

(2)  An assessment of the impact of the delinquent act on the victim and the community, including, whenever possible, a statement from the victim.

(3)  A description of the child’s home, school, community, and current living situation.

(4)  An assessment of the child’s and family’s strengths and risk factors.

(5)  Proposed conditions of probation which address the identified risks and provide for, to the extent possible, repair of the harm to victims and the community.  Proposed conditions may include a recommendation as to the term of probation. 

(6)  The plan of services shall describe the responsibilities of the child, the parent, guardian or custodian, the department, other family members, and treatment providers, including a description of the services required to achieve successful completion of the goals of probation and, if the child has been placed in the custody of the department, the permanency goal.

(c)  Case plan for child in custody.  If a child is in the custody of the commissioner at the time of disposition or if a transfer of custody is requested, the case plan shall include the following additional information:

(1)  A permanency goal if the child is in custody.  The long-term goal for a child found to be delinquent and placed in the custody of the department is a safe and permanent home.  A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal.  The plan shall specify whether permanency will be achieved through reunification with a parent, custodian, or guardian; adoption; permanent guardianship; or other permanent placement.  In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.

(2)  A recommendation with respect to custody for the child and a recommendation for parent-child contact if appropriate.

(3)  A request for child support if the child has been placed in the custody of the department or the department recommends a transfer of custody.

§ 5231.  Disposition Hearing

(a)  Timeline.  A disposition hearing shall be held no later than 35 days after a finding that a child is delinquent.

(b)  Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.   If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.

(c)  Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of such termination shall be clear and convincing evidence.  On all other issues, the standard of proof shall be a preponderance of the evidence. 

(d)  Termination of parental rights.  If the commissioner or the attorney for the child seeks an order terminating parental rights of one or both parents and transfer of custody to the commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.

(e)  Further hearing.  On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.  The court shall make an appropriate order for the temporary care of the child pending a final disposition order.  The court shall give scheduling priority to cases in which the child has been removed from the home.

§ 5232.  Disposition Order 

(a)  If a child is found to be a delinquent child, the court shall make such orders at disposition as may provide for:

(1)  the child’s supervision, care, and rehabilitation;

(2)  the protection of the community;

(3)  accountability to victims and the community for offenses committed; and

(4)  the development of competencies to enable the child to become a responsible and productive member of the community. 

(b)  In carrying out the purposes outlined in subsection (a) of this section, the court may:

(1)  Place the child on probation subject to the supervision of the commissioner, upon such conditions as the court may prescribe.  The length of probation shall be as prescribed by the court or until further order of the court.

(2)  Order custody of the child be given to the custodial parent, guardian, or custodian.  For a fixed period of time following disposition, the court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety of the child and the community.   Conditions may include protective supervision for up to one year following the disposition order unless further extended by court order.    The court shall schedule regular review hearings to determine whether the conditions continue to be necessary.

(3)  Transfer custody of the child to a noncustodial parent, relative, or person with a significant connection to the child.

(4)  Transfer custody of the child to the commissioner.

(5)  Terminate parental rights and transfer custody and guardianship to the department without limitation as to adoption.

(c)  If the court orders the transfer of custody of the child pursuant to subdivisions (b)(4) and (5) of this section, the court shall establish a permanency goal for the child and adopt a case plan prepared by the department designed to achieve the permanency goal.  If the court determines that the plan proposed by the department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the department and order the department to prepare and submit a revised plan for court approval.

§ 5233.  Victim’s statement at disposition proceeding;

               victim notification

(a)  Upon the filing of a delinquency petition, the court shall notify a victim of his or her rights as provided by law and his or her responsibilities regarding the confidential nature of juvenile proceedings.

(b)  A victim of a delinquent act has the right in a disposition proceeding to file with the court a written or recorded statement of the impact of the delinquent act on the victim and the need for restitution.  A victim of a delinquent act involving a listed crime also has the right to be present at the disposition hearing for the sole purpose of presenting to the court the impact of the delinquent act on the victim and the need for restitution.  A victim of a delinquent act that is not a listed crime may be present at the disposition hearing for the sole purpose of presenting to the court the impact of the delinquent act on the victim and the need for restitution if the court finds that the victim’s presence at the disposition hearing is in the best interests of the child and the victim.  The court shall take a victim’s views into consideration in the court’s disposition order.  A victim shall not be allowed to be personally present at any portion of the disposition hearing except to present the impact statement unless authorized by the court.

(c)  After an adjudication of delinquency has been made involving an act that is not a listed crime, the court shall inform the victim of the disposition of the case.  Upon request of the victim, the court may release to the victim the identity of the child if the court finds that release of the child’s identity to the victim is in the best interests of both the child and the victim.

(d)  After an adjudication of delinquency has been made involving an act that is a listed crime, the state’s attorney’s office shall inform the victim of the disposition in the case.  Upon request of the victim, the state’s attorney’s  office shall release to the victim the identity of the child. 

(e)  For the purposes of this section, disposition in the case shall include whether the child was placed on probation and information regarding conditions of probation relevant to the victim.

§ 5234.  Rights of victims in delinquency proceedings

               involving a listed crime

The victim in a delinquency proceeding involving a listed crime shall have the following rights:

(1)  To be notified by the prosecutor’s office in a timely manner when a predispositional or dispositional court proceeding is scheduled to take place and when a court proceeding of which he or she has been notified will not take place as scheduled.

(2)  To be notified by the prosecutor’s office as to whether delinquency has been found and disposition has occurred, including any conditions or restitution relevant to the victim.

(3)  To present a victim’s impact statement at the disposition hearing in accordance with subsection 5233(b) of this title and to be notified as to the disposition pursuant to subsection 5233(d) of this title.

(4)  Upon request, to be notified by the agency having custody of the delinquent child before he or she is discharged from a secure or staff-secured residential facility. The name of the facility shall not be disclosed.  An agency’s inability to give notification shall not preclude the release.  However, in such an event, the agency shall take reasonable steps to give notification of the release as soon thereafter as practicable.  Notification efforts shall be deemed reasonable if the agency attempts to contact the victim at the address or telephone number provided to the agency in the request for notification.

(5)  To obtain the name of the child in accordance with sections 5226 and 5233 of this title.

(6)  To be notified by the court of the victim’s rights under this section.

§ 5235.  JUVENILE RESTITUTION

(a)  Restitution shall be considered in every case in which a victim of a delinquent act has suffered a material loss.  For purposes of this section, “material loss” means uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.

(b)  When ordered, restitution may include:

(1)  return of property wrongfully taken from the victim;

(2)  cash, credit card, or installment payments paid to the restitution unit; and

(3)  payments in kind, if acceptable to the victim.

(c)  In awarding restitution, the court shall make findings in accordance with subdivision 5262(b)(2) of this title.

(d)  If restitution is ordered, the victim shall be entitled to payment from the crime victims’ restitution fund, pursuant to 13 V.S.A. § 5363.  An order of restitution shall establish the amount of material loss incurred by the victim, which shall be the restitution judgment order.  Every order of restitution shall include:

(1)  the juvenile’s name and address;

(2)  the name of the victim;

(3)  the amount ordered; and

(4)  any co-defendant names if applicable.

(e)  In the event the juvenile is unable to pay the restitution judgment order at the time of disposition, the court shall fix the amount thereof, which shall not exceed an amount the juvenile can or will be able to pay, and shall fix the manner of performance or refer to a restorative justice program that will address how loss resulting from the delinquency will be addressed, subject to modification under section 5264 of this title.

(f)  The court shall transmit a copy of a restitution order to the restitution unit, which shall make payment to the victim in accordance with 13 V.S.A. § 5363.

(g)  To the extent that the victims’ compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of Title 13, restitution, if imposed, shall be paid to the restitution unit, which shall make payment to the crime victims’ compensation fund.

(h)  When restitution is requested but not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(i)  Any information concerning restitution payments made by a juvenile shall be available to the Vermont restitution unit for purposes of determining restitution obligations of adult and juvenile co-defendants.

(j)  In accordance with 13 V.S.A. § 5363, the restitution unit is authorized to make payments to victims of delinquent acts where restitution was ordered by a court prior to July 1, 2008, and the order was first entered on or after July 1, 2004.

(k)(1)  The restitution unit may bring an action to enforce a restitution order issued under this section in the superior or small claims court of the county where the offender resides or in the county where the order was issued.  In an action under this subsection, a restitution order issued in a juvenile proceeding shall be enforceable in superior or small claims court in the same manner as a civil judgment.  Superior and small claims court filing fees shall be waived for an action under this subsection, and for an action to renew a restitution judgment.

(2)  An action under this subsection may be brought only after the offender reaches 18 years of age, and shall not be subject to any limitations period.

(3)  For purposes of this subsection, a restitution order issued in a juvenile proceeding shall not be confidential.

Subchapter 3.  Children in Custody

§ 5251.  Taking into custody

A child may be taken into custody by an officer:

(1)  pursuant to the laws of arrest of this state;

(2)  pursuant to an order of the court under the provisions of this chapter and chapters 51 and 53 of this title; or

(3)  when the officer has reasonable grounds to believe that the child has committed a delinquent act; and that the child’s immediate welfare or the protection of the community, or both, require the child’s removal from the child’s current home.   

§ 5252.  Request for Emergency Care Order 

(a)  If an officer takes a child who is alleged to be delinquent into custody, the officer shall immediately notify the child’s custodial parent, guardian, or custodian and release the child to the care of child’s custodial parent, guardian, or custodian unless the officer determines that the child’s immediate welfare or the protection of the community, or both, require the child’s continued removal from the home.

(b)  If the officer determines that the child’s immediate welfare, the protection of the community, or both, require the child’s continued removal from the home, the officer shall:

(1)  Take the child into custody pending either issuance of an emergency care order or direction from the state’s attorney to release the child.

(2)  Prepare an affidavit in support of a request for an emergency care order.  The affidavit shall include the reasons for taking the child into custody and, if known, placements with which the child is familiar, the names, addresses, and phone numbers of the child’s parents, guardians, or custodians, and the name, address, and phone number of any relative who has indicated an interest in taking temporary custody of the child.  The officer shall contact the department, and, if the department has knowledge of the reasons for the removal of the child, the department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer.

(3)  Provide the affidavit to the state’s attorney. 

(c)  If the child is taken into custody during regular court hours, the state’s attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child’s custodial parent, guardian, or custodian.    If the child is taken into custody after regular court hours or on a weekend or holiday, the state’s attorney or officer shall contact a judge to request an emergency care order or return the child to the child’s custodial parent, guardian, or custodian.  If an order is granted, the state’s attorney shall file the supporting affidavit with the family court on the next day that the court is open.  

(d)  If the judge denies a request for an emergency care order, the state’s attorney shall direct the immediate return of the child to the child’s custodial parent, guardian, or custodian.    

§ 5253.  Emergency Care Order; CONDITIONAL CUSTODY

               ORDER

(a)(1)  Transfer of temporary custody.  The court may issue an emergency care order transferring temporary custody of the child to the department pending a temporary care hearing if the court determines that:

(A)  there is probable cause that the child has committed a delinquent act; and

(B)  continued residence in the home is contrary to the child’s welfare because:

(i)  the child cannot be controlled at home and is at risk of harm to self or others; or

(ii)  continued residence in the home will not safeguard the

well-being of the child and the safety of the community because of the serious and dangerous nature of the act the juvenile is alleged to have committed. 

(2)  The determination may be made ex parte, provided that it is reasonably supported by the affidavit prepared in accordance with subsection 5152(b) of this title. 

(b)  Contents of emergency care order.  The emergency care order shall contain:  

(1)  A written finding that the child’s continued residence in the home is contrary to the child’s welfare and the factual allegations that support that finding.

(2)  The date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title.

(3)  Notice of a parent’s right to counsel at the temporary care hearing.

(c)  Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian, the court may deny the request for an emergency care order and issue an emergency conditional custody order.  The order shall contain:

(1)  Conditions and limitations necessary to protect the child, the community, or both.

(2)  The date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title.

(3)  Notice of a parent’s right to counsel at the hearing. 

§ 5254.   Notice of Emergency Care Order and Temporary

               Care Hearing

(a)  Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the custodial parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify or cause to be notified the custodial parent, guardian, or custodian of the order, the date, time, and place of the temporary care hearing, and the right to counsel.  If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the custodial parent, guardian, or custodian.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with the emergency care or conditional custody order, notice of the date, hour, and place of the temporary care hearing and of the right to counsel.  If the noncustodial parent cannot be located, the department shall provide to the court a summary of the efforts made to locate the noncustodial parent.

(c)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  The department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent each parent.  The attorney may be

court-appointed in the event a parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent.

§ 5255.  Temporary Care Hearing     

(a)  A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5253 of this title.  State holidays shall be excluded from the computation of 72 hours.  If the custodial parent, guardian, or custodian has not been notified in accordance with section 5254 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.

(b)  If the state’s attorney is seeking a temporary care order, the state’s attorney shall file a petition on or before the temporary care hearing.  If the state’s attorney elects not to file a petition, the state’s attorney shall so notify the court, and the court shall vacate any temporary orders.

(c)  The following persons shall be present at the temporary care hearing:

(1)  The child.

(2)  The child’s custodial parent, guardian, or custodian, unless he or she cannot be located or fails to appear in response to notice.

(3)  The child’s guardian ad litem.

(4)  An attorney for the child.

(5)  An attorney for the custodial parent, if requested.

(6)  A representative of the department.

(7)  The state’s attorney.

(d)   A noncustodial parent and his or her attorney shall have the right to be present at the hearing.  The hearing shall not be delayed by reason of the inability of the department to locate the noncustodial parent. 

(e)  The department shall provide the following information to the court at the hearing:

(1)  Any reasons for the child’s removal which are not set forth in the affidavit required pursuant to section 5252 of this title.

(2)  Services, if any, provided to the child and the family in an effort to prevent removal.

(3)  The need, if any, for continued custody of the child with the department pending a hearing to adjudicate the merits of the petition.

(4)  Services which could facilitate the return of the child to the custody of the parent or guardian.

(5)(A)  The identity of a noncustodial parent and any relatives known to the department who may be suitable, willing, and available to assume temporary custody of the child.

(B)  With respect to any person whom the department identifies pursuant to this subdivision, the department shall conduct an assessment of the suitability of the person to care for the child.  The assessment shall include consideration of the person’s ability to care for the child’s needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection, and a check of allegations of prior child abuse or neglect by the person or by other adults in the person’s home.  The court may continue the hearing if necessary to permit the department to complete the assessment.

(C)  The department shall request from the Vermont criminal information center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision.  The request shall be in writing and shall be accompanied by a release signed by the person.  The department through the Vermont criminal information center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed.  If no disqualifying record is identified at the state level, the department through the Vermont criminal information center shall request from the Federal Bureau of Investigation a national criminal history record check of the person's criminal history.  The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont criminal information center.  The Vermont criminal information center shall send the department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the department that no record exists.  The department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont criminal information center.  Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.

(6)  Additional information as required by the Uniform Child Custody Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare Act pursuant to 25 U.S.C. § 1901 et seq. 

(f)  All parties shall have the right to present evidence on their own behalf and examine witnesses.  Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible.  The court may in its discretion limit testimony and evidence to only that which goes to the issues of removal, custody, and the child’s welfare. 

(g)  The temporary care hearing shall also be a preliminary hearing on the petition.

§ 5256.  Temporary Care Order

(a)  The court shall order that custody be returned to the child’s custodial parent, guardian, or custodian unless the court finds by a preponderance of the evidence that return to the home would be contrary to the welfare of the child because of any of the following:

(1)  The child cannot be controlled at home and is at risk of harm to self or others.

(2)  Continued residence in the home will not protect the community because of the serious and dangerous nature of the act the child is alleged to have committed.

(3)  The child’s welfare is otherwise endangered.

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child, and the safety of the community, including:

(1)  A conditional custody order returning custody of the child to the custodial parent, guardian, or custodian, subject to such conditions and limitation as the court may deem necessary and sufficient to protect the child and the community.

(2)  An order transferring temporary custody of the child to a noncustodial parent or a relative.

(3)  A temporary care order transferring temporary custody of the child to the commissioner.

(c)(1)  If the court transfers custody of the child to the commissioner, the court shall issue a written temporary care order.  The order shall include:

(A)  a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and

(B)  a finding as to whether reasonable efforts were made to prevent the unnecessary removal of the child from the home.

(2)  If at the conclusion of the hearing the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.

(3)  The order may include such other provisions as may be necessary for the protection and welfare of the child:

(A)  Conditions of release.

(B)  An order for parent-child contact under such terms and conditions as are necessary for the protection of the child.

(C)  An order that the department provide the child with services if legal custody of the child has been transferred to the commissioner.

(D)  An order that the department refer a parent to services.

(E)  A genetic testing order if parentage of the child is at issue.

(F)  An order that the department make diligent efforts to locate the noncustodial parent.

(G)  An order that the custodial parent provide the department with names of all potential noncustodial parents and relatives of the child.

(H)  An order establishing protective supervision and requiring the department to make appropriate service referrals for the child and the family if legal custody is transferred to an individual other than the commissioner.

(4)  In his or her discretion, the commissioner may provide assistance and services to children and families to the extent that funds permit, notwithstanding subdivision (3)(C) of this subsection.

§ 5257.  Filing of Initial Case Plan

(a)  If a temporary care order is issued granting custody to the commissioner, the department shall prepare and file with the court an initial case plan for the child and the family within 60 days of the child’s removal from the home.  The department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.

(b)  The initial case plan shall not be used or referred to as evidence prior to a finding that the child has committed a delinquent act.

§ 5258.  PostDisposition Review and Permanency Review

               for Delinquents in Custody

Whenever custody of a delinquent child is transferred to the commissioner, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title.  At the permanency review, the court shall review the permanency plan and determine whether the plan advances the permanency goal recommended by the department.  The court may accept or reject the plan, but may not designate a particular placement for a child in the department’s legal custody.

Subchapter 4.  Probation

§ 5261.  Powers and responsibilities of the commissioner

               regarding juvenile probation

The commissioner shall be charged with the following powers and responsibilities regarding the administration of juvenile probation:

(1)  To maintain supervision of juveniles placed on probation.

(2)  To supervise the administration of juvenile probation services, including the authority to enter into contracts with community-based agencies to provide probation services which may include restitution and community service programs and to establish policies and standards and adopt rules regarding juvenile probation investigation, supervision, casework and caseloads, record-keeping, and the qualification of juvenile probation officers.

(3)  To prescribe rules, consistent with any orders of the court, governing the conduct of juveniles on probation.

§ 5262.  Conditions of probation

(a)  The conditions of probation shall be such as the court in its discretion deems necessary to ensure to the greatest extent reasonably possible that the juvenile will be provided a program of treatment, training, and rehabilitation consistent with the protection of the public interest. The court shall provide as an explicit condition of every juvenile probation certificate that if the juvenile is adjudicated a delinquent or is convicted of an adult crime while on probation, then the court may find the juvenile in violation of the conditions of probation.

(b)  The court may, as a condition of probation, require that the juvenile:

(1)  Work faithfully for a prescribed number of hours at a community service activity acceptable to the court or, if so ordered by the court, at a community service activity acceptable to a probation officer.

(2)  Make restitution or reparation to the victim of the juvenile’s conduct for the damage or injury which was sustained. When restitution or reparation is a condition of probation, the court shall fix the amount thereof.  The court shall further determine the amount the juvenile can or will be able to pay and fix the manner of performance.  In the alternative, the court may refer the determination of the amount, the ability to pay, and the manner of performance to a restorative justice panel.

(3)  Participate in programs designed to develop competencies to enable the child to become a responsible and productive member of the community. 

(4)  Refrain from purchasing or possessing a firearm or ammunition, any destructive device, or any dangerous weapon unless granted written permission by the court or juvenile probation officer.

(5)  Report to a juvenile probation officer at reasonable times as directed by the court or the probation officer.

(6)  Permit the juvenile probation officer to visit the juvenile at reasonable times at home or elsewhere.

(7)  Remain within the jurisdiction of the court unless granted permission to leave by the court or the probation officer.

(8)  Answer all reasonable inquiries by the juvenile probation officer and promptly notify the probation officer of any change in address or employment.

(9)  Satisfy any other conditions reasonably related to the juvenile’s rehabilitation.

(10)  Reside at home or other location specified by the court.

(11)  Attend or reside at an educational or vocational facility or a facility established for the instruction, recreation, or residence of persons on probation.

(12)  Work faithfully at suitable employment or faithfully pursue a course of study or of vocational training that will equip the juvenile for suitable employment.

(13)  Undergo available medical treatment, participate in psychiatric treatment or mental health counseling, and participate in alcohol or drug abuse assessment or treatment on an outpatient or inpatient basis.

§ 5263.  Juvenile probation certificate 

(a)  When a juvenile is placed on probation, the court shall issue a written juvenile probation certificate setting forth:

(1)  the name of the juvenile;

(2)  the nature of the delinquent act committed by the juvenile;

(3)  the date and place of the juvenile delinquency hearing;

(4)  the order of the court placing the juvenile on probation; and

(5)  the conditions of the juvenile’s probation.

(b)  The juvenile probation certificate shall be furnished to and signed by the juvenile and a custodial parent, guardian or custodian of the child, if other than parent.  It shall be fully explained to them, and they shall be informed about the consequences of violating the conditions of probation, including the possibility of revocation of probation.  A copy of the juvenile probation certificate shall also be furnished to the commissioner.  The probation certificate is not invalidated if it is not signed as required by this subsection.

(c)  The signature of a custodial parent, guardian, or custodian on a probation certificate shall constitute verification that the parent, guardian, or custodian understands the terms of juvenile probation and agrees to facilitate and support the child’s compliance with such terms and to attend treatment programs with the child as recommended by the treatment provider.

(d)  The juvenile probation certificate shall be full authority for the exercise by the commissioner of all the rights and powers over and in relation to the juvenile prescribed by law and by the order of the court.

§ 5264.  Modification of conditions  

(a)  During the period of probation, the court, on application of a juvenile probation officer, the state’s attorney, the juvenile, or on its own motion may modify the requirements imposed upon the juvenile or add further requirements authorized by section 5262 of this title.  A juvenile may request modification of a restitution issue determined by a restorative panel.

(b)  Whenever the court proposes any modification of the conditions of probation, the juvenile probationer shall have a reasonable opportunity to contest the modification prior to its imposition.

§ 5265.  Violation of conditions of probation 

(a)  If the juvenile fails to comply with conditions of probation, the state’s attorney, a juvenile probation officer, or the court on its own motion may initiate a proceeding to establish that the juvenile is in violation of probation conditions.

(b)  A juvenile probationer shall not be found in violation of conditions of probation unless the juvenile probationer is found to have violated a condition of probation, is again adjudicated a delinquent, or is convicted of a crime.

§ 5266.  Summons, apprehension, and detention of juvenile

               probationer

At any time before the discharge of a juvenile probationer or the termination of the period of probation:

(1)  The court may summon the juvenile to appear before it or may issue an order for the juvenile’s detention.

(2)  Any juvenile probation officer may detain a juvenile probationer or may authorize any officer to do so by giving the officer a written statement setting forth that the juvenile has, in the judgment of the juvenile probation officer, violated a condition of probation.  The written statement delivered with the juvenile by the detaining officer to the supervisor of the juvenile facility or residential program to which the juvenile is brought for detention shall be sufficient authority for detaining the juvenile.

(3)  Any juvenile probationer apprehended or detained in accordance with the provisions of this chapter shall have no right of action against the juvenile probation officer or any other person because of such apprehension or detention.

§ 5267.  Detention hearing 

(a)  Whenever a juvenile probationer is detained on the grounds that the juvenile has violated a condition of probation, the juvenile shall be given a hearing before a judicial officer prior to the close of business on the next court business day in order to determine whether there is probable cause to hold the juvenile for a violation hearing.  The juvenile and the adult who signed the probation certificate shall be given:

(1)  notice of the detention hearing and its purpose and the allegations of violations of conditions of probation; and

(2)  notice of the juvenile’s right to be represented by counsel and right to be assigned counsel if the juvenile is unable to obtain counsel.

(b)  At the detention hearing the juvenile shall be given:

(1)  an opportunity to appear at the hearing and present evidence on his or her own behalf; and

(2)  upon request, the opportunity to question witnesses against him or her unless, for good cause, the judicial officer decides that justice does not require the appearance of the witness.

(c)  If probable cause is found to exist, the juvenile shall be held for a hearing to determine if the juvenile violated the conditions of probation.  If probable cause is not found to exist, the proceedings shall be dismissed.

(d)  A juvenile held in detention pursuant to a request to find the juvenile in violation of probation may be released by a judicial officer pending hearing or appeal.

§ 5268.  Notice; violation hearing 

(a)  The court shall not find a juvenile in violation of the juvenile’s probation without a hearing, which shall be held promptly in the court in which the probation was imposed.  If the juvenile is held in detention prior to the hearing, the hearing shall take place at the earliest possible time.  Prior to the hearing, the juvenile and the adult who signed the probation certificate shall receive a written notice of the hearing at his or her last known address stating that the juvenile has allegedly violated one or more conditions of probation and which condition or conditions have been violated.  At the hearing, the juvenile shall have:

(1)  The right to legal counsel if requested by the juvenile probationer or the adult who signed the probation certificate to be assigned by the court in the same manner as in criminal cases.

(2)  The right to disclosure of evidence against the juvenile.

(3)  The opportunity to appear and to present evidence on the juvenile’s behalf.

(4)  The opportunity to question witnesses against the juvenile.

(b)  The state’s attorney having jurisdiction or the commissioner shall establish the alleged violation by a preponderance of the evidence, if the juvenile probationer contests the allegation.

§ 5269.  Disposition alternatives upon violation of

               conditions of probation 

If a violation of conditions of probation is established, the court may, in its discretion, modify the conditions of probation or order any of the disposition alternatives provided for in section 5232 of this title.

§ 5270.  Final judgment 

An order placing a juvenile on probation and a finding that a juvenile violated a condition of probation shall constitute a final judgment.

§ 5271.  Discharge from probation 

(a)  The court placing a juvenile on probation may terminate probation and discharge the juvenile at any time.

(b)  Upon the termination of the period of probation, the juvenile probationer shall be discharged from probation.

§ 5272.  Juvenile justice unit; juvenile justice director 

(a)  A juvenile justice unit is created in the family services division of the department.  The unit shall be headed by a juvenile justice director.

(b)  The juvenile justice director shall have the responsibility and authority to monitor and coordinate all state and participating regional and local programs that deal with juvenile justice issues, including prevention, education, enforcement, adjudication, and rehabilitation.

(c)  The juvenile justice director shall ensure that the following occur:

(1)  Development of a comprehensive plan for a coordinated and sustained statewide program to reduce the number of juvenile offenders, involving state, regional, and local officials in the areas of health, education, prevention, law enforcement, corrections, teen activities, and community wellness.

(2)  Cooperation among state, regional, and local officials, court personnel, service providers, and law enforcement agencies in the formulation and execution of a coordinated statewide juvenile justice program.

(3)  Cooperation among appropriate departments, including the department and the departments of education, corrections, employment and training, developmental and mental health services, and public safety, and the office of alcohol and drug abuse programs.

(4)  A study of issues relating to juvenile justice and development of recommendations regarding changes in law and rules, as deemed advisable.

(5)  Compilation of data on issues relating to juvenile justice and analysis, study, and organization of such data for use by educators, researchers, policy advocates, administrators, legislators, and the governor.

Subchapter 5.  Youthful Offenders

§ 5281.  MOTION IN DISTRICT COURT

(a)  A motion may be filed in the district court requesting that a defendant under 18 years of age in a criminal proceeding who had attained the age of 10 but not the age of 18 at the time the offense is alleged to have been committed be treated as a youthful offender.  The motion may be filed by the state’s attorney, the defendant, or the court on its own motion.

(b)  Upon the filing of a motion under this section and the entering of a conditional plea of guilty by the youth, the district court shall enter an order deferring the sentence and transferring the case to the family court for a hearing on the motion.  Copies of all records relating to the case shall be forwarded to the family court.  Conditions of release and any department of corrections supervision or custody shall remain in effect until the family court approves the motion for treatment as a youthful offender and orders conditions of juvenile probation pursuant to section 5284 of this title.

(c)  A plea of guilty entered by the youth pursuant to subsection (b) of this section shall be conditional upon the family court granting the motion for youthful offender status. 

(d)(1)  If the family court denies the motion for youthful offender treatment pursuant to subsection 5284 of this title, the case shall be returned to the district court and the youth shall be permitted to withdraw the plea.  The conditions of release imposed by the district court shall remain in effect, and the case shall proceed as though the motion for youthful offender treatment had not been made. 

(2)  Subject to Rule 11 of the Vermont Rules of Criminal Procedure and Rule 410 of the Vermont Rules of Evidence, the family court’s denial of the motion for youthful offender treatment and any information related to the youthful offender proceeding shall be inadmissible against the youth for any purpose in the subsequent criminal proceeding in district court.   

§ 5282.  REPORT FROM THE DEPARTMENT

(a)  Within 30 days after the case is transferred to family court, unless the court extends the period for good cause shown, the department shall file a report with the family court.

(b)  A report filed pursuant to this section shall include the following elements:

(1)  A recommendation as to whether youthful offender status is appropriate for the youth.

(2)  A disposition case plan including proposed services and proposed conditions of juvenile probation in the event youthful offender status is approved. 

(3)  A description of the services that may be available for the youth when he or she reaches 18 years of age.

(c)  A report filed pursuant to this section is privileged and shall not be disclosed to any person other than the department, the court, the state’s attorney, the youth, the youth’s attorney, the youth’s guardian ad litem, the department of corrections, or any other person when the court determines that the best interests of the youth would make such a disclosure desirable or helpful.

§ 5283.  HEARING IN FAMILY COURT

(a)  Timeline.  A hearing on the motion for youthful offender status shall be held no later than 35 days after the transfer of the case from district court.

(b)  Notice.  Notice of the hearing shall be provided to the state’s attorney; the youth; the youth’s parent, guardian, or custodian; the department; and the department of corrections.

(c)  Hearing procedure.   

(1)  If the motion is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.   If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.

(2)  Hearings under subsection 5284(a) of this title shall be open to the public.  All other youthful offender proceedings shall be confidential.

(d)  The burden of proof shall be on the moving party to prove by a preponderance of the evidence that a child should be granted youthful offender status.  If the court makes the motion, the burden shall be on the youth.

(e)  Further hearing.  On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.    

§ 5284.  DETERMINATION AND ORDER

(a)  In a hearing on a motion for youthful offender status, the court shall first consider whether public safety will be protected by treating the youth as a youthful offender.  If the court finds that public safety will not be protected by treating the youth as a youthful offender, the court shall deny the motion and return the case to district court pursuant to subsection 5281(d) of this title.  If the court finds that public safety will be protected by treating the youth as a youthful offender, the court shall proceed to make a determination under subsection (b) of this section.

(b)(1)  The court shall deny the motion if the court finds that:

(A)  the youth is not amenable to treatment or rehabilitation as a youthful offender; or

(B)  there are insufficient services in the juvenile court system and the department to meet the youth’s treatment and rehabilitation needs.

(2)  The court shall grant the motion if the court finds that:

(A)  the youth is amenable to treatment or rehabilitation as a youthful offender; and

(B)  there are sufficient services in the juvenile court system and the department to meet the youth’s treatment and rehabilitation needs.

(c)  If the court approves the motion for youthful offender treatment, the court:

(1)  shall approve a disposition case plan and impose conditions of juvenile probation on the youth; and

(2)  may transfer legal custody of the youth to a parent, relative, person with a significant relationship with the youth, or commissioner, provided that any transfer of custody shall expire on the youth’s eighteenth birthday. 

(d)  The department shall be responsible for supervision of and providing services to the youth until he or she reaches the age of 18.  A lead case manager shall be designated who shall have final decision-making authority over the case plan and the provision of services to the youth.  The youth shall be eligible for appropriate community-based programming and services provided by the department.

(e)  The youth shall not be permitted to withdraw his or her plea of guilty after youthful offender status is approved except to correct manifest injustice pursuant to rule 32(d) of the Vermont Rules of Criminal Procedure. 

§ 5285.  Modification or revocation of disposition

(a)  If it appears that the youth has violated the terms of juvenile probation ordered by the court pursuant to subdivision 5284(c)(1) of this title, a motion for modification or revocation of youthful offender status may be filed in family court.  The court shall set the motion for hearing as soon as practicable. The hearing may be joined with a hearing on a violation of conditions of probation under section 5265 of this title.  A supervising juvenile or adult probation officer may detain in an adult facility a youthful offender who has attained the age of 18 for violating conditions of probation.  

(b)  A hearing under this section shall be held in accordance with section 5268 of this title.

(c)  If the court finds after the hearing that the youth has violated the terms of his or her probation, the court may:

(1)  maintain the youth’s status as a youthful offender, with modified conditions of juvenile probation if the court deems it appropriate;

(2)  revoke the youth’s status as a youthful offender status and return the case to the district court for sentencing; or

(3)  transfer supervision of the youth to the department of corrections.

(d)  If a youth’s status as a youthful offender is revoked and the case is returned to the district court under subdivision (c)(2) of this section, the district court shall hold a sentencing hearing and impose sentence.  When determining an appropriate sentence, the district court may take into consideration the youth’s degree of progress toward rehabilitation while on youthful offender status.  The district court shall have access to all family court records of the proceeding.  

§ 5286.  Review prior to the age of 18

(a)  The family court shall review the youth’s case before he or she reaches the age of 18 and set a hearing to determine whether the court’s jurisdiction over the youth should be continued past the age of 18.   The hearing may be joined with a motion to terminate youthful offender status under section 5285 of this title.  The court shall provide notice and an opportunity to be heard at the hearing to the state’s attorney, the youth, the department, and the department of corrections. 

(b)  After receiving a notice of review under this section, the state may file a motion to modify or revoke pursuant to section 5285 of this title.  If such a motion is filed, it shall be consolidated with the review under this section and all options provided for under section 5285 of this title shall be available to the court.

(c)  The following reports shall be filed with the court prior to the hearing:

(1)  The department shall report its recommendations, with supporting justifications, as to whether the family court should continue jurisdiction over the youth past the age of 18 and, if continued jurisdiction is recommended, whether the department or the department of corrections should   be responsible for supervision of the youth.

(2)  If the department recommends that the department of corrections be responsible for supervision of the youthful offender past the age of 18, the department shall notify the department of corrections, which shall report on the services which would be available for the youth in the event supervision over him or her is transferred to the department of corrections.  

(d)  If the court finds that it is in the best interest of the youth and consistent with community safety to continue the case past the age of 18, it shall make an order continuing the court’s jurisdiction up to the age of 22.  The order shall specify whether the youth will be supervised by the department or the department of corrections.  Irrespective of which department is specified in the order, the department and the department of corrections shall jointly develop a case plan for the youth and coordinate services and share information to ensure compliance with and completion of the juvenile disposition.

(e)  If the court finds that it is not in the best interest of the youth to continue the case past the age of 18, it shall terminate the disposition order, discharge the youth, and dismiss the case in accordance with subsection 5287(c) of this title.

§ 5287.  Termination or continuance of PROBATION

(a)  A motion may be filed at any time in the family court requesting that the court terminate the youth’s status as a youthful offender and discharge him or her from probation.  The motion may be filed by the state’s attorney, the youth, the department, or the court on its own motion.  The court shall set the motion for hearing and provide notice and an opportunity to be heard at the hearing to the state’s attorney, the youth, and the department.   

(b)  In determining whether a youth has successfully completed the terms of probation, the court shall consider:

(1)  the degree to which the youth fulfilled the terms of the case plan and the probation order;

(2)  the youth’s performance during treatment;

(3)  reports of treatment personnel; and

(4)  any other relevant facts associated with the youth’s behavior.

(c)  If the court finds that the youth has successfully completed the terms of the probation order, it shall terminate youthful offender status, discharge the youth from probation, and file a written order dismissing the family court case.  The family court shall provide notice of the dismissal to the district court, which shall dismiss the district court case. 

(d)  Upon discharge and dismissal under subsection (c) of this section, all records relating to the case in the district court shall be expunged, and all records relating to the case in the family court shall be sealed pursuant to section 5119 of this title.

(e)  If the court denies the motion to discharge the youth from probation, the court may extend or amend the probation order as it deems necessary.

§ 5288.  Rights of victims in youthful offender

               proceedings

(a)  The victim in a proceeding involving a youthful offender shall have the following rights:

(1)  To be notified by the prosecutor in a timely manner when a court proceeding is scheduled to take place and when a court proceeding to which he or she has been notified will not take place as scheduled.

(2)  To be present during all court proceedings subject to the provisions of Rule 615 of the Vermont Rules of Evidence and to express reasonably his or her views concerning the offense and the youth.

(3)  To request notification by the agency having custody of the youth before the youth is released from a residential facility.

(4)  To be notified by the prosecutor as to the final disposition of the case.

(5)  To be notified by the prosecutor of the victim’s rights under this section.

(b)  In accordance with court rules, at a hearing on a motion for youthful offender treatment, the court shall ask if the victim is present and, if so, whether the victim would like to be heard regarding disposition.  In ordering disposition, the court shall consider any views offered at the hearing by the victim.  If the victim is not present, the court shall ask whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into consideration in ordering disposition.

(c)  No youthful offender proceeding shall be delayed or voided by reason of the failure to give the victim the required notice or the failure of the victim to appear.

(d)  For purposes of this section “victim” shall have the same meaning as in subdivision 5301(4) of Title 13.

Subchapter 6.  Placement of Minors in Secure Facilities

§ 5291.  Detention of Minors Charged as Delinquents in a

               Secure Facility for the Detention of Delinquent

               Children

(a)  Unless ordered otherwise at or after a temporary care hearing, the commissioner shall have sole authority to place the child who is in the custody of the department in a secure facility for the detention of minors.

(b)  Upon a finding at the temporary care hearing that no other suitable placement is available and the child presents a risk of injury to him- or herself, to others, or to property, the court may order that the child be placed in a secure facility used for the detention of delinquent children until the commissioner determines that a suitable placement is available for the child.  Alternatively, the court may order that the child be placed in a secure facility used for the detention of delinquent children for up to seven days.  Any order for placement at a secure facility shall expire at the end of the seventh day following its issuance unless, after hearing, the court extends the order for a time period not to exceed seven days.

§ 5292.  Detention in Adult Facilities of Minors Charged

               or Adjudicated as Delinquents

(a)  A minor charged with a delinquent act shall not be detained under this chapter in a jail or other facility intended or used for the detention of adults unless the child is alleged to have committed a crime punishable by life imprisonment and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.

(b)  A minor who has been adjudicated as a delinquent child shall not by virtue of such adjudication be committed or transferred to an institution or other facility used primarily for the execution of sentences of persons convicted of a crime.

(c)  The official in charge of a jail or other facility intended or used for the detention of adult offenders or persons charged with crime shall inform the court immediately when a minor who is or appears to be under the age of 18 years is received at the facility other than pursuant to subsection (a) of this section or section 5293 of this title and shall deliver the minor to the court upon request of the court or transfer the minor to the detention facility designated by the court by order.

§ 5293.  Disposition of minors adjudicated as adult

               offenders; separation of persons under 18 years

               from adults

(a)  Pretrial detention.

(1)  A minor who is under the age of 18 who has been arrested shall not be placed in a facility for adult offenders unless a felony charge has been filed in district court or the district court has exercised jurisdiction over the matter and the state’s attorney has determined that a felony charge will be filed without delay.  A minor who is eligible for release under chapter 229 of Title 13 shall be released.

(2)(A)  A minor who is under the age of 18 who has been arrested for a misdemeanor shall immediately and without first being taken elsewhere:

(i)  be released to his or her custodial parent, guardian, or custodian; or

(ii)  be delivered to the district court.

(B)  If the minor is delivered to the district court, the arresting officer shall immediately file written notice thereof with the court together with a statement of the reason for taking the minor into custody.  A minor who is eligible for release under chapter 229 of Title 13 shall be released.  In the event that the minor is not released:

(i)  the minor shall not be detained in a facility for adult offenders; and

(ii)  The court shall defer to the commissioner of corrections concerning the facility in which the minor shall be detained.

(b)  Sentencing of minor.  If a minor is convicted of an offense in a court of criminal jurisdiction as an adult, the court shall sentence the minor as an adult.

(c)  Placement of minors under 16. The commissioner of corrections shall not place a minor under the age of 16 who has been sentenced to a term of imprisonment in a correctional facility used to house adult offenders.

(d)  Placement of minors over 16 convicted of felony. The commissioner of corrections may place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a felony and who has been sentenced to a term of imprisonment.

(e)  Placement of minor over 16 convicted of misdemeanor.  The commissioner of corrections shall not place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a misdemeanor

(f)  Transfer of minor at 18th birthday. At the 18th birthday of a minor convicted of a misdemeanor, the commissioner may transfer the minor to a facility for adult offenders.

(g)  Applicability. The provisions of this section shall apply to the commitment of minors to institutions within or outside the state of Vermont.

Sec. 3.  33 V.S.A. chapter 53 is added to read:

Chapter 53.  Children in Need of Care

or Supervision

§ 5301.  Taking into custody 

A child may be taken into custody:

(1)  Pursuant to an order of the family court under the provisions of this chapter.

(2)  By an officer when the officer has reasonable grounds to believe that the child is in immediate danger from his or her surroundings and that removal from the child’s current home is necessary for the child’s protection.

(3)  By an officer when the officer has reasonable grounds to believe that the child has run away from a custodial parent, a foster parent, a guardian, a custodian, a noncustodial parent lawfully exercising parent-child contact, or care provider.

§ 5302.  Request for Emergency Care Order  

(a)  If an officer takes a child into custody pursuant to subdivision 5301(1) or (2) of this title, the officer shall immediately notify the child’s custodial parent, guardian, or custodian and release the child to the care of the child’s custodial parent, guardian, or custodian unless the officer determines that the child’s immediate welfare requires the child’s continued absence from the home.

(b)  If the officer determines that the child’s immediate welfare requires the child’s continued absence from the home, the officer shall:

(1)  Remove the child from the child’s surroundings, contact the department, and deliver the child to a location designated by the department.  The department shall have the authority to make reasonable decisions concerning the child’s immediate placement, safety and welfare pending the issuance of an emergency care order.

(2)  Prepare an affidavit in support of a request for an emergency care order and provide the affidavit to the state’s attorney.  The affidavit shall include:  the reasons for taking the child into custody; and to the degree known, potential placements with which the child is familiar; the names, addresses, and telephone number of the child’s parents, guardian, custodian, or care provider; the name, address, and telephone number of any relative who has indicated an interest in taking temporary custody of the child.  The officer shall contact the department and the department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer if the department has additional information with respect to the child or the family.

(c)  If the child is taken into custody during regular court hours, the state’s attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child’s custodial parent, guardian, or custodian.  If the child is taken into custody after regular court hours or on a weekend or holiday, the state’s attorney or officer shall contact a judge to request an emergency care order or return the child to the child’s custodial parent, guardian, or custodian.  If an order is granted, the state’s attorney shall file the supporting affidavit with the court on the next day that the court is open.

(d)  If the judge denies a request for an emergency care order, the state’s attorney shall direct the immediate return of the child to the child’s custodial parent, guardian, or custodian.    

§ 5303.  Procedure for runaway children  

(a)  If an officer takes a child into custody pursuant to subdivision 5301(3) of this title, the officer shall deliver the child to:  

(1)  the child’s custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising parent-child contact; or

(2)  a shelter designated by the department pursuant to section 5304 of this title as qualified to assist children who have run away for the purpose of reuniting them with their parents, guardian, or legal custodian.

(b)  Upon delivery of a child to a shelter, the shelter program director or his or her designee, shall notify the child’s parents, guardian, or custodian that the child has been taken into custody and make reasonable efforts to mediate the differences between the parties.

(c)  A child may remain at a designated shelter for a period not to exceed seven days.

(d)  Upon expiration of the seven-day period or sooner at the request of the child or the custodial parent:

(1)  the child shall be released to his or her custodial parent, foster parent, guardian, custodian, or noncustodial parent lawfully exercising

parent-child contact; or

(2)  an officer shall seek an emergency care order pursuant to section 5302 of this title.

(e)  Unless otherwise ordered by the court, the custody status of the child shall remain the same during the period of time the child is at the shelter.

§ 5304.  Designated shelters for runaway children  

The commissioner shall designate shelters throughout the state where a child taken into custody pursuant to subdivision 5301(3) of this title may be housed for a period not to exceed seven days.

§ 5305.  Emergency Care Order; CONDITIONAL CUSTODY

              ORDER

(a)  Transfer of temporary custody.  If the court determines that the child’s continued residence in the home is contrary to the child’s welfare, the court may issue an emergency care order transferring temporary custody of the child to the department pending a temporary care hearing.  The determination may be made ex parte, provided that it is reasonably supported by the affidavit prepared in accordance with section 5302 of this title. 

(b)  Contents of emergency care order.  The emergency care order shall contain: 

(1)  a written finding that the child’s continued residence in the home is contrary to the child’s welfare and the factual allegations that support that finding;

(2)  the date, hour, and place of the temporary care hearing to be held pursuant to section 5307 of this title; and

(3)  notice of a parent’s right to counsel at the temporary care hearing.

(c)  Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian subject to such conditions and limitations necessary and sufficient to protect the child pending a temporary care hearing, the court may deny the request for an emergency care order and issue an emergency conditional custody order.  An emergency conditional custody order shall contain the date, hour, and place of the temporary care hearing and notice of a parent’s right to counsel at the hearing.

§ 5306.  Notice of Emergency Care Order and TEMPORARY

              CARE Hearing

(a)  Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the custodial parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify or cause to be notified the custodial parent of the order, the date, the time and place of the temporary care hearing, and the parent’s right to counsel.  If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate such persons.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with the emergency care order or conditional custody order, notice of the date, hour, and place of the temporary care hearing, and right to counsel.  If the noncustodial parent cannot be located, the department shall provide to the court a summary of the efforts made to locate the parent.

(c)  Failure to locate.  The hearing shall not be delayed by reason of not being able to locate either the custodial or noncustodial parent.

(d)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  A representative of the department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent each parent.  The attorney may be

court-appointed in the event the parent is eligible, or may be an attorney who has entered an appearance on behalf of a parent. 

§ 5307.  Temporary Care Hearing

(a)  A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5305 of this title.  State holidays shall be excluded from the computation of 72 hours.   If the custodial parent, guardian, or custodian has not been notified in accordance with section 5306 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.

(b)  If the state’s attorney is seeking a temporary care order, he or she shall file a petition in accordance with section 5308 of this title prior to the temporary care hearing.  If the state’s attorney elects not to file a petition, he or she shall so notify the court, and the court shall vacate any temporary order order and order the return of the child to the custodial parent, guardian, or custodian.

