Op-ed: Three lessons from a first draft on regulating use of Chester’s Green

By Donald C. Clark Jr.
©2026 Telegraph Publishing LLC

The Chester Select Board’s agenda for Wednesday, Oct. 7 lists a “Draft Use of Town Green Policy.” With  that line the town is on notice that rules for the use of the Green are under consideration.

Meanwhile an incomplete draft, titled “Town Green Use Ordinance,” has been circulating through town, and it has left the wake one would expect. Among much else it lists “demonstration” as an activity that requires a permit, to be sought 30 days in advance, and neighbors who have gathered on the Green for vigils and rallies have been asking what is coming.

The context that would have settled much of that concern exists, but it appeared only in the town manager’s memo to the Select Board, which is not posted with the agenda and which few residents will see. The memo is reassuring. It calls the document “very much a first draft,” meant only to give the board “something to start discussing.” It says the town manager prepared it, at the request of the town’s attorney, from a model offered by the Vermont League of Cities and Towns and from the rules of Woodstock and Richmond.

It says the attorney will review the draft and should give the board a legal opinion at a special meeting, and that he has advised against putting much work into it until then. It adds that the draft does not yet take account of a study of the Vermont Constitution that I sent the board in September, which the attorney has since reviewed. Had those few sentences been posted beside the agenda item, town residents would have been spared a week of worry.

That is a sensible way to proceed, and the board, the town manager and the town attorney deserve credit for it. It is also a teachable moment. There are many lessons in it. Let me offer three.

• First, form matters. The agenda says “policy.” The draft says “ordinance.” The memo uses both words. The difference is not mere semantics. Under Vermont law a rule that governs the conduct of citizens must be adopted as an ordinance, which means public posting, publication in a newspaper, a 60-day wait before it takes effect, and the voters’ right to petition for a town vote to disapprove it. A policy can be adopted by a majority of the board at a single meeting. The Vermont Supreme Court has said that the name given to a measure matters little if it has the substance of an ordinance. Calling this one by its right name from the start tells citizens which process, and which rights, they can expect. It also tells the board which statute it must follow.
• Second, an incomplete draft is less helpful than it looks, and more unsettling. The pages in circulation stop before the end. They set a deadline for the applicant and none for the town. They do not say whether a denial must be explained, whether it can be appealed, or what penalty a violation would carry. A reader cannot tell whether those provisions are missing or simply not yet written, and so the draft invites speculation about what comes next. When a draft is ready for discussion, the better course is to publish all of it, marked as a draft, together with the memo that explains it.
• Third, borrowing from other towns is not the shortcut it appears to be. Most of the circulated draft follows Woodstock Village’s ordinance for its own green nearly word for word. Woodstock’s ordinance regulates fairs, carnivals, auctions and concerts. The word “demonstration” does not appear. The Chester draft adds that word, which Richmond’s ordinance also uses, and so carries rules written for commerce and entertainment over to political protest.

The law that governs speech and assembly is complex, it is in flux, and it is ripe for revisiting. In my opinion, few Vermont towns, if any, now have it right. Ludlow’s ordinance on unlawful assemblies, to take one neighbor, is arguably in direct conflict with a decision of the U.S. Supreme Court. A rule copied from another town imports that town’s problems along with its text.

There is a further reason for care. Vermont’s own Constitution is older than the First Amendment and is written differently. It declares that “the people have a right to assemble together,” and in 1786 a Vermont convention refused to confine that right to gatherings held “in a legal way.”

It commands that the rights it declares “ought not to be violated on any pretense whatsoever.” The Vermont Supreme Court has not yet said how far that protection reaches beyond the federal minimum. A town that writes a permit rule for demonstrations is writing on ground no court has surveyed.

None of this is meant as a complaint. The board wanted a draft, the town manager produced one, and the town attorney has counseled patience. Chester has gone more than two and a half centuries without requiring a permit to assemble on its Green, and in recent years the Green has held vigils with 17 and rallies of 600 without incident. When organizers asked in 2025, the town manager told them no permit was required.

The town can take the weeks it needs to decide whether a rule is needed at all and, if so, to get it right. One closing thought. If it ain’t broke, and on the Green it ain’t, why labor to fix it?

Donald C. Clark Jr. is a retired lawyer and a Chester homeowner. You can read his study of the Vermont Constitution’s protection of assembly on village greens, “The People Have a Right,” by clicking here.