Vermont Legislature SmartTranscripts:

[Rep. David Durfee (Chair)]: Then if it's not enough time to cover this bill and the questions people have, we can ask Cameron to come back another time. But why don't we go ahead and get started? So we were referred h five thirty seven earlier in the week, and it's bill that was introduced by representative LaLonde, wasn't able to be with us today, but he said, go ahead and Legis Council can give us everything we need to know about the bill. So we figured while we had a half hour block here, we can go ahead and do that. So welcome, and welcome back. Yes, sir. Yeah, good.

[Cameron Wood, Office of Legislative Counsel]: Super, a brief spell last session.

[Rep. David Durfee (Chair)]: Yeah, so I thought so, yeah.

[Cameron Wood, Office of Legislative Counsel]: Good afternoon. For the record, Cameron Wood, Office of Legislative Counsel. As I just mentioned, I was here for a brief bit last session, but I always enjoy coming into this room when I clerked in the office over ten years ago. I spent a lot of time in here when this was government operations. Yeah. At the time, I got to clerk under Michael O'Grady. So I also spent a lot of time in the agriculture committee during that period as well, back when it was where House General is now. So, yeah. Thanks for having me. And I'm happy to do a walkthrough of H537. I have it here sharing my screen. You all can follow along, but I figured I would share my screen as well. So as the bill has been introduced, and I'll just kind of go with the statement of purpose initially, it proposes to prohibit a landlord and a common interest community from restricting the installation and use of a vegetable garden. So my understanding is this came through the sponsor, the intent here was to try to ensure and promote individuals' ability to engage in maintaining their own personal vegetable gardens for individuals who may not own the property in which they're currently residing on. So you'll see the first half of this bill addresses instances of common interest communities. A lot of people, I think, just refer to them as HOAs, homeowners associations. Under the statute, they're referred to as common interest communities. And then the second half of the bill really enacts very similar provisions for tenants who reside living under a residential rental agreement with a landlord.

[Rep. David Durfee (Chair)]: And did I understand that this was a suggestion that a constituent had

[Cameron Wood, Office of Legislative Counsel]: requested. Yes, sorry, that's my understanding that it was a constituent request. Again, wanting to make sure that Vermonters had the ability and access to engage in this activity. Okay, so I'll just jump right in. We have section one, this is the bottom of page one. This section here on the top of page two, this is amending Title 27A. So Title 27 deals with property, Title 27A is specifically enacted for the Uniform Common Interest Ownership Act. This was enacted in 1998 and it went into effect in 01/01/1999. And so I will also caveat this presentation by saying I am new to this area of the law, so I am learning about common interest communities somewhat on the fly. But this is something that I will be doing a lot more kind of research and learning throughout the session. House General has asked me to pull together a presentation on common interest communities, and so I'm beginning to work on that because they're having discussions about entities this session. So I'd also be happy to come back maybe in a few weeks if there's a lot of questions about what these entities are and how they're operated and organized, etcetera, and I'd be a little more prepared to come in and talk about that. But what Title 27A is, and you have, it went into effect 01/01/1999, and that specifically applies to any common interest community created after 01/01/1999. Well, what about entities that were created prior to that? Those entities are governed by the Condominium Ownership Act, which is in title 27, which is in property. So it's in a different title. And so you have entities that are governed under a pre common interest ownership statutory provision. Why is that the case? That's because these are, at the root of them, these are contracts. They're contracts, you know, that individuals engage in when they purchase property within a common interest community. They're required to adhere to the declarations and the bylaws, etcetera, that govern ownership over these entities. And so you all, as members of the general assembly when you're enacting legislation, when you're making things retroactive to apply to these entities as they already exist, one can argue that you are impairing contracts, which potentially has a violation of the US constitution, which prohibits government from impairing obligations of contracts. That doesn't mean you can't do that. And there's specific tests that courts will look at when determining whether or not a piece of legislation that impairs a contract is still statutorily constitutional. And that's something that I could come back and talk to you all if you want some more detail on that. So I'm just bringing it up initially to say, this is a complex area of law because you have pre-nineteen ninety nine entities that exist under a separate statutory code. You then have the common interest communities that are governed by Title 27A post 1999, 01/01/1999. And then there are certain provisions that are made retroactive. This would be one of them as it's currently drafted in this form. So apologies for the very dense lead up here. But what you have in this section that you're looking at in section one is these sections that are listed in one-two zero four apply to, and this is just here on lines fifteen and sixteen, they apply to common interest communities created prior to 01/01/1999. And so what I've done here is you'll see on the top of page two, unless otherwise accepted under twelve oh three, this new section shall apply to a common interest community created in the state before 1999. It applies only to events and circumstances occurring after 06/30/2026, and doesn't invalidate existing provisions. We have that there to say that if you're putting in this provision that guarantees that people have the right to have vegetable gardens in these common interest communities, and they can't prohibit individuals from engaging in this activity, we're going to make that retroactive to all these entities that exist under this other statutory section of law. But we don't want it to apply to circumstances occurring before the effective date of the act. So you don't want somebody to come in and say, I'm going to sue you or try to take some action for something you as a common interest community did to me prior to this becoming effective. That's really the reason that that is there, to say that it's going into effect here. You have the right to do it now. You're not going to be able to go back to stuff that happened prior to this going into effect and try to have a claim against the communist community. Section two is really where we get into the meat of what are we talking about? What are allowing individuals to engage in and what are we prohibiting these common interest communities from doing? So we have as used in this section, and I'm just gonna read the definition here. This is in subdivision A. Vegetable garden means a plot of land where a person cultivates plants for personal consumption or donation, and the land and activities on it are not subject to the required agricultural practices. A vegetable garden does not include cultivation of cannabis or any unlawful crops or substances. So what I tried to do here is I tried to, there's a few other states that have enacted or introduced similar legislation. Some of them take a little bit of a different approach in how they define what this activity is. Some of them use the term personal agriculture. You can engage in personal agriculture, and then they try to define what personal agriculture is. I worked a little bit with Michael O'Grady from our office just to try to get this to fit best within Vermont's statutory scheme. And so he had kind of given me some amendments to this section, in particular, wanting to make sure we're not talking about things that are under the required agricultural practices. And so we tried to keep the definition relatively high level as opposed to really defining some of these definitions in other states really get into what a plant crop is, plants that bear edible fruits or vegetables. I mean, they get, appear to me to be a lot more specific in what this meant. And so I just bring that up because this may be something that you all and your committee with more expertise may wanna engage in some of the language here and what you want it to say.