(c)  The following persons shall be present at the temporary care hearing:

(1)  The child, unless the child is under 10 years of age and the presence of the child is waived by the child’s attorney.  For good cause shown, the court may waive the presence of a child who is 10 years of age or older.

(2)  The child’s custodial parent, guardian, or custodian, unless the custodial parent, guardian, or custodian cannot be located or fails to appear in response to notice.

(3)  The child’s guardian ad litem.

(4)  An attorney for the child.

(5)  An attorney for the custodial parent, if requested.

(6)  The department.

(7)  The state’s attorney.

(d)  A noncustodial parent and his or her attorney shall have the right to be present at the hearing; however, the hearing shall not be delayed by reason of the inability of the department to locate the noncustodial parent.

(e)  The department shall provide the following information to the court at the hearing:

(1)  Any reasons for the child’s removal which are not set forth in the affidavit required pursuant to subsection 5302(b) of this title.

(2)  Services, if any, provided to the child and the family in an effort to prevent removal.

(3)  The need, if any, for continued custody of the child with the department, pending a hearing to adjudicate the merits of the petition.

(4)  Services which could facilitate the return of the child to the custodial parent, guardian, or custodian.

(5)(A)  The identity and location of a noncustodial parent, a relative, or person with a significant relationship with the child known to the department who may be appropriate, capable, willing, and available to assume temporary legal custody of the child.  If the noncustodial parent cannot be located, the department shall provide to the court a summary of the efforts made to locate the parent.

(B)  With respect to any person whom the department identifies pursuant to this subdivision, the department shall conduct an assessment of the suitability of the person to care for the child.  The assessment shall include consideration of the person’s ability to care for the child’s needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection, and a check of allegations of prior child abuse or neglect by the person or by other adults in the person’s home.  The court may continue the hearing if necessary to permit the department to complete the assessment.

(C)  The department shall request from the Vermont criminal information center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision.  The request shall be in writing and shall be accompanied by a release signed by the person.  The department through the Vermont criminal information center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed.  If no disqualifying record is identified at the state level, the department through the Vermont criminal information center shall request from the Federal Bureau of Investigation a national criminal history record check of the person's criminal history.  The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont criminal information center.  The Vermont criminal information center shall send the department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the department that no record exists.  The department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont criminal information center.  Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.

(6)  Additional information as required by the Uniform Child Custody Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare Act pursuant to 25 U.S.C. § 1901 et seq. 

(f)  All parties shall have the right to present evidence on their own behalf and examine witnesses.  Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible.  The court may, in its discretion, limit testimony and evidence to only that which goes to the issues of removal of the child from the home and the child’s temporary legal custody.

(g)  The temporary care hearing shall also be a preliminary hearing on the petition.

§ 5308.  Temporary Care Order

(a)  The court shall order that legal custody be returned to the child’s custodial parent, guardian, or custodian unless the court finds by a preponderance of the evidence that a return home would be contrary to the child’s welfare because any one of the following exists:

(1)  A return of legal custody could result in substantial danger to the physical health, mental health, welfare, or safety of the child.

(2)  The child or another child residing in the same household has been physically or sexually abused by a custodial parent, guardian, or custodian, or by a member of the child’s household, or another person known to the custodial parent, guardian, or custodian.

(3)  The child or another child residing in the same household is at substantial risk of physical or sexual abuse by a custodial parent, guardian, or custodian, or by a member of the child’s household, or another person known to the custodial parent, guardian, or custodian.  It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:

(A)  a custodial parent, guardian, or custodian receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(B)  a custodial parent, guardian, or custodian knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(4)  The custodial parent, guardian, or guardian has abandoned the child.

(5)  The child or another child in the same household has been neglected and there is substantial risk of harm to the child who is the subject of the petition.

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the legal custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child, including, in order of preference:

(1)  A conditional custody order returning legal custody of the child to the custodial parent, guardian, or custodian, subject to such conditions and limitations as the court may deem necessary and sufficient to protect the child.

(2)(A)  An order transferring temporary legal custody to a noncustodial parent.  Provided that parentage is not contested, upon a request by a noncustodial parent for temporary legal custody and a personal appearance of the noncustodial  parent, the noncustodial parent shall present to the court a care plan that describes the history of the noncustodial parent’s contact with the child, including any reasons why contact did not occur, and that addresses:

(i)  the child’s need for a safe, secure, and stable home;

(ii)  the child’s need for proper and effective care and control; and

(iii)  the child’s need for a continuing relationship with the custodial parent, if appropriate.

(B)  The court shall consider court orders and findings from other proceedings related to the custody of the child.

(C)  The court shall transfer legal custody to the noncustodial parent unless the court finds by a preponderance of the evidence that the transfer would be contrary to the child’s welfare because any of the following exists:

(i)  The care plan fails to meet the criteria set forth in subdivision (2)(A) of this subsection.

(ii)  Transferring temporary legal custody of the child to the noncustodial parent could result in substantial danger to the physical health, mental health, welfare, or safety of the child.

(iii)  The child or another child residing in the same household as the noncustodial parent has been physically or sexually abused by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.

(iv)  The child or another child residing in the same household as the noncustodial parent is at substantial risk of physical or sexual abuse by the noncustodial parent or a member of the noncustodial parent’s household, or another person known to the noncustodial parent.  It shall constitute prima facie evidence that a child is at substantial risk of being physically or sexually abused if:

(I)  a noncustodial parent receives actual notice that a person has committed or is alleged to have committed physical or sexual abuse against a child; and

(II)  the noncustodial parent knowingly or recklessly allows the child to be in the physical presence of the alleged abuser after receiving such notice.

(v)  The child or another child in the noncustodial parent’s household has been neglected, and there is substantial risk of harm to the child who is the subject of the petition.

(D)  If the noncustodial parent’s request for temporary custody is contested, the court may continue the hearing and place the child in the temporary custody of the department, pending further hearing and resolution of the custody issue.  Absent good cause shown, the court shall hold a further hearing on the issue within 30 days.

(3)  An order transferring temporary legal custody of the child to a relative, provided:

(A)  The relative seeking legal custody is a grandparent,

great-grandparent, aunt, great-aunt, uncle, great-uncle, stepparent, sibling, or step-sibling of the child.

(B)  The relative is suitable to care for the child.  In determining suitability, the court shall consider the relationship of the child and the relative and the relative’s ability to:

(i)  Provide a safe, secure, and stable environment.

(ii)  Exercise proper and effective care and control of the child.

(iii)  Protect the child from the custodial parent to the degree the court deems such protection necessary.

(iv)  Support reunification efforts, if any, with the custodial parent.

(v)  Consider providing legal permanence if reunification fails.

(C)  In considering the suitability of a relative under this subdivision (3), the court may order the department to conduct an investigation and file a written report of its findings with the court.  The court may place the child in the temporary custody of the department, pending such investigation.

(4)  A temporary care order transferring temporary legal custody of the child to a relative who is not listed in subdivision (3)(A) of this subsection or a person with a significant relationship with the child, provided that the criteria in subdivision (3)(B) of this subsection are met.  The court may make such orders as provided in subdivision (3)(C) of this subsection to determine suitability under this subdivision.

(5)  A temporary care order transferring temporary legal custody of the child to the commissioner. 

(c)  If the court transfers legal custody of the child, the court shall issue a written temporary care order. 

(1)  The order shall include:

(A)  a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and

(B)  a finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home.  If the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.

(2)  The order may include other provisions as may be necessary for the protection and welfare of the child, such as:

(A)  Establishing parent-child contact under such terms and conditions as are necessary for the protection of the child.

(B)  Requiring the department to provide the child with services, if legal custody of the child has been transferred to the commissioner.

(C)  Requiring the department to refer a parent for appropriate assessments and services, including a consideration of the needs of children and parents with disabilities, provided that the child’s needs are given primary consideration.

(D)  Requiring genetic testing if parentage of the child is at issue.

(E)  Requiring the department to make diligent efforts to locate the noncustodial parent.

(F)  Requiring the custodial parent to provide the department with names of all potential noncustodial parents and relatives of the child.

(G)  Establishing protective supervision and requiring the department to make appropriate service referrals for the child and the family, if legal custody is transferred to an individual other than the commissioner.

(3)  In his or her discretion, the commissioner may provide assistance and services to children and families to the extent that funds permit, notwithstanding subdivision (2)(B) of this subsection.

(d)  If a party seeks to modify a temporary care order in order to transfer legal custody of a child from the commissioner to a relative or a person with a significant relationship with the child, the relative shall be entitled to preferential consideration under subdivision (b)(3) of this section, provided that a disposition order has not been issued and the motion is filed within 90 days of the date that legal custody was initially transferred to the commissioner.

§ 5309.  Filing of a petition 

(a)  The state’s attorney having jurisdiction shall prepare and file a petition alleging that a child is in need of care or supervision upon the request of the commissioner or, in the event the child is truant from school, upon the request of the superintendent of the school district in which the child is enrolled or resides.  If the state’s attorney fails to file a petition within a reasonable amount of time, the department or the superintendent of the school district may request that the attorney general file a petition on behalf of the department.

(b)  If the court has issued an emergency care order placing the child who is the subject of the petition in the temporary legal custody of the department or has issued a conditional custody order, the state’s attorney shall file the petition on or before the date of the temporary care hearing.  

(c)  A petition may be withdrawn by the state’s attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.

(d)  Upon the request of the secretary of the agency of human services, the state’s attorney may file a petition pursuant to subsection (a) of this section alleging that a 16- to 17.5-year-old youth who is not in the custody of the state is a child in need of care or supervision under subdivision 5102(2)(B)(ii) of this title when the child meets the criteria set forth in subdivision 5102(2)(B)(ii) of this title.  The petition shall be accompanied by a report from the department which sets forth facts supporting the specific criteria of subdivision 5102(2)(B)(ii) of this title and that it is in the best interests of the child to be considered as a child in need of care or supervision.

§ 5310.  Petition, contents 

(a)  The petition shall be supported by an affidavit of an officer or the department. 

(b)  The petition shall contain the following:

(1)  A concise statement of the facts which support the conclusion that the child is a child in need of care or supervision together with a statement that it is in the best interests of the child that the proceedings be brought. 

(2)  The name, date of birth, telephone number, and residence address, if known, of the child, the custodial and noncustodial parents, the guardian or custodian of the child if other than parent.  If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so specify.

(3)  Jurisdictional information required pursuant to the Uniform Child Custody Jurisdiction Act, 15 V.S.A. § 1032 et seq.

§ 5311.  Service of Summons and Petition; no request for

            temporary care Order

(a)  When the state’s attorney files a petition but does not request a temporary care order, the court shall set a date for a preliminary hearing on the petition no later than 15 days from the date the petition is filed and issue a judicial summons addressed to the custodial parent, guardian, custodian, or care provider.  A copy of the petition shall be attached to the summons.  The court shall make reasonably diligent efforts to serve a noncustodial parent with a copy of the summons and petition.

(b)  The summons shall contain:

(1)  The name and address of the person to whom the notice is directed.

(2)  The date, time, and place for the preliminary hearing on the petition.

(3)  The name of the minor on whose behalf the petition has been brought.

(4)  Notice of a parent’s right to counsel.

(5)  A statement that the parent, guardian or custodian may be liable for the cost of the support of a child if the child is placed in the legal custody of the department.

(6)  An order directing the parent, guardian, custodian, or care provider to appear at the hearing with the child.

(c)  The summons and petition may be served by mailing a copy by certified mail return receipt requested to the child and to the child’s parent, guardian, custodian, or care provider.  Service of the summons and petition may also be made by any sheriff, deputy, or constable.  The court shall provide a copy of the summons to the state’s attorney and a copy of the summons and petition to the department and the attorney for the child. 

(d)  Notice and a copy of the petition shall be served on all persons required to receive notice as soon as possible after the petition is filed and at least five days prior to the date set for the preliminary hearing.

(e)  A party may waive service of the petition and notice by written stipulation or by voluntary appearance at the hearing.

(f)  Once a parent, guardian, or custodian has been served, the court shall provide notice of hearing either directly or by mail.  The parent shall be responsible for providing the court with information regarding any changes in address. 

§ 5312.  Failure to Appear at Preliminary Hearing    

(a)  If a parent, guardian, or custodian has been served by certified mail with the petition and notice of hearing and fails to appear at the preliminary hearing, the court may order that the parent, guardian, or custodian be served with a judicial summons ordering the person to appear in court with the child at a specified date and time.

(b)  If, after being summoned to appear, the parent, guardian, or custodian fails to appear or fails to bring the child to court as ordered, the court may issue a pick-up order or warrant pursuant to section 5108 of this title. 

§ 5313.  Timelines for pretrial and merits hearing

(a)  Pretrial hearing.  At the time of the temporary care hearing or at the preliminary hearing on the petition if there is no request for temporary legal custody, the court shall set a pretrial hearing on the petition.  The hearing shall be held within 15 days of the temporary care hearing or the preliminary hearing.  In the event that there is no admission or dismissal at or before the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.

(b)  Merits hearing.  If the child who is the subject of the petition has been removed from the legal custody of the custodial parent, guardian, or custodian pursuant to a temporary care order, a merits hearing shall be held and merits adjudicated no later than 60 days from the date the temporary care order is issued, except for good cause shown.  In all other cases, merits shall be adjudicated in a timely manner in the best interests of the child.

§ 5314.  Filing of Initial Case Plan 

(a)  If a temporary care order is issued transferring legal custody of the child to the commissioner, the department shall prepare and file with the court an initial case plan for the child and the family within 60 days of removal of a child from home.  The department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.

(b)  The initial case plan shall not be used or referred to as evidence prior to a finding that a child is in need of care or supervision.

§ 5315.  Merits Adjudication 

(a)  At a hearing on the merits of a petition, the state shall have the burden of establishing by a preponderance of the evidence that the child is in need of care and supervision.  In its discretion, the court may make findings by clear and convincing evidence.

(b)  The parties may stipulate to the merits of the petition.  Such stipulation shall include a stipulation as to the facts that support a finding that the child is in need of care and supervision.

(c)  If the merits are contested, all parties shall have the right to present evidence on their own behalf and to examine witnesses.

(d)  A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence.  A finding of fact made after a contested temporary care hearing based on nonhearsay evidence may be adopted by the court as a finding of fact at a contested merits hearing provided that a witness who testified at the temporary care hearing may be recalled by any party at a contested merits hearing to supplement his or her testimony.  

(e)  If the merits are contested, the court after hearing the evidence shall make its findings on the record. 

(f)  If the court finds that the allegations made in the petition have not been established, the court shall dismiss the petition and vacate any temporary orders in connection with this proceeding.

(g)  If the court finds that the allegations made in the petition have been established based on the stipulation of the parties or on the evidence if the merits are contested, the court shall order the department to prepare a disposition case plan within 28 days of the merits hearing and shall set the matter for a disposition hearing.

(h)  The court in its discretion and with the agreement of the parties may waive the preparation of a disposition case plan and proceed directly to disposition based on the initial case plan filed with the court pursuant to section 5314 of this title.      

§ 5316.   Disposition Case Plan

(a)  The department shall file a disposition case plan ordered pursuant to subsection 5315(g) of this title no later than 28 days from the date of the finding by the court that a child is in need of care or supervision. 

(b)  A disposition case plan shall include, as appropriate:

(1)  A permanency goal.  The long-term goal for a child found to be in need of care and supervision is a safe and permanent home.  A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal.  The plan shall specify whether permanency will be achieved through reunification with a custodial parent, guardian, or custodian; adoption; permanent guardianship; or other permanent placement.  In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.

(2)  An assessment of the child’s medical, psychological, social, educational, and vocational needs.

(3)  A description of the child’s home, school, community, and current living situation.

(4)  An assessment of the family’s strengths and risk factors, including a consideration of the needs of children and parents with disabilities, provided that the child’s needs are given primary consideration.

(5)  A statement of family changes needed to correct the problems necessitating state intervention, with timetables for accomplishing the changes.

(6)  A recommendation with respect to legal custody for the child and a recommendation for parent-child contact and sibling contact, if appropriate.

(7)  A plan of services that shall describe the responsibilities of the child, the parents, guardian, or custodian, the department, other family members, and treatment providers, including a description of the services required to achieve the permanency goal.  The plan shall also address the minimum frequency of contact between the social worker assigned to the case and the family.

(8)  A request for child support.

(9)  Notice to the parents that failure to accomplish substantially the objectives stated in the plan within the time frames established may result in termination of parental rights.

§ 5317.  Disposition Hearing 

(a)  Timeline.  A disposition hearing shall be held no later than 35 days after a finding that a child is in need of care and supervision.

(b)  Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.  If reports are admitted, the parties shall be afforded an opportunity to examine those making the reports, but sources of confidential information need not be disclosed.

(c)  Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of termination shall be clear and convincing evidence.  On all other issues, the standard of proof shall be a preponderance of the evidence.

(d)  Termination of parental rights.  If the commissioner or the attorney for the child seeks an order at disposition terminating the parental rights of one or both parents and transfer of legal custody to the commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.

(e)  Further hearing.  On its own motion or on the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.  The court shall make an appropriate order for the temporary care of the child pending a final disposition order.  The court shall give scheduling priority to cases in which the child has been removed from home.

§ 5318.  Disposition Order

(a)  Custody.  At disposition, the court shall make such orders related to legal custody for a child who has been found to be in need of care and supervision as the court determines are in the best interest of the child, including:

(1)  An order continuing or returning legal custody to the custodial parent, guardian, or custodian.  Following disposition, the court may issue a conditional custody order for a fixed period of time not to exceed two years.   The court shall schedule regular review hearings to determine whether the conditions continue to be necessary.

(2)  When the goal is reunification with a custodial parent, guardian, or custodian an order transferring temporary custody to a noncustodial parent, a relative, or a person with a significant relationship with the child.  The order may provide for parent-child contact.   Following disposition, the court may issue a conditional custody order for a fixed period of time not to exceed two years.  The court shall schedule regular review hearings to evaluate progress toward reunification and determine whether the conditions and continuing jurisdiction of the juvenile court are necessary.

(3)  An order transferring legal custody to a noncustodial parent and closing the juvenile proceeding.  The order may provide for parent-child contact with the other parent.  Any orders transferring legal custody to a noncustodial parent issued under this section shall not be confidential and shall be made a part of the record in any existing parentage or divorce proceeding involving the child.  On the motion of a party or on the court’s own motion, the court may order that a sealed copy of the disposition case plan be made part of the record in a divorce or parentage proceeding involving the child.

(4)  An order transferring legal custody to the commissioner.  

(5)  An order terminating all rights and responsibilities of a parent by transferring legal custody and all residual parental rights to the commissioner without limitation as to adoption.

(6)  An order of permanent guardianship pursuant to 14 V.S.A. § 2664.

(7)  An order transferring legal custody to a relative or another person with a significant relationship with the child.  The order may be subject to conditions and limitations and may provide for parent-child contact with one or both parents.  The order shall be subject to periodic review as determined by the court.

(b)  Case plan.  If the court orders the transfer of custody pursuant to subdivision (a)(2), (4), or (5) of this section, the court shall establish a permanency goal for the minor child and adopt a case plan prepared by the department which is designed to achieve the permanency goal.  If the court determines that the plan proposed by the department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the department and order the department to prepare and submit a revised plan for court approval.

(c)  Sixteen- to 17.5-year-olds.  In the event that custody of a 16- to

17.5-year-old is transferred to the department pursuant to a petition filed under subsection 5309(d) of this title services to the child and to his or her family shall be provided through a coordinated effort by the agency of human services, the department of education, and community-based interagency teams. 

(d)  Modification.  A disposition order is a final order which may only be modified based on the stipulation of the parties or pursuant to a motion to modify brought under section 5113 of this title. 

(e)  Findings.  Whenever the court orders the transfer of legal custody to a noncustodial parent, a relative, or a person with a significant relationship with the child, such orders shall be supported by findings regarding the suitability of that person to assume legal custody of the child and the safety and appropriateness of the placement.    

§ 5319.  Parent-Child Contact and Contact with Siblings

              and Relatives

(a)  The court shall order parent-child contact unless the court finds that it is necessary to deny parent-child contact because the protection of the physical safety or emotional well-being of the child so requires.  Except for good cause shown, the order shall be consistent with any existing parent-child contact order.

(b)  The court may determine the reasonable frequency and duration of parent-child contact and may set such conditions for parent-child contact as are in the child’s best interests including whether parent-child contact should be unsupervised or supervised.  The court may allocate the costs of supervised visitation.

(c)  Parent-child contact may be modified by stipulation or upon motion of a party or upon the court’s own motion pursuant to section 5113 of this title. 

(d)  The court may terminate a parent-child contact order in a juvenile proceeding upon a finding that:

(1)  a parent has without good cause failed to maintain a regular schedule of contact with the child and that the parent’s failure to exercise regular contact has had a detrimental impact on the emotional well-being of the child; or

(2)  continued parent-child contact in accordance with the terms of the prior order will have a detrimental impact on the physical or emotional

well-being of the child.

(e)  Upon motion of the child’s attorney, the court may also order contact between the child and the child’s siblings, an adult relative with whom the child has a significant relationship, or an adult friend with whom the child has a significant relationship.

(f)  Failure to provide parent-child contact due to the child’s illness or other good cause shall not constitute grounds for a contempt or enforcement proceeding against the department.

§ 5320.  PostDisposition Review Hearing

If the permanency goal of the disposition case plan is reunification with a parent, guardian, or custodian, the court shall hold a review hearing within 60 days of the date of the disposition order for the purpose of monitoring progress under the disposition case plan and reviewing parent-child contact.  Notice of the review shall be provided to all parties.  A foster parent, preadoptive parent, or relative caregiver shall be provided with notice of any post disposition review hearings and an opportunity to be heard at the hearings.  Nothing in this section shall be construed as affording such person party status in the proceeding.

§ 5321.  Permanency hearing 

(a)  Purpose.  Unless otherwise specified therein, an order under the authority of this chapter transferring legal custody or residual parental rights and responsibilities of a child to the department pursuant to subdivision 5318(a)(4) or (5) of this title shall be for an indeterminate period and shall be subject to periodic review at a permanency hearing.   At the permanency hearing, the court shall determine the permanency goal for the child and an estimated time for achieving that goal.  The goal shall specify when:

(1)  legal custody of the child will be transferred to the parent, guardian, or custodian;

(2)  the child will be released for adoption;

(3)  a permanent guardianship will be established for the child;

(4)  a legal guardianship will be established for the child pursuant to an order under chapter 111 of Title 14; or

(5)  the child will remain in the same living arrangement or be placed in another planned permanent living arrangement because the commissioner has demonstrated to the satisfaction of the court a compelling reason that it is not in the child’s best interests to:

(A)  return home;

(B)  have residual parental rights terminated and be released for adoption; or

(C)  be placed with a fit and willing relative or legal guardian.

(b)  The court shall adopt a case plan designed to achieve the permanency goal.  At the permanency review, the court shall review the permanency plan and determine whether the plan advances the permanency goal recommended by the department.  The court may accept or reject the plan, but may not designate a particular placement for a child in the department’s legal custody.

(c)  A permanency review hearing shall be held no less than every 12 months with the first hearing to be held 12 months after the date the legal custody of the child was transferred, subject to the following exceptions:

(1)  If the child was three years of age or younger at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every three months.

(2)  If the child is between the ages of three and six at the time of the initial transfer of legal custody, the court may order that permanency review hearings be held as frequently as every six months.

(d)  If the court shortens the time for the permanency review hearing for a younger sibling, that shortened review interval shall be applied to all siblings in the family who are in the legal custody of the department.  

(e)(1)  The department shall file with the court a notice of permanency review together with a case plan and recommendation for a permanency goal.  The department shall provide notice to the state’s attorney having jurisdiction

and to all parties to the proceeding in accordance with the rules for family proceedings.  The court shall hold a permanency review hearing within 30 days of the filing of notice by the department.  Failure to give such notice or to review an order shall not terminate the original order or limit the court’s jurisdiction.

(2)  A foster parent, preadoptive parent, or relative caregiver for the child shall be provided notice of and an opportunity to be heard at any permanency hearing held with respect to the child.  Nothing in this subsection shall be construed as affording such person party status in the proceeding.

(f)  All evidence helpful in determining the questions presented, including hearsay, may be admitted and relied upon to the extent of its probative value even though not competent at an adjudication hearing. 

(g)  The permanency hearing may be held by an administrative body appointed or approved by the court.  The administrative body may consist of one but not more than three persons.  No person employed by the department shall be a member of the administrative body.  In the event that the administrative body determines that the existing order should be altered, it shall submit its recommendation to the court for its consideration.  In the event that the administrative body determines that the existing order should not be altered, its determination shall be binding unless any party requests review by the court within ten days of receipt of the determination.  A copy of the determination shall be sent to each party and to the court.  The court, on its own motion or on the request of any party, shall conduct a review de novo within 30 days of receipt of such request.

(h)  Upon the filing of a petition for a finding of reasonable efforts and a report or affidavit by the department for children and families with notice to all parties, the court shall hold a hearing within 30 days of the filing of the petition to determine, by a preponderance of the evidence, whether the department for children and families has made reasonable efforts to finalize the permanency plan for the child that is in effect at the time of the hearing.  The hearing may be consolidated with or separate from a permanency hearing.  Reasonable efforts to finalize a permanency plan may consist of:

(1)  reasonable efforts to reunify the child and family following the child’s removal from the home, where the permanency plan for the child is reunification; or

(2)  reasonable efforts to arrange and finalize an alternate permanent living arrangement for the child, in cases where the permanency plan for the child does not include reunification.

§ 5322.  Placement of a Child in a Facility Used for

               Treatment of Delinquent Children

A child found by the court to be a child in need of care and supervision shall not be placed in or transferred to an institution used solely for the treatment or rehabilitation of delinquent children unless the child has been charged with or adjudicated as having committed a delinquent act.

Sec. 4.  33 V.S.A. § 5802 is added to read:

§ 5802.  SEPARATION OF VICTIM OF SEXUAL ASSAULT AND

              PERPETRATOR

The commissioner of the department for children and families shall develop policies applicable when the department knows or learns that a sexual assault perpetrator and his or her victim have been simultaneously placed at the facility.  The policies shall include processes and procedures for investigation and, if appropriate, continued separation of or minimizing incidental contact between the perpetrator and the victim, while ensuring that they both receive educational and other appropriate services.

Sec. 5.  13 V.S.A. § 1030 is amended to read:

§ 1030.  VIOLATION OF AN ABUSE PREVENTION ORDER OR, AN

               ORDER AGAINST STALKING OR SEXUAL ASSAULT, OR A

               PROTECTIVE ORDER CONCERNING CONTACT WITH A

               CHILD

(a)  A person who commits an act prohibited by a court or who fails to perform an act ordered by a court in violation of an abuse prevention order issued under chapter 21 of Title 15 or chapter 69 of Title 33, a protective order that concerns contact with a child and is issued under chapter 51 of Title 33, or an order against stalking or sexual assault issued under chapter 178 of Title 12, after the person has been served notice of the contents of the order as provided in those chapters; or a foreign abuse prevention order issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

(b)  A person who is convicted of a second or subsequent offense under this section shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

* * *

(e)  Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

* * *

Sec. 6.  Rule (3)(c)(6) of the Vermont Rules of Criminal Procedure is amended to read:

(6)  The person has violated an order issued by a court in this state pursuant to 12 V.S.A. chapter 178, 15 V.S.A. chapter 21, or 33 V.S.A. chapter 69 or subsection 5115(e).

Sec. 7.  Section 6(b) of the Rules of Public Access to Court Records is amended to read:

(b)  Exceptions.  The public shall not have access to the following judicial branch records:

* * *

(34)  Records from a juvenile proceeding that are filed with the court or admitted into evidence in a divorce or parentage proceeding.

(35)  Any other record to which public access is prohibited by statute.

Sec. 8.  33 V.S.A. § 3902 is amended as follows:

§ 3902.  ASSIGNMENT OF SUPPORT RIGHTS BY PUBLIC ASSISTANCE

               RECIPIENTS; PROCEEDINGS TO ESTABLISH SUPPORT

               OBLIGATION

* * *

(e)  When a responsible parent is receiving welfare assistance under Title XVI of the Social Security Act or chapter 11 of this title, on the parent’s own behalf or on behalf of a dependent child, no amounts shall accrue or be collected under the support order while the welfare assistance is being received.  The commissioner shall monitor receipt of welfare assistance by responsible parents to ensure collection action is not instituted while welfare assistance is being received and that collection action is instituted promptly when the responsible parent no longer receives assistance.

(f)  If a support order has been entered and the legal custodian and obligee relinquishes physical responsibility of the child to a caretaker without modifying the physical rights and responsibilities order, the office of child support may change the payee of support upon the caretaker’s receipt of Reach Up family assistance (RUFA) from the department for children and families.  The obligor’s obligation under the support order to pay child support and medical support continues but shall be payable to the office of child support upon the caretaker’s receipt of RUFA and shall continue so long as the assignment is in effect.  The office of child support shall notify the obligor and obligee under the support order, by first class mail at last known address, of the change of payee.

Sec. 9.  33 V.S.A. § 3903 is amended to read:

§ 3903.  CHILD SUPPORT DEBT

(a)  Except as otherwise provided in this section, any payment of Reach Up financial assistance made to or for the benefit of a dependent child creates a debt due and owing to the department for children and families by any responsible parent in an amount equal to the amount of Reach Up financial assistance paid.

(1)  A debt shall not be incurred by any responsible parent while that parent receives public assistance for the benefit of any of his or her dependent children.  A debt previously incurred by any responsible parent shall not be collected from the responsible parent while that parent receives public assistance for the benefit of his or her dependent children, or assistance under Title XVI of the Social Security Act.

(2)(b)  Collection of child support debts shall be made as provided by this section and section 3902 of this title and by subchapter 7 of chapter 11 of Title 15.  Regardless of the amount of Reach Up financial assistance paid, the court may limit the child support debt, taking into consideration the criteria of section 659 of Title 15.  The department for children and families and the responsible parent may limit the child support debt by stipulation which shall be enforceable on its terms unless it is modified.

Sec. 10.  REPORT FROM THE DEPARTMENT FOR CHILDREN AND

             FAMILIES

(a)  No later than March 1, 2009, the department for children and families shall report to the general assembly on the following:

(1)  Procedures used to identify parents with disabilities.

(2)  Procedures for modifying case plans, disposition of case plans, service plans, and permanency plans to include the use of adaptive equipment and parental supports for parents with disabilities.

(3)  Procedures used to assess family strengths and weaknesses as they relate to children and parents with disabilities.

(4)  The state’s ability to accommodate the court-related needs of children and parents with disabilities as they relate to juvenile judicial proceedings.

(b)  In preparation of the report, the department for children and families shall consult with:

(1)  The family support project at the University of Vermont.

(2)  The Vermont judiciary.

(3)  The office of the defender general.

(4)  The department of disabilities, aging, and independent living.

Sec. 11.  REPORT FROM THE CENTER FOR CRIME VICTIM SERVICES

The center for crime victim services shall report to the house and senate committees on judiciary no later than January 15, 2012 on the implementation and operation of the juvenile restitution provisions established by this act.

Sec. 12.  JUVENILE JURISDICTION POLICY AND OPERATIONS

               COORDINATING COUNCIL

(a)  The juvenile jurisdiction policy and operations coordinating council is established in order to plan and develop the steps advisable better to address age-appropriate responses to older youth within the juvenile justice system.  The council shall report to the house and senate committees on judiciary on or before December 15, 2008.  The report may consider the juvenile justice jurisdiction study submitted to the agency of human services in December 2007 as well as other relevant information and recommend any changes to Vermont juvenile justice jurisdiction policy the council decides are advisable. 

(b)(1)  The council shall develop an implementation plan for each of the following options:

(A)  Maintaining the current jurisdiction statute and continuing jurisdiction of the family court in delinquency proceedings until age 22.

(B)  Changing the initial court of jurisdiction in all misdemeanor proceedings to the family court, with the possibility to be waived to district court, and continuing family court jurisdiction until age 22.

(C)  Changing the initial court of jurisdiction in all juvenile proceedings to the family court with the possibility to be waived to district court and continuing family court jurisdiction until age 22.  

(2)  Each option in subdivision (1) of this subsection shall address:

(A)  Estimated numbers of youth to be served by the department of corrections and by the department for children and families.

(B)  Resource increases needed by the department for children and families to implement each option, including probation supervision staff, locked capacity, and contracted services.

(C)  Potential decreases in the department of corrections services.

(D)  Resource increases and decreases in the judicial system.

(E)  The net costs.

(c)  With respect to any policy changes recommended, the report shall include:

(1)  Necessary statutory changes.

(2)  Necessary structural modifications to the juvenile system, including personnel and programming requirements and changes.

(3)  Cost implications and financial impacts.

     (4)  Review of the impact on 16- and 17-year-olds of being commingled with older offenders.

     (5)  A summary of evidence-based research on outcomes and recidivism rates by juvenile offenders and juvenile delinquents, including comparisons of minors processed as juvenile delinquents with minors processed as adult offenders. 

(d)  The council shall consist of the following members:

(1)  The administrative judge or designee.

(2)  The court administrator or designee.

(3)   The defender general or designee.

(4)  The attorney general or designee.

(5)  The executive director of the department of state's attorneys and sheriffs or designee.

(6)  The commissioner of the department for children and families or designee.

(7)  The director of the juvenile justice commission or designee.

(8)  The commissioner of corrections or designee.

(9)  The commissioner of public safety or designee.

(10)  A mental health professional with experience working with juveniles, appointed by the Vermont council of developmental and mental health services.

(11)  A law enforcement officer with experience working with juveniles, appointed by the commissioner of public safety.

(12)  The executive director of the center for crime victim services or his or her designee.

Sec. 13.  REPEAL

The following are repealed:

(1)  33 V.S.A. chapter 55 (judicial proceedings).

(2)  13 V.S.A. § 5320 (notification of conditions of release to victim in

delinquency proceedings).

Sec. 14.  EFFECTIVE DATE AND APPLICATION

This act shall take effect January 1, 2009 and shall apply to any petition filed after the effect date or any permanency review hearing held after the effective date.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                               THE HOUSE

Sen. Alice Nitka                                             Rep. Bill Lippert

Sen. Jane Kitchel                                           Rep. Margaret Flory

Sen. Richard Sears                                         Rep. Sandy Haas

H. 711

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon House Bill, entitled:

H.711.  AN ACT RELATING TO AGRICULTURAL, FORESTRY, AND HORTICULTURAL EDUCATION.

Respectfully report that they have met and considered the same and recommend that Senate recede from its proposals of amendment and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

* * * Agricultural, Forestry, and Horticultural Education * * *

Sec. 1.  INTENT

It is the intent of Secs. 1–3 of this act to enhance the ability of regional technical centers and secondary schools in Vermont to teach and prepare students for careers in agriculture, forestry, and horticulture and to determine what steps are necessary to prepare the next generation for involvement in these sectors of Vermont’s economy.

Sec. 2.  FINDINGS

The general assembly finds that:

(1)  Education and training are essential to meeting the goals of No. 38 of the Acts of 2007, pertaining to the viability of Vermont agriculture.

(2)  There is currently an absence of statewide oversight and coordination of agriculture, forestry, and horticulture (AF&H) education and training.

(3)  There is a teacher crisis in secondary and postsecondary AF&H education because the pool of applicants is not adequate to replace retiring faculty, some of whom have more than 40 years of experience.

(4)  Careers in the AF&H fields:

(A)  provide business opportunities while taking advantage of Vermont’s natural assets;

(B)  benefit local economies due to the multiplier effect of local investment; and

(C)  provide opportunities for young Vermonters to remain in the state.

(5)  In order for Vermont to capitalize on opportunities in the AF&H fields, comprehensive and effective postsecondary education and training are needed.

(6)  It is critical to understand the current system, methods, and curriculum of educating students in the AF&H fields before taking additional steps toward that end.

Sec. 3.  AGRICULTURAL, FORESTRY, AND HORTICULTURAL

             EDUCATION

(a)  The agency of agriculture, food and markets and the department of education shall jointly perform a needs assessment on AF&H education in secondary schools, regional technical centers, and the community high school of Vermont and provide recommendations for technical assistance for existing programs.

(b)  A report of the needs assessment required in subsection (a) of this section shall be delivered to the house and senate committees on agriculture and on education, the house committee on institutions and corrections, and the senate committee on economic development, housing and general affairs by January 15, 2009.  The report of the needs assessment shall include discussion and recommendations relating to the following:

(1)  The ability of secondary schools, regional technical centers, and the community high school of Vermont to prepare students for AF&H careers.

(2)  The effectiveness of the organizational structures of secondary schools, regional technical centers, and the community high school of Vermont in providing AF&H education.

(3)  The reasons why some secondary schools, regional technical centers, and the community high school of Vermont do not provide AF&H education.

(4)  The opportunities for and barriers to AF&H career paths.

(5)  Options for providing statewide leadership on AF&H technical and curriculum support.

(6)  An assessment of postsecondary teacher degree and certification programs or opportunities at Vermont institutions of higher learning.

(7)  The role organizations such as FFA, the Vermont youth conservation corps, FEED (food education every day), Foodworks, NOFA (northeast organic farming association), and 4-H perform in support of AF&H education.

(8)  The opportunities to enhance AF&H education through collaboration of secondary and postsecondary educational institutions.

(c)  The secretary of the agency of agriculture, food and markets and the commissioner of education shall propose funding needed to support the intent of this act in their respective budgets for FY 2010.

(d)  Resources utilized in preparing the report required in subsection (b) of this section shall include:

(1)  current and retired instructors;

(2)  regional technical center directors and administrators of the community high school of Vermont;

(3)  secondary schools and regional technical centers with existing AF&H education programs;

(4)  postsecondary schools including Vermont Technical College

(5)  the workforce training council and the department of labor;

(6)  other northeastern states where similar efforts are being made and models have been created.

(7)  the department of corrections

(8)  the Vermont youth conservation corps

(e)  The report required in subsection (b) of this section shall also include a summary of the agency of agriculture, food and markets’ and the department of education’s efforts to implement the provisions of Sec. 4 of No. 201 of the 2005 Adj. Sess. (2006).

* * * Animal Dissection * * *

Sec. 4.  16 V.S.A. § 912 is added to read:

§ 912.  PUPIL’S RIGHT OF REFUSAL; ANIMAL DISSECTION

(a)  A student in a public elementary or secondary school or an approved independent school shall have the right to be excused from participating in any lesson, exercise, or assessment requiring the student to dissect, vivisect, or otherwise harm or destroy an animal or any part of an animal, or to observe any of these activities, as part of a course of instruction.

(b)  Each school district and approved independent school shall adopt and implement policies regarding a student’s right to be excused under this section, which shall include:

(1)  Procedures by which the school shall provide:

(A)  Timely notification to each student enrolled in the course and to the student’s parent or guardian of the student’s right to be excused from participating in or observing the lesson; and

(B)  The process by which a student may exercise this right. 

(2)  Alternative education methods through which a student excused under this section can learn and be assessed on material required by the course.

(3)  A statement that no student shall be discriminated against based on his or her decision to exercise the right to be excused afforded by this section.

(c)  As used in this section, the word “animal” means any organism of the kingdom animalia and includes an animal’s cadaver or the severed parts of an animal’s cadaver.

Sec. 5.  PUPIL’S RIGHT OF REFUSAL; ANIMAL DISSECTION

On or before August 15, 2008, each school district and approved independent school shall develop and implement procedures pursuant to 16 V.S.A. § 912(b), created in Sec. 4 of this act, which shall be adopted as policy within the district or approved independent school no later than November 1, 2008. 

* * * Unnecessary, Duplicative, and Burdensome Reports; Repeal * * *

Sec. 6.  REPEAL; MANDATED REPORTING 

The following are repealed:

(1)  16 V.S.A. § 164(8) (state board of education’s biennial report to the legislature regarding its activities and including the commissioner’s report).

(2)  16 V.S.A. § 216(c)(2) (commissioner’s annually updated and published list of school and community programs that have the potential to improve childhood wellness).

(3)  16 V.S.A. § 1165(f) (school district’s annual report to the commissioner regarding alcohol and drug abuse in the district). 

(4)  16 V.S.A. § 1165(g) (commissioner’s annual report to the alcohol and drug abuse council regarding the progress of alcohol and drug abuse education in the schools). 

(5)  16 V.S.A. § 1422(d) (superintendent’s annual report to the department regarding results of hearing and vision tests). 

(6)  Sec. 121a(d) of No. 71 of the Acts of the 1997 Adj. Sess. (1998) (annual report from the department and others to the legislature regarding the status of technical education pilot projects).

(7)  Sec. 3(b) of No. 150 of the Acts of the 1999 Adj. Sess. (2000) as amended by Sec. 21 of No. 182 of the Acts of the 2005 Adj. Sess. (2006) (commissioner’s report concerning initial implementation of regional high school choice).

(8)  Sec. 156(c) of No. 152 of the Acts of the 1999 Adj. Sess. (2000) (department’s annual report regarding special education cost-containment initiatives). 

(9)  16 V.S.A. § 2177(d) (the Vermont state colleges’ biennial report to the legislature regarding its activities).

(10)  16 V.S.A. § 2281(c) (the university of Vermont president’s biennial report to the legislature regarding the activities of the university and the state agricultural college).

(11)  16 V.S.A. § 2322 (the state agricultural college dean’s biennial submission of the estimated budget for the college’s research station and a statement of federal and other available funding).

(12)  16 V.S.A. § 2536 (the university of Vermont and state agricultural college trustees’ annual report to the legislature and the governor concerning the work of its units, including receipts, disbursements, resources, and liabilities).

(13)  16 V.S.A. § 2856(g) (adjutant general’s annual report to the legislature regarding educational loan programs for national guard members).

(14)  Sec. 90 of No. 60 of the Acts of 1997 as amended by Sec. 33 of No. 49 of the Acts 1999 (repeal of legislative oversight committee on restructuring education and assumption of the committee’s duties by standing legislative committees).

(15)  Sec. 71(f) of No. 68 of the Acts of the 2002 Adj. Sess. (2003) as amended by Sec. 1 of No. 4 of the Acts of 2005 of No. 4 of the Acts of 2005 (annual report of the council on education governance to the legislature regarding its progress and any recommendations for legislation necessary to comply with the No Child Left Behind Act).

(16)  Sec. 168a(c) of No. 71 of the Acts of 2005 (commissioner issues a request for proposals, chooses grant recipients, determines the amounts to be awarded to each recipient, and monitors the progress of each grant recipient for fiscal year 2006; annual report by the council on education governance to the legislature regarding its progress and recommendations for legislative change).

Sec. 7.  16 V.S.A. § 165(a)(2) is amended to read:

(2)  The school, at least annually, reports student performance results to community members in a format selected by the school board.  In the case of a regional technical center, the community means the school districts in the service region.  The school report shall include:

(A)  information indicating progress toward meeting standards from the most recent measure taken;

(B)  information about the health and social well-being status of children in the school district;

(C)  information indicating progress toward meeting the goals of an annual action plan;

(D)  any other statistical information about the school or community that the school board deems necessary to place student performance results in context;

(E)  information about early reading instruction provided under subsection 2903(c) of this title;

(F)  early care and education opportunities available to children;

(G)  community support available to families;

(H)  a description of how the school ensures that each student receives appropriate career counseling and program information regarding availability of education and apprenticeship program offerings at technical centers;

(I)  if the school is a secondary school, data describing student participation in technical education, regional job opportunities and the number of graduates from the previous year who have entered postsecondary education, the military and the job market; 

(J)  if the school is a secondary school, information and supporting data presented in a manner designed to protect student confidentiality on the following:

(i)  student attendance, including unexcused absences;

(ii) student discipline; and

(iii)  if the school is a secondary school, the dropout and graduation rates; and

(K)  data provided by the commissioner which enable a comparison with other schools, or school districts if school level data are not available, for cost-effectiveness.  The commissioner shall establish which data are to be included pursuant to this subdivision and, notwithstanding that the other elements of the report are to be presented in a format selected by the school board, shall develop a common format to be used by each school in presenting the data to community members.  The commissioner shall provide the most recent data available to each school no later than October 1 of each year.  Data to be presented may include student-to-teacher ratio, administrator-to-student ratio, administrator-to-teacher ratio, and cost per pupil.

Sec. 8.  16 V.S.A. § 909(b) is amended to read:

(b)  The department of education shall:

(1)  provide for pre-service and in-service training programs for school personnel on alcohol and drug abuse prevention and on the effects and legal consequences of the possession and use of tobacco products.  At least one training program shall be made available in electronic format.  Each superintendent shall determine the content, duration, and frequency of training on issues concerning alcohol and drug abuse for the districts in his or her supervisory union;

* * *

Sec. 9.  16 V.S.A. § 2177(b) is amended to read:

(b)  The books and accounts of the corporation shall be audited annually as of June 30 under the supervision of the auditor of accounts who shall publish the audit report in detail

Sec. 10.  16 V.S.A. § 2281(a) is amended to read:

(a)  The books and accounts of the University of Vermont and State Agricultural College shall be audited annually as of June 30, under the supervision of the auditor of accounts. The report of such audit shall be published in detail by the auditor of accounts. 

Sec. 11.  24 V.S.A. § 5261 is amended to read:

§ 5261.  ANNUAL REPORT; AUDIT

On or before March 31 of each year, the authority shall report on its activities for the preceding calendar year to the governor and to the general assembly.  Each report shall set forth a complete operating and financial statement covering its operations during the year.  The authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants and the cost thereof shall be considered an expense of the authority and a copy thereof shall be filed with the state treasurer. 

Sec. 12.  Sec. 7 of No. 43 of the Acts of 2005 is amended to read:

Sec. 7.  UNIVERSITY OF VERMONT

The sum of $1,700,000 is appropriated to the department of buildings and general services for the University of Vermont to assist with construction, renovation, and major facility maintenance to the university campus that advances the mission of the university to prepare the students to lead productive lives and to interpret and share knowledge for the benefit of Vermont and for society as a whole.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 7                                                        $1,700,000)

Sec. 13.  Sec. 8 of No. 147 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 8.  UNIVERSITY OF VERMONT

The sum of $1,800,000 is appropriated to the University of Vermont to assist with construction of the plant sciences building and with major facility maintenance to the university campus.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 8                                                        $1,800,000)

Sec. 14.  Sec. 9 of No. 147 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 9.  VERMONT STATE COLLEGES

The sum of $1,800,000 is appropriated to the Vermont state colleges for major facility maintenance.  The state colleges shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 9                                                        $1,800,000)

Sec. 15.  Sec. 4(c) of No. 192 of the Acts of the 2005 Adj. Sess. (2006) is amended to read: 

(c)  On or before January 15, 2007, and on or before January 15 for five years thereafter, the task force shall report on its activities during the preceding year to the house and senate committees on education and judiciary.  The task force shall cease to exist after it files the report due on January 15, 2012.

