McLean Discusses Fair Housing
Attorney Joe McLean of Stitzel, Page & Fletcher, P.C., recently participated as a speaker at the Spring Planning and Zoning Forum. The Forum was co-sponsored by the VLCT Municipal Assistance Center and the Northern New England Chapter of the American Planning Association and held at the Lake Morey Resort in Fairlee, Vermont. McLean’s talk, entitled “Avoiding Unfair Housing Practices in Local Land Use Regulations and Decisions,” reviewed federal and state fair housing laws, including prohibitions, remedies, and ways in which discriminatory zoning practices potentially violate the law. In particular, McLean focused on disparate impact claims and recent changes in HUD’s regulations that provide a specific standard for establishing liability based on a practice’s discriminatory effect. An outline from McLean’s talk is available on the VLCT website. For further information regarding the relationship between zoning and the Fair Housing Act, please contact Joe at jmclean@firmspf.com.

New Environmental Court Guidelines
The Environmental Division of the Vermont Superior Court (commonly called the Environmental Court) has recently established, under the direction of the Vermont Supreme Court, “Disposition Guidelines” to manage the flow of cases through the litigation process. The Guidelines establish timelines specific to each type of case that the Environmental Court has jurisdiction to resolve; they vary partially based on a case’s complexity.

For instance, a municipal enforcement action is scheduled to reach a decision or settlement within 10 months of the date the municipality files its complaint if the landowner has contested an associated Notice of Violation, but only 4 months if there is no contested Notice of Violation or a Notice of Violation was not necessary to bring the enforcement action. In addition to municipal enforcement actions, a de novo appeal of a municipal panel decision is expected to take from 7 months to a year, depending on its complexity, and municipalities that have taken the steps necessary to afford their municipal panels’ decisions on-the-record review are anticipated to have rulings within 7 months. The anticipated dates of resolution do not account for procedural issues that can lengthen the litigation process, such as when related matters are progressing through multiple courts or when there are multiple municipal permits involved, but the Guidelines do provide litigants with a rough outline of how cases should proceed through the Environmental Court.

At a recent brown bag discussion hosted by the Chittenden County Bar Association, the judges and staff of the Environmental Court conveyed that compliance with the Guidelines will require everyone’s participation and assistance. The Environmental Court has already begun including a copy of the appropriate timeline when it distributes documents to parties who are in litigation.

The Environmental Court Disposition Guidelines may be accessed, under Directive 30, on the Vermont Judiciary website: www.vermontjudiciary.org/LC/AdministrativeDirectives.aspx

Questions about the new Guidelines or how they impact your case may be directed to Diane M. Sherman, Esq.

Stitzel, Page & Fletcher Closes First “FEMA Buyouts” From Tropical Storm Irene
On March 26th, Stitzel, Page & Fletcher attorneys on behalf of the Towns of Bethel and Bolton, and with the assistance of Two Rivers Ottauquechee Regional Commission, closed the first Federal Emergency Management Agency (“FEMA”) Hazard Mitigation Grant Program “buyouts” in the State of Vermont. Through FEMA’s Hazard Mitigation Grant Program, municipalities are awarded grants funded 75% by FEMA and 25% by the State to purchase properties substantially damaged in the storm to preserve natural floodplains and to prevent further loss of property, both real and personal, in future flooding events. As an incentive to convey their properties, landowners are awarded the pre-Irene appraised value for their properties, and in return purchasing municipalities commit both to remove any remaining damaged structures from the properties and to preserve the properties in a generally open state in perpetuity. For more information about FEMA’s Hazard Mitigation Grant Program or for assistance with your municipality’s real property transactions, please contact Robert E. Fletcher or David W. Rugh.

U.S. Department of Education Issues IDEA Part B Final Regulations Related to Parental Consent to Access Public Benefits or Insurance Such as Medicaid
On February 14, 2013, the U.S. Department of Education published in the Federal Register, Final Regulations which change the frequency with which public agencies, including school districts, must obtain parental consent to bill Medicaid for such reimbursable services such as occupational therapy, speech therapy, and mental health counseling received by a Medicaid eligible student pursuant to their Individual Education Plan (‘IEP’). 34 C.F.R.§300.154(d).

As of March 18, 2013, the effective date of the new regulations, school districts no longer are required to seek parental consent each time Medicaid reimbursement is sought. The new regulations provide that school districts:

- May obtain a one-time written consent from the parent, prior to accessing or billing Medicaid but after providing the parent with written notice that explains all of the protections available to parents under Part B (34 C.F.R.§300.154(d)(2)(v)).

- The consent must specify (a) the personally identifiable information which may be disclosed; (b) the purpose of the disclosure; and (c) the agency to which the disclosure may be made. The consent must also clearly specify that the parent understands and agrees that the public agency may access the child’s or the parent’s public benefit or insurance (Medicaid) to pay for services.

- The written notification to parents must be written in language understandable to the general public and in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

The Department of Education- Office of Special Education and Rehabilitative Services (‘OSERS’) has issued Non-Regulatory Guidance on these Final Regulations which can be accessed at:

http://www2.ed.gov/about/offices/list/osers/news.html





SP&F Helps to Resolve Litigation Involving Water Project
In January 2013, the Town of Waitsfield settled long-standing litigation with the owner of property adjoining the well site for the Town's municipal water project. Having obtaining positive decisions from the Vermont Superior Court, Civil Division, on the issues of condemnation and damages in a proceeding to acquire a small portion of the well site property, and from the Vermont Superior Court, Environmental Division, in proceedings challenging the Town's Act 250 and local zoning permits, SP&F attorneys assisted the Town in successfully negotiating an agreement that terminated all remaining litigation and appeals related to the municipal water project. The Town is now poised to complete this important infrastructure project and has begun to provide water to customers within its service area.

Firm Adds Two New Associates
The Firm of Stitzel, Page & Fletcher, P.C., has added two new associates, Eric G. Derry and Diane M. Sherman, to its staff, bringing the total number of attorneys in the Firm to ten. The Firm is excited about having both Eric and Diane on board.

Eric is a 2008 graduate of Vermont Law School, and came to us after four years of private practice in the Upper Connecticut River Valley. He litigated employment related claims, and litigated land use issues related to telecommunication facilities. Eric is a native of Chittenden County, and a UVM grad.

Diane worked for two years as a clerk with the Environmental Division of the Vermont Superior Court before joining the Firm. A cum laude graduate from the University of Michigan Law School, Diane has dual undergraduate degrees from Michigan State University (Summa Cum Laude) and a Masters in Environmental Policy and Planning. Before attending law school, Diane worked in public policy for a Washington, D.C. "think tank" and for the EPA.

Eric and Diane will each work on assignments for our municipal clients, and Diane will also work on personnel and education projects.

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