[Rep. David Durfee (Chair)]: Representative O'Brien?

[Rep. John O'Brien]: So plot of land, we define that anywhere? Just I'm thinking, I have four patio tomatoes on my balcony. I'm extending garden

[Rep. David Durfee (Chair)]: vegetable garden.

[Cameron Wood, Office of Legislative Counsel]: So that got a little tricky and you'll see it when I get to the residential rental agreements piece. Just thinking back to when I was renting and there wasn't a plot of land in the apartment building that I rented from where you'd be able to engage in this. So I had to tweak it a little bit to allow on the residential side, the landlord tenant side that the, you'll see it when we get there, the landlord can't prohibit the tenant from having potable plants, potable vegetable gardens essentially on areas that the tenant has access to or can use. And then the tenant can ask if there is available space, they can ask the landlord if they can utilize that space for additional vegetable garden access. Okay.

[Rep. David Durfee (Chair)]: Representative Lawson.

[Unknown Representative ('Lawson')]: Yeah, I guess I'm just wondering on the does not include cultivation of cannabis or unlawful crops. I believe that people in Vermont are legally allowed to grow two plants. So is that unlawful? And if it's not unlawful, then what? I mean, it feels like it's a contradiction right there. If you're legally allowed to do it, why aren't you allowed? Why is that excluded?

[Cameron Wood, Office of Legislative Counsel]: Great question. The thought I had here and the reason I included it was, and I have not done a deep analysis on what the current authorization is under our cannabis laws. Yes, you're allowed to grow. I don't know how much and Somebody which ones are told me it was two. Yeah, don't know that. My thought here was if you're putting into statute that a common interest community has to allow an individual to engage in this activity on property that they have exclusive right to. Could it be outside? But as I was drafting it, I think that's the primary contemplation. This is going to be on somebody's, the lawn of their common interest community that they have exclusive right to. My understanding is there's also a lot of limitations on where you can have things outside in the marijuana space. So I just didn't want to-

[Unknown Representative ('Lawson')]: Make it too often.

[Cameron Wood, Office of Legislative Counsel]: I didn't want to open it up for that, as I was drafting it. And I took that from one of the other states that had a similar provision about not allowing illegal substances. But just as I was drafting it, that was my thought. It was if you were to exclude that sentence, I think you potentially make it ambiguous, and then you could, and you could just say, if somebody is engaging in the cultivation of marijuana in a vegetable garden, they have to comply with reference back to whatever those requirements are. But just so you know, that's where my thought process was.