Sec. 16.  Sec. 9 of No. 52 of the Acts of 2007 is amended to read:

Sec. 9.  UNIVERSITY OF VERMONT

The sum of $1,600,000 is appropriated to the University of Vermont for construction, renovation, or maintenance projects.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 9                                               $ 1,600,000)

Sec. 17.  Sec. 10 of No. 52 of the Acts of 2007 is amended to read:

Sec. 10.  VERMONT STATE COLLEGES

The sum of $1,600,000 is appropriated to the Vermont State Colleges for major facility maintenance.  The state colleges shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 10                                             $ 1,600,000)

* * * Special Education Audits * * *

Sec. 18.  SPECIAL EDUCATION AUDITS

(a)  The commissioner of education, in consultation with the Vermont superintendents association, the Vermont council of special education administrators, and the Vermont association for school business officials, shall examine the process by which the department audits special education expenditure reports submitted for reimbursement under chapter 101 of Title 16. In addition, the commissioner shall consider whether certified public accountants who are auditing school districts for other purposes could also conduct special education expenditure audits with departmental supervision.  The commissioner shall make recommendations to improve the timeliness and efficiency of the audit process that, at a minimum, include provisions to ensure that:

(1)  Each audit is completed and provided to the district within one year after the district submits its expenditure report.

(2)  The department provides clear guidelines to districts regarding the type of records that will be audited and how to maintain those records in the most efficient way.

(3)  Each audit report provides recommendations to a district to help it correct any deficiencies in its system for making special education reimbursement claims.

(b)  The commissioner of education, in consultation with the Vermont superintendents association, the Vermont council of special education administrators, and the Vermont association for school business officials, shall also consider and make recommendations to amend the special education funding provisions of chapter 101 of Title 16 in order to streamline the process by which districts document costs and submit claims for reimbursement. 

(c)  The commissioner shall submit the recommendations required in subsections (a) and (b) of this section to the house and senate committees on education by January 15, 2009.

(d)  The department shall not conduct audits of any special education expenditure report submitted for reimbursement in connection with the
2007–2008 school year; provided, however, the superintendents of districts submitting those reports shall certify to the commissioner that:

(1)  Appropriate supporting documentation for eligible expenditures, such as invoices and tuition bills, have been received and are on file. 

(2)  Time studies as described in the Technical Guide for Special Education Staff Documentation have been conducted and are on file for all staff time for which reimbursement is sought. 

 * * * Union School Districts; Streamlining Process * * *

Sec. 19.  16 V.S.A. § 701 is amended to read:

§ 701.  POLICY

It is declared to be the policy of the state to provide equal educational opportunities for all children in Vermont by authorizing two or more school districts, including an existing union school district, to establish a union school district for the purpose of owning, constructing, maintaining, or operating schools and to constitute the district so formed a municipal corporation with all of the rights and responsibilities which a town school district has in providing education for its youth.

Sec. 20.  16 V.S.A. § 701b is amended to read:

§ 701b.  APPLICATION OF CHAPTER

(a)  Whenever referred to in this subchapter, the term “school district” shall include a “town school district,” “incorporated school district,” “union school district,” or “city school district,” and this subchapter shall accordingly apply to the organization and operation of a union school district of which any school district is a member or prospective member.  The provisions of this subchapter shall apply and take precedence in the event of any conflict between those provisions and the provisions of the charter of a municipality which is a member or prospective member of a union district.  Upon the organization of a union district under this subchapter, any charter of a member municipality is considered to be thereby amended accordingly without further action. 

(b)  If a union school district votes to participate in a planning committee pursuant to section 706 of this title, its member districts shall not participate on the study committee.  If the participating union school district votes to join another union school district that is successfully formed, any conflicting terms of its articles of agreement are repealed in favor of the terms of the articles of agreement of the newly formed union school district.  If the proposed union school district is to be a unified union school district, however, only town districts and incorporated districts may participate in the joint study and vote on its formation.  A successful vote to form a unified union school district dissolves any preexisting union school district within its borders, and any assets or liabilities held by that union school district shall be transferred to the new unified union district.

Sec. 21.  16 V.S.A. § 706 is amended to read:

§ 706.  FORMATION OF PROPOSAL TO FORM PLANNING COMMITTEE

When it appears to the boards of school directors of two or more school districts believe that a planning committee should be established to study the advisability of forming a union school district, or if petitioned to do so by five percent of the voters eligible to vote at the last annual or special school district meeting petition the board of their respective school districts to do so, each of the boards of school directors shall meet with the superintendent of schools for each participating district and with his or her. With the advice of the superintendent, the boards shall establish a budget, and shall fix the number of persons who will to serve on the planning committee, for the purpose of preparing that prepares the report required by this subchapter.  Each The boards’ proposal shall ensure that each participating district shall share in the committee’s budget, and as nearly as possible be represented on the planning committee, in that proportion which the equalized pupils (as defined in section 4001 of this title) of the district bear to the total equalized pupils of all school districts which intending to participate in the committee’s study.  It is not necessary that each participating district vote to establish a union school district planning committee on the same date.  Nothing herein in this section shall be construed to prohibit informal exploration between and among school districts prior to the formation of a planning committee established pursuant to this section.

Sec. 22.  16 V.S.A. § 706a is amended to read:

§ 706a.  APPROVAL OF PLANNING BUDGET; APPOINTMENT OF PLANNING COMMITTEE

When the budget is established, participating district shares calculated, and the number of persons to serve on the planning committee is fixed, the 

(a)  If the proposed budget established in section 706 of this chapter exceeds $25,000.00, then:

(1)  The voters of each participating district shall be warned to meet at an annual or special school district meeting to vote on the following question a question in substantially the following form: “Shall the school district of ............................... appropriate $ ............................... as funds necessary to support the district’s financial share of the district in order to finance the a study of to determine the advisability of forming a union school district with some or all of the following school districts: ............................... and………….., and the school directors be authorized to appoint a planning committee for that purposeIt is estimated that the district’s share, if all the above-listed districts vote to participate, will be $........................................  The total proposed budget, to be shared by all participating districts, is
$..........
”  It is not necessary for the voters of each participating district to vote on the same date to establish a union school district planning committee. 

(2)  If the vote is in the affirmative in two or more districts, the board of school directors of each participating district boards of the participating districts shall appoint a planning committee consisting of the number of persons previously fixed.  At least one school director from each participating district shall be on the committee.  A district board may appoint residents to the committee who are not school directors. 

In the event the district votes to join the union school district, any

(3)  The sums expended by it for planning purposes under this section, shall be considered a part of the approved cost of any project in which the district participates in pursuant to sections 3447 to through 3449 of this title. 

(b)  If the proposed budget established in section 706 of this chapter does not exceed $25,000.00, then the boards of the participating districts shall appoint a planning committee consisting of the number of persons previously fixed.  At least one school director from each participating district shall be on the committee.  A district board may appoint residents who are not school directors to the committee.  The sums expended for planning purposes under this section shall be considered a part of the approved cost of any project in which the district participates pursuant to sections 3447 through 3449 of this title. 

Sec. 23.  16 V.S.A. § 706b is amended to read:

§ 706b.  PLANNING COMMITTEE; CONTENTS OF PLANNING COMMITTEE REPORT

(a)  Planning committee.  When a planning committee is appointed, its chairman the members shall elect a chair who shall notify the commissioner of education, who of the appointment.  The commissioner shall then cooperate with the planning committee and may make available the department staff of the department of education in the conduct of a available to assist in the study of the proposed union school district.  The committee is a public body pursuant to 1 V.S.A. § 310(3).  The committee shall cease to exist when the clerk of each district voting on a proposal to establish a union school district has certified the results of the vote to the commissioner of education pursuant to section 706g of this chapter. 

(b)  Decision and report.  The planning committee shall may determine that it is inadvisable to form a union school district or it may prepare a report in the form of an agreement between member districts for the government of the proposed union school districtThe In making its determination, the committee may contact additional school districts it believes may be advisable to include within a new union school district.  If the committee decides to recommend formation of a union school district, its report shall specify:

(1)  the names of school districts the committee considers necessary to the establishment of the proposed union; provided, however, only districts named in the warning for the vote under section 706a of this chapter may be identified as necessary;

(2)  the names of additional school districts the committee considers advisable to be included include in the proposed union school district;

(3)  the class of schools grades to be operated by the proposed union school district;

(4)  the cost and general location of any proposed new schools to be constructed and the cost and general description of any proposed renovations;

(5)  a plan for the first year of the union school district’s operation for the transportation of students, teaching the assignment of staff, and curriculum to be provided that is consistent with existing contracts, collective bargaining agreements, or other provisions of law.  The board of the union school district shall make all subsequent decisions regarding transportation, staff, and curriculum subject to existing contracts, collective bargaining agreements, or other provisions of law;    

(6)  the indebtedness of proposed member districts which that the union school district shall assume;

(7)  the specific properties pieces of real property of proposed member districts which that the union is to shall acquire, their valuation, and how the union school district shall pay for them;

(8)  the allocation of capital and operating expenses of the union school district among the member districts;

(9)  consistent with the proportional representation requirements of the equal protection clause of the Constitution of the United States, the method of apportioning the representation which that each proposed member district shall have on the union school board.  The union school board shall have no more than eighteen 18 members, and each member district shall be entitled to at least one representative;

(10)  the term of office of directors initially elected shall, to be arranged so that one-third expire on the day of the second annual meeting of the respective districts, one-third on the day of the third annual meeting of the respective districts, and one-third on the day of the fourth annual meeting of the respective districts, or as near to that proportion as possible;

(11)  the date on which the union school district proposal will be submitted to the voters; and

(12)  the date on which the union school district will begin operating schools and providing educational services; and

(13)  any other matters which that the committee considers pertinent, including whether votes on the union school district budget or public questions shall be by Australian ballot.

Sec. 24.  16 V.S.A. § 706c is amended to read:

§ 706c.  APPROVAL BY STATE BOARD OF EDUCATION

The If a planning committee prepares a report under section 706b of this chapter, the committee shall transmit the report to the commissioner who shall submit the report with his or her recommendations to the state board of education.  That board after notice to the planning committee and after giving the committee an opportunity to be heard shall consider the report and the commissioner’s recommendations, and decide whether the formation of such union school district will be for the best interest of the state, the students, and of the school districts proposed as to be members of the union.  The board may request the commissioner and the planning committee to make further investigation and may consider any other information deemed by it to be pertinent.  If, after due consideration and any further meetings as it may deem necessary, the board finds that the formation of the proposed union school district is in the best interests of the state, the students, and the school districts involved, it shall approve the report submitted by the committee, together with any amendments, as a final report of the planning committee, and shall give notice of its action to the committee.  The chairman chair of the planning committee shall file a copy of the final report with the town clerk of each proposed member district at least 20 days prior to the vote to establish the union.

Sec. 25.  16 V.S.A. § 706d is amended to read:

§ 706d.  VOTE TO ESTABLISH UNION SCHOOL DISTRICTS 

Each school district which that is designated in the final report as necessary to the establishment of the proposed union school district shall vote, and any school district which is designated in the final report as advisable to be included in the proposed union district may, vote on the establishment of the proposed union school district.  The vote shall be held on the date specified in the final report.  The vote shall be warned in each proposed member school district by the school board of that district, and the vote shall be by Australian ballot, at separate school district meetings held on the same day and during the same hours.  The polls shall remain open at least eight hours.  Early or absentee voting as provided by sections 2531 to 2550 of Title 17 shall be permitted.  The meetings shall be warned as a special meeting of each school district voting on the proposal.  The school board of a school district designated as “advisable” in the proposed union school district may choose not to hold a meeting to vote on the question of establishing the union school district; provided, however, it shall warn and conduct the meeting on application of ten percent of the voters in the school district. 

Sec. 26.  16 V.S.A. § 706f is amended to read:

§ 706f.  CONTENTS OF WARNING ON VOTE TO ESTABLISH THE

       UNION

The warning for each school district meeting shall contain two articles in substantially the following form:    

WARNING

The voters of the town (city, union, etc.) school district of               are hereby notified and warned to meet at     on the     day of       ,       , to vote by Australian ballot between the hours of       , at which time the polls will open, and       , at which time the polls will close, upon the following articles of business:  

Article I

Shall the town (city, union, etc.) school district of       which the State Board of Education has found (necessary or advisable) to include in the proposed union school district, join with the school districts of       and     , which the State Board of Education has found necessary to include in the proposed union school district, and the school districts of       and       ,  which the State Board of Education has found advisable to include in the proposed union school district, for the purpose of forming a union school district, as provided in Title 16, Vermont Statutes Annotated, upon the following conditions and agreements:

(a)  Class of schools Grades.  The union school district shall operate and manage (class of school or schools) offering instruction in grades _____ through _____.

* * *

Sec. 27.  16 V.S.A. § 706j is amended to read:

§ 706j.  ORGANIZATION MEETING, BUSINESS TO BE TRANSACTED

(a)  The meeting shall be called to order by the commissioner of education or a person designated by him the commissioner, and at such meeting or at an adjournment thereof:

* * *

(8)  The board of directors may be authorized by the electorate to borrow money pending receipt of payments from the education fund by the issuance of its notes or orders payable not later than one year from date.  A newly formed union school district, however, is authorized to borrow sufficient funds to meet pending obligations;

* * *

Sec. 28.  16 V.S.A. § 706n is amended to read:

§ 706n.  AMENDMENTS TO AGREEMENTS REACHED BY
       ESTABLISHMENT VOTE, ORGANIZATION MEETING, OR
       FINAL REPORT

(a)  Any specific condition or agreement adopted by the member districts pursuant to section 706f of this chapter at the vote held to establish the union, or any amendment subsequently adopted, may be amended only at a special or annual union district meeting,; provided that, the prior approval of the state board of education shall be secured if the proposed amendment concerns reducing the number of grades which that the union is to operate the prior approval of the state board of education shall be secured.  The warning for the meeting shall contain each proposed amendment as a separate article.  The vote on each proposed amendment shall be by Australian ballot.  Ballots shall be counted in each member district, and the clerks of each member district shall transmit the results of the vote in that district to the union school district clerk.  Results shall be reported to the public by member district; however, no amendment is effective unless approved by a majority of those voting.

* * *

(c)  Any provision of the final report which was not contained in a separate article in the warning required pursuant to section 706f of this chapter for the vote to form the union may be amended by a simple majority vote of the union board of school directors, or by any other majority of the board as is specified for a particular matter in the report.

Sec. 29.  16 V.S.A. § 721a is amended to read:

§ 721a.  WITHDRAWAL FROM DISTRICT

(a)  A school district which that is a member of a union school district may vote to withdraw from the union school district if one year has elapsed since said the union school district has become a body politic and corporate as provided in section 706g of this title.

(b)  When a majority of the voters of a school district present and voting at a school district meeting duly warned for that purpose vote votes to withdraw from a union school district the vote shall be certified by the clerk of the school district to the secretary of state who shall record the certificate in his or her office and give notice of the vote to the commissioner of education and to the other member districts of the union school district.  Those member districts shall vote by Australian ballot on the same day during the same hours whether to ratify withdrawal of the member district.  Withdrawal by a member district shall be effective only if approved by an affirmative vote of each of the other member school districts within the union school district.

(c)  When If the vote to ratify the withdrawal of a member district is approved by each of the other member districts, the union school district shall notify the commissioner of education receives the notice from the secretary of state he who shall advise the state board of education.  At a meeting held thereafter, if the state board finds that the pupils in the withdrawing district will attend a school which that is in compliance with the rules adopted by the board pertaining to educational programs, the board shall declare the membership of the withdrawing school district in the union school district to be at an end as of July 1 immediately following or as soon thereafter as the obligations of said the withdrawing district have been paid to, or an agreement made with, the union school district in an amount satisfactory to the electorate of each member district of the union school district.  The board shall give notice to the remaining member districts in the union of its meeting and give representatives of the remaining member districts an opportunity to be heard.  It shall then determine whether it is in the best interests of the state, the students, and the school districts remaining in the union, that district for the union to continue to exist.  The board may declare the union dissolved as of July 1 immediately following or as soon thereafter as each member district’s obligations have been satisfied, or it may declare that the union shall continue to exist despite the withdrawal of the former member district.  The state board of education shall file the declaration with the secretary of state, the clerk of the withdrawing district, and the clerk of the union school district concerned.

(d)  A vote of withdrawal taken after a union school district has become a body politic and corporate as provided in section 706g of this title but less than one year after that date shall be null and void.  Action to withdraw must be ratified by an affirmative vote of each of the member districts.

Sec. 30.  16 V.S.A. § 721b is amended to read:

§ 721b.  DISTRICTS ESTABLISHED UNDER PRIOR LAW

A union school district established pursuant to the provisions of any statute existing prior to July 1, 1968 shall be valid. Upon July 1, 1968 any union school district established pursuant to the provisions of any prior statute shall be governed in all respects by the provisions of this subchapter.  All union school districts formed prior to July 1, 2007 are ratified and shall be governed by this chapter.

Sec. 31.  16 V.S.A. § 722 is amended to read:

§ 722.  UNIFIED UNION DISTRICTS

In the event If a union school district is organized to operate grades kindergarten through 12, it shall be known as a unified union district.  On the date the unified union district becomes operative, unless another date is specified in the planning committee report, it shall supplant all other school districts within its borders, and they shall cease to exist.  If provided for in the committee report, the unified union district school board may be elected and may conduct business for the limited purpose of preparing for the transition to unified union district administration while the proposed member school districts continue to operate schools.  The functions of the legislative branch of each preexisting school district in warning meetings and conducting elections of unified union school district board members shall be performed by the corresponding board of alderpersons of a city or city council, the selectboard of a town, or the trustees of an incorporated school district as appropriate.

Sec. 32.  16 V.S.A. § 723 is amended to read: 

§ 723.  TRANSITION TO UNIFIED UNION SCHOOL DISTRICT

     ADMINISTRATION

Except as may be provided in the approved plan for formation of the unified union district with respect to real property on  On the day that its the establishment of a unified union school district becomes effective, it the district gains title to the assets and assumes the existing contractual obligations and other liabilities of the member school districts within its borders unless otherwise agreed to by the member districts in the approved plan for the formation of the unified union school district; provided, however, the unified union school district shall in all cases assume the contractual obligations of the member districts regarding each existing collective bargaining agreement or other employment contract until the agreement’s or contract’s expiration.  All trust funds held or enjoyed by a pre-existing preexisting district shall be held and applied as the terms of the trust indicate.  If such trust allows, the funds may be applied for the use of the unified union school district.  Within five days of the day a unified union school district becomes effective, the treasurer of each pre-existing preexisting school district shall pay by check to the treasurer of the unified union school district the full amount of the balance standing in his or her school account and transfer to him or her all outstanding notes and contracts in force.  Unless otherwise specified, the school account balance shall be applied to the member towns proportional costs for the following year.  All other officers of the pre-existing preexisting school districts shall transfer to the corresponding officer of the unified union school district all instruments and other documents giving evidence of the assets, liabilities, and contractual status of the district.

Sec. 33.  16 V.S.A. § 724 is added to read:

§ 724.  WITHDRAWAL FROM OR DISSOLUTION OF A UNIFIED UNION SCHOOL DISTRICT

(a)  A town or city corresponding to a preexisting school district that voted to form a unified union school district may vote to withdraw from the district if one year has elapsed since the unified union school district became a body politic and corporate as provided under section 706g of this title.

(b)  When a majority of the voters of the town or city present and voting at a meeting duly warned for that purpose votes to withdraw from a unified union school district, the vote shall be certified by the clerk of the town or city to the secretary of state who shall record the certificate in his or her office and give notice of the vote to the other towns or cities corresponding to the preexisting school districts that voted to form the unified union school district.  Such other towns and cities shall vote by Australian ballot on the same day during the same hours whether to ratify the withdrawal of the town or city.  To be effective, action to withdraw shall be approved by an affirmative vote of each of the other towns or cities within the unified union school district.

(c)  If the vote to ratify the withdrawal of the town or city is approved by each of the other towns or cities, the unified union school district clerk shall notify the commissioner of education who shall advise the state board of education.  At a meeting held thereafter, if the state board finds that the students in the withdrawing town or city will attend a school that is in compliance with the rules adopted by the board pertaining to educational programs, the board shall declare the membership of the withdrawing town or city to be at an end as of July 1 immediately following or as soon thereafter as the obligations of the withdrawing district have been paid to, or an agreement made with, the union school district in an amount satisfactory to the electorate of each of the other towns and cities within the unified union school district.  In addition, the state board shall declare the preexisting school district corresponding to the withdrawing town or city to be reconstituted.  The board shall give notice to the remaining towns and cities in the unified union school district of its meeting and give the relevant representatives an opportunity to be heard.  It shall then determine whether it is in the best interests of the state, the students, and the school districts remaining in the unified union school district that the unified union district continue to exist.  The board may declare the unified union school district dissolved as of July 1 immediately following or as soon thereafter as each remaining town’s or city’s obligations have been satisfied, or it may declare that the unified union district shall continue to exist despite the withdrawal of the former town or city member.  The state board of education shall file its declaration with the secretary of state, the clerk of the withdrawing town or city, and the clerk of the affected unified union school district.

(d)  A vote of withdrawal taken after a unified union school district has become a body politic and corporate as provided in section 706g of this title but less than one year after that date is void.

Sec. 34.  LEGISLATIVE COUNCIL; STATUTORY CHANGES TO SUPPORT THIS ACT

Pursuant to its statutory revision authority in 2 V.S.A. § 424, the legislative council is directed, wherever applicable in chapter 11 of Title 16, to substitute the term “study” for the term “plan” or “planning.”

* * * No Child Left Behind * * *

Sec. 35.  Secs. 13 and 14 of No. 182 of the Acts of the 2005 Adj. Sess. (2006) are amended to read:

Sec. 13.  Sec. 2 of No. 64 of the Acts of 2003, as amended by Sec. 2 4 of No. 114 of the Acts of 2004 the 2003 Adj. Sess. (2004) is amended to read:

Sec. 2.  COMPLIANCE WITH FEDERAL REQUIREMENTS; MEASURING

             ADEQUATE YEARLY PROGRESS TOWARD ACHIEVING

             STATE STANDARDS; CONSEQUENCES

16 V.S.A. § 165 authorizes the commissioner of education to determine how well schools and students are meeting state standards every two years and to impose certain consequences if schools are failing to meet standards after specific time periods.  Notwithstanding the provisions of that section, in order to comply with the provisions of Public Law 107-110, known as the No Child Left Behind Act of 2001, during school years 2003–2004 through 2006–2008 20082009, the commissioner is authorized to determine whether schools and school districts are meeting state standards annually and the state board of education is authorized to impose on schools and school districts consequences allowed in state law and required by the Act within the time frame required in the Act.  However, consistent with Title IX, Part E, Subpart 2, Sec. 9527 of the No Child Left Behind Act, neither the state nor any subdivision thereof shall be required to spend any funds or incur any costs not paid for under the Act in order to comply with the provisions of the Act.  The state or any subdivision thereof may expend other funds for activities they were already conducting consistent with the Act, or for activities authorized in a state or local fiscal year 2004 budget.  It is the intent of the general assembly to continue to study the provisions of the federal law and to seek guidance from the federal government in order to determine permanent changes to Title 16 that will be necessary to comply with federal law and to avoid having federal law cause state and local governments to absorb the cost of unfunded mandates.

Sec. 14.  Subsections (b), (c), and (e) of Sec. 3 of No. 64 of the Acts of 2003, as amended by Sec. 2 5 of No. 114 of the Acts of 2004 the 2003 Adj. Sess. (2004) are amended to read:

(b)  Notwithstanding the provisions of 16 V.S.A. §§ 1075(e), 1093, and 1128(b) which stipulate that a child of parents who become homeless shall be educated in the school district in which the child is found and that a school district may choose not to accept nonresident pupils, in order to comply with the provisions of Public Law 107-110, known as the No Child Left Behind Act of 2001, the provisions of this section shall apply to children who are homeless during school years 2003–2004 through 2006-2008 20082009.  It is the intent of the general assembly to continue to study the provisions of the federal law and to seek guidance from the federal government in order to determine permanent changes to Title 16 that will be necessary to comply with federal law.

(c)  If a child becomes homeless during school year 2005–2006, 2006–2007, or 2007–2008, or 2008–2009, the child shall either be educated:  in the school of origin for the duration of the homelessness or for the remainder of the academic year if the child becomes permanently housed outside the district of origin; or in the school district in which the child is actually living.  The determination as to which school the child shall attend shall be made by the school board of the school district in which the child is living according to the best interests of the child. 

(e)  Notwithstanding the provisions of 16 V.S.A. § 4001(1)(A) which stipulate that a pupil must be a legal resident of the district attending a school owned and operated by the district in order to be counted in the average daily membership of the district, during the 2003–2004 through 2006–2008

20082009 school years, a child who is homeless during the census period shall be counted in the school district or districts in which the child is enrolled.  However, if at any time a homeless child enrolls, pursuant to this section, in a school district other than the district in which the child was counted, the district in which the child is enrolled shall become responsible for the education of the child, including payment of education services and, if appropriate, development and implementation of an individualized education plan.

* * * Designation of a Public or Elementary School; Study * * *

Sec. 36.  DESIGNATION OF A PUBLIC OR ELEMENTARY SCHOOL AS THE PUBLIC SCHOOL OF A DISTRICT; STUDY

The general assembly recognizes that, notwithstanding the limitations of
16 V.S.A. § 827, it may at times be necessary or advisable to authorize Vermont school districts to designate a public or approved independent elementary or secondary school as the public school of the designating school district.  On or before January 15, 2009, the commissioner shall examine the issue and provide the senate and house committees on education with detailed information that will enable the general assembly to determine whether expanded authorization should be available to all school districts that do not maintain a school, whether authorization exceeding § 827 should never be granted, or whether expanded authorization should be limited to specific situations.  The detailed information shall include data regarding school districts that provide for the education of their students by paying tuition, the number of students in these districts, the schools the students are able to attend under current law, and the schools they might reasonably attend if districts could designate a public or approved independnet elementary school, a public secondary school, or both as the public school or schools of the district.

* * * Alternative Education Programs; Study * * *

Sec. 37.  ALTERNATIVE EDUCATION PROGRAMS; STUDY

(a)  The commissioner of education shall study and propose alternative methods by which school districts can support secondary students who are in danger of terminating their enrollment prior to graduation.  The commissioner shall specifically focus on ways in which districts can encourage students to attend alternative education programs while remaining enrolled in secondary school and shall create an inventory of alternative education programs currently available in the state.  Among the issues to be studied are:

(1)  The ways in which an eligible student should be identified and by whom.

(2)  The nature and qualifications of the alternative education programs that should be eligible to receive payment from a school district and whether and by what entity the programs should be approved or accredited. 

(3)  Whether and to what extent the alternative education program should be required to have an existing relationship with the school district. 

(4)  The ways in which a school district could ensure academic continuity and quality while a student attends an alternative education program on a full- or part-time basis.

(5)  Methods by which public dollars could be expended to pay the alternative education program for its role in educating the student.

(6)  The estimated per-pupil financial costs to secondary schools resulting from each payment method identified in subdivision (5) of this subsection.

(b)  On or before January 15, 2009, the commissioner shall file a report with the senate and house committees on education outlining the results of the study and providing detailed proposals.

* * *

* * * Districts Paying Tuition for All Students * * *

Sec. 38.  DISTRICTS PAYING TUITION FOR ALL STUDENTS IN
            ELEMENTARY AND SECONDARY SCHOOL; EXCESS
            SPENDING; SUNSET

(a)  A school district shall be exempt from the calculation of excess spending in 32 V.S.A. § 5401(12) and from that calculation’s use in determining the district spending adjustment under subdivision (13) of that section if the district:

(1)  Is not a member of a union school district or a unified union school district;

(2)  Does not maintain an elementary school or a secondary school; and

(3)  Pays tuition for all publicly funded students residing in the district.

(b)  This section shall take effect on July 1, 2008 and shall sunset on
July 1, 2010.

And that upon passage, the title shall be “AN ACT RELATING TO AGRICULTURAL, FORESTRY, AND HORTICULTURAL EDUCATION; ANIMAL DISSECTION; THE REPEAL OF BURDENSOME REPORTS; STREAMLINING THE FORMATION OF UNION DISTRICTS; DISTRICTS THAT PAY TUITION FOR ALL STUDENTS; AND OTHER CHANGES TO EDUCATION LAW”

 

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

THE SENATE                                    THE HOUSE

Sen. Robert Starr                                           Rep. Reginald Godin

Sen. John Campbell                                       Rep. Will Stevens

Sen. Vincent Illuzzi                                         Rep. Peter Peltz

H. 859

 

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon House Bill, entitled:

AN ACT RELATING TO INCREASING SUBSTANCE ABUSE TREATMENT, VOCATIONAL TRAINING, AND TRANSITIONAL HOUSING FOR OFFENDERS IN ORDER TO REDUCE RECIDIVISM, INCREASE PUBLIC SAFETY, AND REDUCE CORRECTIONS COSTS

Respectfully report that they have met and considered the same and recommend that the Senate concur with the House proposal of amendment and that the bill be further amended by striking all after the enacting clause and inserting in lieu thereof:

Sec. 1.  FINDINGS AND INTENT

(a)  The general assembly finds that:

(1)  Vermont’s incarcerated population is growing at an unsustainable rate.

(2)  Property and drug offenders are the fastest growing segment of the prison population.  Between 2000 and 2006, over one-half the increase in the felony prison population was due to property and substance abuse offenses.

(3)  Seventy-seven percent of those sentenced for a property or drug felony have a substance abuse disorder.  Two-thirds of them report having received mental health treatment in the past.  Fifty-five percent report being frequently unemployed prior to incarceration.

(4)  Of those incarcerated for a property or drug felony, only 13 percent are receiving treatment.

(b)  The general assembly further finds that:

(1)  Each month, approximately 70 inmates meet the criteria for reentering the community under the supervision of the commissioner of corrections on conditional reentry status.  However, almost one-half are not released because of insufficient housing options.

(2)  Studies show that the length of sentences served by offenders does not affect their recidivism rates.  Therefore, current law authorizes the commissioner of corrections to release certain offenders on reintegration furlough 90 days prior to the minimum sentence date.  However, on average, eligible inmates serve only 53 days on reintegration furlough status.  If all those who are eligible serve the full 90 days of reintegration status, the result could be a savings of up to 90 corrections beds.

(c)  The general assembly intends:

(1)  to reduce recidivism, increase public safety, and reduce the cost to the state of incarcerating offenders by increasing substance abuse treatment services, vocational training, and transitional housing available to offenders, and by establishing processes for reducing incarceration time when appropriate; and

(2)  that the provisions of this act are a long-range plan to guide expenditures from additional corrections savings in future years.

Sec. 2.  28 V.S.A. § 102(b) is amended to read:

(b)  The commissioner is charged with the following powers:

* * *

(5)  To order the assignment and transfer of persons committed to the custody of the commissioner to correctional facilities, including out-of-state facilities.

* * *

Sec. 3.  28 V.S.A. § 202 is amended to read:

§ 202.  POWERS AND RESPONSIBILITIES OF THE COMMISSIONER

            REGARDING PROBATION

The commissioner shall be charged with the following powers and responsibilities regarding the administration of probation:

(1)  To maintain general supervision of persons placed on probation, and to prescribe rules and regulations, consistent with any orders of the court, governing the conduct of such persons;

(2)  To supervise the administration of probation services and establish policies and standards and make rules and regulations regarding probation investigation, supervision, case work and case loads, record keeping, and the qualification of probation officers;

(3)  To use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on probation.  Transdermal alcohol monitoring equipment shall be used for such purposes as discouraging persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways.   

Sec. 4.  28 V.S.A. § 205(c) is added to read:

(c)(1)  Unless the court in its discretion finds that the interests of justice require additional standard and special conditions of probation, when the court orders a specific term of probation for a qualifying offense, the offender shall be placed on administrative probation, which means that the only conditions of probation shall be that the probationer:

(A)  register with the department of corrections’ probation and parole office in his or her district;

(B)  notify the probation officer of his or her current address each month;

(C)  within 72 hours, notify the department of corrections if probable cause is found for a criminal offense during the term of probation; and

(D)  not be convicted of a criminal offense during the term of probation.

(2)  As used in this subsection, “qualifying offense” means:

(A)  Unlawful mischief under 13 V.S.A. § 3701.

(B)  Retail theft under 13 V.S.A. §§ 2575 and 2577.

(C)  Operating after suspension or revocation of license under 23 V.S.A. § 674(a).

(D)  Bad checks under 13 V.S.A. § 2022.

(E)  Theft of services under 13 V.S.A. § 2582.

(F)  Disorderly conduct under 13 V.S.A. § 1026, unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).

(G)  Theft of rented property under 13 V.S.A. § 2591.

(H)  Operation without consent of owner under 23 V.S.A. § 1094(a).

(I)  Petit larceny under 13 V.S.A. § 2502.

(J)  Negligent operation of a motor vehicle under 23 V.S.A.

§ 1091(a).

(K)  False reports to law enforcement under 13 V.S.A. § 1754.

(L)  Setting fires under 13 V.S.A. § 508.

(M)  A first offense of a minor’s misrepresenting age, procuring, possessing, or consuming liquors under 7 V.S.A. § 657.

(N)  Simple assault by mutual consent under 13 V.S.A. § 1023(b) unless the original charge was a listed offense as defined in 13 V.S.A. § 5301(7).

(O)  Unlawful trespass under 13 V.S.A. § 3705(a).

(P)  A first offense of possession under 18 V.S.A. § 4230(a)(1).

(3)  Nothing in this subsection shall prohibit a court from requiring participation in the restorative justice program established in chapter 12 of this title.

Sec. 5.  28 V.S.A. § 252(b) is amended and (d) is added to read:

(b)  When imposing a sentence of probation, the court may, as a condition of probation, require that the offender:

* * *

(16)  Satisfy any other conditions reasonably related to his or her rehabilitation.  The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender’s rehabilitation or necessary to reduce risk to public safety.

(d)  The commissioner shall review the record of each probationer serving a specified term during the month prior to the midpoint of that probationer’s specified term and may file a motion requesting the sentencing court to dismiss the probationer from probation or deduct a portion of the specified term from the period of probation if the offender has successfully completed a program or has attained a goal or goals specified by the conditions of probation.  The commissioner may include in the motion a request that the court deduct a portion of the specified term for each condition completed or goal attained. Any motion under this section shall be made pursuant to a rule adopted by the commissioner under 3 V.S.A. chapter 25 which shall provide that the decision to make or refrain from making a motion shall be made at the sole discretion of the commissioner and shall not be subject to appeal.

Sec. 6.  28 V.S.A. § 105 is added to read:

§ 105.  CASELOAD CAPACITY

(a)  Corrections officers designated to work exclusively with offenders in the community who are 21 years of age and younger shall have caseloads of no more than 25 youths.

(b)  The department shall review the severity of offenses and assess the risk to reoffend of all offenders older than 21 years of age under its jurisdiction in the community and assign one of the following levels of supervision to each offender: 

(1)  Risk management supervision, which shall mean supervision at a level of intensity that includes case planning and measures to reduce risk of reoffense.

(2)  Response supervision, which shall mean monitoring of the offender’s compliance with conditions of probation or parole, including staff responding to violation behavior.

(3)  Administrative supervision, which shall mean monitoring of the offender’s address and compliance with the law. 

(c)  An offender may be reassigned to a lower supervision level after a reassessment of the offender’s risk.

(d)  The department shall establish the following caseload ranges for offender profiles:

(1)  All listed offenders requiring risk management shall be supervised at no more than 45 offenders per corrections officer.

(2)  All nonlisted offenders requiring risk management shall be supervised at no more than 60 offenders per corrections officer.

(3)  All offenders requiring response supervision shall be supervised at no more than 150 offenders per corrections officer.

(4)  All offenders requiring administrative supervision may be supervised on caseloads consistent with the capacity of automated status reporting systems as established by the department.

(5)  When there is a mixed profile caseload in which a single corrections officer supervises offenders with different supervision levels and at least one‑third of the offenders require a more intensive supervision demand than the other offenders, the caseload shall be supervised at the lowest level of offender-to-staff ratio. 

(e)  If the caseloads established in subsection (d) of this section are exceeded for longer than 120 days, the commissioner shall be authorized to designate community correctional officers to partially augment staffing caseloads.  If such designation does not remedy the excess caseloads:

(1)  The commissioner shall report to the joint corrections oversight committee the causes for the excess and proposals for addressing them.

(2)  The department shall have the authority, if the commissioner believes that the excess will not be eliminated within 60 days, to hire persons from the positions drawn from the state’s vacancy pool as limited service employees for an initial period of up to one year.  The initial period may be extended for up to two more years if the department deems it necessary.

(f)  Each time a position is established under subdivision (e)(2) of this section, the commissioner shall report it at the next meeting of the joint corrections oversight committee.  The costs for each position shall be presented in the department’s budget adjustment proposal and, if the positions are necessary for an ongoing period, in the department’s annual budget request.

Sec. 7.  28 V.S.A. § 403(1) is amended to read:

(1)  To supervise and control persons placed on parole, subject to the rules and orders of the parole board as to the conditions of parole.  The commissioner may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on parole.  Transdermal alcohol monitoring equipment shall be used for such purposes as discouraging persons whose licenses have been suspended for DUI from operating motor vehicles on Vermont highways;

Sec. 8.  28 V.S.A. § 723(c) is added to read:

(c)  Prior to release under this section, the department shall screen and, if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan.  The department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release. 

Sec. 9.  28 V.S.A. § 808(a)(8)(E) and (F) are added to read:

(8)  To prepare for reentry into the community.

* * *

(E)  An offender incarcerated for driving while under the influence of alcohol under 13 V.S.A. § 1210(d) or (e) may be furloughed to the community up to 180 days prior to completion of the minimum sentence at the commissioner’s discretion and in accordance with rules adopted pursuant to subdivision (C) of this subdivision (8), provided that an offender sentenced to a minimum term of fewer than 270 days shall not be eligible for furlough under this subdivision until the offender has served at least 90 days of his or her minimum term of incarceration and provided that the commissioner uses electronic equipment to continually monitor the offender’s location and blood alcohol level, or other equipment such as an alcohol ignition interlock system, or both.

(F)  Prior to release under this subdivision (8), the department shall screen and, if appropriate, assess each felony drug and property offender for substance abuse treatment needs using an assessment tool designed to assess the suitability of a broad range of treatment services, and it shall use the results of this assessment in preparing a reentry plan.  The department shall attempt to identify all necessary services in the reentry plan and work with the offender to make connections to necessary services prior to release so that the offender can begin receiving services immediately upon release. 

Sec. 10.  28 V.S.A. § 808(b) is amended to read:

(b)  An inmate granted a furlough pursuant to this section may be accompanied by an employee of the department, in the discretion of the commissioner, during the period of the inmate’s furlough.  The department may use electronic monitoring equipment such as global position monitoring, automated voice recognition telephone equipment, and transdermal alcohol monitoring equipment to enable more effective or efficient supervision of individuals placed on furlough.

Sec. 11.  33 V.S.A. § 708 is amended to read:

§ 708.  TREATMENT AND SERVICES

* * *

(d)  A person judged by a law enforcement officer to be incapacitated, and who has not been charged with a crime, may be lodged in protective custody in a lockup or community correctional center secure facility not operated by the department of corrections for up to 24 hours or until judged by the person in charge of the facility to be no longer incapacitated, if and only if:

(1)  The person refuses to be transported to an appropriate facility for treatment, or if once there, refuses treatment or leaves the facility before he or she is considered by the responsible staff of that facility to be no longer incapacitated; or

(2)  No approved substance abuse treatment program with detoxification capabilities and no staff physician or other medical professional at the nearest licensed general hospital can be found who will accept the person for treatment.

(e)  No person shall be lodged in a lockup or community correctional center secure facility under subsection (d) of this section without first being evaluated by a substance abuse crisis team, a designated substance abuse counselor, a clinical staff person of an approved substance abuse treatment program with detoxification capabilities or a professional medical staff person at a licensed general hospital emergency room and found to be indeed incapacitated.

(f)  No lockup or community correctional center shall  A lockup not operated by the department of corrections shall not refuse to admit an incapacitated person in protective custody whose admission is requested by a law enforcement officer, in compliance with the conditions of this section.

(g)  Notwithstanding subsection (d) of this section, a person under 18 years of age who is judged by a law enforcement officer to be incapacitated and who has not been charged with a crime shall not be held at a lockup or community correctional center.  If needed treatment is not readily available the person shall be released to his or her parent or guardian.  If the person has no parent or guardian in the area, arrangements shall be made to house him or her according to the provisions of chapter 55 of this title.  The official in charge of an adult jail or lockup shall notify the director of the office of drug and alcohol abuse of any person under the age of 18 brought to an adult jail or lockup pursuant to this chapter.

(h)  If an incapacitated person in protective custody is lodged in a lockup or community correctional center secure facility, his or her family or next of kin shall be notified as promptly as possible.  If the person is an adult and requests that there be no notification, his or her request shall be respected.

(i)  A taking into protective custody under this section is not an arrest.

(j)  Law enforcement officers or , persons responsible for supervision in a lockup or community correctional center or secure facility, members of a substance abuse crisis team or , and designated substance abuse counselors who act under the authority of this section are acting in the course of their official duty and are not criminally or civilly liable therefor, unless for gross negligence or willful or wanton injury.

Sec. 12.  33 V.S.A. § 708a is added to read:

§ 708a.  INCARCERATION FOR INEBRIATION PROHIBITED

A person who has not been charged with a crime shall not be incarcerated in a facility operated by the department of corrections on account of the person’s inebriation.

Sec. 13.  TRANSITION UNITS

(a)  The general assembly intends in this act to provide to offenders who are eligible for release into the community the opportunity for a successful transition.

(b)  The commissioner of corrections shall report to the corrections oversight committee on or before November 1, 2008, on:

(1) the feasibility and costs of establishing within the Northwest State Correctional Facility a transition unit which is modeled on the transition unit at the Chittenden Regional Correctional Facility which enables inmates to work in the community while residing in the facility.  In considering options, the commissioner shall consider remodeling a unit in which the general assembly has already invested funds for upgrade; and

(2)  the feasibility and costs of incorporating a transition unit into any facility where renovations are necessary to implement the provisions of this act.

Sec. 14.  CORRECTIONAL FACILITIES REORGANIZATION;  PLAN

(a)  Findings.  Department of corrections expenditures on correctional services including out-of-state beds grew from $93,255,650.00 in fiscal year 2004 to $120,533,309.00 in fiscal year 2008.  The amount of funding proposed for fiscal year 2009 is $123,589,833.00.  This rate of increase has been and remains unsustainable.

(b)  Action.  In order to reduce the unsustainable increases in the expenditures of the department of corrections, the following action shall be taken by the executive branch:

(1)  In fiscal year 2009, the Dale Correctional Facility in Waterbury shall be closed.

(2)  In fiscal year 2009, the mission of the Southeast State Correctional Facility in Windsor shall change to be a therapeutic community in a work camp model, consistent with any further directive set forth in the Capital Construction and State Bonding Act for fiscal year 2009.

(3)  In fiscal year 2009, sections of the Northwest State Correctional Facility in St. Albans shall be closed and the facility otherwise configured to house and program women, with consideration given to housing male detainees, consistent with any further directive set forth in the Capital Construction and State Bonding Act for fiscal year 2009.

(c)  Goal; fiscal year 2009.  It is the goal of the general assembly to achieve in the fourth quarter of fiscal year 2009 approximately $600,000.00 in savings in the department of corrections budget, which will be reinvested in substance abuse screening, assessment, treatment, and reentry support, the goal of which is to reduce recidivism for the target group indentified in Sec. 1(a) of this act.

(d)  Goal; fiscal year 2010.  It is the goal of the general assembly to achieve in fiscal year 2010 approximately $3,044,949 in savings in the department of corrections budget, some of which will be reinvested in a variety of effective programs to further reduce recidivism for the target group indentified in Sec. 1(a) of this act. 

(e)  The general assembly recognizes and values the dedication and experience of the classified state employees of the department of corrections, whose skill and expertise will continue to be needed as the department continues to pursue its goals and mission.  Therefore, the restructuring necessary to achieve the cost savings required for this act shall result in the following:

(1)  The incumbents in the five classified positions that will be eliminated at Northwest State Correctional Facility shall continue to be employed at that facility in classified positions that are vacant, unless the incumbents voluntarily seek employment in other state positions or leave state service.

(2)  The temporary and exempt superintendent positions at the Dale facility shall be eliminated.

(3)  An incumbent in a classified position that will be eliminated at the Dale facility who does not accept any existing vacant classified position and who exercises the contractual right to fill an existing temporary position at any department facility shall receive his or her classified position base salary and the benefits of the bargaining unit to which that temporary position would be assigned if permanent, with the exceptions of scheduling days of work, shift assignment, and post assignment.  The rights established by this subdivision shall be available until January 1, 2011, or until an affected employee accepts an existing classified position, whichever occurs first.

(4)  Except as otherwise provided in this section, all existing state employee contract provisions and protections shall remain fully in force for any affected corrections employee covered by the contract.

(5)  Up to 120 hours of training, as appropriate based on levels of previous training and experience, for employees of those facilities involved in the reorganization described in this section who will need training due to a change in assigned duties.

(f)  As part of the reorganization, the department of corrections shall work with community-based organizations to provide services for inmates, including at least as many services in the St. Albans facility for women as were offered in the Windsor and Dale facilities.

Sec. 15.  BUDGETARY SAVINGS; ALLOCATIONS IN FISCAL YEAR                            2009 AND FISCAL YEAR 2010

(a)  It is the intent of the general assembly to achieve savings in the department of corrections budget which will be reinvested in substance abuse screening, assessment, and treatment and reentry support to result in reduced recidivism.

(b)  In fiscal year 2009, from within the amounts appropriated to the department of corrections from the general fund, the department shall spend $600,000 as follows:

(1)  The amount of $100,000.00 shall be to increase the capacity of the department of corrections’ intensive substance abuse program (ISAP) to provide services to those offenders with drug abuse disorders who are on preapproved furlough status under 28 V.S.A. § 808(a)(7).

(2)  The amount of $200,000.00 shall be to fund the establishment of a screening and assessment pilot program at a location approved by the court administrator to:

(A)  conduct a voluntary and confidential screening and assessment, when screening indicates that an assessment is appropriate, for substance abuse and mental health treatment needs at the time of arraignment of individuals charged with felony property, drug, or fraud offenses;

(B)  conduct a mandatory screening and assessment, when screening indicates that an assessment is appropriate, for substance abuse and mental health treatment needs following adjudication and prior to sentencing of individuals found guilty of felony property, drug, or fraud offenses;

(C)  provide the results of any screening and assessment conducted under this section to the judge following adjudication and prior to sentencing so that the judge can use the information to determine the level of treatment to be provided while the individual is in the custody of the commissioner of corrections; and

(D)  enable the commissioner to gather data regarding the prevalence of co-occurring substance abuse and mental health disorders.   

