Vermont Legislature SmartTranscripts:

[Rep. David Durfee (Chair)]: I think wrap our heads around what are the impacts of the court decision? What is existing statute? What is existing rule? We've taken already a look at that, but we may still have lots of questions. Of course. I think we're all set then.

[Steve Collier (Agency of Agriculture)]: Great. Good morning, as you all know, Steve Collier from the Agency of Agriculture. Thank you so much for giving us the time to chat about this. As I think I mentioned last week, to us, this is a must have bill this session. We really will do whatever we can to help educate all of you to make the important decisions. I thought before sharing the language, might be helpful to approach it the way that we did, which is to think about the principles that we're trying to accomplish. As you all know, farming at least as subject to the RAPs has long been exempt from municipal zoning. And so we haven't really contemplated that a whole lot because it's just been a fact. Although we have before including in this committee sort of talked about the one, the $2,000 barometer was the one way where where farming was covered, it sometimes wasn't in other aspects of the RAPs and the schedule F requirement. So when the Supreme Court overturned the decision, we started by thinking about what principles are most important. And I'm not going to spend time on this in this community because you all know it, but farming is just critically important in our estimation to Vermont, and it's also very fragile. So that backdrop sort of frames everything that we think about farming is that is that we're losing it. We have some people who are doing incredible work to maintain it, but Vermont is very much defined by its rural, by its farming, by its rural economy, by its local food, by a history of agriculture that doesn't exist in a lot in the rest of New England very much anymore. And it's slipping away. And the question is how do we try to prevent that as much as possible? So all of our thinking is kind of framed through that lens is how can we make farming as economically viable as possible, make sure that it's reasonably regulated, but also make sure that farmers are not prevented from being able to farm. So in thinking about the principles, the RAPs were what they were, I'll talk about those in a minute, but what we really thought was important to do is by starting with let's protect everyone's ability to grow food. It's actually not protected currently right now in Vermont. And that doesn't mean it's regulated. I'm not aware of any towns that are stopping people from having a garden or stopping people from having growing food, but it's not technically protected right now unless you meet the farming definition under the RAPs. And that means you at least have four contiguous acres and you're growing food on that or you have $2,000 in sales or you have a schedule F. So otherwise it's not actually protected right now. And so when we approached this discussion, we thought, let's protect that. You know why no one objects to people growing food. It's not actually protected. That doesn't necessarily mean it needs to be regulated by us. We don't think we need to regulate every vegetable garden in the state, but let's make sure that people can do it. So that was kind of our first thought. It's not controversial. Growing food, people support broadly, and it doesn't kind of create some of the neighbor disputes that other things do. So So we thought let's

[Rep. David Durfee (Chair)]: start there.

[Rep. Gregory "Greg" Burtt (Member)]: Let's try to protect growing food.

[Rep. David Durfee (Chair)]: I'm sorry. When you say growing food, you're talking about crops rather than plants. Yes.

[Steve Collier (Agency of Agriculture)]: Good. Good question. Because growing food could also be livestock could fit within that. But in our in our explanation, we're not intentionally not including livestock in that definition. However, there are a lot of people who want to be able to raise some animals and don't have much land. It's obviously a lot harder to raise cows or horses than it is chickens or, you know, other types of poultry. And there are some disputes in Vermont about having poultry and where you can have poultry and whether you can have poultry. So our next level was let's protect people to grow food, plants, but let's also let them have some poultry if they if they can do that. So the next kind of thinking was, and again, it doesn't necessarily mean that needs to be regulated by us, but let's protect that right. Someone has a backyard and they wanna have 10 chickens so that they can have meat and eggs. Let's let's give them that ability. Again, that's not protected right now. But, roosters can be controversial for obvious reasons in in densely populated areas. So our proposal was let's protect having a small backyard poultry flock, but let's not let's exclude roosters so that we don't from that automatic protection. That doesn't mean people can't have roosters, but a town would have the authority if someone was not technically farming to ban roosters from downtown wherever. So those are kind of our two fundamental principles and that's not thinking about what the agency of agriculture regulates, that's thinking about every Vermont citizen's basic rights. And so whether you're regulated by us or whether you're not regulated by us, you could do those things. So that was kind of the building block. Then next the natural question is, okay, well what do we regulate? What does the agency of agriculture regulate? So towns do not regulate. And livestock tend to be where a lot of issues arise because they have bigger impacts. They have waste, they have nutrients, they need infrastructure. Livestock just require a lot more than plants do in terms of farming. Currently under the RAPs, there is no minimum land requirement to have live stream. So that can get a little thorny if someone and we've had this exact example, when somebody wants to have goats and they're milking goats in their basement on a tenth of an acre of land in downtown. There is nothing in the RAPs. If you have $2,000 worth of sales, then technically you are then covered by the RAPs, but it's not really a situation that the that the RAPs was designed to encapsulate. They don't, it doesn't fit. The RAPs envision some land in order for you to manage it. So that's kind of been an ongoing little bit of a challenge.

[Rep. John O’Brien (Member)]: Maybe it's a discussion for another day, but your intro here makes me think, how do our RAPs work with landlord tenant and like HOAs as opposed to municipalities? Like at some point do RAPs exempt a landlord or an HOA from saying you can't have four horses. And then they come back and say, wait, a tenant or someone who lives in community saying, I'm farming, you can't. So good question. My opinion, I

[Steve Collier (Agency of Agriculture)]: haven't thought a lot about this, but my opinion is that our regulations and the municipal regulations really have nothing to do with private property arrangements. So if a landlord wants to rent their property and they don't want to allow animals, I don't think that our rules have any say over that. Similarly, towns, our rules mean we regulate or and towns cannot, but they don't govern private property. I did look at the bill quickly five thirty seven, I think. It's on your wall and that's about commute shared living arrangements. I don't think this discussion has anything to do with that discussion because again, that's not about state regulation or municipal regulation. That's about private property and who controls what on private property. I'm not saying it's not a valid discussion. I just don't think it bleeds into this one. Does that answer your question?