[Unknown Representative ('Lawson')]: It's potentially more messy that way.

[Rep. John O'Brien]: Yes, ma'am. Yeah,

[Rep. David Durfee (Chair)]: that's a great question. Immediately they gave up what's the definition of a vegetable too. And then we don't have the bill sponsor here or whoever was initially suggesting this. But it's, yeah, so we should

[Unknown Representative ('Lawson')]: I guess the other thing that comes to mind is like, what if somebody just wants to grow flowers then? Do they not have the right to grow flowers or are flowers also vegetables? Or if it's a flowering vegetable, I don't know.

[Cameron Wood, Office of Legislative Counsel]: This is a great question. And if I recall-

[Unknown Representative ('Lawson')]: Because people might wanna grow cut flowers

[Cameron Wood, Office of Legislative Counsel]: or something. What I could do is I could provide you all with some of the definitions that other states have used. Not gonna try to hunt for it right here, but I do believe one of the other states specifically called that out. It was talking about edible plants, but also flowers. If I recall, it was using some terms trying to distinguish that this also includes things that may not be used for consumption. And

[Unknown Representative ('Lawson')]: you can have edible flowers too. Honestly, that feels like something that maybe we would wanna add, but, I mean, we can we can wait.

[Rep. David Durfee (Chair)]: But Mhmm. Representative Burtt,

[Rep. Gregory "Greg" Burtt]: all of Is vegetable actually defined?

[Cameron Wood, Office of Legislative Counsel]: Not in this bill. No, sir.

[Rep. Gregory "Greg" Burtt]: That could be problematic because, like, a tomato is not a vegetable. Right. Right.

[Cameron Wood, Office of Legislative Counsel]: And that's why, yes, was gonna say, that's why I'm pointing it out to you all. This is, you know, straying outside of my expertise. So would definitely, you know, invite you all further defining if you move this forward, what you would like that to be. Okay. And again, another one was another state had specifically said the right of somebody to engage in personal agriculture and then tried to further define that. Michael, you know, in speaking with Mr. O'Grady, he and I wanted to stray away from that because of the required agriculture practices, and we just were trying not to muddy those waters. So totally understood. So Okay. B one here on line 18. This is where any covenant restriction condition contained in any deed, contract, security agreement, other instrument affecting the transfer or sale of an interest in a common interest community. Any provision of those governing documents or bylaws, and I'm moving to the top of page three here, that either effectively prohibits or unreasonably restricts the installation or use of a vegetable garden in areas designated for exclusive use of the unit owner or is in conflict with this section is void and unenforceable. So this is just where we get the provision where we're saying you, common issue community, can't prohibit or unreasonably restrict, the definition we were just talking. So then in sub two, this is saying that you can have a process where you have to get approval to install. And you'll see there's also some information here on the next section about a few sections down about what can the common interest community restrict. And so if there's approval for installation, this is saying that it should be processed and approved in the same manner as applications for approval of architectural modifications, shall not be intentionally avoided or delayed. The approval or denial of the application shall be in writing. And if it is not denied in writing within sixty days, it shall be deemed approved unless the delay is the result of a reasonable request for additional information. And I'll be honest, I took this from a similar bill that had been introduced in a prior session dealing with common interest communities. It wasn't dealing with vegetable gardens or anything. Was dealing with something else. But it just seemed to me reasonable to incorporate something of that nature. If you're going to require some sort of application, you want a period in which the entity has to approve or deny. You don't want them to just be able to sit on it. So similar language there. Subdivision three here, line 13, this is saying that the unit owner and each successive owner afterwards, they are responsible for the following the cost of installation, maintenance, repair, cost of any damage to common elements, cost of the water or electricity associated with the use. Moving to the top of page four, responsible for disclosing to prospective buyers of the existence of any garden and those related responsibilities. And so then here in the sub C is where we get to what is a reasonable restriction. So the section shall not prohibit an association from enacting bylaws or rules that reasonably restrict the installation in an area of the common interest community designated for exclusive use, including, and I pulled these from some of the other acts that I mentioned that have been introduced in some of the other states. So this is another area where I would invite you all to weigh in on what you feel would be appropriate or not to include requiring that it be maintained in good condition, if visible from the street, requiring that dead plant material and weeds are regularly cleared with the exception of straw mulch compost and other organic material intended to encourage vegetation and retention of moisture, restricting the use of property owned in the common and not for exclusive use, and then prohibiting the use of pesticides as that term is defined or any other synthetic chemical product commonly used in the growing of plant crops. That was another piece that was in a separate bill that I pulled together. I ran that by Michael O'Grady just because I was nervous about what the other state had. It was a little more detailed. And so O'Grady helped me kind of whittle that down to what you see in sub four. But knowing that that's a very technical area when you start talking about pesticides and other synthetic chemicals, etcetera, another area that I would weigh you all with your expertise or ask you all to weigh in with your expertise in that space.