(3)  The amount of $88,000.00 shall be to assess offenders for substance abuse treatment needs prior to release.

(4)  The amount of $150,000.00 shall be used to fund substance abuse programs and vocational training in the Windsor work camp facility.

(5)  the amount of $62,000.00 shall be for entering into contracts with several community‑based substance abuse treatment providers in different geographic regions of the state to provide the substance abuse treatment services to persons on conditional reentry status pursuant to subchapter 1A of chapter 11 of 28 V.S.A. or furlough pursuant to 28 V.S.A. § 808.

(c)  Based on a recommendation from the commissioner of corrections and the corrections oversight committee, the joint fiscal committee may authorize further spending of funds from the fiscal year 2009 corrections appropriation for all or part of the amounts of this subsection, in the order listed in this subsection.  In fiscal year 2010, from within the amounts appropriated to the department of corrections from the general fund, the department shall reinvest a portion of the savings identified by the commissioner of corrections and the corrections oversight committee as follows:

(1)  The amount necessary to continue funding the screening and assessment pilot program established in subdivision (b)(2) of this section for one more year.

(2)  The amount of $150,000.00 shall be to provide grants to community providers of transitional housing to increase the number of beds available by 10 beds for three to six months of housing for at least 20 offenders reentering the community on furlough pursuant to 28 V.S.A. § 808 or on conditional reentry pursuant to subchapter 1A of chapter 11 of Title 28.

(3)  The amount of $200,000.00 shall be to develop the capacities of community substance abuse treatment providers to work effectively with offenders and to function efficiently as a collaborative system.

(4)  The amount of $1,200,000.00 shall be to provide grants to community providers to increase by 60 the number of beds available for at least 120 offenders who will be staying in the transitional housing for three to six months before reentering the community on furlough pursuant to 28 V.S.A. § 808 or conditional reentry, pursuant to subchapter 1A of chapter 11 of Title 28.  The new transitional housing shall include a range from lightly supervised with no treatment programs to heavily supervised with wrap-around treatment programs.  Of the amount appropriated in this subdivision, $200,000.00 shall be used to:

(A)  provide life skills programming;

(B)  expand housing readiness, search, and retention services; and

(C)  expand housing assistance funding which may be granted to housing authorities and other community agencies in response to requests for proposals or memorandums of understanding entered into in accordance with department policy and directives.

(5)  The amount of $365,000.00 shall be to expand the ISAP program to include a residential component for those who have been furloughed to the community pursuant to 28 V.S.A. § 808(a)(7);

(6)  The amount of $650,000.00 shall be to provide vocational training and residential substance abuse programs in one or more state-owned and ‑operated work camps.

(7)  The amount of $110,000.00 shall be for recovery centers.

(8)  The amount of $50,000.00 shall be to increase the capacity of the department of corrections’ intensive substance abuse program (ISAP) to provide services to those offenders with drug abuse disorders who are on preapproved furlough status under 28 V.S.A. § 808(a)(7).

(9)  The amount of $150,000.00 shall be used to expand the availability of public inebriate beds outside the department of corrections.

(10)  The amount of $211,000.00 shall be used to purchase electronic monitoring equipment, including automated voice recognition telephone equipment, global position monitoring system bracelets, and transdermal alcohol monitoring equipment.  The commissioner shall use the equipment to augment supervision of offenders on probation, parole, or furlough and to enhance the capacity of field staff to monitor and control offenders who would otherwise be incarcerated.

(d)  The joint fiscal office shall track and report to the joint fiscal committee in January and July of 2009 savings in the corrections budget resulting from the provisions of this act, including savings resulting from increased use of electronic monitoring equipment following passage of this act.

Sec. 16.  STATEWIDE DRUG COURT STUDY

The court administrator, the defender general, the executive director of the department of state’s attorneys and sheriffs, the deputy commissioner of the department of health in charge of the office of alcohol and drug abuse programs, and the commissioner of mental health shall report to the house and senate committees on judiciary by December 15, 2008, on the advisability and feasibility of expanding the drug court program to every county in the state.  The report shall address:

(1)  the financial costs of expanding the drug court program statewide;

(2)  the workforce impact which a statewide expansion of the program would have and whether new staff would be required;

(3)  whether current state facilities have the capacity to support statewide expansion and whether and where any new facilities would be required; and

(4)  any other matter deemed relevant to the issue of statewide drug court expansion.    

Sec. 17.  PUBLIC INEBRIATES TASK FORCE

(a)  A public inebriates task force is established.  The task force shall consist of the following members:

(1)  Two members employed by the office of alcohol and drug abuse programs appointed by the commissioner of the department of health.

(2)  Two substance abuse treatment providers appointed by the substance abuse treatment providers association.

(3)  One member appointed by the department of public safety.

(4)  One member appointed by the Vermont police association.

(5)  One member appointed by the Vermont League of Cities and Towns.

(6)  Two members appointed by the Vermont medical society who shall be hospital emergency department personnel.

(7)  Two members appointed by the Vermont recovery network.

(8)  Two employees of the department of corrections appointed by the commissioner of the department of corrections.

(9)  A representative of the Vermont Association of Hospitals and Health Systems.

(b)  The task force shall report to the senate and house committees on judiciary, institutions, and appropriations no later than January 1, 2010 with a plan to ensure that public inebriates are given appropriate care rather than incarcerated.  The plan shall ensure the regional availability of supportive voluntary and secure accommodations for public inebriates by January 1, 2011, and shall include a timetable for providing reimbursement of expenses to programs that house and maintain public inebriates.

Sec. 18.  ACCOUNTABILITY; REPORTS

(a)  On or before January 15, 2009, the commissioner of corrections and the court administrator shall report to the senate and house committees on judiciary and the house committee on corrections and institutions on implementing the screening and assessment pilot program authorized and funded in Sec. 15(b)(2) of this act, as well as recommendations for continuing the program or expanding the program or both.

(b)  On or before January 15, 2010, the commissioner of corrections shall report to the senate committee on judiciary, the senate committee on institutions, the house committee on corrections and institutions, and the house committee on judiciary on:

(1)  the prevalence of co-occurring mental health and substance abuse disorders among those committed to the custody of the commissioner of corrections;

(2)  the success of and problems encountered in:

(A)  expanding the ISAP program pursuant to Sec. 15(b)(1) of this act;

(B)  developing reentry plans which identify services needed by offenders upon release, and in working with community providers to ensure that each offender receives those services immediately upon release;

(C)  implementing the screening and assessment pilot program authorized and funded in Sec. 15(b)(2) of this act, as well as recommendations for continuing the program or expanding the program or both.  The commissioner shall make this report jointly with the court administrator;

(3)  the progress made since passage of this act in establishing a comprehensive system of community substance abuse treatment services which is coordinated with corrections services;

(4)  a proposal to increase the furlough days for nonlisted offenders from the existing average of 53 to a target of 75; and

(5)  the advisability of establishing a third 100-bed work camp in fiscal year 2011. 

(c)  On or before January 15, 2011, the commissioner of corrections shall report to the senate committee on judiciary, the house committee on corrections and institutions, and the house committee on judiciary on the successes of and problems encountered in working to meet the following goals with the funds provided and through the programs established in this act:

(1)  increase by at least 30 the number of offenders with sentences of one or more years placed in the department of corrections’ intensive substance abuse program (ISAP) pursuant to 28 V.S.A. § 808(a)(7);

(2)  move at least 10 offenders who are in the intensive phase of receiving ISAP services under 28 V.S.A. § 808(a)(7) and who are unsuccessful and would otherwise be reincarcerated to a community-based residential substance abuse treatment program which may be a component of ISAP;

(3)  incarcerate no more than 20 percent of offenders who are receiving substance abuse treatment services under 28 V.S.A. § 808(a)(7); 

(4)  reduce by 10 percent the number of reincarcerations of those on conditional reentry with a high need for substance abuse treatment;

(5)  increase by 25 the average per month number of inmates released on furlough, pursuant to 28 V.S.A. § 808; and

(6)  increase the average number of days inmates are released on reintegration furlough pursuant to 28 V.S.A. § 808(a)(8) prior to the minimum sentence to as close to 90 days as possible. 

(d)  Until the corrections oversight committee informs the commissioner that it no longer requires the information, the commissioner of corrections shall include in monthly reports to the committee:

(1)  the number of inmates eligible for furlough under 28 V.S.A. § 808 and considered appropriate for release by the commissioner but who have not been released because the commissioner is unable to find appropriate housing, employment, treatment, or other services;

(2)  which treatment or other services would have been necessary and in which geographic region the services would have been needed to enable release;

(3)  the number of days of incarceration that could have been avoided if the community resources had been available and these offenders had been released; and

(4)  a detailed description of the progress made on increasing the use of electronic monitoring as authorized by 28 V.S.A. §§ 202, 403(1) and 808(b). 

(e)  On or before January 15, 2011, the court administrator’s office, in consultation with the office of alcohol and drug abuse programs in the Vermont department of health, the department of corrections, the defender general, and the executive director of the department of state’s attorneys and sheriffs, shall report to the senate and house committees on judiciary on the costs, cost savings, and effectiveness of the screening and assessment pilot project established pursuant to Sec. 15(b)(2) of this act and shall make a recommendation as to the continuation of the screening and assessment pilot project and its expansion to other counties.

(f)  The joint fiscal office and the office of finance and management shall jointly document the impact of the policies and provisions of this act on corrections costs and shall report their findings to the general assembly on or before January 15, 2010, and in January of each year for five years thereafter.

(g)  The Vermont center for justice research shall study and evaluate the effectiveness of the system of administrative probation established by subsection 205(c) of Title 28, including whether the people who receive such probation commit further offenses and the nature of those offenses.  The center shall report its evaluation of administrative probation to the senate and house committees on judiciary on or before December 15, 2011.

Sec. 19.  CORRECTIONS OVERSIGHT COMMITTEE; CHILDREN OF
  INCARCERATED PARENTS; REPORT

(a)  During the summer and fall of 2008, the corrections oversight committee shall investigate issues regarding minor children of incarcerated parents.  The investigation shall include:

(1)  A report from the commissioner of corrections on data on the prevalence of inmates who are parents of minor children including the number of inmates who are primary caregivers of minor children.

(2)  Identification of mail, telephone, and visiting policies that promote appropriate family contact.

(3)  A report from the secretary of human services on how to provide appropriate support and assistance to the children of incarcerated parents.

(b)  The committee shall make recommendations regarding:

(1)  Ways to increase and improve appropriate contact between minor children and their incarcerated parents.

(2)  Data to be collected to enable the general assembly to understand the impact of incarceration of parents on minor children and to help policy makers access resources and formulate solutions.  The committee shall also make recommendations on how the data will be collected.

(3)  Cost estimates of resources needed to make recommended changes.

(4)  Appropriate support and assistance to the children of incarcerated parents using existing resources, programs, and staff of the agency of human services.

(c)  The committee shall report its findings and recommendations to the general assembly on or before January 15, 2009. 

Sec. 20.  2 V.S.A. § 801(d) is amended to read:

(d)  When the general assembly is in session, the committee shall meet at the call of the chair.  The committee may meet four six times during adjournment, and may meet more often subject to approval of the speaker of the house and the president pro tempore of the senate.

Sec. 21.  LAW ENFORCEMENT ADVISORY BOARD; ANNUAL
               REPORT; CHILDREN OF ARRESTED PARENTS

The law enforcement advisory board created in 24 V.S.A. § 1939 shall review and evaluate current law enforcement practices and procedures in arresting a parent or caretaker of a minor child, particularly when the child is present at the time of the arrest.  The board shall solicit input from Kids Apart, the Vermont agency of human services’ child trauma work group, and the Vermont network against domestic and sexual violence.  In its 2009 annual report to the general assembly and the governor, the board shall report its findings and recommendations for improving current practices and procedures.

Sec. 22.  EFFECTIVE DATES

(a)  Secs. 11 and 12 of this act shall take effect on July 1, 2011.

(b)  All remaining sections of this act shall take effect on July 1, 2008.

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Richard Sears                                         Rep. Jason Lorber

Sen. Susan Bartlett                                         Rep. Alice Emmons

Sen. Philip Scott                                             Rep. John Rodgers

H. 863

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon House Bill, entitled:

AN ACT RELATING TO CREATION AND PRESERVATION OF AFFORDABLE HOUSING AND SMART GROWTH DEVELOPMENT

Respectfully report that they have met and considered the same and recommend that the Senate recede from its proposals of amendment and that the bill be amended by striking in its entirety and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE ACKNOWLEDGMENT

The general assembly gratefully thanks and acknowledges Gregory Brown, the executive director of the Chittenden County regional planning commission, for:

(1)  his time, commitment, and tenacity in helping to make the Vermont Neighborhood program a reality. 

(2)  his earlier, equally outstanding efforts that greatly contributed to the creation of the Vermont downtown program. 

(3)  his strong and committed leadership as the executive director of the Chittenden County regional planning commission between March 2003 and July 1, 2008, when he is scheduled to retire.

Sec. 1a.  FINDINGS AND PURPOSE

     (a)  Act 250 was enacted as a land use law in 1970 by a general assembly concerned about large scale, unregulated development in Vermont.  At that time, few towns had planning and zoning, and for the ones that did, there was limited staffing to enforce those rudimentary municipal laws.  Revisions were made to Act 250 in 1973, including the addition of 11 new subcriteria to criterion nine, relating to matters such as agricultural soils, energy conservation, earth resources and development affecting public investments, but the focus of the law remained to review large scale developments as those developments were defined.  As a result, a large number of developments around the state have been designed to avoid Act 250 jurisdiction, resulting in no or limited review of the cumulative impact of incremental development of nine or fewer lots in scattered locations.

(b)  Some argued in the 1970s that Act 250 regulatory review should be based a comprehensive land use plan that would delineate all the lands of the state by use classifications, but provided for refinements based on more detailed studies at the regional and local levels.  Others disagreed, arguing that the regulatory review process under Act 250 was sufficient.  In the end, no such measure was ever approved.  The requirement that there be an Act 250 state land use plan was deleted from the law in 1984. 

     (c)  Since that time, the general assembly incrementally has enacted legislation to plan land uses and encourage municipalities to approve compact residential neighborhoods in and around traditional villages and downtowns and in planned growth centers in accordance with smart growth principles. This planning act furthers that goal.

     (d)  Among the strategies to expedite the development of housing in these locations is to exempt certain residential development from Act 250, where it is demonstrated that such proposed land state use review is redundant with municipal land use review, and, through the careful targeting of eligible locations to impacted areas served by infrastructure, the potential for unplanned impact to natural resources and environmental quality is negligible.

     (e)  Targeting limited state incentives to smart growth locations must be balanced with careful planned development in the surrounding countryside.  To this end, strategies for improving certain Act 250 criteria to better manage scattered residential development and to curb strip development along the state’s highways should be studied and recommendations brought back before the general assembly for review and consideration.

     (f)  Through the use of higher Act 250 thresholds, coupled with strengthening criteria related to scattered development, rural growth areas, transportation and settlement patterns, Vermont can better achieve the state’s planning and development goal of maintaining Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside.

(g)  Regarding affordability, housing units actually developed under this act could very well have a greater degree of affordability than that required by law.

(1)  An important component of this act is the creation of a homeownership affordable housing tax credit, that by itself, creates an important incentive that will leverage private capital, reducing the cost of development and the eventual cost of a unit.

(2)  Because of location and density requirements established in the Vermont neighborhood program, housing options to be created under the program may be expected to encourage construction of rental property or condominiums, or a mix of the two, as well as stand-alone, stick-built homes.  This affects affordability because, statewide, the median price of a condominium is approximately $10,000.00 less than that of a stick-build home.

(3)  Since many projects will be developed with housing tax credits allocated by the Vermont housing finance agency, those projects will be subject to the agency’s qualified allocation plan, which itself considers the degree of affordability, both regarding the percentage of the units, and regarding the income level at which they are aimed.

(4)  Housing developed in Vermont neighborhoods by the land trusts or by Housing Vermont will have significant affordability, and in the case of the land trusts, that affordability will be permanent.

(5)  Downpayment assistance for low and moderate income homebuyers by raising the property transfer tax exemption from $100,000.00 to $110,000.00 for Vermont housing finance agency borrowers, resulting in a 25 percent increase in the maximum consumer benefit, from $500.00 to $625.00.  Downpayment and closing costs are a major obstacle to many potential homebuyers.

(6)  The state’s financial support for the programs of the Vermont housing finance agency will result in lower borrowing costs to consumers, making mortgages more affordable.  Specifically:

(A)  The state treasurer is authorized to provide up to $50 million in short-term credit to the Vermont housing finance agency for interim financing for its mortgage program.

(B)  The Vermont pension investment committee shall consider investing up to $17.5 million with the Vermont housing finance agency to assist with the mobile home financing program and the cash assistance program, which provides cash assistance with downpayments and closing costs, both particularly important for low and moderate income Vermonters.

(C)  The state will increase its moral obligation to enhance bonds and notes issued by the Vermont housing finance agency to $155 million.  These bonds and notes are used to finance VHFA programs for low and moderate income Vermonters.

(7)  The affordability standard for rental housing development established in this act is stricter than that in current law.  It is expected that rental units will be developed in Vermont neighborhoods, especially given the slow-down in the homeownership market.  More middle income Vermonters are turning to rental housing as their most appropriate housing option, especially as it has gotten more difficult to meet stricter underwriting standards and as foreclosure rates are increasing.

(8)  Housing affordability will be supported through funding for the Vermont housing and conservation board.  This year alone, $15 million is appropriated in state funds to provide financial support for housing and conservation programs. 

     (h)  As of May 1, 2008, there are 23 designated downtowns and 76 village centers, but not all of the designated downtown or village centers have zoning bylaws or subdivision regulations, reducing the number of Vermont Neighborhood eligible village centers to 24 and designated downtowns to 22.  There is one designated growth center.  Therefore, the regulatory relief and municipal revenue incentive provided by this act will initially apply to those 46 communities.

     (i)  The regulatory relief and the municipal revenue incentive for these 46 municipalities may encourage other municipalities to undertake the task of seeking designation as a downtown, village center or town growth center, enacting zoning bylaws and subdivision regulations, and then proceeding to obtain designation as a Vermont neighborhood.

* * * Vermont Neighborhoods Program * * *

Sec. 2.  24 V.S.A. § 2791(15) is added to read:

(15)  “Vermont neighborhood” means an area of land that is in a municipality with an approved plan, a confirmed planning process, zoning bylaws, and subdivision regulations, and is in compliance with all the following:

(A)  Is located in one of the following:

(i)  a designated downtown, village center, new town center, or growth center; or

(ii)  an area of land that is within the municipality and outside but contiguous to a designated downtown, village center, or new town center and is not more than 100 percent of the total acreage of the designated downtown, 50 percent of the village center, or 75 percent of the new town center.

(B)  Contains substantially all the following characteristics:

(i)  Its contiguous land, if any, complements the existing downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and is consistent with smart growth principles.

(ii)  It is served by either a municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources.

(iii)  It incorporates minimum residential densities of no fewer than four units of single-family, detached dwelling units per acre, and higher densities for duplexes and multi-family housing.

(iv)  It incorporates neighborhood design standards that promote compact, pedestrian-oriented development patterns and networks of sidewalks or paths for both pedestrians and bicycles that connect with adjacent development areas.

Sec. 3.  24 V.S.A. § 2793d is added to read:

§ 2793d.  DESIGNATION OF VERMONT NEIGHBORHOODS

(a)  A municipality that has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title, and has a designated downtown district, a designated village center, a designated new town center, or a designated growth center served by municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources, is authorized to apply for designation of a Vermont neighborhood.  A municipal decision to apply for designation shall be made by the municipal legislative body after at least one duly warned public hearing.  Designation is possible in two different situations:

(1)  Per se approval.  If a municipality submits an application in compliance with this subsection for a designated Vermont neighborhood that would have boundaries that are entirely within the boundaries of a designated downtown district, designated village center, designated new town center, or designated growth center, the downtown board shall issue the designation.

(2)  Designation by expanded downtown board in towns without growth centers.  If an application is submitted in compliance with this subsection by a municipality that does not have a designated growth center and proposes to create a Vermont neighborhood that has boundaries that include land that is not within its designated downtown, village center, or new town center, the expanded downtown board shall consider the application.  This application may be for approval of one or more Vermont neighborhoods that are outside but contiguous to a designated downtown district, village center, or new town center.  The application for designation shall include a map of the boundaries of the proposed Vermont neighborhood, including the property outside but contiguous to a designated downtown district, village center, or new town center and verification that the municipality has notified the regional planning commission and the regional development corporation of its application for this designation. 

(b)  Designation Process.  Within 45 days of receipt of a completed application, the expanded downtown board, after opportunity for public comment, shall designate a Vermont neighborhood if the board determines the applicant has met the requirements of subsections (a) and (c) of this section.  When designating a Vermont neighborhood, the board may change the boundaries that were contained in the application by reducing the size of the area proposed to be included in the designated neighborhood, but may not include in the designation land that was not included in the application for designation.  A Vermont neighborhood decision made by the expanded board is not subject to appeal.  Any Vermont neighborhood designation shall terminate when the underlying downtown, village center, new town center, or growth center designation terminates.

(c)  Designation Standards.  The board shall determine that the applicant has demonstrated all of the following:

(1)  The municipality has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, and has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title.

(2)  The cumulative total of all Vermont neighborhood land located within the municipality but outside a designated downtown district, designated village center, or designated new town center is not more than 100 percent of the total acreage of the designated downtown district, 50 percent of the village center, or 75 percent of the new town center.

(3)  The contiguous land of the Vermont neighborhood complements the existing designated downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and the contiguous land, in combination with the designated downtown development district, village center, or new town center, is consistent with smart growth principles established under subdivision 2791(13) of this title;

(4)  The Vermont neighborhood shall be served by one of the following:

(A)  a municipal sewer infrastructure; or

(B)  a community or alternative wastewater system approved by the agency of natural resources.

(5)  The municipal zoning bylaw requires the following for all land located within the Vermont neighborhood:

(A)  Minimum residential densities shall require all the following:

(i)  No fewer than four units of single-family, detached dwelling units per acre, exclusive of accessory apartments.

(ii)  Higher density for duplexes and multi-family housing.

(B)  Neighborhood design standards that promote compact, pedestrian‑oriented development patterns that include the following:

(i)  Pedestrian scale and orientation of development.  Networks of sidewalks or paths, or both, are provided and available to the public to connect the Vermont neighborhood with adjacent development areas, existing and planned adjacent sidewalks, paths, and public streets and the designated downtown, village center, or new town center.

(ii)  Interconnected and pedestrian-friendly street networks.  Street networks are designed to safely accommodate both pedestrians and bicycles through the provisions of sidewalks on at least one side of the street, on-street parking, and traffic-calming features.

(6)  Residents hold a right to utilize household energy conserving devices.

(d)  Vermont Neighborhood Incentives for Municipalities and Developers.  Incentives for Vermont neighborhoods include the following:

(1)  The agency of natural resources shall charge no more than a $50.00 fee for wastewater applications under 3 V.S.A. § 2822(j)(4) where the applicant has received an allocation for sewer capacity from an approved municipal system.  This limitation shall not apply in the case of fees charged as part of a duly delegated municipal program.

(2)  Act 250 fees under 10 V.S.A. § 6083a for residential developments in Vermont neighborhoods shall be 50 percent of the fee otherwise applicable.  Fifty percent of the reduced fees shall be paid upon application, and 50 percent shall be paid within 30 days of the issuance or denial of the permit.

(3)  No land gains tax under chapter 236 of Title 32 shall be levied on a transfer of undeveloped land in a Vermont neighborhood which is the first transfer of that parcel following the original designation of the Vermont neighborhood.

(e)  Length of Designation.  Initial designation of a Vermont neighborhood shall be for a period of five years, after which, the expanded state board shall review a Vermont neighborhood concurrently with the next periodic review conducted of the underlying designated downtown, village center, new town center or growth center, even if the underlying designated entity was originally designated by the downtown board and not by the expanded state board.  However, the expanded board, on its motion, may review compliance with the designation requirements at more frequent intervals.  If at any time the expanded state board determines that the designated Vermont neighborhood no longer meets the standards for designation established in this section, it may take any of the following actions:

(1)   require corrective action within a reasonable time frame;

(2)  remove the Vermont neighborhood designation, with that removal not retroactively affecting any of the benefits already received by the municipality or land owner in the designated Vermont neighborhood; and

(3)  prospectively limiting benefits authorized in this chapter, with the limitation not retroactively affecting any of the benefits already received by the municipality or land owner in the designated Vermont neighborhood.

* * * New Town Center Acreage * * *

Sec. 4.  24 V.S.A. § 2793b(b)(2)(A) is amended to read:

(A) A map of the designated new town center. The total area of land encompassed within a designated new town center shall not exceed 125 acres.  In a municipality with a population greater than 15,000, the total area of land encompassed within a designated new town center may include land in excess of 125 acres provided that the additional area is needed to facilitate the redevelopment of predominately developed land in accordance with the smart growth principles defined under subdivision 2791(13) of this title and shall not exceed 175 acres.

* * * Codifying Agency of Natural Resources Incentives * * *

Sec. 5.  3 V.S.A. § 2822(j)(4)(D) is amended to read:

(D)  Notwithstanding the other provisions of this subdivision,:

* * *

(ii)  when a potable water supply is subject to the fee provisions of this subdivision and subdivision (j)(7)(A) of this section, only the fee required by subdivision (j)(7)(A) shall be assessed; and

(iii)  when a project is subject to the fee provision for the subdivision of land and the fee provision for potable water supplies and wastewater systems of this subdivision, only the higher of the two fees shall be assessed; and

(iv)  when a project is located in a Vermont neighborhood, as designated under 24 V.S.A. chapter 76A, the fee shall be no more than $50.00 in situations in which the application has received an allocation for sewer capacity from an approved municipal system.  This limitation shall not apply in the case of fees charged as part of a duly delegated municipal program.

* * * Codifying Higher Act 250 Thresholds * * *

Sec. 6.  10 V.S.A. § 6001(3) are amended to read:  

(3)(A)  “Development” means:

* * *

(B)(i)  Smart Growth Jurisdictional Thresholds.  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A.

§ 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793, “development” means:

(i)(I)  Construction of mixed income housing with 100 200 or more housing units or a mixed use project with 100 200 or more housing units, in a municipality with a population of 20,000 15,000 or more.

(ii)(II)  Construction of mixed income housing with 50 100 or more housing units or a mixed use project with 50 100 or more housing units, in a municipality with a population of 10,000 or more but less than 20,000 15,000.

(iii)(III)  Construction of mixed income housing with 30 50 or more housing units or a mixed use project with  30 50 or more housing units, in a municipality with a population of 5,000 6,000 or more and less than 10,000.

(iv)(IV)  Construction of mixed income housing with 25 30 or more housing units or a mixed use project with 25 30 or more housing units, in a municipality with a population of 3,000 or more but less than 5,000 6,000.

(v)(V)  Construction of mixed income housing with 25 or more housing units or a mixed use project with 25 or more housing units, in a municipality with a population of less than 3,000.

(VI)  Historic Buildings.  Construction of 10 or more units of mixed income housing or a mixed use project with 10 or more housing units where the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the state or national register of historic places.  However, demolition shall not be considered to create jurisdiction under this subdivision if the division for historic preservation has determined the proposed demolition will have: no adverse effect; no adverse effect provided that specified conditions are met; or, will have an adverse effect, but that adverse effect will be adequately mitigated.  Any imposed conditions shall be enforceable through a grant condition, deed covenant, or other legally binding document.

(ii)  Mixed Income Housing Jurisdictional Thresholds.  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of mixed income housing and is located entirely within a Vermont neighborhood, but outside a growth center designated pursuant to 24 V.S.A. § 2793c and outside a downtown development district designated pursuant to 24 V.S.A. § 2793, “development” means:

(I)  Construction of mixed income housing with 200 or more housing units, in a municipality with a population of 15,000 or more.

(II)  Construction of mixed income housing with 100 or more housing units, in a municipality with a population of 10,000 or more but less than 15,000.

(III)  Construction of mixed income housing with 50 or more housing units, in a municipality with a population of 6,000 or more and less than 10,000.

(IV)  Construction of mixed income housing with 30 or more housing units, in a municipality with a population of 3,000 or more but less than 6,000.

(V)  Construction of mixed income housing with 25 or more housing units, in a municipality with a population of less than 3,000.

(VI) Historic Buildings.  Construction of 10 or more units of mixed income housing where the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the state or national register of historic places.  However, demolition shall not be considered to create jurisdiction under this subdivision if the division for historic preservation has determined the proposed demolition will have: no adverse effect; no adverse effect provided that specified conditions are met; or will have an adverse effect, but that adverse effect will be adequately mitigated.  Any imposed conditions shall be enforceable through a grant condition, deed covenant, or other legally binding document.

 (C)  For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(B) of this section, the following shall apply:

(i)  Incentive for Growth Inside Designated Areas.  Housing  Notwithstanding subdivision (3)(A)(iv) of this section, housing units constructed by a person partially or completely outside a designated downtown development district, or designated growth center, or designated Vermont neighborhood shall not be counted to determine jurisdiction over housing units constructed by a that person entirely within a designated downtown development district, or designated growth center, or designated Vermont neighborhood.

(ii)  Five Year, Five Mile Radius Jurisdiction Analysis.  Within any continuous period of five years, housing units constructed by a person entirely within a designated downtown district or, designated growth center, or designated Vermont neighborhood shall be counted together with housing units constructed by a that person partially or completely outside a designated downtown development district or, designated growth center, or designated Vermont neighborhood to determine jurisdiction over the housing units constructed by a person partially or completely outside the designated downtown development district or, designated growth center, or designated Vermont neighborhood and within a five-mile radius in accordance with subdivision (3)(A)(iv) of this section.

(iii)  All Discrete Housing Projects in Designated Areas and Exclusive Counting for Housing Units.  Notwithstanding subdivisions (3)(A)(iv) and (19) of this section, jurisdiction shall be determined exclusively by counting housing units constructed by a person within a designated downtown development district or, designated growth center, within any continuous period of five years, commencing on or after the effective date of this subdivision, shall be counted together or designated Vermont neighborhood, provided that the housing units are part of a discrete project located on a single tract or multiple contiguous tracts of land

(iv) Railroad projects.  In the case of a project undertaken by a railroad, no portion of a railroad line or railroad right-of-way that will not be physically altered as part of the project shall be included in computing the amount of land involved.  In the case of a project undertaken by a person to construct a rail line or rail siding to connect to a railroad's line or right-of-way, only the land used for the rail line or rail siding that will be physically altered as part of the project shall be included in computing the amount of land involved.

(v)  Permanently Affordable Housing.  Notwithstanding subdivision (C)(iii) of this subdivision (3), any subdivisions (3)(A)(iv) and (19) of this section, jurisdiction shall be determined exclusively by counting affordable housing units, as defined by this section, that are subject to housing subsidy covenants as defined in 27 V.S.A. § 610 that preserve their affordability for a period of 99 years or longer, and that are constructed by a person within a designated downtown development district, designated village center, or designated growth center, shall count toward the total number of housing units used to determine jurisdiction only if they were constructed within the previous 12-month period, commencing on or after the effective date of this subdivision provided the affordable housing units are located in a discrete project on a single tract or multiple contiguous tracts of land, regardless of whether located within an area designated under 24 V.S.A. chapter 76A.

* * *

* * *  Rules on Mixed Income Housing * * *

Sec. 7.  10 V.S.A. § 6001(27) is amended to read:

(27)  “Mixed income housing” means a housing project in which the following apply:

(A)  Owner occupied housing.  At the option of the applicant, owner-occupied housing may be characterized by either of the following:

(i)  at least 15 percent of the total housing units are affordable housing units have a purchase price which at the time of first sale does not exceed 85 percent of the new construction, targeted area purchase price limits established and published annually by the Vermont housing finance agency; or

(ii)  at least 20 percent of the housing units have a purchase price which at the time of first sale does not exceed 90 percent of the new construction, targeted area purchase price limits established and published annually by the Vermont housing finance agency;

(B)  Affordable Rental Housing.  At least 20 percent of housing that is rented by the occupants whose gross annual household income does not exceed 60 percent of the county median income, or 60 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development for use with the Housing Credit Program under Section 42(g) of the Internal Revenue Code, and the total annual cost of the housing, as defined at Section 42(g)(2)(B), is not more than 30 percent of the gross annual household income as defined at Section 42(g)(2)(C), and with a duration of affordability of no less than 30 years.

* * * Act 250 Fees In Vermont Neighborhood * * *

Sec. 8.  10 V.S.A. § 6083a(d) is amended to read:

(d)  Vermont Neighborhood Fees.  Fees for residential development in a Vermont neighborhood designated according to 24 V.S.A. § 2793d shall be no more than 50 percent of the fee otherwise charged under this section, with 50 percent due with the application, and 50 percent due within 30 days after the permit is issued or denied.

* * * Vermont Neighborhood Chapter 117 Conditional Use Appeals * * *

Sec. 9.  24 V.S.A. § 4471(e) is added to read:

(e)  Vermont Neighborhood.  Notwithstanding subsection (a) of this section, a determination by an appropriate municipal panel shall not be subject to appeal if the determination is that a proposed residential development within a designated downtown development district, designated growth center, or designated Vermont neighborhood seeking conditional use approval will not result in an undue adverse effect on the character of the area affected, as provided in subdivision 4414(3)(A)(ii) of this title.

 

* * * Report * * *

Sec. 10.  REPORT ON POLLUTION CONTROL SYSTEM

By no later than January 15, 2009, the secretary of natural resources shall report to the legislative committees on natural resources and energy with regard to the agency’s implementation of and compliance with the municipal pollution control priority system rules, and as to the impact of these rules on development.

* * * VHFA Sunset Repeal * * *

Sec. 11.  10 V.S.A. § 625(1) is amended to read:

(1)  The residential housing is primarily for occupancy by persons and families of low and moderate income, or qualifies for financing with proceeds of federally tax-exempt obligations, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income;

Sec. 11a.  EFFECTIVE DATE OF SEC 11

Sec. 11 (VHFA sunset repeal) of this act shall take effect on July 1, 2008, at which time the prospective repeal provisions of Sec. 7a of No. 189 of the Acts of the 2005 Adj. Sess. (2006) shall have no force or effect.

* * * VHFA Reserve Funds * * *

Sec. 11b.  10 V.S.A. § 632(d) is amended to read:

(d)  Moral obligation bonds.  In order to assure the maintenance of the debt service reserve requirement in each debt service reserve fund established by the agency, there may be appropriated annually and paid to the agency for deposit in each such fund, such sum as shall be certified by the chair of the agency, to the governor or the governor-elect, the president of the senate, and the speaker of the house, as is necessary to restore each such debt service reserve fund to an amount equal to the debt service reserve requirement for such fund.  The chair shall annually, on or about February 1, make and deliver to the governor or the governor-elect, the president of the senate, and the speaker of the house, his or her certificate stating the sum required to restore each such debt service reserve fund to the amount aforesaid, and the sum so certified may be appropriated, and if appropriated, shall be paid to the agency during the then current state fiscal year.  The principal amount of bonds or notes outstanding at any one time and secured in whole or in part by a debt service reserve fund to which state funds may be appropriated pursuant to this subsection shall not exceed $125,000,000.00 $155,000,000.00, provided that the foregoing shall not impair the obligation of any contract or contracts entered into by the agency in contravention of the Constitution of the United States of America.

* * * Land Gains Tax * * *

Sec. 12.  32 V.S.A. § 10002(p) is added to read:

(p)  Also excluded from the definition of “land” is a transfer of undeveloped land in a Vermont neighborhood which is the first transfer of that parcel following the original designation of  the Vermont neighborhood.

* * * Housing Tax Credit * * *

Sec. 13.  32 V.S.A. § 5930u is amended to read:

§ 5930u.  TAX CREDIT FOR AFFORDABLE HOUSING

(a)  As used in this section:

(1)  “Affordable housing project” or “project” means a rental housing project identified in 26 U.S.C. § 42(g) or owner-occupied housing identified in 26 U.S.C. § 143(e) and (f) and eligible under the Vermont housing finance agency allocation plan criteria.

* * *

(9)  “Allocation plan” means the plan recommended by the committee and approved by the Vermont housing finance agency, which sets forth the eligibility requirements and process for selection of eligible housing projects to receive affordable housing tax credits under this section.  The allocation plan shall include requirements for creation and retention of affordable housing for low income persons, and requirements to ensure that eligible housing is maintained as affordable by subsidy covenant, as defined in 27 V.S.A. § 610 on a perpetual basis, and meets all other requirements of the Vermont housing finance agency related to affordable housing.

(b)(1)  Affordable housing credit allocation.  Prior to the placement of an affordable housing project in service, the owner, or a person having the right to acquire ownership of a building, may apply to the committee for an allocation of affordable housing tax credits under this section.  The committee shall advise the allocating agency on an affordable housing tax credit application based upon published priorities and criteria.  An eligible applicant may apply to the allocating agency for an allocation of affordable housing tax credits under this section related to an affordable housing project authorized by the allocating agency under the allocation plan.  In the case of a specific affordable rental housing project, the eligible applicant must also be the owner or a person having the right to acquire ownership of the building and must apply prior to placement of the affordable housing project in service.  In the case of owner‑occupied housing units, the applicant must apply prior to purchase of the unit and must ensure that the allocated funds will be used to ensure that the housing qualifies as affordable for all future owners of the housing.  The allocating agency shall issue a letter of approval if it finds that the applicant meets the priorities, criteria, and other provisions of subdivision (2) of this subsection.  The burden of proof shall be on the applicant.

(2)  Upon receipt of a completed application, an allocation of affordable housing tax credits with respect to a project under this section shall be granted to an applicant, provided the applicant demonstrates to the satisfaction of the committee all of the following:

(A)  The owner of the project has received from the allocating agency a binding commitment for, a reservation or allocation of, an out-of-cap determination letter for, Section 42 credits, or meets the requirements of the allocation plan for development of units to be owner-occupied;

(B)  The project has received community support.

* * *

(g)  In any fiscal year, the allocating agency may award up to $400,000.00 in total first-year credit allocations to all applicants under this subchapter for rental housing projects; and may award up to $100,000.00 per year for owner‑occupied unit applicants.  In any fiscal year, total first-year allocations plus succeeding-year deemed allocations shall not exceed $2,000,000.00 $2,500.000.00.

Sec. 13a.  EFFECTIVE DATE OF SEC. 13

Sec. 13 (VHFA Home Ownership Tax Credit) of this act, amending 32 V.S.A. § 5930u, shall take effect July 1, 2008.

* * * Property Transfer Tax * * *

Sec. 14.  32 V.S.A. § 9602(1) is amended to read:

§ 9602.  TAX ON TRANSFER OF TITLE TO PROPERTY

A tax is hereby imposed upon the transfer by deed of title to property located in this state.  The amount of the tax equals one and one quarter one‑quarter percent of the value of the property transferred, or $1.00, whichever is greater, except as follows:

(1)  with respect to the transfer of property to be used for the principal residence of the transferee:  the tax shall be imposed at the rate of five-tenths of one percent of the first $100,000.00 in value of the property transferred and at the rate of one and one quarter one-quarter percent of the value of the property transferred in excess of $100,000.00; except that no tax shall be imposed on the first $110,000.00 in value of the property transferred if the purchaser obtains a purchase money mortgage funded in part with a homeland grant through the Vermont housing and conservation trust fund or which the Vermont housing and finance agency or U.S. Department of Agriculture and Rural Development has committed to make or purchase and tax at the rate of one and one-quarter percent shall be imposed on the value of that property in excess of $110,000.00.

* * *

Sec. 14a.  APPLICABILITY OF SEC. 14

Sec. 14 (Low Income Home Ownership Program) of this act, amending 32 V.S.A. § 9602, shall apply to transfers on or after July 1, 2008.

Sec. 15. 24 V.S.A. § 2792(a) is amended to read:

(a)  A “Vermont downtown development board,” also referred to as the “state board,” is created to administer the provisions of this chapter. The state board members shall be composed of the following permanent members, or their designees:

(1)  The the secretary of commerce and community development;

(2)  The the secretary of transportation;

(3)  The the secretary of natural resources;

(4)  The secretary of human services;

(5)  The the commissioner of public safety;

(6)  The commissioner of housing and community affairs; and

(5)  a person appointed by the governor from a list of three names submitted by the Vermont Natural Resources Council, the Preservation Trust of Vermont, and Smart Growth Vermont;

(6)  a person appointed by the governor from a list of three names submitted by the Association of Chamber Executives; and

(7)  Three three public members representative of local government, one of whom shall be designated by the Vermont league of cities and towns, and two shall be appointed by the governor.

Sec. 16.  SMART GROWTH; STUDY COMMITTEE

(a)  A smart growth study committee is created to:

(1)  Study Act 250 (10 V.S.A. § 6086) criterion 5, relating to traffic, criterion 9(H), relating to scattered development, criterion 9(L), relating to rural development, and other criteria identified by the committee, to determine the effectiveness of those criteria to promote compact settlement patterns, prevent sprawl, and protect important natural resources, and to make recommendations to improve the effectiveness of those criteria in preserving the economic vitality of Vermont’s existing settlements and preventing sprawl development.

(2)  Evaluate the development potential of existing designated downtowns, new town centers, and village centers and evaluate the community and natural resource impacts of developing surrounding lands.

(3)  Make recommendations for incentives designed to encourage municipalities to preserve Vermont’s working landscape and to develop Vermont neighborhoods and new housing.

(4) Develop recommendations for how best to conduct periodic assessments of the effectiveness of the designation programs established under chapter 76A of Title 24.

(b)  The committee shall be composed of the following 13 members:

(1)  Two members of the house, one from the committee on general, housing and military affairs and one from the committee on natural resources and energy.

(2)  Two members of the senate, one from the committee on economic development, housing and general affairs and one from the committee on natural resources and energy.    

(3)  A representative from each of the following organizations: 

(A)  Vermont homebuilders and remodelers association.

(B)  Lake Champlain regional chamber of commerce.

(C)  Vermont planners association.

(D)  Vermont association of planning and development agencies.

(E)  Smart growth Vermont.

(F)  Vermont natural resources council.

(G)  Vermont natural resources board.

(H)  Vermont association of realtors.

(I)  Vermont league of cities and towns.

(J)  The land use law center at Vermont Law School.

(c)  The four legislative members shall be entitled to per diem compensation and reimbursement of necessary expenses as provided to members of standing committees under 2 V.S.A. § 406 for attendance at a meeting when the general assembly is not in session.

(d)   The chair shall be elected from any of the four legislative members by the members of the study committee from among the four legislative members.  The committee shall meet as needed, and the legislative council shall provide administrative support. 

(e)  The committee shall issue a brief report on its findings and recommendations to the house committees on general, housing and military affairs and on natural resources and energy and the senate committees on economic development, housing and general affairs and on natural resources and energy on or before January 15, 2009. 

* * * State Surplus Land Inventory * * *

Sec. 17.  STATE SURPLUS LAND IN CLOSE PROXIMITY TO OR
               WITHIN A DOWNTOWN, VILLAGE CENTER, OR NEW TOWN

               CENTER; INVENTORY AND PROGRAM PROPOSALS  

(a)  The secretary of commerce and community affairs, in consultation with Vermont housing finance agency, the Vermont housing and conservation board, and any other interested parties, shall:

(1)  compile an inventory of state lands deemed to be surplus to state needs and located in close proximity to or within a designated downtown, a designated village center, a designated new town center or a designated growth center that would be appropriate for developing housing that meets the community housing needs;

(2)  develop program recommendations for the use of suitable state surplus land that will ensure that housing development on this land includes a substantial amount of affordable housing, including permanently affordable housing; and

(3)  recommend processes and mechanisms for transfer of the land to assure its use for housing development whether by outright sale, long-term lease, or some other appropriate mechanism.

(b)  On or before January 15, 2009, the secretary of commerce and community development shall issue a report that includes an inventory of state surplus land and recommendations developed pursuant to the goals of subsection (a) of this section.  The report shall be provided to the house committees on corrections and institutions and on general, housing and military affairs and the senate committees on institutions and on economic development, housing and general.

* * * VHFA Economic Stimuli * * *

Sec. 18.  3 V.S.A. § 523(e) is amended to read:

(e)  The committee may formulate policies and procedures deemed necessary and appropriate to carry out its functions.  Notwithstanding the foregoing, the committee shall consider, consistent with chapter 147 of Title 9, subsection 472a(b) of this title, 16 V.S.A. § 1943a(b), and 24 V.S.A. § 5063a(b), investing up to $17,500,000.00 with the Vermont housing finance agency to assist in its homeownership financing programs for persons and families of low and moderate income as defined in 10 V.S.A. § 601(11).

Sec. 19.  INVESTMENT OF STATE MONEYS

The treasurer is hereby authorized to establish a short-term credit facility for the Vermont housing finance agency in an amount of up to $50,000,000.00 to be used as interim financing for its homeownership mortgage loan program as authorized under chapter 25 of Title 10.

Sec. 19a.  REPEAL OF SEC. 19

Sec. 19 (Short-Term Loan from State Treasury to VHFA) of this act shall be repealed on July 1, 2009.

Sec. 20.  VERMONT NEIGHBORHOOD REPORT; AGENCY OF
               COMMERCE AND COMMUNITY AFFAIRS

(a)  On or before January 15, 2010, the secretary of commerce and community affairs, in collaboration with the regional planning commissions, shall issue a report on the status of the Vermont neighborhood program to the senate committees on economic development, housing and general affairs, on natural resources and energy, and on finance, and the house committees on general, housing and military affairs, on natural resources and energy, and on ways and means.  The report shall include all the following:

(1)  The number of Vermont neighborhood applications and designations.

(2)  The number of housing units, including a description, size, selling price, and location of each, permitted and constructed in each Vermont neighborhood.

(3)  With regard to projects of 20 housing units or more within a Vermont neighborhood , the average cost per unit of becoming fully permitted, by region, including state and local permitting costs.

(4)  The number and description of rental housing properties permitted or constructed in each Vermont neighborhood and the rental charges for each unit.

(5)  By region, the type and amount of fees charged by municipalities, and how fees are used.

(6)  An evaluation of incentives and disincentives to municipal participation in the Vermont neighborhood program.

(7)  Any other information useful to determining the success of the Vermont neighborhood program to stimulate housing development and encourage smart growth.

(b)  The department of taxes shall track new construction residential housing transfers through property transfer tax data collection, and shall make this information public.

Sec. 21.  Regional Planning Commission Report on Infill
               Opportunities

     By no later than January 15, 2009, each regional planning commission is requested to inventory and map locations within its region that are served by municipal wastewater and water supply services and that are otherwise suitable for infill development and redevelopment, giving due regard to the location of important natural resources and primary agricultural soils.  The inventory and map shall be provided, by January 30, 2009, to the committees of the general assembly with jurisdiction over housing, natural resources, and agriculture.

* * * Rental Housing Study * * *

Sec. 22.  RENtal Housing Safety and Habitability STUDY

(a)  Legislative purpose and intent.  It is the intent of the general assembly to provide for rental housing safety and habitability.  A safe rental housing study committee is hereby established to achieve all the following goals:

(1)  Promote the health and safety of the citizens of Vermont.

(2)  Facilitate compliance with existing health and safety standards.

(3)  Provide support to municipal health officers.

(4)  Create a resource for tenants and landlords.

(5)  Enable communities to focus on problem properties.

(6)  Encourage a private sector response to a public health and safety need.

(7)  Reduce fire fatalities.

(8)  Establish a statewide rental housing inspection system.

(b)  Safe rental housing study committee.  A safe rental housing study committee is created to consist of the following 14 members:

(1)  The director of the division of fire safety, or designee.

(2)  The commissioner of the department of health, or designee.

(3)  The commissioner of the department of housing and community affairs, or designee.

(4)  The attorney general, or designee.

(5)  The executive director of the Vermont housing finance agency, or designee.

(6)  A representative of commercial landlords.

(7)  A representative of nonprofit landlords.

(8)  A tenant representative.

(9)  A municipal inspection program representative.

(10)  A town health officer from a municipality without an exempt program.

(11)  A regional revolving loan fund representative.

(12)  An architect.

(13)  The executive director of the Vermont state housing authority, or designee.

(14)  A representative of the coalition of Vermont firefighters.

(c)  Appointment of members.  The speaker of the house and the senate president pro tempore shall appoint members of the committee and shall designate a chair by July 1, 2008.

(d)  Duties.  Before January 15, 2010, the committee shall review and consider:

(1)  The development of a simplified rental housing code, to include lead safety, habitability, and basic life safety standards.

(2)  A priority for inspections based on factors including:  the age of the rental unit, a score of the rental units’ self-assessment, and complaints from rental units at the address.

(3)   Procedures for scheduled, complaint-based, emergency and time-of-sale inspections, including a time frame and a priority for scheduled inspections.

(4)  Standards for licensed rental housing inspectors to include:

(A)  Training standards.

(B)  A code of professional ethics.

(C)  Curriculum outlines and a delivery mechanism.

(5)  A funding structure necessary and appropriate to implement the inspection program.

(6)  A procedure for issuing a certificate of habitability.

(7)  Procedures to assure enforcement and compliance.

(8)  Recommendations regarding the role of town health officers in regard to safe rental housing.

(9)  Training and education resources for landlords and tenants, including all the following:

(A)  A rental housing code self-assessment checklist.

(B)  A central resource for rental unit owners and managers that provides:

(i)  Lead safety, minimum housing habitability, and basic life safety standards available from one site.

(ii)  Coordinated training across disciplines for owners and managers of rental housing units.

(10)   Incentives and development of a process for municipalities to establish an inspection program.

(11)  An implementation schedule, to begin July 1, 2010, that provides for the commencement of inspections beginning January 1, 2011.

(12)  Staffing levels necessary to establish and maintain the program and provide for enforcement.

(13)  An appropriation sufficient to fund the certification program, licensing, complaint-driven inspections, and enforcement.

(14)  A system for coordinating appropriate displacement services.

(15)  A program and the identification of resources for repair and improvement.

(e)  Reports.  The committee shall submit an interim report on its progress to date on or before January 15, 2009 to the house committee on general, housing and military affairs and the senate committee on economic development, housing and general affairs.  The committee shall submit a final written report on its findings on or before January 15, 2010 to the house committee on general, housing and military affairs and the senate committee on economic development, housing and general affairs.

(f)  Appropriation.  In fiscal year 2009, there is appropriated from the general fund to the department of public safety the amount of $30,000.00 to be used by the department for the purpose of assisting the rental housing safety and habitability study committee in carrying out its duties.

Sec. 22a. 3 V.S.A. § 2473(a) is amended to read:

(a)  The department of housing and community affairs is created within the agency of commerce and community development. The department shall:

* * *

(3)  Administer the community development block grant program pursuant to 10 V.S.A. chapter 29.  When awarding municipal planning grants prior to fiscal year 2012, the department shall give priority to grants for downtowns, new town centers, growth centers, and Vermont neighborhoods.

* * *

* * * Staffing Neighborhoods Program * * *

Sec. 23.  STAFFING AND RESOURCES; VERMONT

                NEIGHBORHOOD PROGRAM

The natural resources board and the agency of commerce and community development shall collaborate and develop a protocol to ensure that there are adequate financial and staffing resources for the growth center program, the downtown program, the new town center program, and the Vermont neighborhood program.  The board and the agency are authorized to redeploy staff and resources to accomplish this objective.

Sec. 24.  EFFECTIVE DATES OF FIRST 24 SECS. OF BILL

This section and Secs. 1-23 of this act shall take effect on passage, except as otherwise provided.

* * * Lead Provisions Originating in H.352; Secs. 25-37 * * *

Sec. 25.  FINDINGS AND INTENT

The general assembly finds that:

(1)  Lead is highly toxic to humans, particularly to young children, and can cause irreversible damage resulting in long‑lasting, permanent neurological damage, including decreases in I.Q scores.

(2)  Medical research shows that there is no safe level of lead, and that decreases in I.Q. scores are greatest for the first ten micrograms of lead per deciliter of blood in young children.

(3)  In February 2007, the Vermont department of health announced that it would lower from ten to five micrograms of lead per deciliter the blood lead level that triggers educational outreach.

(4)  In 2004, four percent of all Vermont children under the age of six who received lead screening–or approximately 350 children–had blood lead levels at or above ten micrograms per deciliter.  Approximately one-third of those screened, or nearly 3,000 children, had blood lead levels at or above five micrograms.  In 2006, 2.7 percent of all Vermont children under the age of six who received lead screening–or approximately 250 children–had blood lead levels at or above ten micrograms per deciliter.  Approximately 20 percent of those screened, or nearly 2,000 children, under the age of six, had blood lead levels at or above five micrograms per deciliter.

(5)  The primary exposure to lead for Vermont children is lead‑based paint in housing built prior to 1978 when lead was banned in residential paint. Vermont has over 112,000 owner‑occupied housing units and over 56,000 rental housing units built prior to 1978.

(6)  Vermont’s existing lead law, which has been in place since 1996, attempts to prevent exposing children to lead-based paint in rental housing and child care facilities by requiring that essential maintenance practices (EMP) be performed in nearly all rental housing units and child care facilities built prior to 1978.  Even though 40 percent of children with blood lead levels above 20 micrograms per deciliter live in owner‑occupied housing, the primary provisions under current law that attempt to prevent elevated blood lead levels in children in owner‑occupied housing are related to public awareness.

(7)  The intent of this act is to decrease Vermonters’ exposure to lead in pre-1978 housing and child care facilities.  This act does not address lead in other consumer products, in ammunition, or at shooting ranges.

Sec. 26.  18 V.S.A. § 1751 is amended to read:

§ 1751.  DEFINITIONS

(a)  Words and phrases used in this chapter or in rules adopted pursuant to this chapter and not defined herein shall have the meanings given to them have the same definitions as provided in the Federal Residential Lead‑Based Paint Hazard Reduction Act of 1992.  In the event of unless there is an inconsistency between meanings given in such federal act and meanings given in this chapter, the federal act shall apply except where meanings given in this chapter serve to narrow, limit or restrict the applicability of a word or phrase, in which cases the narrower meaning shall apply in which case, any definition provided in this section that narrows, limits, or restricts shall control.

(b)  For the purposes of this chapter:

(1)  “Abatement” means any set of measures designed to permanently eliminate lead‑based paint hazards in accordance with standards established by appropriate state and federal agencies.  The term includes:

(A)  the removal Removal of lead‑based paint and lead‑contaminated dust, the permanent containment or encapsulation of lead‑based paint, the replacement of lead‑painted surfaces or fixtures, and the removal or covering of lead‑contaminated soil; and .

(B)  all All preparation, cleanup, disposal, and post‑abatement clearance testing activities associated with such measures.

(2)  “Certified inspector” or “licensed inspector” means an individual who has been trained by an accredited training program and certified by the department to perform the duties of an inspector or risk assessor.  “Child” or “children” means an individual or individuals under the age of 18 years, except where specified as a child or children six years of age or younger.

(3)  “Child care facility” means a day child care facility or family day child care home as defined in 33 V.S.A. § 4902 that was constructed prior to 1978.

(4)  “Commissioner” means the commissioner of the department of health.

(5)  “Comprehensive environmental lead inspection” or “inspection” means a surface‑by‑surface investigation to determine the presence of lead‑based paint and the provision of a report explaining the results of the investigation.

(6)  “Department” means the department of health.

(7)  “Deteriorated paint” means any interior or exterior lead‑based paint or other coating that is peeling, chipping, chalking, flaking, or cracking or any lead‑based paint or other coating located on an interior or exterior surface or fixture that is otherwise damaged or deteriorated separated from the substrate.

(8)(5)  “Due date” means the date by which an owner of rental target housing or a child care facility shall file with the department the EMP compliance statement required by section 1759 of this title.  The due date shall be one of the following:

(A)  No later than 366 days after the most recent EMP compliance statement or EMP affidavit was received by the department.

(B)  Within 60 days after the closing of the purchase of the property if no EMP compliance statement was filed with the department within the past 12 months.

(C)  Any other date agreed to by the owner and the department.

(D)  Any other date set by the department.

(6)  “Dwelling” means

(A)  a single‑family dwelling, including attached structures such as porches and stoops; or.

(B)  a single‑family dwelling any residential unit in a structure that contains more than one separate residential dwelling unit, and which is used or occupied, or intended to be, including attached structures such as porches and stoops, used or occupied, in whole or in part, as the home or residence of one or more persons.

(7)  “Elevated blood lead level” means having a blood lead level of at least five micrograms per deciliter of human blood, or a lower threshold as determined by the commissioner.

(8)  “EMP” means essential maintenance practices required by section 1759 of this title.

(9)  “Independent dust clearance” means a visual examination and collection of environmental samples, including dust samples, by a licensed inspector in whose firm or corporation the owner of lead inspector or lead risk assessor who has no financial interest in either the work being performed or the property to be inspected has no financial interest, and is independent of both the persons performing the work and the owner of the property.  The licensed inspector lead inspector or lead risk assessor shall use methods specified by the department and analysis by an accredited laboratory to determine that lead exposures do not exceed limits set by the department utilizing current information from the U.S. Environmental Protection Agency or the U.S. Department of Housing and Urban Development.

(10)  “Inspection” means a surface‑by‑surface investigation to determine the presence of lead‑based paint and other lead hazards and the provision of a report explaining the results of the investigation.

(10)(11)  “Interim controls” means a set of measures designed to temporarily reduce human exposure to lead‑based paint hazards, including specialized cleaning, repairs, maintenance, painting, temporary containment, ongoing monitoring of lead‑based paint hazards or potential hazards, and the establishment of management and resident education programs.

(11)(12)  “Lead‑based paint” means paint or other surface coatings that contain lead in excess of limits established under section 302(c) of the Federal Lead‑Based Paint Poisoning Prevention Act.

(12)(13) “Lead contractor” means any person engaged in deleading or lead hazard reduction as a business and includes consultants and inspectors who design, perform, oversee or evaluate lead hazard reduction projects employing one or more individuals licensed by the department under this chapter.

(13)  “Lead‑based paint activities” means:

(A)  in the case of target housing, risk assessment, inspection, and abatement.

(B)  in the case of any public building constructed before 1978, identification of lead‑based paint and materials containing lead‑based paint, deleading, and demolition.  The term “lead‑based paint activities” may be further limited or restricted by rule adopted by the secretary.

(14)  “Lead abatement worker” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to perform abatements.

(15)  “Lead designer” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to prepare lead abatement project designs, occupant protection plans, and abatement reports.

(14)(16)  “Lead‑based paint hazard” or “LBP” “Lead hazard” means any condition that causes exposure to lead inside and in the immediate vicinity of target housing from water, lead‑contaminated dust, lead‑contaminated soil, lead‑contaminated paint that has deteriorated or is present in accessible surfaces, friction surfaces, or impact surfaces, or building materials that would result in adverse human health effects as defined by the department using current information from the U.S. Environmental Protection Agency or the U.S. Department of Housing and Urban Development.

(15)  “Lead‑based paint hazard control” or “LBP hazard control” or “lead hazard control” means a measure or set of measures designed to control or eliminate human exposure to lead‑based paint hazards through methods that include interim controls, abatement, and complete removal.

(16)  “Lead poisoning” means a confirmed blood lead level in a child six years of age or younger greater than or equal to ten micrograms of lead per deciliter of whole blood, unless the commissioner finds by rule that a higher or lower concentration is necessary to protect public health.

(17)  “Lead inspector” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to conduct inspections.

(18)  “Lead risk assessor” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to conduct risk assessments.

(19)  “Lead‑safe renovator” means any person who has completed a lead‑safe training program approved by the department and has a current registration issued by the department to perform renovations in target housing or child care facilities in which interior or exterior lead‑based paint will be disturbed.

(20)  “Lead supervisor” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to supervise and conduct abatement projects and prepare occupant protection plans and abatement reports. 

(17)(21)  “Occupant” means any person who resides in, or regularly uses, a dwelling, car mobile dwelling unit, or structure.

(18)(22)  “Owner” means any person who, alone or jointly or severally with others:

(A)  Has legal title to any dwelling or dwelling unit or child care facility with or without accompanying actual possession thereof; or of the property.

(B)  Has charge, care, or control of any dwelling or dwelling unit or child care facility as agent of the owner or guardian of the estate of the owner.  An agent of the owner does not include real estate and property management functions where the agent is only responsible for the property management and does not have authority to fund capital or major property rehabilitation on behalf of the owner.

(C)  Has charge, care, or control of any dwelling or child care facility as property manager for the owner if the property management contract includes responsibility for any maintenance services, unless the property management contract explicitly states that the property manager will not be responsible for compliance with section 1759 of this title.

(C)  For purposes of publicly‑owned property only, the owner shall be

(D)  Is the chief executive officer of the municipal or state agency which that owns, leases, or controls the use of the property publicly owned target housing or a child care facility.

(D)  A (E)  Is a person who holds indicia of ownership in a dwelling or dwelling unit or child care facility furnished by the owner or person in lawful possession for the primary purpose of assuring repayment of a financial obligation shall not be considered an owner unless such person has taken full legal title of a dwelling or child care facility through foreclosure, deed in lieu of foreclosure, or otherwise.  “Owner” does not include a person who holds indicia of ownership given by the person in lawful possession for the primary purpose of assuring repayment of a financial obligation.  Indicia of ownership includes interests in real or personal property that are held as security or collateral for repayment of a financial obligation such as a mortgage, lien, security interest, assignment, pledge, surety bond, or guarantee and includes   participation rights of a financial institution used for legitimate commercial purposes in making or servicing the loan.

(E)  Owns a building in which a child care facility is located or owns the child care business, although the owner of the child care business may not own the building.

(19)(23)  “Rental target housing” means target housing offered for lease or rental under a rental agreement as defined in 9 V.S.A. § 4451.  “Rental target housing” does not include a rented single room located within a residential dwelling unit in which the owner of the dwelling unit resides unless a child six years of age or younger resides in or is expected to reside in that dwelling.

(20)(24)  “Risk assessment” means an on‑site investigation by a licensed inspector or risk assessor lead risk assessor to determine and report the existence, nature, severity, and location of lead‑ based paint lead hazards, including information gathering about the age and history of the property and occupancy by children under the age of six years of age or younger, visual inspection, limited wipe sampling, or other environmental sampling techniques, other appropriate risk assessment activities and a report on the results of the investigation.

(21)  “Secretary” means the secretary of the agency of human services.

(22)  “Severely lead‑poisoned” means a confirmed venous blood lead level in a child six years of age or younger that is greater than or equal to 20 micrograms of lead per deciliter of whole blood or as defined by the commissioner.

(23)  “State inspector” means the commissioner or any person who is authorized in writing by the commissioner to conduct inspections for the department.

(25)  “Screen,” “screened,” or “screening” relating to blood lead levels, means the initial blood test to determine the presence of lead in a human.

(24)(26)  “Target housing” means any dwelling or dwelling unit constructed prior to 1978, except any 0‑bedroom residential dwelling unit or any residential dwelling unit located in multiple‑unit buildings or projects reserved for the exclusive use of the elderly or persons with disabilities, unless a child six years of age or younger resides in or is expected to reside in that housing dwelling.   “Target housing” does not include units in a hotel, motel, or other lodging, including condominiums, that are designed and rented for transient occupancy for travelers or vacationers and not intended to be used as a primary residence 30 days or less.

Sec. 27. 18 V.S.A. § 1753 is amended to read:

§ 1753.  ACCREDITATION, REGISTRATION, CERTIFICATION, AND LICENSE FEES

(a)  The commissioner shall assess fees for accrediting training programs and for certifications, registrations, licenses, and license renewals issued in accordance with this chapter.  Fees shall not be imposed on any state or local government or nonprofit training program and may be waived for the purpose of training state employees.

(b)  Each accredited training program, registrant, and licensee shall be subject to the following fees:

Training courses = $480.00 per year

Lead contractors = $600.00 per year

Lead workers = $60.00 per year

Supervisors Lead supervisors = $120.00 per year

Inspectors Lead inspectors = $180.00 per year

Risk Lead risk assessors = $180.00 per year

Designers Lead designers = $180.00 per year

Laboratories = $600.00 per year

Lead-safe renovation contractors Lead‑safe renovators = $50.00 per year

(c)  Each lead abatement project shall be subject to the following permit fees:

(1)  Lead abatement project permit fee $50.00.

(2)  Lead abatement project permit revision fee $25.00.

(d)  Fees imposed by this section shall be deposited into the lead paint abatement accreditation and licensing special fund.  Monies in the fund may be used by the commissioner only to support departmental accreditation, registration, certification, and licensing activities related to this chapter.  The fund shall be subject to the provisions of subchapter 5 of chapter 7 of Title 32.

Sec. 28.  18 V.S.A. § 1755 is amended to read:

§ 1755.  UNIVERSAL ACCESS TO SCREENING

(a)  Not later than November 1, 1993, the The commissioner shall publish the results of the department’s lead poisoning prevalence study.  Not later than January 1, 1994, the commissioner shall publish guidelines establishing that establish the methods by which and the intervals at which children under six years of age are recommended to should be screened and tested given a confirmation test for elevated blood lead poisoning levels, according to the age of the children and their probability of exposure to high‑dose sources of lead.  The guidelines shall take into account the recommendations of the U.S. Centers for Disease Control and the American Academy of Pediatrics and shall be updated as those recommendations are changed.  The commissioner may also shall recommend screening for lead poisoning in other high risk groups. The commissioner shall ensure that all health care providers who provide primary medical care to children six years of age or younger are informed of the guidelines.  Once the department has implemented lead screening reports within the immunization registry, the department shall use the information in the registry to inform health care providers of their screening rates and to take, within available resources, other measures necessary to optimize screening rates, such as mailings to parents and guardians of children ages one and two, outreach to day care facilities and other community locations, screening at district offices, and educating parents and guardians of children being served.

(b)  Not later than January 1, 1994, the Vermont  the commissioner of banking, insurance, securities, and health care administration shall recommend to the general assembly whether lead screening should be a common benefit under the universal access proposals it has presented, and, if so, how such benefits should be financed.  The cost of implementing the Vermont commissioner of banking, insurance, securities, and health care administration’s plan under this chapter shall be included in the unified health care budget to be adopted by the authority effective July 1, 1994.

Annually, the commissioner shall determine the percentage of children six years of age or younger who are being screened in accordance with the guidelines and shall, unless a final report is available, provide interim information on screening to the legislature annually on April 15 .  If fewer than 85 percent of one-year-olds and fewer than 75 percent of two–year-olds as specified in the guidelines are receiving screening, the secretary shall adopt rules to require that all health care providers who provide primary medical care to young children shall ensure that their patients are screened and tested according to the guidelines, beginning January 1, 2011.

(c)  Beginning July 1, 1994 , all All health care providers who provide primary medical care shall ensure that parents and guardians of children below the age of six years of age or younger are advised of the availability and advisability of screening and testing their children for lead poisoning in accordance with the commissioner’s guidelines, .  No health care provider shall be liable for not performing a screening or confirmation test for blood lead level when a parent or guardian has refused to consent or has failed to follow through in response to a referral for a screening or confirmation test.  No late than 120 days after the department has notified health care providers that it has implemented lead screening reports within the immunization registry, a health care provider shall report to the department regarding lead screening of children ages one and two pursuant to the guidelines in subsection (a) of this section in a form and as required by the department.

(d) Any health care provider or employee thereof making the diagnosis of lead poisoning shall report such diagnosis to the department within such time and using such format as the department shall prescribe.  Any laboratory in Vermont which that analyzes blood samples of children below the age of six Vermont residents for lead levels shall report to the department such all information on blood lead analyses as required by the department may require including data on the number and results of blood lead analyses performed by the laboratory.  All health care providers who analyze blood samples for lead levels or who use laboratories outside Vermont to analyze blood samples of children below the age of six for lead levels shall report all information required by the department to the department such information as the department may require including data on the number and results of such blood lead tests.  The commissioner shall establish procedures to ensure the confidentiality of the children and families immediately by telephone if the result of any analysis is 45 micrograms or more of lead per deciliter of blood, or by electronic means within 14 days of analysis if the result of the analysis is less than 45 micrograms of lead per deciliter of blood.  All blood lead data reports to the department shall include the name, date of birth, date of blood test, and address of the individual whose blood is analyzed and, if known, the owner of the residence of the individual.

(e)  After the guidelines established pursuant to subsection (a) of this section have been in place for two years, the commissioner shall determine the percentage of children below the age of six who are being screened in accordance with those guidelines.  If fewer than 75 percent of such children are receiving such screening, the secretary shall adopt rules to require that all health care providers who provide primary medical care to young children shall ensure that their patients are screened and tested according to the commissioner’s guidelines beginning January 1, 1997.  Such rules shall provide that no screening or testing shall be required pursuant to this subsection if the parent or guardian of the child objects to the child undergoing blood lead screening on the grounds that such screening conflicts with their moral or religious tenets or practices.  No later than 120 days after the department has notified laboratories that it has implemented lead screening reports within the immunization registry, a laboratory shall report to the department regarding lead screening of children ages one and two pursuant to the guidelines in subsection (a) of this section in a form and as required by the department.

Sec. 29.  18 V.S.A. § 1757 is amended to read:

§ 1757.  LEAD POISONED CHILDREN WITH ELEVATED BLOOD LEAD LEVELS

(a)  Upon receiving a report that a child under age six has been diagnosed by a qualified physician to have lead poisoning, the a screening test result of ten or more micrograms of lead per deciliter of blood, or a lower level as determined by the commissioner, the commissioner shall take prompt action to confirm the diagnosis ensure that the child obtains a confirmation test.

(b)  If the child is severely lead poisoned has an elevated blood lead level, the commissioner shall provide for information on lead hazards to the parents or guardians of the child.

(c)  If a child six years of age or younger has a confirmed blood lead level at or above ten micrograms of lead per deciliter of blood, and if resources permit, the commissioner:

(1)  Shall, with the consent of the parent or guardian, provide an inspection of the dwelling unit occupied by the child or the child care center facility the child attends, by a state inspector or licensed private inspector lead risk assessor, and develop a plan in consultation with the parents, owner, physician, and others involved with the child to minimize the exposure of the child to lead.  The plan developed under this subdivision shall require that any lead hazards identified through the inspection be addressed.  The owner of rental target housing or a child care facility shall address those lead hazards within the owner’s control, and shall not be required to abate lead hazards if interim controls are effective.

(2)  The commissioner may May inspect and evaluate other dwelling units in a the building in which a severely lead‑poisoned the child has been identified as is living and if it is reasonable to believe that a child under the age of six years of age or younger occupies, receives care, or otherwise regularly frequents the other dwelling units dwellings in that building.

(c)  The commissioner shall work with the parents, owner, physician, and others involved with the child to develop a plan to minimize exposure of the child to lead hazards.

(d)  Concerning target housing which is rented or leased, on or before January 1, 1994, the secretary with the concurrence of the commissioner of housing and community affairs shall adopt rules to implement this section including rules which assure that prompt action will be taken to confirm a lead poisoning diagnosis, to inspect the possible sources of lead poisoning, and to secure voluntary compliance or to take necessary enforcement action.  Enforcement action shall include providing the child’s parents or guardians and the owner of the dwelling unit with appropriate educational materials on lead poisoning prevention and may include requiring the owner of the dwelling unit to initiate interim controls or abatement of lead‑based paint hazards within a specified time. 

(e)  Nothing in this section shall be construed to limit the commissioner’s authority under any other provision of Vermont law.

Sec. 30.  18 V.S.A. § 1759 is amended to read:

§ 1759.  ESSENTIAL MAINTENANCE PRACTICES

(a)  For the purposes of this section, all paint is presumed to be lead‑based unless a certified inspector has determined that it is not lead‑based.  All owners of rental target housing and child care facilities shall perform the following essential maintenance practices on their property

Essential maintenance practices (EMP) in rental target housing and child care facilities shall be performed only by a person who has successfully completed an EMP training program approved by the commissioner or a person who works under the direct, on‑site supervision of a person who has successfully completed such training.  That person shall comply with section 1760 of this title and shall take all reasonable precautions to avoid creating lead hazards during any renovations, remodeling, maintenance, or repair project that disturbs more than one square foot of lead‑based paint, pursuant to guidelines issued by the department.  The following essential maintenance practices shall be performed in all rental target housing and child care facilities, unless a lead inspector or a lead risk assessor has certified that the property is lead‑free:

(1)  Take all reasonable precautions to avoid creating lead hazards during any renovation, remodeling, maintenance, or repair project that disturbs a lead‑based painted surface pursuant to guidelines issued by the department. The guidelines shall include the following requirements:

(A)  A prohibition against lead‑based paint removal by burning, water blasting, dry scraping, power sanding, or sandblasting, unless authorized by the department.

(B)  Use of good work practices and safety precautions to prevent the spread of lead dust, including limiting access to work areas to workers, covering the work area with six mil polyethylene plastic or the equivalent, wearing of protective clothing by workers, protecting belongings of occupants by covering or removing them from the work area, misting painted surfaces before disturbing the paint, and wetting sweeping debris.

(C)  At the conclusion of the work, specialized cleaning of the work area shall be performed shall be thoroughly cleaned using methods designed to remove lead dust and recommended by the department.

(2)  Perform visual on‑site inspections of all interior and exterior surfaces and fixtures of the building to identify deteriorated paint and install window well inserts into all windows, or protect window wells by another method approved by the department, no later than July 1, 1998; thereafter, visual on‑site inspections shall be performed annually and upon a change of tenant.  Install window well inserts in all windows or protect window wells by another method approved by the department.

(3)(2)  At least once a year, with the consent of the tenant, and at each change of tenant, and annually in units in which a child six years of age or younger resides clean all window wells and window sills within the unit and in all areas of the building to which access by tenants is not restricted by the rental agreement.  The cleaning shall be accomplished by using cleaning methods, products and devices that are effective in the removal of lead‑contaminated dust and recommended by the department perform visual on‑site inspection of all interior and exterior painted surfaces and components at the property to identify deteriorated paint.

(4)(3)  Promptly and safely remove or stabilize lead‑based paint if more than one square foot of deteriorated lead‑based paint is found on any interior or exterior surface located within any area of the building dwelling to which access by tenants is not restricted by the rental agreement or on any exterior porch or an exterior wall, surface or fixture within the exterior porch.  An owner shall restore the assure that all surfaces to be are free of deteriorated lead‑based paint within 30 days after deteriorated lead‑based paint has been visually identified or within 30 days after receipt of a written or oral report of deteriorated lead‑based paint from any person including the department, a tenant, or from an owner of a child care facility.  If Because exterior paint repairs cannot be completed in cold weather, any exterior repair work is identified after November 1 of any year, the repair may be delayed for completion until shall be completed no later than the following May 31 of the following year provided that access to surfaces and components with lead hazards and areas directly below the deteriorated surfaces is clearly restricted.

(5)(4)  If more than one square foot of deteriorated paint is found on any exterior wall surface or fixture not covered by subdivision (4)(3) of this subsection and is located in an area frequented by children six years of age or younger in warm weather, the owner shall:

(A)  promptly and safely repair and stabilize the paint and restore the surface; or

(B)  prohibit access to the area, surface, or fixture to assure that children will not come into contact with the deteriorated lead‑based paint.

(5)  For any outdoor area, annually remove all visible paint chips from the ground on the property.    

(6)  At least once a year, using methods recommended by the department, thoroughly clean all interior horizontal surfaces, except ceilings, in common areas accessible to tenants.

(6)(7)  Provide written LBP hazard information prepared or approved by the department to current and prospective tenants and current and prospective owners of child care facilities. At each change of tenant, thoroughly clean all interior horizontal surfaces of the dwelling, except ceilings, using methods recommended by the department.

(7)(8)  Post, in a prominent place in buildings containing rental target housing units or a child care facility, a notice to occupants emphasizing the importance of promptly reporting deteriorated paint to the owner or to the owner’s agent.  The notice shall include the name, address, and telephone number of the owner or the owner’s agent.

(8)  Attend a training program offered or approved by the department.  The training, which shall be available to any person who repairs, remodels or renovates property, shall be attended by the owner, the owner’s property manager, or a representative of the owner’s regular maintenance staff. 

(9)  Ensure that any person who performs essential maintenance work has completed a department‑approved training program or is being supervised on‑site by a person who has completed the training program and complies with the essential maintenance practices. 

(10)  At each change of tenant, the owner shall clean all horizontal surfaces, except ceilings, within all areas of the building used by tenants and not otherwise restricted by the rental agreement.  This cleaning shall be done by using cleaning methods, products and devices prescribed by the department that are effective in cleaning up lead‑contaminated dust, such as vacuum cleaners with HEPA filters, and wet‑cleaning with trisodium phosphate or other lead specific detergents.

(b)  When the essential maintenance practices are completed, the owner shall sign an affidavit indicating that, to the best of the owner’s knowledge and belief the essential maintenance practices have been performed, the dates they were completed, and by whom they were performed. The owner shall file the affidavit with the owner’s lliability insurance carrier and the department.  Annually, the owner shall conduct a visual check, perform required essential maintenance practices, and sign and file an affidavit as required by this subsection.

The owner of rental target housing shall perform all the following:

(1)  File with the department by the due date an EMP compliance statement certifying that the essential maintenance practices have been performed, including all the following:

(A)  The addresses of the dwellings in which EMP were performed.

(B)  The dates of completion.

(C)  The name of the person who performed the EMP.

(D)   A certification of compliance with subdivision (4) of this subsection. 

(E)  A certification that subdivisions (2) and (3) of this subsection have been or with be complied with within ten days.

(2)  File the statement required in subdivision (1) of this subsection with the owners’ liability insurance carrier and the department.

(3)  Provide a copy of the statement to all tenants with written materials regarding lead hazards approved by the department.

(4)  Prior to entering into a lease agreement, provide approved tenants with written materials regarding lead hazards approved by the department, along with a copy of the owner’s most recent EMP compliance statement.

The written materials approved by the department pursuant to this subdivision shall include information indicating that lead is highly toxic to humans, particularly young children, and may even cause permanent neurological damage. 

(c)  The owner of the premises of a child care facility shall perform all of the following:

(1)  File with the department by the due date an EMP compliance statement certifying that the essential maintenance practices have been performed, including all the following:

(A)  The address of the child care facility.

(B)  The date of completion of the EMP.

(C)  The name of the person who performed the EMP.

(D)  A certification that subdivision (2) of this subsection has been or will be complied with within ten days.

(2)  File the statement required in subdivision (1) of this subsection with the owner’s liability insurance carrier; the department for children and families; and with the tenant of the facility, if any.

(d)  An owner who desires an extension of time for filing the EMP compliance statement shall file a written request for an extension from the department no later than ten days before the due date.  The department may grant or deny an extension.

Sec. 31.  18 V.S.A. § 1760 is amended to read:

§ 1760.  CERTIFICATION; RULES; REPORT; FUTURE DEPARTMENT UNSAFE WORK PRACTICES

(a)  No later than January 1, 1997, the secretary shall adopt rules that establish methods and practices to be used by licensed inspectors who certify that target housing and child care facilities are lead free or have had lead‑based paint hazards identified and controlled and have passed independent dust clearance tests.  The rules shall include the duration of validity of any certifications and requirements for renewal of certifications.

(b)  By January 1, 1999, the secretary shall report to the general assembly on the need for additional essential maintenance practices or other actions to further prevent lead poisoning in children based on significant:

(1)  Reductions in the number and percentage of poisoned and severely lead‑poisoned children.

(2)  Increases in the number and percentages of owners of rental target housing that have performed essential maintenance practices.

(3)  Increases in the number and percentage of housing units that have achieved higher levels of lead hazard control.

(4)  Advances in lead poisoning prevention technology.

(5)  Impact of public education efforts in reducing the lead levels of children at risk.

(c)  After July 1, 2000, the secretary may adopt rules for the low cost and cost effective implementation of the essential maintenance practices established in section 1759 of this title and additional recommended low cost and cost effective essential maintenance practices and other actions to further prevent lead poisoning in children.

All paint in target housing and child care facilities is presumed to be lead‑based unless a lead inspector or lead risk assessor has determined that it is not lead‑based.  Unsafe work practices include the following, unless specifically authorized by permit by the department:

(1)  Removing lead‑based paint by:

(A)  Open flame burning or torching.

(B)  Use of heat guns operated above 1,100 degrees Fahrenheit.

(C)  Dry scraping.

(D)  Machine sanding or grinding.

(E)  Uncontained hydro‑blasting or high-pressure washing.

(F)  Abrasive blasting or sandblasting without containment and high‑efficiency particulate exhaust controls.

(G)  Chemical stripping using methylene chloride products.

(2)  Failing to employ one or more of the following lead‑safe work practices: 

(A)  Limiting access to interior and exterior work areas.

(B)  Enclosing interior work areas with plastic sheathing or other effective lead dust barrier.

(C)  Using protective clothing.

(D)  Misting painted surfaces before disturbing paint.

(E)  Wetting paint debris before sweeping to limit dust creation.

(F)  Any other measure required by the department.

(b)  No person shall disturb more than one square foot of lead‑based paint using unsafe work practices in target housing or in child care facilities. 

Sec. 32.  18 V.S.A. § 1760a is added to read:

§ 1760a.  ENFORCEMENT; ADMINISTRATIVE ORDER; PENALTIES

(a)  A person who violates section 1759 of this title commits a civil violation and shall be subject to a civil penalty as set forth below which shall be enforceable by the commissioner in the judicial bureau pursuant to the provisions of chapter 29 of Title 4.

(1)  An owner of rental target housing who fails to comply with subsection 1759(b)(1), (2), and (3) of this title by the due date or an owner of a child care facility who fails to comply with subsection 1759(c) of this title by the due date shall pay a civil penalty of not more than $50.00 if the owner comes into compliance within 30 days after the due date; otherwise the owner shall pay a civil penalty of not more than $150.00.

(2)  An owner who cannot demonstrate by a preponderance of the evidence that essential maintenance practices were performed by the due date shall pay an additional penalty of not more than $250.00. 

(b)  Nothing in this section shall limit the commissioner’s authority under any other provisions of law.

Sec. 32a.  EFFECTIVE DATE OF SEC. 32

Sec. 32 of this act, adding 18 V.S.A. § 1760a, shall take effect on January 1, 2010.

Sec. 33.  18 V.S.A. § 1761 is amended to read:

§ 1761.  DUTY OF REASONABLE CARE; NEGLIGENCE; LIABILITY

(a)  Owners of target housing and owners of child care facilities shall take reasonable care to prevent exposure to, and the creation of, lead‑based paint lead hazards.  In an action brought under this section, evidence of actions taken or not taken to satisfy the requirements of this chapter, including performing essential maintenance practices EMP, may be admissible evidence of reasonable care or negligence.

(b)  Any person who suffers an injury proximately caused by an owner’s breach of this duty of reasonable care shall have a cause of action to recover damages and for all other appropriate equitable relief.

(c)  A person who is severely lead poisoned as a result of a violation of the duty of reasonable care before the age of six, or a parent, legal guardian or other person authorized to act on behalf of that person, shall have a cause of action to recover damages and other appropriate relief.

(d)  The owner of target housing or a child care facility who has reduced lead‑based paint hazards by completing risk assessment and controls and who has had a licensed inspector certify, pursuant to rules under section 1760 of this title the, that identified lead‑based paint l hazards have been controlled in target housing or child care facility premises and the housing or facility contains no lead‑contaminated dust shall not be liable for injury or other relief claimed to be caused by exposure to lead during the time period covered by the certification. This immunity does not apply if: shall not be liable to a tenant of the housing or facility in an individual action for habitability under common law or pursuant to chapter 63 of Title 9, chapter 137 of Title 9, chapter 153 of Title 10, or chapter 169 of Title 12 for injury or other relief claimed to be caused by exposure to lead if, during the relevant time period, the owner is in compliance with section 1759 of this title and any of the following, should they exist:

(1)  The conditions of a lead risk assessor’s certification, pursuant to Vermont regulations for lead control, that all identified lead hazards have been controlled and the housing or facility has passed an independent dust clearance test.

(2) Any plan issued pursuant to section 1757 of this title.

(3)  Any assurance of discontinuance, order of the commissioner, or court order regarding lead hazards.

(d)  The immunity under subsection (c) of this section shall not be available if:

(1)  there was fraud in the certification process; or

(2)  the owner violated conditions of the certification; or

(3)  the owner created lead‑based paint lead hazards during renovation, remodeling, maintenance, or repair after the certification; or

(4)  the owner failed to respond in a timely fashion to notification that lead‑based paint lead hazards may have recurred on the premises.

(e)  A defendant in an action brought under this section or at common law has a right of to seek contribution from any other person or persons who have violated subsection (a) of this section may be responsible, in whole or in part, for the child’s blood lead level.

(f)  The remedies provided under this section shall be the exclusive remedies against owners arising from lead‑based paint lead hazards, except for the following:

(1)  causes of action under 9 V.S.A. chapter 63;

(2)  causes of action for relief under 9 V.S.A. § 4458; and

(3)  common law actions for fraud or fraudulent misrepresentation.

(g)  Nothing in this section shall be construed to limit the right of the commissioner or any agency or instrumentality of the state of Vermont to seek remedies available under any other provision of Vermont statutory law.

(h)   In an action under 9 V.S.A. § 4458, compliance by the landlord with the duties required under section 1759 of this title shall create a conclusive presumption of habitability with respect to lead‑based paint hazards.  However, if a child under the age of six who occupies the dwelling is lead poisoned as defined in subdivision 1751(b)(16) of this title, this presumption shall be rebuttable, not conclusive.  Presumptions under this subsection shall be limited to actions based on a breach of the warranty of habitability under 9 V.S.A. § 4458.

(i)  This section shall apply only to actions arising from acts or omissions that occur on or after July 1, 1996.

Sec. 34.  18 V.S.A. § 1767 is added to read: 

§ 1767.  TRANSFER OF OWNERSHIP OF TARGET HOUSING;
RISK ASSESSMENT; EMP COMPLIANCE

(a)  Prior to the time a purchase and sale agreement for target housing is executed, the seller shall provide the buyer with materials approved by the commissioner, including a lead paint hazard brochure and materials on other lead hazards in housing.  The seller shall also provide a disclosure form that shall include any assurance of discontinuance, administrative order, or court order the terms of which are not completed and, if the property is rental target housing, verification that the EMP have been completed and that a current EMP compliance statement has been filed with the department.

(b)  At the time of sale of target housing, sellers and other transferors shall provide the buyer or transferee with any materials delineated in subsection (a) of this section not previously disclosed and a lead‑safe renovation practices packet approved by the commissioner and shall disclose any assurance of discontinuance, administrative order, or court order not disclosed pursuant to subsection (a) of this section the terms of which are not completed.

(c)  No sale of rental target housing, building, or unit may occur if the building or unit is currently the subject of an assurance of discontinuance, administrative order, or court order unless the assurance or order is amended in writing to transfer to the buyer or other transferee all remaining obligations under the assurance or order. 

(d)  Prior to the time of sale of rental target housing, the real estate agents, sellers, and other transferors of title shall provide the buyer or transferee with information approved by the commissioner explaining EMP obligations. 

(e)  A buyer or other transferee of title to rental target housing who has purchased or received a building or unit that is not in full compliance with section 1759 of this title shall bring the target housing into compliance with section 1759 of this title within 60 days after the closing.  Within the 60‑day period, the buyer or transferee may submit a written request for an extension of time for compliance, which the commissioner may grant in writing for a stated period of time for good cause only.  Failure to comply with this subsection shall result in a mandatory civil penalty.

(f)  This section shall not apply to target housing that has been certified

lead-free.

(g)  Noncompliance with this section shall not affect marketability of title.

Sec. 35.  4 V.S.A. § 1102(b) is amended to read:

(b)  The judicial bureau shall have jurisdiction of the following matters:

* * *

(14)  Violations of chapter 38 of 18 V.S.A. that are subject to civil penalties pursuant to subsection 1760a(a) relating to reducing lead hazards in housing.

Sec. 35a.  EFFECTIVE DATE OF SEC. 35

Sec. 35 of this act, amending 4 V.S.A. § 1102(b), shall take effect on January 1, 2010.

Sec. 36.  CONSTRUCTION

Nothing in Secs. 25 through 35 of this act, relating to the regulation of lead,  shall be construed to regulate firearms, ammunition, or shooting ranges or circumstances resulting from shooting, handling, storing, or casting and reloading ammunition.

Sec. 37.  EFFECTIVE DATE OF SECTIONS 25 THROUGH 37

Except as otherwise provided, Secs. 25 through 37 of this act shall take effect on July 1, 2008.

* * * Mobile Homes from H.331, Secs. 38 – 43 * * *

Sec. 38.  9 V.S.A. § 2601 is amended to read:

§ 2601.  Definitions

(a)  As used in this chapter, unless the context requires otherwise, “mobile home” means:

(1)  Mobile home as defined in 10 V.S.A. § 6201.

(2)  An unmotorized vehicle, other than a travel or recreational trailer, designed to be towed and designed or equipped for use as sleeping, eating or living quarters.

(b)  A mobile home remains a mobile home for purposes of this chapter even though it may be used for advertising, sales, display or promotion of merchandise or services, or for any other commercial purposes except the transportation of property.

(c)  A mobile home that was financed as residential real estate shall be defined as residential real estate.

(d)  “Permanently sited” means the mobile home has become affixed to the land.   Factors that tend to show a mobile home is permanently sited include:

(1)  The mobile home has been set up on blocks or otherwise stabilized so that the wheels do not form a major part of the structural support.

(2)  The mobile home has been connected to utilities such as electricity, sewage, water, gas, or oil.

(3)  Skirting has been installed around the base of the mobile home.

(4)  The wheels or axles have been removed.

(5)  The mobile home has been situated in a place that makes removal unlikely.

Sec. 39.  9 V.S.A. § 2603(b) is amended to read:

(b)  An obligation to finance a mobile home if consummated while the A mobile home that is or is intended to be permanently sited in a manner intended for continuous residential occupancy by the owner on land owned that is:

(1)  Owned by the owner of the mobile home shall be financed as a residence residential real estate.

(2)  Leased by the owner of the mobile home may be financed as residential real estate.

Sec. 40.  9 V.S.A. § 2604 is amended to read:

§ 2604Penalty REAL ESTATE DEEDS FOR MOBILE HOMES

A person who violates a provision of this chapter:

(1)  Except for violations of subsection 2603(e) of this title, shall be fined not more than $5,000.00 for each occurrence.

(2)  Shall be subject to all the remedies and penalties available to a consumer and the attorney general under chapter 63 of this title.

(a)  Any mobile home purchased from a mobile home dealer on or after

July 1, 2008 that is financed as residential real estate pursuant to subsection 2603(b) of this title shall be conveyed by a warranty deed drafted in substantially the form provided in subsection (c) of this section.

(b)  An owner of a mobile home shall, upon financing or refinancing a mobile home as residential real estate or selling a mobile home that has been financed as residential real estate, issue to the grantee either a warranty deed or a quitclaim deed that is drafted in substantially the form provided in subsection (c) or (d) of this section.

(c)  A deed that is substantially in the form provided in this subsection shall, when duly executed and delivered, have the force and effect of a deed in fee simple to the grantee, the heirs, successors, and assigns, to their own use, with covenants on the part of the grantor, for the grantor, the grantor’s heirs, executors, and administrators that, at the time of the delivery of the deed, the grantor was lawfully seized in fee simple of the mobile home; that the mobile home was free from all encumbrances, except as stated; that the grantor had good right to sell and convey the same to the grantee, the grantee’s heirs, successors, and assigns; and that the grantor and the grantor’s heirs, executors, and administrators shall warrant and defend the same to the grantee and the grantee’s heirs, successors and assigns, against the lawful claims and demands of all persons.  No owner of land on which a mobile home is sited shall unreasonably withhold the consent required by this statutory form.

Form for Mobile Home Warranty Deed

                              , of                        ,                               County, State of____________,                         (“Grantor”), for consideration paid, grants to___________ of                   Street, Town (City) of                  ,____________ County, State of                  (“Grantee”), with warranty covenants, the________ (description of mobile home being conveyed: name of manufacturer, model and serial number and encumbrances, exceptions, reservations, if any) which mobile home is situated, or is to be situated, at __________ (state name of park, if any, and street address), Town (City) of __________, __________ County, State of Vermont.
The tract or parcel of land upon which the mobile home is situated, or is to be situated, is owned by                        by deed dated and recorded at Book        , Page      in the land records of the Town (City) of                        
.  

_______                        (wife) (husband) of said Grantor, releases to said Grantee all rights and other interests therein.

   Signed this __________ day of __________, ___.

(Here add acknowledgment)

__________, owner of the tract or parcel of land upon which the aforesaid mobile home is situated, or is to be situated, hereby consents to the conveyance of the mobile home.

Signed this __________ day of __________, ___.

(Here add acknowledgment)

[ ] Check box if the mobile home has been relocated from one site to another within Vermont, and attach a Relocation Statement in the form provided in section 2606 of this title.

(d)  A deed that is substantially in the form provided in this subsection shall, when duly executed and delivered, have the force and effect of a deed in fee simple to the grantee, the heirs, successors, and assigns, to their own use.  No owner of land on which the mobile home is sited shall unreasonably withhold consent required by this statutory form.