[Rep. David Durfee (Chair)]: Are all these are four examples of restrictions that could be acceptable. Yes, sir. There may be others. This is not an

[Cameron Wood, Office of Legislative Counsel]: It would not be an exhaustive list. Yes, sir. But it has to, then one could ask, well, what does reasonably restrict that's not defined? As many things in our statutes aren't, that would be something that ultimately would be defined over time. If individuals felt that a common interest community was unreasonably restricting them, they could then take that entity to court. Courts would further define what reasonableness meant in this context.

[Rep. John O'Brien]: Was there any thought given to I guess, the overall picture of gardening too. Because I was thinking this might bring up food composting, for example. Tenant could say, I'm making soil to grow my garden and where that would fall on this.

[Cameron Wood, Office of Legislative Counsel]: I personally did not. The information that I received through the sponsor had a lot of information about vegetable gardening, and it got very, very detailed about what could be allowed, even getting down to the types and size of vegetable garden construction, etcetera. And I felt that that was well beyond a bill or where you all would and the sponsor would like to be specifically prescribing at that detail. So I didn't include a lot of that. But to answer your question directly, no, sir. I didn't think about it at that high a level. Subsection D, moving to the top of page five here. If there's an intentional violation of the section subject to a civil penalty of up to $1,000 And then Mr. Chair, I mentioned this to you briefly. At the time I included when I was drafting this, the section shall not apply to a condominium. That may be something that you all want to take a hard look at if you're going to move this forward. There's very technical differences between what are planned communities and what are condominiums that really gets down to what the individual unit owner owns when it comes to the common elements of these types of building arrangements. And so, as I mentioned at the beginning, I'm really learning about what these entities are, and so I'd be happy to come back and talk in a little more detail if you would find that to be helpful, so we can get into some really factual distinctions about what is a condominium. I don't know in Vermont what is more prevalent, condos or planned communities. We could try to find that out. I'm not sure at this point.

[Rep. David Durfee (Chair)]: Representative doesn't.

[Unknown Representative ('Lawson')]: Yeah, I mean, it might be more more for later, but I guess my thought would be it should apply to condominiums. I mean, I recall my grandmother looked in a condominium and they had some very ridiculous rules like you can't hang laundry on your porch because it looks unsightly. And so she had to use a dryer 100% of the time. And so I would assume if you translated that to the Vermont setting, it would be you can't grow the potted plants of tomatoes on your vegetable because on your porch or something. Anyway, I guess I would lean towards it would apply unless there was some legal reason that we couldn't make it that way.

[Cameron Wood, Office of Legislative Counsel]: And I don't, just real quick, I don't think there is a legal reason. My feedback to the sponsor at the time was I just, again, I was trying to merge some of these things from multiple different bills. And so I was just at the time a little uncomfortable with what that could look like. And so I told him if he wanted to leave it for now, it was something that I would bring up or could bring up and we could further discuss.

[Rep. David Durfee (Chair)]: Wonder if

[Rep. Gregory "Greg" Burtt]: my mother lived in the same place. She had the same It

[Unknown Representative ('Lawson')]: was in Wisconsin.

[Rep. Gregory "Greg" Burtt]: Oh, this was in Another story. I'm just gonna point out that I live in, I think, what would be considered a planned community

[Cameron Wood, Office of Legislative Counsel]: that is legally a condominium. There's a

[Rep. John O'Brien]: Bob Hill's a condominium?