Form for Mobile Home Quitclaim Deed

___________, of ___________,              County, State  of__________ _________(“Grantor”), for consideration paid, grants to___ ________ of _________ Street, Town (City) of ____       ,_   ____County, State of __________(“Grantee”), with quitclaim covenants, the (description of mobile home being conveyed:  name of manufacturer, model and serial number and encumbrances, exceptions, reservations, if any) which mobile home is situated, or is to be situated, at ________________ (state name of park, if any, and street address), Town (City) of _____________ County, State of Vermont.

The tract or parcel of land upon which the mobile home is situated, or is to be situated, is owned by ____________ by deed dated _____________ and recorded at Book ___, Page    , in the land records of the Town (City) of _________.  

    _____ (wife) (husband) of said Grantor releases to said Grantee all rights and other interest therein.

Signed this ___ day of _______    ,______.

(Here add acknowledgment)

_____________, owner of the parcel of land upon which the aforesaid mobile home is situated, or is to be situated, hereby consents to the conveyance of the mobile home.

Signed this ___day of__                __, _____.

(Here add acknowledgment)

[ ]  Check box if the mobile home has been relocated from one site to another within Vermont, and attach a relocation statement in the form provided in section 2606 of this title.

Sec. 41.  9 V.S.A. § 2605 is added to read:

§ 2605.  Mobile home bill of sale conversion process

The owner of any mobile home that was initially financed pursuant to a motor vehicle loan, motor vehicle retail installment contract, or another form of chattel mortgage shall, if the mobile home is subsequently financed as residential real estate pursuant to subsection 2603(b) of this title, file a request for purging of the security interest with the clerk of the municipality where the chattel mortgage for the mobile home was last recorded.

(1)  A request to purge the security interest of a mobile home shall include the most recent Vermont uniform bill of sale or certificate of origin, the terminated UCC financing statement or statements, and an executed warranty or quitclaim deed, which shall be drafted substantially in the form provided in section 2604 of this title.

(2)  Upon the filing of a request to purge the security interest of a mobile home with the clerk of the municipality where the chattel mortgage for the  mobile home was last recorded, and upon the owner’s procuring the consent of the holders of any security interest in the mobile home shown to be unreleased, the mobile home shall become residential real estate.

(3)  Upon receiving a request to purge the security interest of a mobile home, the municipal clerk shall mark or stamp the originally filed Vermont uniform bill of sale or certificate of origin with the word “converted.”

(4)  A mobile home that has been converted to residential real estate shall not be converted or redefined as personal property.

Sec. 42.  9 V.S.A. § 2606 is added to read:

§ 2606.  Relocating mobile homes to another

              municipality or state

(a)  If a deed for any mobile home is recorded by the clerk of the municipality in which the mobile home is sited, and if that mobile home is relocated to another site within the state of Vermont, the owner of the mobile home shall, within 10 days of the relocation, do all the following:

(1)  File with the clerk of the municipality where the deed was last recorded a relocation statement substantially in the form provided in this subsection.

(2)  File with the clerk of the municipality where the mobile home is relocated a copy of the relocation statement as required by subdivision (1) of this subsection, together with the deed filed with the clerk of the municipality where the mobile home was previously sited.  If the records of a municipality in which the deed or conveyance is recorded are destroyed, an attested copy of the deed or other conveyance from the county clerk shall have the same validity as a copy from the municipal clerk’s office.

(3)  Provide a copy of the relocation statement filed pursuant to subdivision (1) of this subsection to the holders of any unreleased, recorded security interests in the mobile home.

Form for Relocation Statement

                              , of                        ,                               County, State of                         , is the owner of (description of mobile home: name of manufacturer, model and serial number and encumbrances, exceptions, reservations, if any), which mobile home has been relocated.

The mobile home was previously located at __________ (state name of park, if any, and street address), Town (City) of __________, __________ County, State of Vermont and title, if any, to the same was recorded at Book ___, Page ___, in the records of the Town (City) of __________.

The mobile home is has been relocated to  __________ (state name of park, if any, and street address), Town (City) of __________, __________ County, State of Vermont and title, if any, to the same was recorded at Book___ ___, Page ___, in the records of the Town (City) of __________. 

The tract or parcel of land upon which the mobile home is situated is owned by                        by deed dated                               and recorded at
Book        , Page      in the land records of the Town (City) of               .

The mobile home is subject to an existing mortgage by _____________in favor of _____________, recorded at Book ___, Page    , in the land records of the Town (City) of _______     __.

If the relocation is to a municipality in Vermont other than the municipality in which the deed to the Grantor was recorded, a duplicate original of the deed to the Grantor shall be recorded in the land records of the municipality of the relocation at the same time this statement is recorded.

       Signed this __________ day of __________, ___.

(b)  An out-of-state transfer statement substantially in the form provided in this subsection shall, when duly executed and recorded by the clerk of the municipality in which the mobile home was previously located, have the force and effect of transferring title of the mobile home to the grantee, the grantee’s heirs, successors, and assigns and terminating the record title or deed of the mobile home in the municipal records under circumstances by which the mobile home is relocated outside this state.  No owner of land on which a mobile home is sited shall unreasonably withhold the consent required by this statutory form.  No mobile home may be relocated to a site outside this state unless all holders of liens, attachments, or encumbrances, if any, consent in writing on the transfer statement.

Form for Out-of-State Transfer Statement

__________, of __________, County, State of __________ (“Grantor”), for consideration paid, grants to __________, (complete mailing address) __________, of __________ Street, Town (City) of __________, __________ County, State of __________ (“Grantee”), the __________ (Description of mobile home being conveyed: name of manufacturer, model and serial number and encumbrances, exceptions, reservations, if any) which mobile home was situated at __________ (state name of park, if any, and street address), Town (City) __________ of __________ County, State of Vermont.

The tract or parcel of land upon which the mobile home was situated is owned by __________ by deed __________ dated __________ and recorded at Book___, Page ___ in the __________ County Registry of Deeds. __________ (wife) (husband) of said Grantor, releases to said Grantee all rights and other interest therein.

The mobile home is transferred subject to an existing mortgage by __________in favor of _____________, recorded at Book ___, Page    , in the land records of the Town (City) of _________, State of Vermont.

Signed this __________ day of __________, ___.

(Here add acknowledgment)

        __________, owner of the tract or parcel of land upon which the aforesaid mobile home was situated, hereby consents to the conveyance of the mobile home.

Signed this __ day of __________, ___.

(Here add acknowledgment)

        __________, holder of (lien, attachment or encumbrance) hereby consent to the conveyance of the aforesaid mobile home, subject to condition that the aforesaid (lien, attachment or encumbrance) shall remain in force and effect thereon.

Signed this __________ day of __________, ___.

(Here add acknowledgment)

(c)  An attachment, mortgage, security interest, lien, or other encumbrance on a mobile home, when properly perfected, shall be enforceable until released or discharged notwithstanding the relocation of the mobile home within or outside this state.

Sec. 43.  9 V.S.A. § 2607 is added to read:

§ 2607.  PENALTY

A person who violates a provision of this chapter:

(1)  Except for violations of subsection 2603(e) of this title, shall be fined not more than $5,000.00 for each occurrence.

(2)  Shall be subject to all the remedies and penalties available to a consumer and the attorney general under chapter 63 of this title.

* * * Landlord – Tenant from S.372, Secs. 44 – 53 * * *

Sec. 44.  9 V.S.A. § 4451(1) is amended to read:

(1)  “Actual notice” means receipt of written notice hand-delivered or mailed to the last known address.  A rebuttable presumption that the notice was received three days after mailing is created if the sending party proves that the notice was sent by first class or certified United States mail.   

Sec. 45.  9 V.S.A. § 4461(c) is amended to read:

(c)  A landlord shall return the security deposit along with a written statement itemizing any deductions to a tenant within 14 days from the date on which the landlord discovers that the tenant vacated or abandoned the dwelling unit, with a written statement itemizing any deductions or the date the tenant vacated the dwelling unit, provided the landlord received notice from the tenant of that date.  In the case of the seasonal occupancy and rental of a dwelling unit not intended as a primary residence, the security deposit and written statement shall be returned within 60 days. 

Sec. 46.  9 V.S.A. § 4462(d) is added to read:

(d)  Any personal property remaining in the dwelling unit or leased premises after the tenant has vacated may be disposed of by the landlord without notice or liability to the tenant or owner of the personal property, provided that one of the following has occurred:

(1)  The tenant provided actual notice to the landlord that the tenant has vacated the dwelling unit or leased premises.

(2)  The tenant has vacated the dwelling unit or leased premises at the end of the rental agreement.

Sec. 47.  9 V.S.A. § 4465(c) is added to read:

(c)  If a landlord serves notice of termination of tenancy on any grounds other than for nonpayment of rent within 90 days after notice by any municipal or state governmental entity that the premises are not in compliance with applicable health or safety regulations, there is a rebuttable presumption that any termination by the landlord is in retaliation for the tenant having reported the noncompliance.

Sec. 48.  9 V.S.A. § 4467 is amended to read:

§ 4467.  TERMINATION OF TENANCY; NOTICE

(a)  Termination for nonpayment of rent. Termination for nonpayment of rent. The landlord may terminate a tenancy for nonpayment of rent by providing actual notice to the tenant of the date on which the tenancy will terminate which shall be at least 14 days after the date of the actual notice.  The rental agreement shall not terminate if the tenant pays or tenders all arrearages prior to the termination date. A tenant may not defeat a notice to terminate by payment of arrearages more than three times in 12 months rent due through the end of the rental period in which payment is made or tendered. Acceptance of partial payment of rent shall not constitute a waiver of the landlord's remedies for nonpayment of rent.

(b)  Termination for breach of rental agreement.

(1)  The landlord may terminate a tenancy for failure of the tenant to comply with a material term of the rental agreement or with obligations imposed under this chapter, by actual notice given to the tenant at least 30 days prior to the termination date specified in the notice.

(2)  When termination is based on criminal activity, illegal drug activity, or acts of violence any of which threaten the health or safety of other residents, the landlord may terminate the tenancy by providing actual notice to the tenant of the date on which the tenancy will terminate which shall be at least 14 days from the date of the actual notice.

* * *

(e)  Termination by landlord for no cause under terms of written rental agreement.  If the landlord terminates a tenancy in accordance with the terms of there is a written rental agreement, the notice to terminate for no cause shall be at least 30 14 days before the end or expiration of the stated term of the rental agreement, if rent is payable on a monthly basis and the tenancy has continued for two years or less. The notice to terminate for no cause shall be at least 60 days the rent is paid on a monthly basis and before the end or expiration of the term of the rental agreement if the tenancy has continued for more than two years.  The If there is a written week-to-week rental agreement, the notice to terminate for no cause shall be at least seven days, if rent is payable on a weekly basis; however, a notice to terminate for nonpayment of rent shall be as provided in subsection (a) of this section.

* * *

     (i)  Multiple notices.  All actual notices that are in compliance with this section shall not invalidate any other actual notice and shall be a valid basis for commencing and maintaining an action for possession pursuant to this chapter, chapter 153 of Title 10, chapter 14 of Title 11, or chapter 169 of Title 12, notwithstanding that the notices may be based on different or unrelated grounds, dates of termination, or that the notices are sent at different times prior to or during an ejectment action.  A landlord may maintain an ejectment action and rely on as many grounds for ejectment as is allowed by law at any time during the eviction process.

(j)(1)  A landlord’s acceptance of full or partial rent payment by or on behalf of a tenant after the termination of the tenancy for reasons other than nonpayment of rent or at any time during the ejectment action shall not result in the dismissal of an ejectment action or constitute a waiver of the landlord’s remedies to proceed with an eviction action based on any of the following:

(A)  The tenant’s breach of the terms of a rental agreement pursuant to subsection (b) of this section.

(B)  The tenant’s breach of the tenant’s obligations pursuant to subsections 4456(a), (b), and (c) of this title.

(C)  For no cause pursuant to subsections (c), (d), (e), and (h) of this section.

(2)  This subsection shall apply to chapter 153 of Title 10, chapter 14 of Title 11, and chapter 169 of Title 12.

(k)  A notice to terminate a tenancy shall be insufficient to support a judgment of eviction unless the proceeding is commenced no later than 60 days from the termination date set forth in the notice.

Sec. 49.  10 V.S.A. § 6204(c) is amended to read:

(c)  To the extent that they are consistent with this chapter, the provisions of chapter 137 of Title 9 (residential rental agreements) and the provisions of subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the occupancy and rental of a mobile home but not to the rental of a mobile home lot, except the rental of a mobile home lot shall be subject to the provisions of chapter 169 of Title 12, relating to payment of rent into court.

Sec. 50.  12 V.S.A. § 4773 is amended to read:

§ 4773.  EJECTMENT FOR NONPAYMENT OF RENT; PROOF;

               PAYMENT

In actions of ejectment for nonpayment of rent, the plaintiff shall not be required to prove a demand of the rent in arrear or a stipulation for reentry on nonpayment of rent or a reentry on the premises, but shall recover judgment as if the rent in arrear had been demanded and reentry made.  Before final judgment a writ of possession is executed, if the defendant in such action pays into court the rent in arrear with all rent due through the end of the current rental period, including interest and the costs of suit, such the action shall be discontinued.  A defendant may not defeat an ejectment action by payment of all rent in arrears, interest, and court costs more than one time in 12 months.  The 12-month period shall begin on the day the payment is made.

Sec. 51.  12 V.S.A. § 4853a(a), (b), and (d) are amended to read:

(a)  In any action against a tenant for possession brought in accordance with this chapter, chapter 137 of Title 9 or, chapter 153 of Title 10, or chapter 14 of Title 11, the landlord may file a motion for an order that the tenant pay rent into court.  The motion may be filed and served with the complaint or at any time after the complaint has been filed.  The motion shall be accompanied by affidavit setting forth particular facts in support of the motion.

(b)  A hearing on the motion shall be held any time after 10 days notice to the parties.  If the tenant appears at the hearing and has not been previously defaulted, the court shall not enter judgment by default unless the tenant fails to file a written answer within 10 days after the hearing.  Any rent escrow order shall remain in effect notwithstanding the issuance of a default judgment but shall cease upon execution of a writ of possession.

(d)  If the court finds the tenant is obligated to pay rent and has failed to do so, the court shall order full or partial payment into court of rent as it accrues while the proceeding is pending and prorated rent for the month in which the hearing is held rent accrued from the date of filing with the court the complaint for ejectment or the date the summons and complaint for ejectment were served on the tenant pursuant to Rule 3 of the Vermont Rules of Civil Procedure, whichever occurs first.

Sec. 52.  12 V.S.A. § 4854 is amended to read:

§ 4854.  JUDGMENT FOR PLAINTIFF; WRIT OF POSSESSION

If the court finds that the plaintiff is entitled to possession of the premises the plaintiff shall have judgment for possession and rents due, damages and costs, and when a written rental agreement so provides, the court may award reasonable attorney fees.  A writ of possession shall issue ten days after on the date judgment is entered, unless the court for good cause orders a stay.  The writ shall direct the sheriff of the county in which the property or a portion thereof is located to serve the writ upon the defendant and, no sooner than five ten days after the writ is served, to put the plaintiff into possession.

* * * Mobile Home Park Sales from H.332 Secs. * * *

Sec. 53.  10 V.S.A. § 6201(5), (6), and (7) are amended to read:

(5)  “Leaseholder” means a resident lawfully occupying a mobile home owned by the park owner or the owner of a mobile home sited on a mobile home lot in a mobile home park regardless of whether the leaseholder has actual possession of a written lease.

(6)  “Mobile home park resident” or “resident” means an individual, individuals, or family who occupies a mobile home on a permanent or temporary basis in a mobile home park as that term is defined in subdivision (2) of this section.

(7)  “Mobile home park owner” or “park owner” means the owners, operators, officers, or managing agents of a mobile home park as well as any person acting through any corporate or other device who has the practical authority to establish rules, policies, or other requirements for the operation of the mobile home park.  The term shall not include a stockholder for a corporation owning stock in a mobile home park unless such stockholder has a controlling interest in the corporation and has the practical authority to establish rules, policies or other requirements for the operation of the mobile home park.

Sec. 54.  10 V.S.A. § 6204(c) is amended to read:

(c)  To the extent that they are consistent with this chapter, the provisions of chapter 137 of Title 9 (residential rental agreements) and the provisions of subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the occupancy and rental of a mobile home but not and the provisions of subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the rental of a mobile home lot.

Sec. 55.  10 V.S.A. § 6205(c) is amended to read:

(c)  A resident of a mobile home park leaseholder may bring an action against a the park owner for a violation of sections 6236-6243 of this title.  The action shall be filed in district court for the district in which the alleged violation occurred.  If the resident's leaseholder’s claim against the owner exceeds the jurisdictional limit of the district court, an action may be brought in superior court in the county in which the alleged violation occurred. No action may be commenced by the resident leaseholder unless the resident leaseholder has first notified the park owner of the violation by certified mail at least 30 days prior to bringing the action.  During the pendency of an action brought by a resident leaseholder, the resident leaseholder shall pay rent in an amount designated in the lease, or as provided by law, which rental amount shall be deposited in an escrow account as directed by the court.

Sec. 56. 10 V.S.A. § 6231 is amended to read:

§ 6231.  Rules

* * *

(b)  The department of housing and community affairs may adopt rules to carry out the provisions of sections 6236-6243 of this title into effect.  The department shall seek advice and comment from the advisory commission prior to adopting rules.

(c)  A mobile home park that has been closed pursuant to subdivision 6237(a)(5) section 6237a of this title and reduced to no more than two occupied leased lots, shall be required, if the number of occupied leased lots subsequently is increased to more than two, to obtain all state land use and environmental permits required for a mobile home park that has been established or expanded after May 31, 1970.

Sec. 57.  10 V.S.A. § 6236 is amended to read:

§ 6236.  LEASE TERMS; MOBILE HOME PARKS

(a) All terms governing the rental use and occupancy of a mobile home lot                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       shall be contained in a written lease which shall be furnished to all mobile home residents. Mobile home park owners shall promulgate reasonable and fair lease terms governing the rental use and occupancy of a mobile home lot and shall furnish an initial copy of the lease to all mobile home residents leaseholders. Any lease term which that prohibits or in any other manner obstructs the ability of any park leaseholder to act in accordance with the provisions of this chapter shall be unenforceable. Any lease term which that is not uniformly applied to all mobile home residents leaseholders of the same or a similar category shall be unenforceable, except that an a park owner may establish a different lot rent rate for a mobile home park constructed after June 1, 1995, or for new lots in an expanded mobile home park constructed after June 1, 1995.  Mobile home park owners shall not restrict access by representatives of the department to the leaseholders of the park.

(b)  A lease term requiring the removal from a mobile home park of a mobile home which that is detrimental to the other tenants residents of the park for either health, safety or aesthetic reasons shall not be considered unreasonable or unfair.

(c)  A prospective resident Prospective leaseholders shall be furnished with a copy of the proposed lease prior to any agreement to lease use or occupy a mobile home lot, and upon acceptance of the lease terms the lease shall be signed by the lessor and lessee.  Any provision in a lease governing rental and utility charges shall be effective for a minimum of one year, except in the case of a new tenant leaseholder in a mobile home park in which there is a uniform rent schedule which that affects all lots in that park simultaneously.  The initial lease for a new tenant leaseholder may include the anticipated increase in the rent and utility charge at the time it occurs for the other lots.  A mobile home park owner shall provide residents leaseholders with a minimum of 60 days notice prior to any rent increase.  Rent increase notices shall not be given within six months prior to the issuance of a closure notice or at any time during which the closure notice is in effect.  All rent increases received by the park owner during the six months prior to the issuance of a closure notice shall be returned to the affected leaseholders within seven days of issuance of the closure notice, except when the commissioner determines the rent increase is needed to help remedy an emergency situation that affects the resident’s health, safety, or welfare.  This subsection shall not apply to proprietary leases in mobile home parks owned by limited equity housing cooperatives established under chapter 14 of Title 11.  The rental and utility charge may be increased during a year if the operating expenses of the park increase 20 percent or more during that year as the result of legislative action taken during that year and the increase could not have been anticipated.  The rental and utility charge may be increased during a year only to the extent necessary to cover the increase in operating expenses of the park.

(d)  No person shall sell, lease, or sublease a mobile home resident may sublet the resident's mobile home without the express permission or sublease or assign a lease for a lot in a mobile home park without first obtaining the written approval of the park owner, which shall not be unreasonably withheld.  A violation of this subsection shall be grounds for eviction.

(e)  All mobile home lot leases shall contain the following:

* * *

(5)  The requirement of to obtain permission, if any, from the park owner for subletting prior to leasing or selling a mobile home or assigning or subleasing a lease for a mobile home lot to another person.

(6)  The notice required from a mobile home resident leaseholder in order to terminate the lease or occupancy arrangement.

* * *

(f)  A copy of all new lease terms shall be furnished to all mobile home residents leaseholders at least 30 days prior to the effective date of any amendment, addition, or deletion of the existing lease terms.  Upon request, the park owner shall provide to any leaseholder a copy of the current lease for his or her lot.

Sec. 58.  10 V.S.A. § 6237(a), (b), and (d) are amended to read:

(a)  A mobile home resident leaseholder may be evicted only for nonpayment of rent or for a substantial violation of the lease terms of the mobile home park, or if there is a change in use of the park land or parts thereof or a termination of the mobile home park, and only in accordance with the following procedure:

(1)  A resident leaseholder shall not be evicted by force or any other self-help measure.

(2)  Prior to the commencement of any eviction proceeding, the park owner must notify the mobile home resident leaseholder by certified or registered mail, except as provided in subdivision (3) of this subsection;

(A)  of the grounds for an eviction proceeding;

(B)  that an eviction proceeding may be commenced if the mobile home resident leaseholder does not pay the overdue rent within 20 days from the date of the mailing of the notice.

* * *

(5)  A mobile home park owner shall give to each affected leaseholder and to the commissioner of the department of housing and community affairs notice by certified mail at least 18 months prior to any voluntary change in use of all or part of the park land or termination of the mobile home park that would result in the removal of any or all of the mobile home units.  Upon request, the commissioner of housing and community affairs may waive the notice requirement if the change in use is necessary to assure the health, safety or welfare of the park residents.  No eviction proceedings may be commenced during the 18-month notice period, except for nonpayment of rent.

(b)  A mobile home resident leaseholder shall not be evicted when there is proof that the lease terms he is the leaseholder has been accused of violating are not enforced with respect to the other mobile home residents or nonresidents leaseholders or others on the park premises.

* * *

(d)  This section shall apply only to evictions undertaken by the park owner of a mobile home park. Evictions of a mobile home tenant resident by a mobile home owner who is not the park owner of the mobile home park shall be governed by 9 V.S.A. § 4467.

Sec. 59.  10 V.S.A. § 6237a is added to read:

§ 6237a.  MOBILE HOME PARK CLOSURES

(a)  At least 18 months prior to the closure of a mobile home park or any mobile home lot that will result in the eviction of a  resident or a leaseholder or removal of a mobile home, a park owner shall give notice of the closure to each affected resident or leaseholder and to the commissioner by certified mail.  Upon request, the commissioner may waive some or all of the 18-month notice period if the closure is necessary to assure the health, safety, or welfare of park residents.  No evictions may be commenced during the 18‑month closure period except for nonpayment of rent or a substantial violation of the lease terms.

(b)  Prior to issuing a closure notice pursuant to subsection (a) of this section, a park owner shall first notify all mobile home owners of the park owner’s intent to sell in accordance with section 6242 of this title.  However, if the park owner sends a notice of closure to the residents and leaseholders without first providing the mobile home owners with a notice of sale under section 6242, then the park owner must retain ownership of the land for five years after the date the closure notice was provided.  If required, the park owner shall record the notice of the five-year restriction in the land records of the municipality in which the park is located.  The park owner may apply to the commissioner for relief from the notice and holding requirements of this subsection if the commissioner determines that strict compliance is likely to cause undue hardship to the park owner or the leaseholders, or both.  This relief shall not be unreasonably withheld.

(c)  When a park owner gives notice of intent to sell pursuant to section 6242 of this title, any previous notice of closure and any evictions commenced pursuant to the closure notice are void.

(d)  A park owner who gives notice of intent to sell pursuant to section 6242 of this title shall not give notice of closure until after:

(1)  At least 45 days after giving notice of intent to sell.

(2)  If applicable, the commissioner receives notice from the mobile home owners and the park owner that negotiations have ended following the 90‑day negotiation period provided in subdivision 6242(c)(1) of this title.

(e)  A park owner who closes a mobile home park within five years of providing closure notice by selling the land on which the park was located without complying with subsection (b) of this section shall be liable to the state in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the park owner from the sale, whichever is greater, unless the commissioner has granted relief from strict compliance pursuant to subsection (b) of this section.

(f)  A park owner may bring an action for possession upon the expiration of the 18-month closure notice.  The only defense to an action for possession in the case of a park closure is improper notice.

Sec. 60.  10 V.S.A. § 6238(a) and (b)(4) are amended to read: 

(a)  A prospective resident leaseholder or other person may not be charged an entrance fee for the privilege of leasing or occupying a mobile home lot. A reasonable charge for the fair value of services performed in placing a mobile home on a lot shall not be considered an entrance fee.

(b)  A qualified park owner may charge the initial lessee or occupant of an eligible site a site improvement fee.

* * *

(4)  A mobile home park owner who has collected a site improvement fee may not terminate the park or change the use of any site which that has paid the fee without offering to sell the park to the leaseholders mobile home owners in accordance with the provisions of section 6242 of this title.

Sec. 61.  10 V.S.A. § 6239 is amended to read: 

§ 6239.  GOODS AND SERVICES

A mobile home resident leaseholder shall not be restricted in his or her choice of vendors from whom he or she may purchase goods and services. This section shall not be construed to prohibit a mobile home park owner or operator from contracting with any or all mobile home residents leaseholders for the sale, supply or distribution of goods and services, but such contract shall not be required as a condition of entrance to the mobile home park.

Sec. 62.  10 V.S.A. § 6240 is amended to read:

§ 6240.  SALE OF HOMES LOCATED IN PARKS

(a)  Prior to selling a mobile home located in a mobile home park, the mobile home owner shall notify the park owner by certified or registered mail of the name and mailing address of the prospective purchaser.  The seller may be held liable by the purchaser or prospective purchaser for failure to comply with this section.

(b)  A purchaser or prospective purchaser of a mobile home located in a park shall not be refused entrance if except for the inability of the purchaser and his the purchaser’s household to meet the terms of the proposed lease or to qualify under the lease terms a valid admission policy of the park.  Upon approval for entrance into the mobile home park, the purchaser or prospective purchaser shall be offered a written lease pursuant to section 6236 of this title.  If the purchaser or prospective purchaser does not notify the park owner in writing of any objections to the lease terms prior to occupancy of the mobile home park, the purchaser shall be deemed to have accepted the lease, regardless of whether the purchaser signs and returns a copy of the lease to the park owner.  The seller’s failure to provide the notice required in subsection (a) of this section shall not be grounds to deny the purchaser or prospective purchaser’s application.

(c)  A park owner shall not charge or collect any commission on the sale of a mobile home located in a park unless he the park owner contracts to sell the home.

Sec. 63.  10 V.S.A. § 6241(a) and (b)(4) are amended to read:

(a) A park owner may enter a mobile home lot in the park with the tenant's resident’s consent, which shall not be unreasonably withheld.

(b) A park owner may also enter a mobile home lot in the park between the hours of 7:00 a.m. and 7:00 p.m. on no less than 12 hours' notice for any of the following purposes:

* * *

(4)  To exhibit show the lot to prospective or actual purchasers, mortgagees, tenants residents, workers or contractors.

Sec. 64.  10 V.S.A. § 6242 is amended to read:

§ 6242.  LEASEHOLDER'S MOBILE HOME OWNERS’ RIGHT TO NOTIFICATION PRIOR TO PARK SALE

(a)  A mobile home park owner shall give to each leaseholder mobile home owner and to the commissioner of the department of housing and community affairs notice by certified mail of his or her intention to sell the mobile home park. For the purpose of this section, a leaseholder is the holder of a lease for a lot or a leasehold on which a mobile home owned by the leaseholder is sited. Nothing herein shall be construed to restrict the price at which the park owner offers the park for sale.  The notice shall state all the following:

(1)  that That the park owner intends to sell the park;.

(2)  the The price, terms and conditions under which the park owner offers the park for sale;.

(3)  a A list of the affected leaseholders mobile home owners and the number of leaseholds held by each;.

(4)  the The status of compliance with applicable statutes, regulations and permits, to the park owner's best knowledge, and the reasons for any noncompliance; and.

(5)  that That for 45 days following the notice the mobile home park owner shall not make a final unconditional acceptance of an offer to purchase the park and that if within the 45 days the park owner receives notice pursuant to subsection (c) of this section that a majority of the leaseholders mobile home owners intend to consider purchase of the park, the park owner shall not make a final unconditional acceptance of an offer to purchase the park for an additional 90 days, starting from the 46th day following notice, except one from a group representing a majority of the leaseholders mobile home owners or from a nonprofit corporation approved by a majority of the leaseholders mobile home owners.

(b)  The leaseholders mobile home owners shall have 45 days following notice under subsection (a) of this section in which to determine whether they intend to consider purchase of the park through a group representing a majority of the leaseholders mobile home owners or a nonprofit corporation approved by a majority of the leaseholders mobile home owners. A majority of the leaseholders mobile home owners shall be determined by one vote per leasehold and no leaseholder mobile home owner shall have more than three votes or 30 percent of the aggregate park vote, whichever is less.  During this 45-day period, the park owner shall not accept a final unconditional offer to purchase the park. A park owner shall not restrict representatives of the department from access to the park residents.

(c)  If the park owner receives no notice from the leaseholders mobile home owners during the 45-day period or if the leaseholders mobile home owners notify the park owner that they do not intend to consider purchase of the park, the park owner has no further restrictions regarding sale of the park pursuant to this section.  If during the 45-day period, the park owner receives notice in writing that a majority of the leaseholders mobile home owners intend to consider purchase of the park then the park owner shall do all the following:

(1)  shall not Not accept a final unconditional offer to purchase from a party other than leaseholders for 90 days following the 45-day period, a total of 135 days following the notice from the leaseholders;.

(2)  shall negotiate Negotiate in good faith with the group representing a majority of the leaseholders mobile home owners or a nonprofit corporation approved by a majority of the leaseholders mobile home owners concerning purchase of the park;.

(3)  shall consider Consider any offer to purchase from a group representing a majority of the leaseholders mobile home owners or from a nonprofit corporation approved by a majority of the leaseholders mobile home owners.

(d)  A park owner who sells a mobile home park without complying with this section shall be liable to the residents mobile home owners in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the park owner from the sale, whichever is greater. A sale, an offer to sell, or an attempt to sell a mobile home park without complying with this section shall also be subject to the remedies of section 6205 of this title, including actual and punitive damages.

(e)  The provisions of this section do not apply when the sale, transfer or conveyance of the mobile home park is any one or more of the following:

(1)  through Through a foreclosure sale;.

(2)  to To a member of the park owner's family or to a trust for the sole benefit of members of the park owner's family;

(3)  among Among the partners who own the mobile home park;.

(4)  incidental Incidental to financing the park;.

(5)  between Between joint tenants or tenants in common;.

(6)  pursuant Pursuant to eminent domain.

(7)  Pursuant to a municipal tax sale.

(f)  No additional notice pursuant to subsection (a) of this section shall be required if the sale is in compliance with either of the following:

(1)  The mobile home park owner completes a sale of the park within one year from the expiration of the 45-day period following the date of the notice and the sale price is either of the following:

(A)  No less than the price for which the park was offered for sale pursuant to subsection (a) of this section.

(B)  Substantially higher than the final written offer from a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners.

(2)  The park owner has entered into a binding purchase and sale agreement with a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners with a closing date later than one year from the date of the notice.

(g)  A majority of the leaseholders group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners shall negotiate in good faith with the park owner for purchase of the park.

Sec. 65.  10 V.S.A. § 6244 is amended to read:

§ 6244.  SECURITY DEPOSITS

(a)  A security deposit is any advance, deposit or prepaid rent which is refundable to a mobile home resident leaseholder at the termination or expiration of the occupancy. A security deposit is to secure the resident's leaseholder’s obligation to pay rent and to maintain a rented mobile home or mobile home lot.

(b)  The mobile home park owner may retain all or a portion of the security deposit for any of the following reasons:

(1)  Nonpayment of rent.

(2)  Damage to property of the park owner, unless the damage is the result of normal wear and tear or the result of actions or events beyond the control of the resident leaseholder.

(3)  Nonpayment of utility or other charges which the resident leaseholder was required to pay directly to the park owner or to a utility.

(4)  Expenses for removal of articles abandoned by the resident leaseholder, including personal property, the mobile home, rubbish and motor vehicles from the mobile home lot.

(c)  A park owner shall return to the resident leaseholder the security deposit with a written statement itemizing any deductions within 14 days from the date on which the resident leaseholder:

* * *

(3)  has been removed from the park, together with the resident’s mobile home pursuant to a writ of possession.

(d)  The park owner shall comply with this section by hand-delivering or mailing the statement and any payment required to the last known address of the resident leaseholder.

* * *

(f)  Upon termination of the park owner's interest in the park, the security deposit shall be transferred to the new park owner.  The new park owner shall give the resident leaseholder actual notice of the new park owner's name and address with a statement that the security deposit has been transferred to the new park owner.

(g)  A town or municipality may adopt an ordinance governing security deposits on mobile homes or mobile home lots.  The ordinance shall be supplemental to and not inconsistent with the minimum protections of the provisions of this section.  The ordinance may not limit how a security deposit is held.  The ordinance may authorize the payment of interest on a security deposit.  The ordinance may provide that a housing board of review constituted pursuant to 24 V.S.A. § 5005 may hear and decide disputes related to security deposits upon request for a hearing by a park owner or resident leaseholder. The board's actions shall be reviewable under 24 V.S.A. § 5006.

Sec. 66.  10 V.S.A. § 6245 is amended to read:

§ 6245.  ILLEGAL EVICTIONS

(a)  No park owner may wilfuly cause, directly or indirectly, the interruption or termination of any utility service to a resident mobile home except for temporary interruptions for necessary repairs.

(b)  No park owner may directly or indirectly deny a resident leaseholder access to and possession of the resident's rented or leased premises a mobile home, except through proper judicial process.

(c)  No park owner may directly or indirectly deny a resident leaseholder access to and possession of the resident's leaseholder’s rented or leased property, except through proper judicial process.

Sec. 67.  10 V.S.A. § 6246(a) is amended to read:

(a)  Any resident leaseholder who sustains damage or injury as a result of an illegal eviction, as defined in section 6245 of this title, may bring an action for injunctive relief, damages, costs, and reasonable attorney fees.

Sec. 68.  10 V.S.A. § 6247(a) is amended to read:

(a)  A park owner may not retaliate by establishing any of the following:

(1)  Establishing or changing terms of a rental agreement or by bringing.

(2)  Bringing or threatening to bring an action against a resident who has done any of the following:

(1)  has complained (A)  Complained in writing to a governmental agency charged with responsibility for enforcement of a building, housing or health regulation of a violation applicable to the premises materially affecting health and safety;.

(2)  has complained (B)  Complained in writing to the park owner of a violation of this chapter; or.

(3)  has organized (C)  Organized or become a member of a resident’s association or similar organization.

Sec. 69.  10 V.S.A. § 6252(a) is amended to read:

(a)  If the percentage of a proposed lot rent increase is more than one percentage point above the U.S. Consumer Price Index for all Urban Consumers, Housing Component, published by the U.S. Bureau of Labor Statistics in the periodical "Monthly Labor Review and Handbook of Labor Statistics" as established annually by the department, and if, within 15 business days after receipt by the commissioner of the notice required pursuant to subsection 6251(a) of this title, a majority of the affected leaseholders of the occupied leased lots files with the commissioner and the park owner a written petition that includes the name of the person who will act as the representative of the leaseholders and a statement that they dispute the proposed lot rent increase, the commissioner shall send a list of qualified professional mediators compiled by the department in cooperation with park owners and leaseholders to the park owner and to the leaseholders' representative. Within five business days of receipt of the list, the park owner and the leaseholders' representative shall agree on a mediator from the list provided by the commissioner and notify the commissioner of the name, address and telephone number of the mediator selected, accompanied by the mediator's agreement to conduct the mediation.  If the commissioner has not been notified of a mediator as required by this subsection, the commissioner shall appoint a mediator from the department's list.  The mediator may not have any interest, direct or indirect, in the mobile home park at issue and shall disclose to the park owner, the leaseholders and the commissioner, any experience as a mobile home park owner, resident or leaseholder, or any other circumstance that may create a real or perceived conflict of interest.  The department shall pay the reasonable fees for professional mediation services based on a schedule established by rule of the department.

Sec. 70.  10 V.S.A. § 6253(a) is amended to read:

(a)  If the parties are unable to resolve the disputed proposed lot rent increase pursuant to the process provided in section 6252 of this title, an action for abatement of some or all of the proposed lot rent increase based on a claim that the increase is clearly excessive may be initiated by the number a majority of the affected mobile home park leaseholders that corresponds to a majority of the occupied leased lots by filing a complaint in the superior court in the county in which the mobile home park is located within 30 days after the effective date of the proposed lot rent increase.

Sec. 71.  10 V.S.A. § 6254 is amended to read:

§ 6254.  REGISTRATION OF MOBILE HOME PARKS; REPORT

(a)  No later than September 1, 1995, and every three years thereafter on September 1, each year, each mobile home park owner shall register with the department on a form provided by the department.  The form shall include the following information:

* * *

(9)  The services provided to the mobile home park residents leaseholders for payment of lot rent.

(10)  Additional charges for services paid by residents leaseholders in addition to lot rent.

* * *

(c)  The department may charge a mobile home park owner an annual fee of no more than $9.00 for each occupied leased lot in the park on September 1 of each year.  The mobile home park owner may charge this fee to the affected mobile home park residents leaseholders.  The fee shall be submitted to the department with the registration form required in subsection (a) of this section. If a mobile home park owner charges the fee under this subsection to the mobile home park residents, the fee shall not be deemed to be a lot rent increase and shall not be included in any calculation of a lot rent increase pursuant to section 6251 of this title. A mobile home park owner shall not be charged the fee under this subsection for any mobile home park in which all the mobile homes are owned by the mobile home park owner.  The commissioner may enforce filing of the registration form and payment of the fee under subsection 6205(a) of this title.  A special fund shall be created for these fees, to be used by the department of housing and community affairs for its expenses in administering the laws regarding mobile home parks, and to pay any fees required in the mediation process pursuant to section 6252 of this title and for legal representation for leaseholders pursuant to section 6253 of this title.  This special fund shall be managed in accordance with subchapter 5 of chapter 7 of Title 32.

Sec. 72.  10 V.S.A. § 6262(c) is amended to read:

(c)  No rental agreement shall contain any provision by which the resident leaseholder waives the protections of the implied warranty of habitability. Any such waiver shall be deemed contrary to public policy and shall be unenforceable and void.

Sec. 73.  10 V.S.A. § 6263 is amended to read:

§ 6263.  HABITABILITY; TENANT LEASEHOLDER REMEDIES

(a)  If the mobile home park owner fails to comply with the obligation of habitability, the park owner shall be deemed to have notice of the noncompliance if the park owner receives actual notice of the noncompliance from the resident leaseholder, a governmental entity, or a qualified independent inspector.  If the park owner has received notice from any of those sources and fails to make repairs within a reasonable time and the noncompliance materially affects health and safety, the resident leaseholder may pursue any of the following remedies:

* * *

(b)  The remedies under this section are not available to a resident leaseholder if the noncompliance was caused by the negligent or deliberate act or omission of the resident leaseholder or of a person on the premises with the resident's leaseholder’s consent.

Sec. 74.  10 V.S.A. § 6264 is amended to read:

§ 6264.  MINOR DEFECTS; REPAIR AND DEDUCT

(a)  If the park owner fails to repair a minor defect or noncompliance with this chapter or noncompliance with a material provision of the rental agreement within 30 days of receipt of written notice, the resident leaseholder may repair the defect or noncompliance and deduct from the rent the actual and reasonable cost, not to exceed one-half of one month's lot rent.  No major work on water, sewer, or electrical systems may be performed under this section. The resident leaseholder shall provide the owner with written notice of the cost of the repair or service when the cost is deducted from the rent.  The resident leaseholder shall be responsible for any damage caused by the repair or attempts to repair.

(b)  The remedies under this section are not available to a resident leaseholder if the noncompliance was caused by the negligent or deliberate act or omission of the resident leaseholder or a person on the premises with the resident's  leaseholder’s consent.

Sec. 75.  10 V.S.A. § 6265 is amended to read:

§ 6265.  CONDEMNATION AND RELOCATION OF RESIDENTS

(a)  The owner of a lot or rented mobile home which that is condemned by a governmental agency due to the wilful failure or refusal of the owner to comply with any obligations imposed by law shall provide for reasonable relocation costs of affected leaseholders and residents, except when the owner can demonstrate that he or she has no financial capacity to comply.  The affected leaseholders and residents shall have the right to recover the reasonable costs of relocation, including court costs and reasonable attorney fees.  The agency of natural resources shall grant to the owner in a timely fashion all permits necessary to correct violations under this subchapter.

(b)  The commissioner may require a park owner who commences a closure of a mobile home park pursuant to section 6237a of this title within one year of receiving from a state or municipal enforcement official a notice of a violation of health, safety, or environmental laws or of section 6262 of this title to pay reasonable relocation costs not to exceed $3,500.00 to each affected leaseholder, except when the park owner can demonstrate that he or she has no financial capacity to comply.

 and after passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO MUNICIPAL PLANNING, CREATING VERMONT NEIGHBORHOODS, ENCOURAGING SMART GROWTH DEVELOPMENT, PURCHASING OF MOBILE HOMES, CLOSURE OF MOBILE HOME PARKS, AND LANDLORD-TENANT RELATIONS

 

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                              THE HOUSE

Sen. Vincent Illuzzi                                         Rep. Helen Head

Sen. Ann Cummings                                       Rep. Anthony Klein

Sen. Virginia Lyons

H. 888

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon Senate Bill, entitled:

AN ACT RELATING TO MISCELLANEOUS TAX AMENDMENTS

Respectfully report that they have met and considered the same and recommend that

The Senate recede from its:

Sixth Strikes Sec. 36 (Essex CLA)

Eighth (Striking Sec. 42, late-filed property tax adjustment claim)                                                                       Substitute language will be added to the bill

Eleventh Exempts skating rinks which provide sports facilities to public schools from property tax in FY09 and FY10 only.

                        Substitute language will be added to the bill

Twelfth Authorizes all towns to adopt local option taxes

Thirteenth    Recede from Sec. 49 only  (aircraft parts sales tax provisions)

                        Substitute language will be added to the bill                     

Fifteenth Allows a town which has imposed a school impact fee on a developer to have the developer pay the fee directly to the school district, so that the money may be used for school purposes.  This would be optional with the town.

Seventeenth For fiscal years 2006 and after, exempts the first $500,000.00 of grand list value of Holton Home in Brattleboro.

               Substitute language will be added to the bill

Eighteenth   Secs. 54 and 55 reduces the hospital provider taxes from a rate of 6.0% to 5.5% beginning in 2008; 

                       Secs. 56 and 57 allow withholding of Medicaid funds if delinquent with provider tax

             Recede only from Secs. 56 and 57

               Substitute language for Secs. 56 and 57  will be added to the bill                     

Twentieth    (energy efficiency entity / funds)

                       Substitute language will be added to the bill

Twenty-first Makes various amendments to the tax increment financing laws, similar to the amendments in S. 191 As Passed the Senate.

                                 Substitute language will be added to the bill

Twenty-second  Recede from Sec. 71 only (Amends the law authorizing Town of Milton’s TIF, to require use of equal portions of municipal and education tax revenue.)

Substitute language will be added to the bill    

 Twenty-third  Recede only from Sec. 74  (5% residential increment to ed                                                                          fund)

                               Substitute language will be added to the bill

Twenty-fifth  Adds technical amendments to tax increment financing laws.

                 Substitute language will be added to the bill

Twenty-sixth  Creates a sales tax holiday on energy star appliances, between July 14 and 20, 2008.  The appliance is eligible if its purchase price does not exceed $2000.

                       Substitute language will be added to the bill

Twenty-seventh  recede only from Secs. 109 through 112 (E-business franchise tax)

                                     Chairs of Ways and Means and Finance will request                                         Commissioner of Taxes to propose substitute language for 2009.

Twenty-ninth  By striking Sec. 27 (repeal of Civil War and Spanish-American War veterans’ property tax exemption)                                     proposals of amendment;       

AND                              

The House accede to the:

First (Technical change to Sec. 3, current use notice)

Second  (Strikes property tax adjustment information is public)

Third  (Strikes Sec. 25, refund appeal provisions)

Fourth Strikes Sec. 26 (W&M review of three tax credits in 2012)

Fifth Strikes Sec. 29 (JFO study of tax expenditures to repeal)

Seventh (Technical change to Sec. 37, ratification of Act 81)

Ninth (Renumbers effective date section, Sec. 43, as Sec. 113)

Tenth Allows disclosure of certain tax information from the commissioner of taxes to the attorney general (tobacco enforcement) and to the treasurer (last known address of persons with unclaimed property).

Thirteenth  Accede only to Sec. 47  (Green VEGI provisions)

                                and to Sec. 48 (regular VEGI: definitions of  definitions for                                                                           35 hours as full-time, and “wages” as                                                                                                  excluding stock options);

Fourteenth (Historic rehab credit owner may use new penalty provision)

Sixteenth (Interest on re-pay of property tax adjustment, runs from Dec 1)

Eighteenth  Accede only to Secs. 54 and 55 (reduces hospital provider tax                                                        rates from 6.0% to 5.5%)

Nineteenth        (Electric utility cooperatives / capital credits)

Twenty-second  Accede to Sec. 72 only (extends the availability of a TIF                                                                                location criterion for one more year.)

Twenty-third   Accede only to Sec. 73  (Winooski CLA FY08)  

Twenty-fourth (Retroactive authorization of Burlington’s TIF financing:

                          Sec. 108 loans and certificates of participation)

Twenty-seventh  Accede only to Secs. 82 through 108 (H. 458, e-business)

Twenty-eighth Amends the effective date section, to add effective dates of the new provisions.                                                                    proposals of amendment;

And that the bill be further amended as follows:

First:  By striking Secs. 38, 39, and 40 (fire service training council) and inserting new Secs. 38, 39, and 40 to read:

Sec. 38.  32 V.S.A. § 8557 is amended to read:

§ 8557.  VERMONT FIRE SERVICE TRAINING COUNCIL

(a)  Sums for the expenses of the operation of training facilities and curriculum of the Vermont fire service training council not to exceed $400,000.00 $600,000.00 per year shall be paid to the fire service training council safety special fund created by section 3157 of Title 20 by insurance companies writing fire, homeowners multiple peril, allied lines, farmowners multiple peril, commercial multiple peril (fire and allied lines), private passenger auto physical damage and commercial auto physical damage , surplus lines, and inland marine policies on property and persons situated within the state of Vermont within 30 days after notice from the commissioner of banking, insurance, securities, and health care administration of such estimated expenses.  Captive and surplus line companies shall be excluded from the effect of this section.  The commissioner shall annually, on or before July 1, apportion such charges among all such companies and shall assess them for the same on a fair and reasonable basis as a percentage of their gross direct written premiums on such insurance written during the second prior calendar year on property situated in the state.  An amount not less than $100,000.00 shall be specifically allocated to the provision of what are now or formerly referred to as Level I, units I, II, and III (basic) courses for entry level firefighters.

* * *

Sec. 39.  32 V.S.A. § 8557 is amended to read:

§ 8557.  VERMONT FIRE SERVICE TRAINING COUNCIL

(a)  Sums for the expenses of the operation of training facilities and curriculum of the Vermont fire service training council not to exceed $600,000.00 $800,000.00 per year shall be paid to the fire safety special fund created by section 3157 of Title 20 by insurance companies writing fire, homeowners multiple peril, allied lines, farmowners multiple peril, commercial multiple peril (fire and allied lines), private passenger auto physical damage and commercial auto physical damage and liability, surplus lines, and inland marine policies on property and persons situated within the state of Vermont within 30 days after notice from the commissioner of banking, insurance, securities, and health care administration of such estimated expenses.  Captive and surplus line companies shall be excluded from the effect of this section.  The commissioner shall annually, on or before July 1, apportion such charges among all such companies and shall assess them for the same on a fair and reasonable basis as a percentage of their gross direct written premiums on such insurance written during the second prior calendar year on property situated in the state.  An amount not less than $100,000.00 shall be specifically allocated to the provision of what are now or formerly referred to as Level I, units I, II, and III (basic) courses for entry level firefighters.

* * *

Sec. 40.  20 V.S.A. § 3152(a) is amended to read:

(a)  The Vermont fire service training council is created.  The council shall consist of 11 12 members.  The commissioner of labor, the commissioner of public safety, the director of fire safety, the commissioner of forests, parks and recreation, the commissioner of education, and the commissioner of health, or their designees, shall serve as ex officio members of the council.  Five Six members shall be appointed by the governor for three-year terms.  Of the appointed members, the governor shall appoint one member who during incumbency is a representative of the Vermont career fire chiefs association; one member who, at the time of appointment, is a representative of the professional firefighters of Vermont; one member, who, at the time of appointment, is a representative of the Vermont fire chiefs association and who is a fire chief of a volunteer fire department; one member who, at the time of appointment, is a representative of the Vermont state firefighters association and who is a volunteer firefighter; one member who during incumbency is an employee, officer, or director of an insurance company domiciled in this state and subject to the assessment under 32 V.S.A. § 8557; and one member of the public who is not involved in fire service. To the extent possible, appointments shall be geographically representative.

Second: By adding a new Sec. 42 to read: 

Sec. 42.  EXTENSION OF 2007 FILING DEADLINES FOR CERTAIN
        PROPERTY TAX ADJUSTMENT CLAIMS

(a)  Any 2007 filed property tax adjustment claim filed on or before the September 4, 2007 deadline but which was denied before December 1, 2007, due to missing information or incomplete filing may be refiled before August 1, 2008, if all of the following conditions are met:

(1)  the claimant submits a written request for reconsideration of claim, including all information required by the commissioner in the form prescribed by the commissioner and signed by the claimant under pains and penalties of perjury; and

(2)  the first 2007 property tax bill issued in the claimant’s town was issued after September 4, 2007; and

(3)  the commissioner, in his or her judgment, finds that the claimant was unable to complete the filing or provide the missing information prior to December 1, 2007, as a result of sickness, absence, or other disability, or other good cause.

(b)  The commissioner’s determination to allow or deny a claim under this section shall be final, and the commissioner shall not notify the municipality of the claimant’s property tax adjustment, but instead shall refund the property tax adjustment amount to the claimant without interest and without penalty under 32 V.S.A. § 6066a(d).

Third:  By adding a new Sec. 45 to read: 

Sec. 45.  EDUCATION PROPERTY TAX EXEMPTION FOR SKATING
               RINKS USED FOR PUBLIC SCHOOLS

Real and personal property operated as a skating rink, owned and operated on a nonprofit basis but not necessarily by the same entity, and which, in the most recent calendar year, provided facilities to local public schools for a sport officially recognized by the Vermont Principals’ Association shall be exempt from education property taxes for fiscal years 2009 and 2010 only.

And by striking subdivision (12) of Sec. 113

     Fourth:  By adding a new Sec. 49 to read:

Sec. 49.  Sec. 7b of No. 81 of the Acts of 2007 is amended to read:

Sec. 7b.  EFFECTIVE DATE

     Sec. 7a of this act (amendment of sales tax exemption for aircraft parts) shall take effect July 1, 2011  2018.

Fifth:  By adding a new Sec. 53 to read:

Sec. 53.  Sec. 5 of No. 213 of the Acts of 1892, as amended by No. 357 of the Acts of 1906, is amended to read:

     Sec. 5.  Said corporation shall have power to purchase and receive for the charitable purposes herein indicated, by gift, bequest, devise or otherwise, real and personal property, and the same to hold, for such purposes only, and to sell and convey the same or any part thereof when expedient in the judgment of the Directors.  No more than fifty thousand dollars in value of the property of said corporation which is used directly as a nonprofit elder residential care home shall be exempt from municipal property taxation, and up to $500,000.00 of the same property shall be exempt from education property taxation, and such property, to be so exempt from taxation, shall be located in said Brattleboro.

And by striking subdivision 113(15) (retroactive effective date for Holton Home)

Sixth:  By adding new Secs. 56 and 57 to read:

  Sec. 56.  33 V.S.A. § 1952(f) is added to read:

(f)  If a health care provider fails to pay its assessments under this subchapter according to the schedule or a variation thereof adopted by the director, the director may, after notice and opportunity for hearing, deduct these assessment arrears and any late‑payment penalties from Medicaid payments otherwise due to the provider.  The deduction of these assessment arrears may be made in one or more installments on a schedule to be determined by the director.

Sec. 57.  33 V.S.A. § 1954(d) is amended to read:

     (d)  Any nursing home that fails to make a payment to the office on or before the specified schedule, or under any schedule of delayed payments established by the director, shall be assessed not more than $1,000.00.  The director may waive this late-payment assessment provided for in this subsection for good cause shown by the nursing home.  The director may reduce Medicaid claim payments to satisfy all past due provider taxes assessed.

Seventh:  By adding new Secs. 59 and 60 to read:

Sec. 59.  30 V.S.A. § 209(d)(7) is amended to read:

(7)  Net revenues above costs associated with payments from the New England Independent System Operator (ISO‑NE) for capacity savings resulting from the activities of the energy efficiency utility designated under subdivision (2) of this subsection shall be deposited into the electric efficiency fund established by this section and be used by the entity appointed under subdivision (2) of this subsection to deliver fossil fuel energy efficiency services to Vermont heating and process-fuel consumers on a whole-buildings basis to help meet the state’s building efficiency goals established by 10 V.S.A. § 581.

Sec. 60.  30 V.S.A. § 209(e)(15) is amended to read

(15)  Ensure that the energy efficiency programs implemented under this section are designed to make continuous and proportional progress toward attaining the overall state building efficiency goals established by 10 V.S.A. § 581, by promoting all forms of energy end‑use efficiency and comprehensive sustainable building design. The funds made available under subdivision (d)(7) of this section may be used by an efficiency entity appointed under subdivision (2) of this section to deliver fossil fuel energy efficiency services to Vermont heating and process-fuel consumers on a whole-building basis.

Eighth:  By adding Secs. 61 through 71 to read:

     Sec. 61.  24 V.S.A. § 1891 is amended to read:

§ 1891.  DEFINITIONS

When used in this subchapter:

* * *

(6)  “Related costs” means expenses, exclusive of the actual cost of constructing and financing improvements, as defined in subdivision 1751(3) of this title, that are directly related to creation of the tax increment financing district and reimbursement of sums previously advanced by the municipality for those purposes, and attaining the purposes and goals for which the tax increment financing district was created, as approved by the Vermont economic progress council. As used in this subdivision, related costs are “improvements” as defined in subdivision 1751(3) of this title.

(7)  “Financing” means the following types of debt incurred or used by a municipality to pay for improvements in a tax increment financing district: 

(A)  Bonds.

(B)  Housing and Urban Development Section 108 financing instruments.

(C)  Interfund loans within a municipality.

(D)  State of Vermont revolving loan funds.

(E)  United States Department of Agriculture loans.

Sec. 62.  24 V.S.A. § 1893 is amended to read:

§ 1893.  PURPOSE

The purpose of tax increment financing districts is to provide revenues for improvements, located wholly or partly within that serve the district and related costs, which will stimulate development or redevelopment within the district, provide for employment opportunities, improve and broaden the tax base, or enhance the general economic vitality of the municipality, the region, or the state.

Sec. 63.  24 V.S.A. § 1894 is amended to read:

1894.  POWER AND LIFE OF DISTRICT

(a)  Incurring indebtedness. 

     (1)  A municipality may incur indebtedness against revenues of the tax increment financing districts for district at any time during a period of up to 20 years following the creation of the district, if approved as required under subsection 5404a(h) of Title 32.  The 20-year borrowing period of the district shall commence creation of the district shall occur at 12:01 a.m. on April 1 of the year so voted.  Any indebtedness incurred during the borrowing this 20‑year period may be retired over any period authorized by the legislative body of the municipality under section 1898 of this title.

     (2)  If no indebtedness is incurred within the first five years after creation of the district, no indebtedness may be incurred unless the municipality obtains reapproval from the Vermont economic progress council under subsection 5404a(h) of Title 32.

     (3)  The district shall continue until the date and hour the indebtedness is retired.

(b)  Use of the education property tax increment.  Notwithstanding subsection (a) of this section, any district created to use education tax increment financing that has not incurred indebtedness within five years following the creation of the district, shall request reapproval from the Vermont economic progress council in order to utilize education tax increment financing following that period.

For any debt incurred within the first five years after creation of the district, or within the first five years after reapproval by the Vermont economic progress council, but for no other debt, the education tax increment may be retained for up to 20 years beginning with the initial date of the first debt incurred within the first five years.

     (c)  Prior to requesting municipal approval to secure financing, the  municipality shall provide the council with all information related to the proposed financing necessary for approval and to assure its consistency with the plan approved pursuant to 32 V.S.A. § 5404a(h).  The council shall also assure the viability and reasonableness of any proposed financing other than bonding and least‑cost financing.

Sec. 63a.  24 V.S.A. § 1896(a) is amended to read:

§ 1896.  TAX INCREMENTS

(a)  In each subsequent year, the listers or assessor shall include no more than the original taxable value of such the real property in the assessed valuation upon which the listers or assessor computes the rates of all taxes levied by the municipality, the school district, and every other taxing district in which the tax increment financing district is situated; but the listers or assessor shall extend all rates so determined against the entire assessed valuation of such real property for that year.  In each year for which the assessed valuation exceeds the original taxable value, the municipality treasurer shall hold apart, rather than remit to the taxing districts, that proportion of all taxes paid that year on the real property in the district which such the excess valuation bears to the total assessed valuation.  The amount so held apart each year is referred to in this act as the “tax increment” for that year.  So much of the tax increments received with respect to the district and pledged and appropriated under section 1897 of this title for the payment of debt service on bonds issued for financing for improvements and related costs shall be segregated by the municipality in a special account on its official books and records until all capital indebtedness of the district has been fully paid.  The final payment shall be reported to the lister or assessor, who shall thereafter include the entire assessed valuation of the district in the assessed valuations upon which tax rates are computed and extended and taxes are remitted to all taxing districts.

Sec. 64.  24 V.S.A. § 1897 is amended to read:

§ 1897.  TAX INCREMENT FINANCING

(a)  The legislative body may pledge and appropriate in equal proportion any part or all of the state and municipal tax increments received from properties contained within the tax increment financing district for the payment of the principal of and interest on bonds issued financing for improvements contained wholly or partly within the district and for related costs in the same proportion by which the infrastructure or related costs directly serve the district at the time of approval of the project financing by the council, and in the case of infrastructure essential to the development of the district that does not reasonably lend itself to a proportionality formula, the council shall apply a rough proportionality and rational nexus test; provided, that if any tax increment utilization is approved pursuant to 32 V.S.A. § 5404a(g) 32 V.S.A. § 5404a(f), no more than 75 percent of the state property tax increment and no less than 75 an equal percent of the municipal tax increment may be used to service this debt.  Bonds shall only be issued if the legal voters of the municipality, by a majority vote of all voters present and voting on the question at a special or annual municipal meeting duly warned for the purpose, shall give authority to the legislative body to pledge the credit of the municipality for these purposes. Notwithstanding any provision of any municipal charter, the legal voters of a municipality, by a single vote, shall authorize the legislative body to pledge the credit of the municipality up to a specified maximum dollar amount for all debt obligations to be financed with state property tax increment pursuant to approval by the Vermont economic progress council and subject to the provisions of this section and 32 V.S.A. § 5404a.

(b)  A municipality’s pledge of credit for the purpose of issuing a bond financing improvements under this subchapter and 32 V.S.A. § 5404a shall include notice that if the tax increment received by the municipality from any property tax source is insufficient to pay the principal and interest on the debt in any year, for whatever reason, including a decrease in property value or repeal of a state property tax source, unless determined otherwise at the time of such repeal, the municipality shall remain liable for full payment of the bond principal and interest for the term of indebtedness. 

Sec. 64b.  24 V.S.A. § 1898(e) is amended to read:

(e)  Prior to the resolution or ordinance of the local governing body authorizing the bonds issued financing under this section, the legislative body of the municipality shall hold one or more public hearings, after public notice, on a financial plan for the proposed improvements and related costs to be funded, including a statement of costs and sources of revenue, the estimates of assessed values within the district, the portion of those assessed values to be applied to the proposed improvements, the resulting tax increments in each year of the financial plan, the amount of bonded indebtedness or other financing to be incurred, other sources of financing and anticipated revenues, and the duration of the financial plan.  A municipality that has approved the creation of a district under this chapter may designate a coordinating agency to administer the district to ensure compliance with this chapter and any other statutory or other requirements.

Sec. 65.  24 V.S.A. § 1900 is amended to read:

§ 1900.  DISTRIBUTION

     In addition to all other provisions of this chapter, with respect to any tax increment financing district, any  of the municipal and education tax increment increments received in any tax year that exceed the amounts pledged for the payment on principal and interest on the bonds issued of the financing for improvements and related costs in the district shall be distributed to the city, town, or village budget in proportion that each budget bears to the combined total of the budgets unless otherwise negotiated by the city, town, or village. Any state education tax increment received in any tax year that exceeds the amount pledged for the payment on principal and interest on the bonds issued for improvements and related costs in the district shall not be remitted to the municipality but shall , an equal portion of each increment may be used only for prepayment of principal and interest on the bonds issued financing, placed in escrow for bond financing payment, or otherwise used for defeasance of the bonds financing ; and any remaining portion of the excess municipal tax increment shall be distributed to the city, town, or village budget, in proportion that each budget bears to the combined total of the budgets unless otherwise negotiated by the city, town, or village; and any remaining portion of the excess education tax increment shall be distributed to the education fund.

Sec. 66.  32 V.S.A. § 5404a(f) and (h) are amended and (j) and (k) are added to read:

(f)  A municipality that establishes a tax increment financing district under subchapter 5 of chapter 53 of Title 24 shall collect all property taxes on properties contained within the district and apply up to 75 percent of the tax increment as defined in 24 V.S.A. § 1896 to repayment of debt issued to finance financing of the improvements and related costs for up to 20 years pursuant to 24 V.S.A. § 1894, if approved by the Vermont economic progress council pursuant to this section.

(h)  Criteria for approval.  To approve utilization of incremental revenues pursuant to subsection (f) of this section, the Vermont economic progress council shall do all the following:

(1)  Review each application to determine that the new real property development would not have occurred or would have occurred in a significantly different and less desirable manner but for the proposed utilization of the incremental tax revenues.  A district created in a designated growth center under 24 V.S.A. § 2793c shall be deemed to have complied with this subdivision.  The review shall take into account:

* * *

(C)  The amount of additional revenue expected to be generated as a result of the proposed development; the percentage of that revenue that shall be paid to the education fund; the percentage that shall be paid to the municipality; and the percentage of the revenue paid to the municipality that shall be used to pay the municipal tax increment bonds financing incurred for development of the tax increment financing district.

(2)  Process requirements.  Determine that each application meets all of the following four requirements:

* * *

(B)  The municipality has developed a tax increment financing district plan, including: a project description; a development financing plan; a pro forma projection of expected costs; a projection of revenues; a statement and demonstration that the project would not proceed without the allocation of a tax increment; evidence that the municipality is actively seeking or has obtained other sources of funding and investment; and a development schedule that includes a list, a cost estimate, and a schedule for public improvements and projected private development to occur as a result of the improvements.

* * *

(3)  Location criteria. Determine that each application meets one of the following criteria:

(A)  The development or redevelopment is compact, high density, and located in or near existing industrial areas.

(B)  The proposed district is within an approved growth center, designated downtown, designated village center, or new town center.

(C)  The development will occur in an area that is economically distressed, which for the purposes of this subdivision means that the area has experienced patterns of increasing unemployment, a drop in average wages, or a decline in real property values.

(4)  Project criteria.  Determine that the proposed development within a tax incentive increment financing district will accomplish at least three of the following five criteria:

* * *

(C)  The project will affect the mitigation remediation and redevelopment of a brownfield located within the district.  For the purposes of this section, “brownfield” means an area in which a hazardous substance, pollutant, or contaminant is or may be present, and that situation is likely to complicate the expansion, development, redevelopment, or reuse of the property.

* * *

     (j)  The municipality shall provide the council with all information related to the proposed financing necessary to assure its consistency with the plan approved pursuant to all other provisions of subsection (h) of this section.  The council shall assure the viability and reasonableness of any proposed financing other than bonding and least‑cost financing.

(k)  The state auditor of accounts shall review and audit all active tax increment financing districts every three years.

Sec. 67.  24 V.S.A. § 1901 is added to read:

§ 1901.  INFORMATION REPORTING

     Every municipality with an active tax increment financing district shall:

(1)  On or before December 1 of each year, report to the Vermont economic progress council (VEPC) and the tax department all information described in subsection 5404a(i) of Title 32, in the form prescribed by VEPC.

(2)  Report its tax increment financing actual investment, bond or other financing repayments, escrow status, and “related cost” accounting to the Vermont economic progress council according to the municipal audit cycle prescribed in section 1681 of this title.

Sec. 68.  REPEAL

32 V.S.A. § 5404a(e) (allocations) is repealed.

Sec. 69.  32 V.S.A. § 5404a(g) is amended to read:

(g)  Any allocation approved pursuant to subsection (e) of this section or utilization of tax increment approved under subsection (f) of this section shall be in addition to any other payments to the municipality under chapter 133 of Title 16.  Allocations and tax Tax increment utilizations approved pursuant to subsections (e) and subsection (f) of this section shall affect the education property tax grand list and the municipal grand list of the municipality under this chapter beginning April 1 of the year following approval and shall remain available to the municipality for the full period authorized under 24 V.S.A. § 1894, and restricted only to the extent that the real property development giving rise to the increased value to the grand list fails to occur within the authorized period.

Sec. 70a.  TAX INCREMENT FINANCING DATA

(a)  The joint fiscal office and the department of taxes shall analyze:

(1)  Fiscal aspects of the four existing tax increment financing districts (TIFs). The study shall assemble the details of each TIF’s financial components since their inception and analyze the fiscal impact on the state level.

(2)  The best option for addressing how tax increment financing property should be included in the determination of the host town’s common level of appraisal, and what provisions may need to be added to tax increment financing laws to address the possibility of changes to the state education financing structure. 

(3)  How existing tax increment financing districts meet the goals of economic development, whether they provide municipalities with more useful development tools than possible alternatives, and how they affect the state’s education fund stability. 

4)  Homestead property within tax increment financing districts and whether the education tax revenue retained by the municipality is net or gross of property tax adjustments; and shall propose language and a method to ensure that the actual amount of education tax increment retained is net of property tax adjustments.

(5)  The following types of financing instruments: conventional loans, certificates of participation, lease-purchase, revenue anticipation notes, and bank loans.

(6)  In collecting and analyzing data on the issues in subdivisions (1) through (3) of this section, the joint fiscal office and the department of taxes shall consult with the Vermont League of Cities and Towns, the Vermont Economic Progress Council, Smart Growth Vermont, the Lake Champlain Regional Chamber of Commerce, and the Vermont chapter of the National Education Association.

(2)  The joint fiscal office and the department of taxes shall report their findings to the house committee on ways and means and the senate committee on finance by January 15, 2009.

Sec. 70b.  JOINT FISCAL OFFICE REPORTING OF TIF DATA

The joint fiscal office shall reflect tax increment financing on any education fund outlooks and balance sheets which it prepares.

Sec. 70c. Sec. 2i of No. 184 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 2i.  TAX INCREMENT FINANCING DISTRICTS; CAP

Notwithstanding any other provision of law, the Vermont economic progress council may not approve the use of education tax increment financing for more than ten six tax increment financing districts and no more than one newly created tax increment financing district in any municipality within the period of five ten state fiscal years beginning July 1, 2006 2008.  Thereafter no tax increment financing districts may be approved without further authorization by the General Assembly general assembly.

Sec. 71.  Sec. 2j of No. 184 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 2j.  EXISTING TAX INCREMENT FINANCING DISTRICTS;
              MILTON

     Notwithstanding the limitations under 32 V.S.A. § 5404a, the town of Milton may extend for an additional ten years beyond the initial ten years approved for the two existing tax increment financing districts identified and known as the Husky campus and the Catamount Industrial Park, and collect all state and local property taxes on properties contained wholly or partly within the tax increment financing districts beyond the original taxable value of those properties at the time of the initial approval of the tax increment financing districts and apply no more than 75 percent of the increase in the value and liability assessed under 32 V.S.A. § 5402 state property tax increment, and an equal percent of the municipal tax increment, on new real property improvements to repayment of debt issued to finance improvements within that serve the tax increment financing district and for related costs, upon application by the Town of Milton; and such that the Town of Milton shall apply equal percentages of the state property tax increment and municipal property tax increment to debt obligations incurred prior to April 1, 2009, related to the two existing tax increment financing districts identified and known as Husky campus and Catamount Industrial Park, without regard to the proportionality rule of 24 V.S.A. § 1897.

And by striking subsection 113(17) and inserting in lieu thereof a new subsection (17) to read:

(17)  The provisions of Sec. 64 of this act pertaining to proportional use of education and municipal tax in TIF financing shall apply to tax increment financing districts approved pursuant to 32 V.S.A. § 5404a.

Ninth:  By adding a new Sec. 74 to read:

Sec. 74.  Sec. 38(3) of No. 159 of the Acts of 1999 Adj Sess. (2000) is amended to read:

(3)  The excess valuation of property within a tax increment financing district organized and created pursuant to Sec. 37 of this act, to the extent that taxes generated on the excess property valuation are pledged and appropriated for debt service on bonds issued under section 1897 of Title 24 or the funding of reserves under subdivision (2) of this section, shall not be included within the education property tax grand list provided for in section 5404 of Title 32 as taxable property, nor shall the excess valuation of the property be subject to the education property tax imposed under section 5402 of Title 32 until bonds issued under section 1897 of Title 24 are released, discharged, paid, defeased, or fully reserved; provided, however, that 5 2 percent of the education taxes imposed annually on the excess valuation of the residential property within the district shall be paid to the education fund.  The tax rate assessed on the excess value of property within the district shall be the same rate assessed on property outside the district. Until the bonds are paid in full or have been fully redeemed or defeased through fully funded reserves and accounts, 100 percent of the municipal taxes assessed against the excess valuation of property within the district shall be pledged and appropriated solely for debt service on the bonds.  For purposes of this act, “excess valuation” means the difference between the current grand list value and the grand list value at commencement of the development.

    Tenth:  By adding new Sec. 81a to read:

Sec. 81a.  SALES TAX HOLIDAY; ENERGY STAR APPLIANCES

(a)  Notwithstanding the provisions of chapter 233 of Title 32 and section 138 of Title 24, no sales and use tax or local option sales tax shall be imposed or collected on sales to individuals for personal use of items of tangible personal property at a sales price of $2,000.00 or less from July 12, 2008, through July 13, 2008.

(b)  Notwithstanding the provisions of chapter 233 of Title 32 and section 138 of Title 24, no sales and use tax or local option sales tax shall be imposed or collected on sales to individuals for personal use of Energy Star Appliances at a sales price of $2,000.00 or less from July 12, 2008, through July 18, 2008.

(c)  A vendor in good standing shall be entitled to claim reimbursement for its expenditures for reprogramming of cash registers and computer equipment which were in use at the place of business on and after July 12, 2008.  Claims must be filed on or before November 1, 2008, with the department of taxes with receipts or such other documentation the department may require.  The amount of reimbursement to each vendor shall not exceed the least of the three following amounts: the actual cost to the vendor of reprogramming its cash registers and computer equipment; $50.00; or $50,000.00 divided by the number of qualified vendor applicants.

(d)  Any municipality with a local option sales tax affected by the sales tax holidays imposed by this section shall be reimbursed from the department of taxes for the amount of local option sales tax revenues lost to the municipality.  The commissioner of taxes shall develop a methodology for determining such reimbursement.  The commissioner shall also adjust the deposit in the PILOT special fund for lost deposits due to the sales tax holidays.  Should the amount appropriated for these purposes under subsection (e) of this section be insufficient to fully reimburse the municipalities and adjust the PILOT special fund, reimbursements to municipalities shall take priority.

(e)  In fiscal year 2009, $50,000.00 in general funds is appropriated for payments for reprogramming under subsection (c) of this section, and $100,000.00 in general funds is appropriated for reimbursement to municipalities and adjustments under subsection (d) of this section.

Eleventh:  By striking subsection 113(18) (effective date for Secs. 109 through 112, E-business franchise tax).

Twelfth:  By adding Sec. 114 to read:

Sec. 114.  HEALTH CARE REFORM PROPERTY TAX EXEMPTION

     In fiscal year 2009 only, the following two properties shall be exempt from education property tax under chapter 135 of Title 32:  Buildings and land owned and occupied by a health, recreation, and fitness organization which is exempt under Section 501(c)(3) of the Internal Revenue Code, the income of which is entirely used for its exempt purpose, one of which is designated by the Springfield Hospital and the other designated by the North Country Hospital, to promote exercise and healthy lifestyles for the community and to serve citizens of all income levels in this mission.  This exemption shall apply notwithstanding the provisions of subdivision 3832(7) of Title 32.

           And by renumbering the sections of the bill and internal references to be numerically correct.

 

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

THE SENATE                                    THE HOUSE

Sen. Ann Cummings                                       Rep. Shapleigh Smith

Sen. Bill Carris                                    Rep. Harvey Otterman

Sen. Jim Condos                                            Rep. Mary Peterson

 

S. 357

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon Senate Bill, entitled:

AN ACT RELATING TO DOMESTIC VIOLENCE

Respectfully report that they have met and considered the same and recommend that the House recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

(a)  The general assembly finds that domestic violence directly affects the lives of Vermont’s citizens each year.  Domestic violence is a pervasive community problem which requires a comprehensive approach by the state, the public, and community providers to prevent, respond to, and remedy its devastating effects.  Domestic violence is consistently the leading cause of homicides in Vermont each year.  According to the 2008 Vermont Fatality Review Commission Report data covering 1994–2007, 50 percent of all Vermont homicides during the past 13 years were related to domestic violence.  In 2007, 64 percent of all Vermont homicides were domestic-violence-related. Reported occurrences of domestic violence continue to rise, and many incidents continue to go unreported.  The 16-member programs of the Vermont Network Against Domestic and Sexual Violence responded to 15,259 hotline crisis calls and served 8,337 victims of domestic violence in 2007.  An increasing number of families in Vermont are homeless due to domestic violence.  The member programs of the Vermont Network Against Domestic and Sexual Violence sustained a 27-percent increase in bed-nights in 2007. 

(b)  The general assembly recognizes the importance of specific intervention programs for domestic violence offenders in breaking the generational cycle of domestic violence.  The general assembly recommends that persons convicted of domestic assault be referred to appropriate intervention programs provided by the department of corrections or certified by the Vermont council on domestic violence.  In instances where certified programs are not available, alternative programs should be provided with a focus placed on victim safety and offender accountability.

Sec. 2.  12 V.S.A. § 5131 is amended to read:

§ 5131.  DEFINITIONS

As used in this chapter:

* * *

(5)  “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A. § 3252, or aggravated sexual assault as defined in 13 V.S.A. § 3253, use of a child in a sexual performance as defined in 13 V.S.A. § 2822, or consenting to a sexual performance as defined in 13 V.S.A. § 2823 and that the plaintiff was the victim of the offense.

* * *

Sec. 3.  12 V.S.A. § 5134 is amended to read:

§ 5134.  EMERGENCY RELIEF

(a)  In accordance with the Vermont Rules of Civil Procedure, a person other than a family or household member as defined in 15 V.S.A. § 1001(2) may file a complaint for a temporary order against stalking or sexual assault. Such complaint shall be filed during regular court hours.  The plaintiff shall submit an affidavit in support of the order.  The court may issue a temporary order under this chapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked or sexually assaulted the plaintiff.  An order may be granted requiring the defendant to refrain from stalking or sexually assaulting the plaintiff and to refrain from interfering with the plaintiff’s personal liberty  The court may order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.

* * *

Sec. 4.  13 V.S.A. § 1030 is amended to read:

§ 1030.  VIOLATION OF ABUSE PREVENTION ORDER OR AN ORDER

               AGAINST STALKING OR SEXUAL ASSAULT

(a)  A person who commits an act prohibited by a court or who fails to perform an act ordered by a court in violation of an abuse prevention order issued under chapter 21 of Title 15 or chapter 69 of Title 33, or an order against stalking or sexual assault issued under chapter 178 of Title 12, after the person has been served notice of the contents of the order as provided in those chapters; or a foreign abuse prevention order or an order against stalking or sexual assault issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

(b)  A person who is convicted of a second or subsequent offense under this section or is convicted of an offense under this section and has previously been convicted of domestic assault under section 1042 of this title, first degree aggravated domestic assault under section 1043 of this title, or second degree aggravated domestic assault under section 1044 of this title shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

* * *

Sec. 5.  13 V.S.A. § 1042 is amended to read:

§ 1042.  DOMESTIC ASSAULT

Any person who attempts to cause or wilfully or recklessly causes bodily injury to a family or household member, or wilfully causes a family or household member to fear imminent serious bodily injury shall be imprisoned not more than one year 18 months or fined not more than $5,000.00, or both.

Sec. 6.  13 V.S.A. § 1044 is amended to read:

§ 1044.  SECOND DEGREE AGGRAVATED DOMESTIC ASSAULT

(a)  A person commits the crime of second degree aggravated domestic assault if the person:

(1)  commits the crime of domestic assault and causes bodily injury to another person and such conduct violates:

(A)  specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person;

(B)  a final abuse prevention order issued under section 1103 of Title 15;

(C)  an order against stalking or sexual assault issued under chapter 178 of Title 12; or

(D)  an order against abuse of a vulnerable adult issued under chapter 69 of Title 33.

(2)  commits a second or subsequent offense of domestic assault, which causes bodily injury the crime of domestic assault; and

(A)  has a prior conviction within the last ten years for violating an abuse prevention order issued under section 1030 of this title; or

(B)  has a prior conviction for domestic assault under section 1042 of this title.

(b)  A person who commits the crime of second degree aggravated domestic assault shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(c)  Conduct constituting the offense of second degree aggravated domestic assault under this section shall be considered a violent act for the purpose of determining bail.

Sec. 7.  13 V.S.A. § 1031 is added to read:

§ 1031.  INTERFERENCE WITH ACCESS TO EMERGENCY SERVICES

A person who, during or after the commission of a crime, willfully prevents or attempts to prevent a person from seeking or receiving emergency medical assistance, emergency assistance from a third party, or emergency assistance from law enforcement shall be imprisoned not more than one year or fined not more than $5,000.00 or both.

Sec. 8.  13 V.S.A. § 1047 is added to read:

§ 1047.  OFFENSE COMMITTED WITHIN THE PRESENCE OF A CHILD

When imposing sentence for an offense listed in this subchapter, the court may consider whether the offense was committed within the presence of a child.

Sec. 9.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)(1)  No person shall willfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.

(2)  This section shall not apply if the person is less than 19 years old, the child is at least 15 years old, and the conduct is consensual.

(b)  A person who violates subsection (a) of this section shall be:

(1)  For a first offense, imprisoned not less than two years and not more than 15 years, and, in addition, may be fined not more than $5,000.00, or both.

(2)  For a second offense, imprisoned not less than five years and a maximum term of life, and, in addition, may be fined not more than $25,000.00, or both.

(3)  For a third or subsequent offense, imprisoned not less than ten years and a maximum term of life, and, in addition, may be fined not more than $25,000.00, or both.

* * *

(e)  Any prior conviction for sexual assault or aggravated sexual assault shall be considered a prior offense for purposes of sentencing enhancement.  This section shall not apply to a person who was convicted of sexual assault committed when the person was younger than 19 years of age and which involved consensual sex with a child at least 15 years of age.

Sec. 10.  15 V.S.A. § 668a is amended to read:

§ 668a.  ENFORCEMENT OF VISITATION

(a)  When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights.

(b)  When a custodial parent refuses to honor a noncustodial parent’s visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.

(c)  If a custodial parent refuses to honor a noncustodial parent’s visitation rights, the court shall enforce such rights unless it finds good cause for the failure or that a modification of the visitation rights is in the best interests of the child.  Unless restoration of the visitation is not in the best interests of the child, enforcement of the visitation rights shall include the restoration of the amount of visitation improperly denied.  When a party files a motion for enforcement of parent-child contact under this subsection, the court shall conduct a hearing within 30 days of service of the motion.

(d)  A person who violates this section may be punished by contempt of court or other remedies as the court deems appropriate, including awarding attorney’s fees and costs to the prevailing party.

(e)(1)  If a custodial parent refuses to honor a noncustodial parent’s visitation rights without good cause, the court may modify the parent-child contact order if found to be in the best interests of the child.  Good cause shall include a pattern or incidence of domestic or sexual violence, a history of failure to honor the visitation schedule agreed to in the parent child contact order, or reasonable fear for the child or the custodial parent’s safety.

Good cause shall include:

(A)  a pattern or incidence of domestic or sexual violence;

(B)  a reasonable fear for the child’s or the custodial parent’s safety; or

(C)  a history of failure to honor the visitation schedule agreed to in the parent-child contact order.

(2)  A custodial parent, upon a showing of good cause as defined in subdivision (1)(A) or (B) of this subsection, may receive an ex parte order suspending a noncustodial parent’s visitation rights until a court hearing is held.  A hearing shall be held within 10 days from the issuance of the order. 

(f)  All parent-child contact orders issued by the family court in connection with a divorce or parentage proceeding shall bear the following statement:  “A PERSON WHO FAILS TO COMPLY WITH ALL TERMS OF THE CURRENT ORDER GOVERNING PARENT-CHILD CONTACT MAY BE SUBJECT TO CONTEMPT OF COURT CHARGES. THE COURT MAY IMPOSE ADDITIONAL REMEDIES, INCLUDING A MODIFICATION OF THE CURRENT PARENT-CHILD CONTACT ORDER IF FOUND TO BE IN THE BEST INTERESTS OF THE CHILD.” 

Sec. 11.  15 V.S.A. § 1103 is amended to read:

§ 1103.  REQUESTS FOR RELIEF

(a)  Any family or household member may seek relief from abuse by another family or household member on behalf of him or herself or his or her children by filing a complaint under this chapter.  The plaintiff shall submit an affidavit in support of the order.

(b)  Except as provided in section 1104 of this title, the court shall grant relief only after notice to the defendant and a hearing.  The plaintiff shall have the burden of proving abuse by a preponderance of the evidence.

(c)  If the court finds that the defendant has abused the plaintiff and that there is a danger of further abuse, the court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, which may include the following: (1)  The court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, if the court finds that the defendant has abused the plaintiff, and:

(A)  there is a danger of further abuse; or

(B)  the defendant is currently incarcerated and has been convicted of one of the following:  murder, attempted murder, kidnapping, domestic assault, aggravated domestic assault, sexual assault, aggravated sexual assault, stalking, aggravated stalking, lewd or lascivious conduct with child, use of a child in a sexual performance, or consenting to a sexual performance.

(2)  The court order may include the following:

(1)(A)  an order that the defendant refrain from abusing the plaintiff, his or her children or both and from interfering with their personal liberty, including restrictions on the defendant’s ability to contact the plaintiff or the children in person, by phone or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff’s residence, or other designated locations where the plaintiff or children are likely to spend time;

(2)(B)  an order that the defendant immediately vacate the household and that the plaintiff be awarded sole possession of a residence;

(3)(C)  a temporary award of parental rights and responsibilities in accordance with the criteria in section 665 of this title;

(4)(D)  an order for parent-child contact under such conditions as are necessary to protect the child or the plaintiff, or both, from abuse.  An order for parent-child contact may if necessary include conditions under which the plaintiff may deny parent-child contact pending further order of the court;

(5)(E)  if the court finds that the defendant has a duty to support the plaintiff, an order that the defendant pay the plaintiff’s living expenses for a fixed period of time not to exceed three months;

(6)(F)  if the court finds that the defendant has a duty to support the child or children, a temporary order of child support pursuant to chapter 5 of this title, for a period not to exceed three months.  A support order granted under this section may be extended if the relief from abuse proceeding is consolidated with an action for legal separation, divorce, or parentage;

(7)(G)  an order concerning the possession, care and control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household.

* * *

Sec. 12.  15 V.S.A. § 1105 is amended to read:

§ 1105.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the rules of civil procedure and may be served by any law enforcement officer.  Abuse orders shall be served at the earliest possible time and shall take precedence over other summonses and orders.  Orders shall be served in a manner calculated to insure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used.  The person making service shall file a return of service with the court stating the date, time and place at which the order was delivered personally to the defendant.  A defendant who attends a hearing held under section 1103 or 1104 of this title at which a temporary or final order under this chapter is issued, and who receives notice from the court on the record that the order has been issued, shall be deemed to have been served.

* * *

Sec. 13. 15 V.S.A. § 665a is added to read:

§ 665a.  CONDITIONS OF PARENT-CHILD CONTACT IN CASES

               INVOLVING DOMESTIC VIOLENCE

(a)  If within the prior ten years, one of the parents has been convicted of domestic assault or aggravated domestic assault against the other parent, or has been found to have committed abuse against a family or household member, as defined in section 1101 of this title, the court may award parent-child contact to that parent if the court finds that adequate provision can be made for the safety of the child and the parent who is a victim of domestic violence.

(b)  In a parent-child contact order issued under subsection (a) of this section, a court may:

(1)  order an exchange of a child to occur in a protected setting;

(2)  order parent-child contact supervised by another person or agency;

(3)  order the perpetrator of domestic violence to participate in, to the satisfaction of the court, a program of intervention for perpetrators, where available, or other designated counseling as a condition of the visitation;

(4)  if alcohol or drugs were involved in the domestic abuse, order the perpetrator of domestic violence to abstain from being under the influence of alcohol or controlled substances without a prescription during the visitation and for 24 hours preceding parent-child contact;

(5)  order the perpetrator of domestic violence to pay a fee to defray the costs of supervised parent-child contact, provided that the perpetrator can afford to pay the fee;

(6)  prohibit overnight parent-child contact;

(7)  impose any other condition that is deemed necessary or appropriate to provide for the safety of the child, the victim of domestic violence, or another family or household member.

(c)  Whether or not parent-child contact is allowed, the court may order the address of the child and the victim to be kept confidential.

(d)  If a court allows a family or household member to supervise

parent-child contact, the court shall establish conditions to be followed during

parent-child contact.

Sec. 14.  15 V.S.A. chapter 21, subchapter 4 is added to read:

Subchapter 4.  Vermont Council on Domestic Violence

§ 1171.  CREATION OF VERMONT COUNCIL ON DOMESTIC
              VIOLENCE

There is created the Vermont council on domestic violence.  The council shall provide leadership for Vermont’s statewide effort to eradicate domestic violence.

§ 1172.  PURPOSE; POWERS; DUTIES

(a)  The council shall:

(1)  facilitate opportunities for dialogue, advocacy, education, and support among state agencies, advocacy groups, and the public;

(2)  collect, review, and analyze data and information relating to domestic violence;

(3)  provide assistance in developing effective responses to domestic violence, including model policies and procedures, prevention and education initiatives, and domestic-violence-related programs for the criminal justice and human services sectors; specifically, the council shall work with the department of state’s attorneys and the department of corrections to develop recommendations for practice in evidence-based prosecution, risk assessment with domestic violence offenders, the use of deferred sentences in domestic violence cases, standardized probation conditions for domestic violence offenders, appropriate programming options for domestic violence offenders, and strategies for addressing victims of domestic violence who commit crimes as a result of the coercion of a batterer;

(4)  recommend changes in state programs, laws, administrative regulations, policies, and budgets related to domestic violence;

(5)  establish and maintain standards for intervention programs for perpetrators of domestic violence, and develop a process for certifying that programs are complying with the standards;

(6)  review and comment upon legislation relating to domestic violence introduced in the general assembly at the request of any member of the general assembly or on its own initiative; and

(7)  study the issue of employment discrimination against victims of domestic violence and suggest model workplace protections and policies.

(b)  The council shall collaborate with the Vermont fatality review commission to develop strategies for implementing the commission’s recommendations.

(c)  The council shall make a biennial report to the general assembly, the governor, the supreme court, and the people of Vermont explaining all relevant data about domestic violence collected by the council, and evaluating the strengths and weaknesses of Vermont’s current domestic violence intervention response strategies.

§ 1173.  COMPOSITION AND MEETINGS

(a)  The council shall consist of the following members to be appointed as follows:

(1)  To be appointed by the governor:

(A)  one member of the public who shall be a survivor of domestic violence;

(B)  a representative from the same-sex domestic violence service provider community;

(C)  a representative from the deaf and disability service provider community;

(D)  a representative from the department of state’s attorneys;

(E)  a prosecutor from one of the STOP Domestic Violence units;

(F)  a member of the Vermont clergy;

(G)  one member of the public representing the interests of children exposed to domestic violence.

(2)  To be appointed by the chief justice of the Vermont supreme court:

(A)  five members of the judiciary, one of whom may be a magistrate, one of whom may be an assistant judge, and one of whom may be a court manager;

(B)  one guardian ad litem;

(C)  a representative of Vermont Legal Aid;

(D)  a representative of the Vermont bar experienced in family law.

(3)  The following members:

(A)  the secretary of human services or designee;

(B)  the director of the Vermont criminal information center or designee;

(C)  the defender general or designee;

(D)  the attorney general or designee;

(E)  the executive director of the Vermont center for crime victims services or designee;

(F)  the director of the Vermont network against domestic and sexual violence or designee;

(G)  the executive director of the criminal justice training council or designee;

(H)  the executive director of the Vermont commission on women or designee;

(I)  a representative from each county domestic violence task force;

(J)  a representative from Vermont’s supervised visitation coalition;

(K)  a representative from the Vermont police chiefs’ association;

(L)  a representative from the Vermont sheriffs’ association;

(M)  a representative from the Vermont coalition of batterer intervention services;

(N)  the commissioner of the department for children and families or designee;

(O)  the commissioner of the department of public safety or designee;

(P)  the commissioner of the department of corrections or designee; and

(Q)  the commissioner of the department of education or designee.

(b)  The council may establish any committees necessary to carry out its duties.

(c)  The council shall meet at least quarterly to conduct its business.

Sec. 15.  20 V.S.A. § 2365 is added to read:

§ 2365.  DOMESTIC VIOLENCE TRAINING

(a)  In order to remain certified, law enforcement officers shall receive by 2010 at least eight hours of domestic violence training in a program approved by the Vermont criminal justice training council and the Vermont network against domestic and sexual violence.

(b)  Law enforcement officers shall receive domestic violence retraining every two years in a program approved by the Vermont criminal justice training council.

(c)  The Vermont police academy shall employ a domestic violence trainer.

Sec. 16.  28 V.S.A. § 507 is amended to read:

§ 507.  NOTIFICATION TO VICTIM AND OPPORTUNITY TO TESTIFY

(a)  At least 30 days prior to a parole eligibility hearing, the victim of a listed crime as defined in 13 V.S.A. § 5301(7), shall be notified as to the time and location of the hearing.  Such notification may be waived by the victim in writing.

(b)  At a parole eligibility hearing, unless waived by the victim of a listed crime as defined in 13 V.S.A. § 5301(7), the inmate shall not be present when the victim testifies before the parole board.

(c)  Parole board proceedings shall be subject to the Vermont open meeting law.

(d)  As used in this section, “victim” means:

(1)  a victim of the listed crime for which the parole board is determining the inmate’s eligibility for parole; and

(2)  a victim of a listed crime of which the inmate was convicted other than the listed crime for which the parole board is determining the inmate’s eligibility for parole.

Sec. 17.  33 V.S.A. § 4917 is amended to read:

§ 4917.  MULTI-DISCIPLINARY TEAMS; EMPANELING

(a)  The commissioner of social and rehabilitation services, or his or her designee may empanel a multi-disciplinary team or a special investigative multi-task force team or both wherever in the state there may be a probable case of child abuse or neglect which warrants the coordinated use of several professional services.

(b)  The commissioner of social and rehabilitation services, or his or her designee, in conjunction with professionals and community agencies, shall appoint members to the multi-disciplinary or special investigative multi-task force teams which may include persons who are trained and engaged in work relating to child abuse or neglect such as medicine, mental health, social work, nursing, day care, education, law, or law enforcement.  Additional persons may be appointed when the services of those persons are appropriate to any particular case.

(c)  The empaneling of a multi-disciplinary or special investigative

multi-task force team shall be authorized in writing and shall specifically list the members of the team.  This list may be amended from time to time as needed as determined by the commissioner or his or her designee.

Sec. 18.  STUDY OF HOUSING DISCRIMINATION AGAINST VICTIMS

               OF DOMESTIC AND SEXUAL VIOLENCE

(a)  A committee is established to study the issue of housing discrimination against victims of domestic and sexual violence.