[Rep. Gregory "Greg" Burtt]: Legally, yeah. And

[Cameron Wood, Office of Legislative Counsel]: so, you you think about it as like the common interest community is the broader circle, and then within those are condominiums. And there's a specific provision that makes it a condominium. And if other common interest communities don't have that provision, then they're not condominiums. So There's something confusing here that has to be sorted out. Yes. Okay. Okay. So the next section here, section three, this is where we transition away from the common interest community and we start talking about the landlord tenant. So that's why we're moving to Title IX. In Title IX under the chapter associated with residential rental agreements. And so most of this is going to be very similar. The definition of vegetable garden is similar. But what we have here is under the sub B, landlord shall permit a tenant to grow a vegetable garden. And here's where we're getting back to the question from earlier. Potable containers approved by the landlord in the tenant's private area. The landlord may authorize the tenant to install a vegetable garden other than that, which is contained in potable containers on the rental property. And then just similar, the landlord may place reasonable restrictions, maintaining good sanding, no dead plants and weeds. All of that information is similar. Sub three under the top of page six require that the vegetable garden does not interfere with the maintenance of the rental property, require that the placement of the vegetable garden does not interfere with the tenant parking space, or create a health or safety hazard, block doorways, interfere with walkways, utility service equipment, etcetera. Again, just kind of thinking that some tenant arrangements are living in a house, and you have your own private area. Others, you're living in an apartment building. You're just wanting to make sure that by giving the tenant the right to have potable plans and engage in this activity, the landlord can still come in and say, you're blocking an egress or something to that effect. You're prohibiting the maintenance of the facility, something along those lines. It still must be reasonable, but those are additional restrictions that exist in this section that didn't exist in the common interest community section. And then the sub D is similar. You can require the tenant to pay for excess water, utility, electricity, waste collection, etcetera. So just a little

[Rep. David Durfee (Chair)]: clarifying question. Does this language allow a dug garden on rental property or only in containers?

[Cameron Wood, Office of Legislative Counsel]: I would argue that the language, it would require the landlord to allow somebody to engage in a vegetable garden in potable containers. But then under the. Sub two here under line thirteen and fourteen, the landlord may authorize the tenant to install a vegetable garden other than the potable containers.

[Unknown Committee Member]: Okay, So

[Cameron Wood, Office of Legislative Counsel]: they may, it's not a requirement there.

[Unknown Committee Member]: Okay, thank you. Thank

[Rep. John O'Brien]: Representative Brian. Is there any law, just in a larger sense, I'm thinking of what if I rented one apartment or had a certain amount of space, could I rent sublet essentially my garden space to another tenant and do that was like a parking space that I ran out to somebody else.

[Cameron Wood, Office of Legislative Counsel]: So in that situation, I'm a tenant, but I have a little extra space. You're a tenant with less space. Landlord says, you can't do it. It's blocking any egress or something to that effect. Okay, I'm going to allow you to do it. This bill doesn't speak to anything of that nature, and I'm not aware of anything that currently addresses this topic in general. So that's a good question. I don't think there would be anything that would require it or prohibit it. It's silent.

[Rep. David Durfee (Chair)]: Other questions about the language in the bill or what it does or doesn't do? One other thing, perennials versus annuals. I wonder

[Rep. John O'Brien]: these are contracts that might be, what, a year or maybe better or longer. Does a tenant would they have the power potentially to put in a perennial that might be there after they leave, like an apple tree?

[Cameron Wood, Office of Legislative Counsel]: That's a good question. So what I would say my initial reaction would be, back to the definition of vegetable garden, plants for personal consumption or donation, I think that gets to what we were talking about earlier. What does that encompass? And do you all want to amend the definition of that to specify? Could you plant an apple tree if the landlord has given you permission to? Yes. If the landlord's given you permission to engage in a vegetable garden on the property outside of the potable containers, Could you then plant an apple tree? I'm assuming the answer would be yes. Who then owns it if the individual leaves the rental agreement? Good question. And I would say it's silent to that.

[Unknown Committee Member]: Yeah, Rick? I wonder about this house, somehow having a potted plant garden cause damage to Say you have it on a balcony, but then somehow being on a deck and being wet and is there anything, I don't know if that's something to keep in mind, is there a process for that too, like making this be requiring a landlord to allow that at the same time if there's talk about damages in here?

[Cameron Wood, Office of Legislative Counsel]: That's a great question. And I was just kind of scrolling to look back. I know I remember we the bill has addresses damages in the common interest community section. It does not address it in the landlord tenant piece. So you could add a similar provision to say that the tenant would be responsible if there were any damages to the property itself. Yes, sir, you could add that. But it is not included. And then finally, it goes into effect 07/01/2026. I

[Rep. John O'Brien]: guess one other concern might be if you grew vegetables that attracted nuisance animals like