(b)  The committee shall consist of:

(1)  one member appointed by the agency of human services;

(2)  one member appointed by the Vermont public housing agency;

(3)  one member appointed by the Vermont apartment owners’ association;

(4)  one member appointed by Vermont legal aid;

(5)  one member appointed by the Champlain valley office of economic opportunity;

(6)  one member appointed by the Vermont department of housing and community affairs;

(7)  one member appointed by the Vermont human rights commission; and

(8)  one member appointed by the Vermont network against domestic and sexual violence.

(c)  The committee shall convene its first meeting not later than

September 1, 2008.  The executive director of the Vermont human rights commission is designated to convene the initial meeting.  The Vermont human rights commission shall provide administrative support to the committee.  The committee may utilize the expertise of nonmembers in its work.  The committee shall report its findings to the senate committees on judiciary and on economic development, housing and general affairs and the house committees on judiciary and on general, housing and military affairs no later than December 15, 2008.  The report shall include an analysis of policies adopted by other states and recommendations to the general assembly about how to respond to the problem of housing discrimination.

Sec. 19.  STUDY OF THE HARASSMENT AND BULLYING OF
               STUDENTS IN VERMONT SCHOOLS

(a)  A committee is established to study the issue of harassment and bullying in Vermont schools.  The committee shall examine:

(1)  the need for further training of educators and school staff to recognize and appropriately respond to the harassment and bullying of students;

(2)  the need for legislative enactments to address cyber-bullying;

(3)  state laws and regulations regarding harassment and bullying;

(4)  school policies and procedures regarding harassment and bullying; and

(5)  any other issues regarding harassment and bullying that the committee deems relevant.

(b)  The committee shall also study the issue of cyber-bullying of Vermont students and recommend measures to address this growing and destructive phenomenon.

(c)  The committee shall consist of:

(1)  one member appointed by the Vermont department of education;

(2)  one member appointed by the Vermont school boards association;

(3)  one member appointed by the Vermont superintendents association;

(4)  one member appointed by the Vermont principals association;

(5)  one member appointed by the Vermont national education association;

(6)  one member appointed by the Vermont human rights commission;

(7)  one member appointed by the Vermont commission on women;

(8)  one member appointed by outright Vermont;

(9)  one member appointed by the Vermont ecumenical council;

(10)  one member appointed by the ALANA community organization;

(11)  one member appointed by the Vermont office of attorney general;

(12)  one law enforcement officer knowledgeable in the investigation of computer crime to be appointed by the Vermont department of public safety;

(13)  two members with expertise and experience in school issues, one to be appointed by the speaker of the house and one to be appointed by the president pro tempore of the senate;

(14)  two youths, one to be appointed by the speaker of the house and one to be appointed by the pro tempore of the senate; and

(15)  one member appointed by the American Civil Liberties Union of Vermont.

(d)  The committee shall convene its first meeting no later than

September 1, 2008.  The executive director of the Vermont human rights commission is designated to convene the initial meeting.  The Vermont human rights commission shall provide administrative support to the committee.  The committee may utilize the expertise of non-members in its work. 

(e)  The committee shall report its findings to the senate and house committees on judiciary and education no later than December 15, 2008.  The report shall include a strategic plan to reduce the prevalence of harassment and bullying in Vermont schools.

Sec. 20.  13 V.S.A. § 7282 is amended to read:

§ 7282.  ASSESSMENT

(a)  In addition to any penalty or fine imposed by the court or judicial bureau for a criminal offense or any civil penalty imposed for a traffic violation, including any violation of a fish and wildlife statute or regulation, violation of a motor vehicle statute, or violation of any local ordinance relating to the operation of a motor vehicle, except violations relating to seat belts and child restraints and ordinances relating to parking violations, the clerk of the court or judicial bureau shall levy an additional fee of:

* * *

(8)(A)  For any offense or violation committed after June 30, 2006, but before July 1, 2008, $26.00, of which $18.75 shall be deposited in the victims’ compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

(B)  For any offense or violation committed after June 30, 2008, $36.00, of which $28.75 shall be deposited in the victims’ compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

* * *

Sec. 21.  32 V.S.A. § 1712 is amended to read:

§ 1712.  TOWN CLERKS

Town clerks shall receive the following fees in the matter of vital registration:

(1)  For issuing and recording a marriage or civil union license, $23.00 $45.00 to be paid by the applicant, $8.00 $10.00 of which sum shall be retained by the town clerk as a fee, $20.00 of which shall be deposited in the victims’ compensation special fund, and $15.00 of which sum shall be paid by the town clerk to the state treasurer in a return filed quarterly upon forms furnished by the state treasurer and specifying all fees received by him or her during the quarter.  Such quarterly period shall be as of the first day of January, April, July, and October.

* * *

Sec. 22.  8 V.S.A. § 4080f is amended to read:

§ 4080f.  CATAMOUNT HEALTH

(a)  As used in this section:

* * *

(9)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur, and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for any of the following reasons:

(A)  the The individual’s private insurance or employer-sponsored coverage ended because of:

(i)  loss of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(ii)  death of the principal insurance policyholder;

(iii) divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or.

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies; or.

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver allowing for a domestic violence exception to the Catamount Health waiting period.

Sec. 23.  33 V.S.A. § 1973 is amended to read:

§ 1973.  VERMONT HEALTH ACCESS PLAN

(a)  The agency of human services or its designee shall establish the Vermont health access plan (VHAP) pursuant to a waiver of federal Medicaid law.  The plan shall remain in effect as long as a federal 1115 demonstration waiver is granted or renewed.

(b)  The purpose of the Vermont health access plan is to provide health care coverage for uninsured or underinsured low income Vermonters.  The agency of human services or its designee shall establish rules regarding eligibility and administration of the plan.

(c)  An individual who has been enrolled in an approved

employer-sponsored insurance plan with premium assistance under section 1974 of this title shall not be subject to a 12-month waiting period before becoming eligible for the Vermont health access plan as provided for in subdivision 1974(d)(1).

(d)  An individual who has been enrolled in Catamount Health, with or without premium assistance, shall not be subject to a 12-month waiting period before becoming eligible for the Vermont health access plan.

(e)  For purposes of this section, “uninsured” means:

(1)  an An individual with household income, after allowable deductions, at or below 75 percent of the federal poverty guideline for households of the same size; .

(2)  an An individual who had no private insurance or

employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application; or .

(3)  an An individual who lost private insurance or employer-sponsored coverage during the prior 12 months for any of the following reasons:

(A)  the The individual’s coverage ended because of:

(i)  loss of employment;

(ii)  death of the principal insurance policyholder;

(iii)  divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies; or.

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the waiver set forth in subsection (a) of this section allowing for a domestic violence exception to the VHAP waiting period.

Sec. 24.  33 V.S.A. § 1974 is amended to read:

§ 1974.  EMPLOYER-SPONSORED INSURANCE; PREMIUM

       ASSISTANCE

* * *

(c)  Uninsured individuals; premium assistance.

(1)  For the purposes of this subsection:

* * *

(B)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:

(i)  the individual’s coverage ended because of:

(I)  of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(II)  death of the principal insurance policyholder;

(III)  divorce or dissolution of a civil union;

(IV)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(V)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(ii)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies; or.

(iii)(I)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(II)  Subdivision (I) of this subdivision (B)(iii) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the waiver set forth in subsection (f) of this section allowing for a domestic violence exception to the premium assistance program waiting period.

* * *

Sec. 25.  33 V.S.A. § 1982 is amended to read:

§ 1982.  DEFINITIONS

As used in this subchapter:

(1)  “Catamount Health” means the health benefit plan offered under section 4080f of Title 8.

(2)  “Uninsured” means an individual who does not qualify for Medicare, Medicaid, the Vermont health access plan, or Dr. Dynasaur and had no private insurance or employer-sponsored coverage that includes both hospital and physician services within 12 months prior to the month of application, or lost private insurance or employer-sponsored coverage during the prior 12 months for the following reasons:

(A)  the individual’s private insurance or employer-sponsored coverage ended because of:

(i)  loss of employment, unless the employer has terminated its employees for the primary purpose of discontinuing employer-sponsored coverage and establishing their eligibility for Catamount Health;

(ii)  death of the principal insurance policyholder;

(iii)  divorce or dissolution of a civil union;

(iv)  no longer qualifying as a dependent under the plan of a parent or caretaker relative; or

(v)  no longer receiving COBRA, VIPER, or other state continuation coverage; or .

(B)  college- College- or university-sponsored health insurance became unavailable to the individual because the individual graduated, took a leave of absence, or otherwise terminated studies; or.

(C)(i)  The individual lost health insurance as a result of domestic violence.  The individual shall provide the agency of human services with satisfactory documentation of the domestic violence.  The documentation may include a sworn statement from the individual attesting to the abuse, law enforcement or court records, or other documentation from an attorney or legal advisor, member of the clergy, or health care provider, as defined in section 9402 of Title 18.  Information relating to the domestic violence, including the individual’s statement and corroborating evidence, provided to the agency shall not be disclosed by the agency unless the individual has signed a consent to disclose form.  In the event the agency is legally required to release this information without consent of the individual, the agency shall notify the individual at the time the notice or request for release of information is received by the agency and prior to releasing the requested information.

(ii)  Subdivision (i) of this subdivision (C) shall take effect upon issuance by the Centers for Medicare and Medicaid Services of approval of an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver allowing for a domestic violence exception to the Catamount Health premium assistance waiting period.

* * *

Sec. 26.  APPROPRIATIONS

(a)  The amount of $883,000.00 from the victims’ compensation fund created by 13 V.S.A. § 5359 shall be available in FY 2009 for the center for crime victim services for the Vermont network against domestic and sexual violence.  This amount shall be used to fund domestic violence prevention programs and services in order to break the generational cycle of domestic violence and to support the victims of domestic and sexual violence.

(b)  Of the appropriation in subsection (a) of this section, the amount of $76,805.00 from the victims’ compensation fund shall be available for the Vermont police academy to employ a domestic violence training and curriculum development coordinator.

Sec. 27.  PILOT PROGRAM

The general assembly recognizes the significant impact of domestic violence on victims and their children.  The department for children and families, division of economic services, may expand emergency and general assistance pilot programs and may develop at least one pilot program specifically addressing the needs of victims of domestic violence.

Sec. 28.  DOMESTIC VIOLENCE EXCEPTION TO HEALTH CARE

               WAITING PERIOD

The secretary of human services shall request approval from the Centers for Medicare and Medicaid Services for an amendment to the Global Commitment for Health Medicaid Section 1115 Waiver to implement the domestic violence exception to the health care waiting periods set forth in Secs. 19, 20, 21, and 22 of this act.

Sec. 29.  32 V.S.A. § 605(f) is added to read:

     (f)  Each fee report submitted in accordance with subdivisions (b)(1), (2), or (3) of this section shall also include a report of every surcharge, assessment, add-on, fee, tax, or other type of charge imposed or administered by any state agency, the receipts of which are not deposited into the general fund, the transportation fund or the education fund, regardless of whether the charge falls within the definition of “fee” in section 602 of this subchapter.  A report under this subsection (f) shall include for each charge all of the information described in subsections (c) and (d) of this section.

Sec. 30.  32 V.S.A. § 602(2)(B) is amended to read:

(B)  The following charges are exempt from the provisions of this subchapter, except as provided in subsection 605(f) of this subchapter:

* * *

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

THE SENATE                                     THE HOUSE

Sen. John Campbell                                       Rep. Richard Marek

Sen. Ann Cummings                                       Rep. David Sharpe

Sen. Richard Sears                                         Rep. Joseph Acinapura

S. 358

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon Senate Bill, entitled:

S. 358.  AN ACT RELATING TO ENHANCED DRIVERS LICENSES.

Respectfully report that they have met and considered the same and recommend that the Senate accede to the House proposal of amendment, and that the bill be further amended:

First: by striking Sec. 10 [Signage for state and town bridge projects] in its entirety.

Second: in Sec. 11, by adding a sentence to read: “The provisions of  this act are intended to supersede any provisions to the contrary in H. 691 as passed in the 2008 session of the general assembly.” 

COMMITTEE ON THE PART OF               COMMITTEE ON THE PART OF

 THE SENATE                                               THE HOUSE

Sen. Richard Mazza                                       Rep. David Potter

Sen. Philip Scott                                             Rep. Albert Audette

Sen. Peter Shumlin                                         Rep. Timothy Corcoran

S. 365

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon Senate Bill, entitled:

AN ACT RELATING TO CAPITAL CONSTRUCTION AND STATE BONDING

Respectfully report that they have met and considered the same and recommend that the House recede from its proposal of amendment and that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  STATE BUILDINGS

The following is appropriated in total to the department of buildings and general services, and the commissioner is authorized to direct funds appropriated in this section to the projects contained in this section; however, no project shall be canceled unless the chairs of the senate committee on institutions and the house committee on corrections and institutions are notified before that action is taken.  The individual allocations in this section are estimates only.

(1)  Statewide, Americans with Disabilities Act (ADA) – for improvements at the Robert H. Wood, Jr. Criminal Justice and Fire Service Training Center of Vermont in Pittsford:                                                            125,000

(2)  Statewide, building reuse:                                                      100,000

(3)  Statewide, contingency fund:                                                 500,000

(4)  Statewide, major maintenance:                                           7,076,089

(5)  Statewide, planning:                                                                25,000

(6)  Montpelier, 120 State Street, elevator replacement:   450,000

(7)  Montpelier, 120 State Street, window replacement:   500,000

(8)  Springfield state office building, supplement:                           300,000

(9)  St. Albans, 20 Houghton Street, roof repairs:                        250,000

(10)  St. Albans, 20 Houghton Street, heating, ventilation, and air conditioning (HVAC) improvements:                                450,000

(11)  St. Albans, correctional facility sewer upgrade:        600,000

(12)  State Archives, relocation to Middlesex, design, and construction:

                                                                                                1,500,000

(13)  State House, locks for desks in the house of representatives subject to approval of the state house legislative advisory committee and the joint rules committee:                                                                                                   25,000

Total appropriation – Section 1                                                      $11,901,089

Sec. 2.  TAXES

The sum of $100,000 is appropriated to the department of taxes for an ongoing project to update statewide quadrangle maps through digital orthophotographic quadrangle mapping.

Total appropriation – Section 2                                                           $100,000

Sec. 3.  HEALTH AND PUBLIC SAFETY LABORATORIES/BUILDING

#617 IN ESSEX

The sum of $5,000,000 is appropriated to the department of buildings and general services for construction and renovation of Building #617 in Essex, including co-location of the department of health and department of public safety forensics laboratories or other options pursuant to Sec.31 of this act.    

Total appropriation - Section 3                                                           $5,000,000

Sec. 4.  HUMAN SERVICES

(a)  The following is appropriated in total to the department of buildings and general services for the agency of human services for the projects described in this section.

(1)  Vermont state hospital, ongoing security and maintenance:                                                                                                                           100,000

(2)  Vermont state hospital, to study the feasibility of converting the Dale correctional facility, converting the Brooks facility, or contracting for new construction to create a secure residential facility in Waterbury, and for continued planning, design, and permitting associated with the certificate of need (CON) process for a facility or facilities to replace any of the functions of the current Vermont State hospital:                                                              250,000

(3)  Corrections, continuation of suicide abatement project:          124,000

(4)  Corrections, renovations to St. Albans northwest regional correctional facility to be a women’s facility, closing the Dale facility in Waterbury as a correctional facility, and renovations to the Windsor southeast regional correctional facility to be a therapeutic and substance abuse treatment work camp.  Program changes associated with the renovations shall be funded from the department of corrections budget and not from capital funds.  A portion of the funds shall be used to create a child and family friendly area where children can visit their incarcerated parents.  The department of corrections shall work with community-based organizations to provide services for inmates, including at least as many services in the St. Albans facility as were offered in the Dale and Windsor facilities.  Based on a recommendation to the corrections oversight committee from the commissioner of corrections, on feasibility and costs of providing a transition housing unit modeled on the transition housing unit at the Chittenden Regional Correctional Facility within the Northwest State Correctional Facility, the commissioner shall use any remaining funds to build the units:                                                     1,845,000

(b)  The following is appropriated to the department of buildings and general services for the St. Albans City Police Department to construct two holding cells in the city lockup:                                         20,000

Total appropriation – Section 4                                       $2,339,000       

Sec. 5.  JUDICIARY

The sum of $719,676 is appropriated to the department of buildings and general services for the judiciary for security improvements, renovations, and mechanical upgrades at the Windham district and family courthouse in Brattleboro.

Total appropriation – Section 5                                                           $719,676

Sec. 6.  BUILDING COMMUNITIES GRANTS

The following sums are appropriated for building communities grants:

(1)  To the agency of commerce and community development, division for historic preservation, for the historic preservation grant program established in 24 V.S.A. § 5602:                                                     180,000

(2)  To the agency of commerce and community development, division for historic preservation, for the historic barns preservation grant program established in 24 V.S.A. § 5603.  However, funds shall not be granted to projects which propose to remove historic building features, even if they were added after the original construction of the building.  The division for historic preservation, with the approval of the commissioner of housing and community affairs, may use up to $20,000 of the funds appropriated in this subdivision to conduct a statewide census of Vermont barns for the purpose of future restoration efforts:                                                                       180,000

(3)  To the agency of commerce and community development, division for historic preservation, for the cultural facilities grant program established in 24 V.S.A. § 5604:                                                                        180,000

(4)  To the department of buildings and general services for the recreational facilities grant program established in 24 V.S.A. § 5605:                                                                                                                                                      180,000

(5)  To the department of buildings and general services for the human services and educational facilities competitive grant program established in

24 V.S.A. § 5606:                                                                                180,000

(6)  To the department of information and innovation for the Vermont telecommunications authority for the broadband development grant program established in Sec. 3 of No. 79 of the Acts of 2007:                                    180,000

Total appropriation – Section 6                                                           $1,080,000

Sec. 7.  COMMERCE AND COMMUNITY DEVELOPMENT

(a)  The following sums are appropriated to the department of buildings and general services for the agency of commerce and community development for the following projects:

(1)  Major maintenance at historic sites statewide; provided such maintenance shall be under the supervision of the department of buildings and general services:                                                                             200,000

(2)  Continued planning and design to expand the visitors’ center at the Calvin Coolidge state historic site in Plymouth Notch.  These funds, and up to $84,100 of unexpended funds from previous years’ appropriations, may be used as matching funds for a challenge grant from the National Endowment for the Humanities:                                                                  200,000

(b)  The following sums are appropriated to the agency of commerce and community development for the following projects:

(1)  Protecting, preserving, moving, or reinterring human remains discovered in unmarked burial sites:                                        25,000

(2)  Underwater preserves:                                                          25,000

(3)  Placement and replacement of roadside historic site markers:                                                                                                                                     10,000

Total appropriation – Section 7                                                          $460,000

Sec. 8.  EDUCATION

The following is appropriated in total to the department of education for the purposes described in this section:

(1)  State aid for school construction projects pursuant to section 3448 of Title 16, to be expended on projects prioritized for funding by the state board of education on December 18, 2007:                                               10,000,000

(2)  For the Walden School District, for 25 percent of the eligible costs of roof repairs at the Walden School:                             6,750

(3)  Establishment of a school energy grant program to pay the costs of conducting comprehensive energy engineering analyses of school buildings by qualified engineers.  Under this pilot program, the department of education shall award grants to Vermont public schools for an amount equal to 100 percent of the cost to conduct an energy engineering analysis.  Grant awards shall not exceed $10,000 per application; however, school districts retain the right to spend more than $10,000 on the energy engineering analysis, but shall in this instance be solely responsible for the additional costs incurred.  The commissioner of education shall develop guidelines and selection criteria necessary to implement the pilot program, and shall report to the senate committee on institutions and the house committee on corrections and institutions on or before January 15, 2009 and again on or before January 15, 2010 on the status of the pilot project, including the total number of grants awarded, the dollar amount of each grant awarded, and the outcome of each grant recipient’s energy engineering analysis:                    50,000

Total appropriation – Section 8                                                     $10,056,750

Sec. 9.  AUSTINE SCHOOL

The sum of $50,000 is appropriated to the department of buildings and general services for the renovation of Holton Hall at the Austine School.

Total appropriation – Section 9                                                            $50,000

Sec. 10.  UNIVERSITY OF VERMONT

The sum of $1,600,000 is appropriated to the University of Vermont for construction, renovation, or maintenance projects.  The university shall file with the general assembly on or before January 15 an annual report that details the status of capital projects funded in whole or in part by state capital appropriations, including an explanation of the process for bidding for contractors or subcontractors where the amount of the contract or subcontract exceeds $50,000.

Total appropriation – Section 10                                                     $1,600,000

Sec. 11.  VERMONT STATE COLLEGES

The sum of $1,600,000 is appropriated to the Vermont State Colleges for major facility maintenance.  The state colleges shall file with the general assembly on or before January 15 an annual report that details the status of capital projects funded in whole or in part by state capital appropriations, including an explanation of the process for bidding for contractors or subcontractors where the amount of the contract or subcontract exceeds $50,000.

Total appropriation – Section 11                                                     $1,600,000

Sec. 12.  NATURAL RESOURCES

(a)  The following is appropriated in total to the agency of natural resources for water pollution control projects:

(1)  State matching funds for the pollution control and clean water state revolving fund administered in accordance with chapter 55 of Title 10 and chapter 120 of Title 24:                                                                   2,100,000

(2)  Pollution control projects in Springfield and Newport City:                                                                                                       2,000,000

(3)  Wastewater facilities project in Pownal:                           1,500,000

(4)  Interest on short‑term borrowing associated with delayed grant funding for the Pownal project:                                         100,000

Total Appropriation - Section 12(a)                                     $5,700,000

(b)  The following is appropriated in total to the agency of natural resources for the drinking water state revolving fund:                         1,900,000

(c)  The following is appropriated in total to the agency of natural resources for the clean and clear program to accelerate the reduction of phosphorus discharges into Lake Champlain and other waters of the state:

(1)  Ecosystem restoration and protection:                               1,120,000

(2)  Unregulated stormwater management:                        150,000

(3)  Wastewater phosphorus removal at municipal wastewater treatment plants:                                                                                  550,000

(4)  For the Farmers Watershed Alliance, to reduce phosphorus loads to Lake Champlain:                                                              30,000

(5)  For the Natural Resource Conservation Districts, to reduce phosphorus loads to the waters of the state:                            50,000

Total Appropriation - Section 12(c)                                       $1,900,000

(d)  The following sum is appropriated to the agency of natural resources for the state’s year-one share of the federal match to conduct a three-year study of spring flooding in the city of Montpelier.  However, the state shall not enter into any commitment to pay for construction of flood control improvements without legislative approval:                                                100,000

(e)  The following sums are appropriated to the agency of natural resources for the department of forests, parks and recreation for the purposes described in this subsection:

(1)  Rehabilitation of aging state park infrastructure:          800,000

(2)  For the Green Mountain Club, Inc. for the procurement in fee simple or by easement of properties along the Long Trail:              25,000

Total Appropriation - Section 12(e)                                           $825,000

(f)  The following sums are appropriated to the agency of natural resources for the department of fish and wildlife for projects described in this subsection:

(1)  Filter building at the Bald Hill Fish Culture Station:   125,000

(2)  Road resurfacing, dismantling of a degraded building, shooting range modifications, or any combination of these at Buck Lake conservation camp:                                                                                                                         50,000

(3)  For the Lake Champlain Walleye Association, Inc. to upgrade and repair the walleye rearing, restoration, and stocking infrastructure:                25,000

(4)  For the purchase and installation of a generator at the Salisbury fish culture station:                                                                 $100,000

(5)  Purchase and installation of an autonomous pump at the Ed Weed Fish Culture Station in Grand Isle:                                          90,000

Total Appropriation  Section 12(f)                                  $390,000

Total appropriation – Section 12                                                      $10,815,000

Sec. 13.  MILITARY

The following is appropriated in total to the department of the military for the projects described in this section.  If the state’s share of site acquisition costs in subdivision (1) of this section exceeds $150,000, the department of the military may use funds appropriated in subdivision (2) of this section as needed for the state’s share:

(1)  Site acquisition for the combined northern field maintenance shop and Morrisville armory:                                                   150,000

(2)  Design and implementation of energy conservation projects at up to ten armories:                                                                   200,000

Total appropriation – Section 13                                                          $350,000

Sec. 14.  PUBLIC SAFETY

The following sums are appropriated in total to the department of buildings and general services for the department of public safety:

(1)  For removal of the pump island and underground storage tank in Waterbury:                                                                          15,000

(2)  For health and security upgrades at the Bradford field station:

                                                                                                   100,000

Total appropriation – Section 14                                                           $115,000

Sec. 15.  FIRE SERVICE TRAINING

The following sums are appropriated for fire service training:

(1)  To the department of buildings and general services for the Vermont fire service training council for construction of a fire training facility at the Robert H. Wood, Jr. Criminal Justice and Fire Service Training Center of Vermont in Pittsford.  Capital funds appropriated for construction of this project shall not exceed the sum of $2,000,000:                             2,000,000

(2)  To the department of public safety for the Vermont fire service training council to purchase Candidate Physical Ability Test (CPAT) equipment for use by volunteer or professional firefighters at the Robert H. Wood, Jr. Criminal Justice and Fire Service Training Center of Vermont in Pittsford, at Vermont Technical College, or at any other location around the state, if feasible:                                                                      60,000

(3)  To Vermont State Colleges as the state’s financial contribution to the construction of a steel burn building at the Vermont Technical College campus in Randolph.  The state’s appropriation is contingent upon receipt by Vermont Technical College of a $406,000 federal appropriation earmarked for construction of the steel burn building.  As a condition of the state’s appropriation, Vermont Technical College shall provide use of classrooms and dormitories for firefighter training during times when they are not otherwise needed for Vermont Technical College programs or services.  In the event the federal funds earmarked for this project are not received by February 1, 2009, the appropriation of this subdivision shall revert to the department of buildings and general services for future capital expenditures.  It is the intent of the general assembly that the Robert H. Wood, Jr. Criminal Justice and Fire Service Training Center of Vermont in Pittsford shall be the headquarters for the fire service training council:                                                                                                                                                                                                   240,000

Total appropriation – Section 15                                                           $2,300,000

Sec. 16.  AGRICULTURE, FOOD AND MARKETS

The following sums are appropriated in total to the agency of agriculture, food and markets for the purposes described in this section:

(1)  For the best management practice implementation cost share program, to continue to develop best management practices on Vermont farms.  Farmers participating in this program are eligible for cost share funds not to exceed $75,000 or 80 percent of a project:                                                            1,800,000

(2)  For the agricultural buffer program, to install water quality conservation buffers, and for the capital equipment assistance program established in 6 V.S.A. § 4828.  Up to $250,000 of this amount shall be for the capital equipment assistance program, provided that the state’s share shall not exceed $50,000 or 50 percent of a project:                                             500,000

(3)  For the competitive grants program for agricultural fair capital projects.  No single entity shall be awarded more than ten percent of this appropriation:                                                                                        180,000

(4)  For the Vermont Sustainable Jobs Fund for the implementation phase of the food-to-waste-to-energy biodigester project at the Vermont Technical College campus in Randolph:                                            20,000

Total appropriation – Section 16                                                      $2,500,000

Sec. 17.  VERMONT PUBLIC TELEVISION

The sum of $500,000 is appropriated to Vermont Public Television as the state match for the federally mandated conversion of Vermont Public Television’s transmission sites to digital broadcasting format.

Total appropriation – Section 17                                                          $500,000

Sec. 18.  VERMONT INTERACTIVE TELEVISION

The sum of $250,070 is appropriated to Vermont Interactive Television for video upgrades, codec upgrades, monitor replacement, or any combination thereof, at Vermont Interactive Television sites.

Total appropriation – Section 18                                                           $250,070

Sec. 19.  VERMONT RURAL FIRE PROTECTION

The sum of $100,000 is appropriated to the department of public safety, division of fire safety for the Vermont rural fire protection task force to continue the dry hydrant program.

Total appropriation – Section 19                                                           100,000

Sec. 20.  VERMONT VETERANS HOME

The sum of $1,700,000 is appropriated to the department of buildings and general services for the Vermont Veterans Home for the final phase of geothermal HVAC renovations.

Total appropriation – Section 20                                                           $1,700,000

Sec. 21.  VERMONT CENTER FOR CRIME VICTIM SERVICES

The sum of $50,000 is appropriated to the Vermont Center for Crime Victim Services for Americans with Disabilities Act improvements at domestic violence shelters.  The Vermont Center for Crime Victim Services shall file with the commissioner of buildings and general services an annual report, on or before December 1, 2008, which details the status of the improvements funded in whole or in part by state capital appropriations.

Total appropriation – Section 21                                                             $50,000

Sec. 22.  TRANSPORTATION FUNDING; APPROPRIATIONS ACT

(a)  The amount of $5,200,000, less issuance costs, is appropriated to the agency of transportation program development appropriation 8100001100.  The secretary of transportation shall allocate the funds to approved capital projects in the fiscal year 2009 transportation program.

(b)  It is the intent of the general assembly that future debt service for bonds authorized by this section shall be paid from the transportation fund.                           Total appropriation – Section 22                         5,200,000

     * * * Financing this Act * * *

Sec. 23.  REALLOCATION OF FUNDS; TRANSFER OF FUNDS

The following sums are reallocated to the department of buildings and general services to defray expenditures authorized in Sec. 1 of this act, unless otherwise specified:

(1)  of the amount appropriated in Sec. 2(c) of No. 185 of the Acts of the 1995 Adj. Sess. (1996) (GOVnet for schools):                                2,695.47

(2)  of the amount appropriated in Sec. 8(a)(6) of No. 62 of the Acts of 1997 (information technology):                                         14,440.22

(3)  of the amount appropriated by Sec. 2(d) of No. 62 of the Acts of 1995 (EWIMS):                                                                 11,500.50

(4)  of the amount appropriated by Sec. 2(b) of No. 62  of the Acts of 1995 (satellite video recording equipment):                        4,211.50

(5)  of the amount appropriated by Sec. 2a(b)(1) of No. 62 of the Acts of 1995 (VALS to GOVnet conversion):                    5,381.29

(6)  of the amount appropriated by Sec. 5(p) of No. 121 of the Acts of the 2003 Adj. Sess. (2004) (Vermont hydroelectric):                152,675.59

(7)  of the amount appropriated by Sec. 4(e) of No. 149 of the Acts of the 2001 Adj. Sess. (2002) (illumination plan for Bennington Battle Monument):                                                                                                                                         528.99

(8)  of the amount appropriated by Sec. 11(b) of No. 121 of the Acts of the 2003 Adj. Sess. (2004) (creation of Civil War monument):             1,296.61

(9)  of the amount appropriated by Sec. 3(f)(2) of No. 43 of the Acts of 2005 (fit-up of a VCI building at the southern state correctional facility):                                                                                                                                          49,391.17

(10)  of the amount appropriated by Sec. 4 of No. 43 of the Acts of 2005 (Rutland courthouse renovations):                                39,249.25

(11)  of the amount appropriated by Sec. 20 of No. 43 of the Acts of 2005 (Vermont Veterans’ Memorial Cemetery expansion design): 50,000.00

(12)  of the amount appropriated by Sec. 5(c) of No. 147 of the Acts of the 2005 Adj. Sess. (2006) (renovations to Bennington courthouse to enhance security and litigant services):                                                                        198,844.00

(13)  of the amount appropriated by Sec. 12(d) of No. 147 of the Acts of the 2005 Adj. Sess. (2006) (public safety outpost at the Williston rest area):                                                                                                                                           3,912.00

(14)  of the amount appropriated by Sec. 1(1) of No. 52 of the Acts of 2007 (design and construction of state archives at the triangle site in Montpelier) for the purpose of relocating the state archives to Middlesex pursuant to Sec. 1(12) of this act:                                                             1,695,547.50

(15)  of the amount appropriated by Sec. 16(a)(1) of No. 43 of the Acts of 2005 (historic preservation grants):                              394.41

(16)  of the amount appropriated by Sec. 16(a)(1) of No. 147 of the Acts of the 2005 Adj. Sess. (2006) (historic preservation grants):                               23,016.00

(17)  for the purpose of closing and renovating correctional facilities pursuant to Sec. 4(4) of this act:

(A)  of the amount appropriated by Sec. 3(c) of No. 43 of the Acts of 2005 (corrections work camp):                                      82,695.81                                                     

(B)  of the amount appropriated by Sec. 4(c) of No. 147 of the Acts of the 2005 Adj. Sess. (2006) (corrections work camp):                          676,167.00

(C)  of the amount appropriated by Sec. 4(1) of No. 52 of the Acts of 2007 (corrections work camp site acquisition):                             99,367.00

(18)  of the amount appropriated by Sec. 5(b)(1) of No. 121 of the Acts of the 2003 Adj. Sess. (2004) (historic barn grants):                   241.93

(19)  of the amount appropriated by Sec. 16(a)(2) of No. 43 of the Acts of 2005 (historic barn grants):                                     9,728.70

(20)  of the amount appropriated by Sec. 16(a)(2) of No. 147 of the Acts of the 2005 Adj. Sess. (2006) (historic barn grants):                            30,748.00

(21)  of the amount appropriated in Sec. 1(7) of No. 149 of the Acts of the 2001 Adj. Sess. (2002) (planning and design for addition to the state house):                                                                                         380,514

(22)  of the amount appropriated in Sec. 11(a) of No. 52 of the Acts of 2007 (water pollution control):                               434,540

(23)  of the amount appropriated in Sec. 15 (b)(2) of No. 148 of the Acts of the 1999 Adj. Sess. (2000) (Bennington sewer line):       19,787

(24)  of the amount appropriated in Sec. 8(A)(3) of No. 149 of the Acts of the 2001 Adj. Sess. (2002) (state-owned dams):              100,000

(25)  of the amount appropriated in Sec. 5(e) of No. 147 of the Acts of the 2005 Adj. Sess. (2006) (Orange County courthouse):      49,711

Total reallocations and transfers – Section 22                                $4,136,585.18

Sec. 24.  GENERAL OBLIGATION BONDS

(a)  The state treasurer is authorized to issue general obligation bonds in the amount of $54,650,000 for the purpose of funding the appropriations of this act.  The state treasurer, with the approval of the governor, shall determine the appropriate form and maturity of the bonds authorized by this section consistent with the underlying nature of the appropriation to be funded.  The state treasurer shall allocate the estimated cost of bond issuance or issuances to the entities to which funds are appropriated pursuant to this section and for which bonding is required as the source of funds, pursuant to 32 V.S.A. § 954.

(b)  The treasurer is authorized to issue a further $10,000,000 in general obligation bonds if approved pursuant to Section 27 of this act.

Total bonding – Section 24                                                        $54,650,000

* * * Managing this Act * * *

Sec. 25.  32 V.S.A. § 1001 is amended to read:

§ 1001.  CAPITAL DEBT AFFORDABILITY ADVISORY COMMITTEE

(a)  Committee established.  A capital debt affordability advisory committee is hereby created with the duties and composition provided by this section.

(b)  Committee duties.

(1)  The committee shall review annually the size and affordability of the net state tax supported general obligation debt tax-supported indebtedness, and submit to the governor and to the general assembly an estimate of the maximum amount of new long-term general obligation net state tax-supported debt that prudently may be authorized for the next fiscal year.  The estimate of the committee shall be advisory and in no way bind the governor or the general assembly.

(2)  The committee shall conduct ongoing reviews of the amount and condition of bonds, notes, and other obligations of instrumentalities of the state for which the state has a contingent or limited liability or for which the state legislature is permitted to replenish reserve funds, and, when deemed appropriate, recommend limits on the occurrence of such additional obligations to the governor and to the general assembly.

(c)  Committee estimate of a prudent amount of general obligation net state tax-supported debt; affordability considerations.  On or before September 30 of each year, the committee shall submit to the governor and the general assembly the committee's estimate of general obligation net state tax supported debt which prudently may be authorized for the next fiscal year, together with a report explaining the basis for the estimate.  In developing its annual estimate, and in preparing its annual report, the committee shall consider:

(1)  The amount of state general obligation bonds net state tax-supported indebtedness that, during the next fiscal year, and annually for the following nine fiscal years:

(A)  will be outstanding; and

(B)  have been authorized but not yet issued.

(2)  A projected schedule of affordable state general obligation net state tax-supported bond authorizations, for the next fiscal year and annually for the following nine fiscal years.  The assessment of the affordability of the projected authorizations shall be based on all of the remaining considerations specified in this section.

(3)  Projected debt service requirements during the next fiscal year, and annually for the following nine fiscal years, based upon:

(A)  existing outstanding debt;

(B)  previously authorized but unissued debt; and

(C) projected bond authorizations.

(4)  The criteria that recognized bond rating agencies use to judge the quality of issues of state bonds, including but not limited to:

(A)  existing and projected total debt service on general obligation net tax-supported debt as a percentage of combined general and transportation fund revenues, excluding surpluses in these revenues which may occur in an individual fiscal year; and

(B)  existing and projected total general obligation net tax-supported debt outstanding as a percentage of total state personal income.

(5)  The principal amounts currently outstanding, and balances for the next fiscal year, and annually for the following nine fiscal years, of existing:

(A)  obligations of instrumentalities of the state for which the state has a contingent or limited liability;

(B)  any other long-term debt of instrumentalities of the state not secured by the full faith and credit of the state, or for which the state legislature is permitted to replenish reserve funds; and

(C)  to the maximum extent obtainable, all long-term debt of municipal governments in Vermont which is secured by general tax or user fee revenues.

(6)  The impact of capital spending upon the economic conditions and outlook for the state.

(7)  The cost-benefit of various levels of debt financing, types of debt, and maturity schedules.

(8)  Any projections of capital needs authorized or prepared by the agency of transportation, the joint fiscal office, or other agencies or departments.

(9)  Any other factor that is relevant to:

(A)  the ability of the state to meet its projected debt service requirements for the next five fiscal years; or

(B)  the interest rate to be borne by, the credit rating on, or other factors affecting the marketability of state bonds.

(8)(10)  The effect of authorizations of new state debt on each of the considerations of this section.

(d)  Committee composition.

(1)  Membership.  Committee membership shall consist of:

(A)  As ex officio members:

(i)  the state treasurer;

(ii)  the auditor of accounts;

(iii)  the secretary of administration; and

(iv)  the secretary a representative of the Vermont municipal bond bank chosen by the directors of the bank.

(B)  One individual not an official or employee Two individuals with experience in accounting or finance, who are not officials or employees of state government appointed by the governor for a two-year term six-year terms.

(C)  One person who is not an official or employee of state government with experience in accounting or finance appointed by the state treasurer for a six-year term.

(2)  Chairperson.  The state treasurer shall be the chairperson of the committee.

(e)  Other attendants of committee meetings.  Staff of the legislative council and the joint fiscal committee shall be invited to attend committee meetings for the purpose of fostering a mutual understanding between the executive and legislative branches on the appropriate statistics to be used in committee reviews, debt affordability considerations, and recommendations.

(f)  Information.  All public entities whose liabilities are to be considered by the committee, shall annually provide the state treasurer with the information the committee deems necessary for it to carry out the requirements of this subchapter.

Sec. 26.  CAPITAL DEBT AFFORDABILITY ADVISORY COMMITTEE;

        TRANSITIONAL PROVISIONS

Notwithstanding 32  V.S.A. § 1001(d)(1)(B) and (C), of the first two appointments made under subdivision (B) following passage of this act, one shall be for a term of two years and one shall be for a term of six years, and the first appointment made under subdivision (C) shall be for a term of four years. 

Sec. 27.  CLOSING THE GAP BETWEEN TRANSPORTATION NEEDS

        AND AVAILABLE REVENUES FOR FISCAL YEAR 09

(a)  The capital debt affordability advisory committee (CDAAC) shall, in addition to submitting its fiscal year 2010 recommendation, consider, in the context of the size and affordability of net state tax-supported indebtedness, additional transportation financing that could assist in closing the gap between transportation needs and available revenues in fiscal year 2009.

(b)  By October 1, 2008, the CDAAC shall submit to the governor, the members of the joint fiscal committee and the chairs of the house and senate transportation committees, an estimate of the amount of additional long-term net tax supported debt, in addition to the $54,650,000 in general obligation debt previously recommended for fiscal year 2009, for debt issuance to support the state’s capital budget, that prudently may be authorized for

transportation-related uses that could assist in closing the gap between transportation needs and available revenues.  In addition to the fiscal year 2009 recommendation, the CDAAC shall make its recommendations for fiscal year 2010, as provided by 32 V.S.A. chapter13, incorporating the considerations specified in this section.  The general assembly authorizes for fiscal year 2009 the issuance of general obligation bonds for transportation up to $10,000,000 in addition to the amount authorized in Sec. 24 of this act, to be dedicated to transportation, provided that the total amount issued does not exceed the CDAAC recommendation to be submitted by October 1, 2008.  The following subdivisions shall apply to the bonds authorized by this section:

(1)  The state treasurer, with the approval of the governor, shall determine the appropriate form and maturity of the bonds authorized by this section consistent with the underlying nature of the appropriation to be funded.

(2)  The state treasurer shall allocate the estimated cost of bond issuance or issuances to the entities to which funds are appropriated pursuant to this section and for which bonding is required as the source of funds pursuant to 32 V.S.A. § 954.

(c)  It is the intent of the general assembly that future debt service for bonds authorized by this section shall be paid from the transportation fund.

(d)  Following adjournment of the 2008 session of the general assembly and before June 30, 2008, the agency of transportation shall present to a special committee, composed of the joint fiscal committee and the chairs of the house and senate transportation committees, an addendum to the fiscal year 2009 transportation budget equal to $10,000,000 in state funds.  The agency shall also present a reserve list of projects and programs, equal to the size of the budget addendum, which could be delayed until fiscal year 2010 as a contingent adjustment if the CDAAC recommends less than $10,000,000 additional bonding for fiscal year 2009.  In the event the CDAAC approves less than $10,000,000 in additional bonding for fiscal year 2009, the agency shall manage the reserve list within available funds or postpone projects until fiscal year 2010.  The budget addendum and reserve list shall be subject to approval of the special committee. 

(e)  There is appropriated in fiscal year 2009 to the agency of transportation the additional amount approved by CDAAC, up to $10,000,000, to fund capital projects from the budget as approved by the special committee.

(f)  With the approval of the secretary of administration, the secretary of transportation may transfer balances of appropriations from one department or unit of the agency of transportation to another department or unit of the agency of transportation for the specific purpose of funding transportation projects and programs in the budget addendum referred to in subsection (d) of this section. Expenditure of state funds under this section will be reimbursed by bond funds if and when the bond funds become available.  Upon such reimbursement, the transferred funds shall be transferred back to the original department or unit of the agency of transportation from which the initial transfer was made. The secretary of transportation shall report any transfers made under this section to the joint transportation oversight committee, and copies of these reports shall be delivered to the joint fiscal office.

Sec. 28.  USE OF BONDED FUNDS BY THE AGENCY OF NATURAL

        RESOURCES; JOINT FISCAL OFFICE; STUDY

(a)  The office of finance and management and the joint fiscal office, with help from the agency of natural resources and the department of buildings and general services, shall study the processes the agency of natural resources uses for determining:

(1)  when to request general obligation funds from the general assembly for projects to be funded from the pollution control and clean water state revolving fund and the drinking water state revolving fund; and

(2)  when the funds are paid to the recipient.

(b)  On or before January 15, 2009, the two offices shall report to the senate committee on institutions and the house committee on corrections and institutions on its recommendations for revising the processes so that bonded funds are used as efficiently as possible.

Sec. 29.  AUTHORITY TO TRANSFER FUNDS

The secretary of natural resources, with the approval of the secretary of administration, may transfer any unexpended project balances among projects authorized in Sec. 12 of this act.

Sec. 30.  ACCEPTANCE OF GRANTS AND OTHER FUNDS

(a)  Notwithstanding section 5 of Title 32 (acceptance of grants):

(1)  The commissioner of environmental conservation, with the approval of the secretary of natural resources, may accept federal grants made available through the federal Clean Water Act and the federal Drinking Water Act in accordance with chapter 120 of Title 24.  Acceptance of this grant money is hereby approved, provided all notifications are made under subsection 4760(a) of Title 24.

(2)  The commissioner of corrections, with the approval of the secretary of human services, may accept federal grants made available through federal crime bill legislation. 

(3)  The commissioner of buildings and general services may accept grants of funds, equipment, and services from any source, including federal appropriations, for the installation, operation, implementation, or maintenance of energy conservation measures or improvements at state buildings.

(4)  The commissioner of buildings and general services may accept federal grant funds in connection with the state health and forensic laboratories.  These funds may be used to defray or supplement costs in Sec. 3 of this act.

(5)  The commissioner of buildings and general services may accept federal grant funds from the department of public safety for the purpose of purchasing, designing, and retrofitting a new emergency management facility and emergency operations center.  No state funds shall be appropriated to this project from general obligation bonds issued for capital construction under this act or any prior capital construction act. 

(b)  Each receipt of a grant or gift authorized by this section shall be reported by the commissioner of the department receiving the funds to the chairs of the senate committee on institutions and the house committee on corrections and institutions and to the joint fiscal committee. 

* * * Buildings and General Services * * *

Sec. 31.  PROJECTS FUNDED IN PRIOR YEARS; BENNINGTON STATE OFFICE BUILDING; BUILDING #617 IN ESSEX

(a)  The commissioner of buildings and general services is authorized to use funds appropriated under this act for capital projects requiring additional support that were funded with capital or general appropriations made in prior years.

(b)  The commissioner of buildings and general services is authorized to spend up to $250,000 from funds appropriated for the Bennington state office building in Sec. 1(14) of No. 52 of the Acts of 2007 for the purpose of developing a comprehensive proposal to meet state office building needs while supporting the downtown redevelopment initiative in the town of Bennington.  In developing the proposal, the commissioner may hire one or more consultants to evaluate existing and potential state office space in Bennington, and shall consult with the Bennington downtown task force created by Sec. 4 of No. 53 of the Acts of 2007 to explore and evaluate opportunities.  Any recommended proposal shall limit the state’s capital appropriation for the project to up to a total of $10 million, and the commissioner shall explore all potential funding opportunities for the proposal.  On or before January 15, 2009, the commissioner of buildings and general services shall submit a report to the senate committee on institutions and the house committee on corrections and institutions on behalf of the department of buildings and general services and the Bennington downtown task force regarding a plan for Bennington state offices and for the Bennington district and family courts.  The proposal may include any of the following:

(1)  Selling the current state office building and land, and relocating state programs, services, and staff to another site.

(2)  Redeveloping one or more state buildings.  Redevelopment may include any of the following for all or portions of the building or buildings:  renovations, razing, leasing, entering into condominium agreements, entering into partnership agreements, and location of state programs, services, and staff.