[Rep. John O’Brien (Member)]: So RIPs, I mean, they were about water originally, But really about sort of that nexus between farmer AAM and municipalities, how that worked.

[Steve Collier (Agency of Agriculture)]: So there are two things. As we looked at last week when I came in since 1987, at least, it's been very clear, we thought in state law that municipalities couldn't restrict accepted agricultural practices. So as that developed, that was excluding farming from zoning. So there was a the AAPs as they were originally called also expanded to create more and more requirements. But there was a protection that the theory which we're still trying to return to today is if you're regulated by the agency, by the state of Vermont for agricultural uses, you can't be separately regulated by towns. So yes, the AAP has evolved into the RAPs and yes, farming has become more and more regulated, much more heavily regulated than it was when this construct was created in the eighties. But a key piece of that, just like with Act two fifty, farming is exempt. I think a key piece has also been that towns have not been empowered to separately regulate farming. So it's kind of two different things have been developing, and then they the words got a little flummoxed, I think, and the Supreme Court didn't understand, which is fine. There is one thing I've heard a little bit about people I'm just gonna say this what's on my mind. I'm sorry to get off topic, but I've heard the the Supreme Court did call the the interpretation that the trial court found to be anomalous and said that this can't this doesn't make sense because that wouldn't make sense. I don't think this committee needs to consider that in any way. It's it's just the court's reasoning. The court was was justifying its reasoning that it has to be limited to required agricultural practices. In my opinion, the court was not telling you what to do in this issue. It was just, it defeating an argument saying, no, you're the other side, you can't be right about this because that doesn't make sense to But that doesn't mean it was actually directly intended. It was an intentional choice that was made. The Supreme Court didn't agree with it, but they're not telling you you can't do it, in my opinion. They were just justifying their reasoning, which courts have to do. They have to explain why they're doing it. So they weren't telling you that you can't decide that four acres and five cows triggers the RIPs. They were just saying in their opinion, this makes no sense. But they don't draft the laws. They interpret the So there's nothing that stops you all from doing what you want in that regard, in my opinion.

[Rep. David Durfee (Chair)]: Just

[Rep. Gregory "Greg" Burtt (Member)]: so I understand correctly, the $2,000 threshold is a gross income, not profit, right? Correct. You can spend $10,000 and only have $2,000 in income and you're still farming.

[Steve Collier (Agency of Agriculture)]: Yes, and gross, I think it's a sales, but it is gross and it's in an average year. So it doesn't even mean you need to do it every year. And there's also a business plan threshold in the RIPs, which we're not asking you to take away, which says that if you can show a business plan where you will get to these thresholds, you can be covered. And that's intended to cover the new farmer. So if someone's starting out, they're not going to have sales immediately. So the idea is that if you are starting, but you can show us that you will reach this threshold, you're also caught. So we talked about growing food, poultry, livestock. So that's where a lot of the friction lies. That's where, you know, the ducks in Essex became. And it really, in my opinion, it really wasn't about ducks there. It was about cannabis there, but ducks were were part of the equation. But we do get complaints about livestock in densely populated areas. We talked about this with the right to farm discussion last year. So and we at the agency recognize that to have livestock, you've got to have an adequate land base to have them. So that's what our principle came to when we're thinking about this is we want every Vermonter to be able to have livestock provided they have an adequate land base to be able to manage the nutrients and the waste. It's that simple. It's like, if you have the land and you can manage this appropriately in compliance with the RAPs, we want you to be able to do that. So, you know, towns obviously have an interest in their downtowns and in their neighbor complaints and in how livestock is managed. So the current threshold under the RIPs is you have to have four acres, which is a pretty good size plot of land, not only four acres, four contiguous acres. So right now, if we're not talking about the $2,000 threshold or the Schedule F, in order to be covered by the RIPs, you need four contiguous acres of land. And that's true whether you have livestock or whether you're growing plants. So if you're under four acres right now, there's no protection under the RAPs right now unless you have sales or you have a Schedule F. So we didn't want to stick with that structure because we think people can properly farm on less than four acres, even if they're not selling anything and they're just raising animals. They might just be doing it as a homesteader, but they don't have they have two acres of land and they don't have any sales. We want them to be covered.

[Rep. Gregory "Greg" Burtt (Member)]: But I I'm sorry. Yeah.

[Rep. David Durfee (Chair)]: Yeah. Go ahead.

[Rep. Gregory "Greg" Burtt (Member)]: On the four plus acres, if two acres are considered part of the homes, that and you only owe 4.1 acres, do you still have four acres? This see it's not.

[Steve Collier (Agency of Agriculture)]: So the standard in the RIP is you need four contiguous acres. So that means a four acre parcel unless you meet one of those other thresholds. But the basic land based standard is four contiguous acres. However, a farm can have multiple plots of land and they don't all need to be four contiguous acres. Question is,

[Rep. Gregory "Greg" Burtt (Member)]: does two acres if that four acres includes a house and a garage, that's the four contiguous acres.

[Steve Collier (Agency of Agriculture)]: I don't think we've ever tried to exclude the square footage of a house and trying to look at a parcel. Yeah. Thank you. Yeah. Yeah. So what we're trying to do is figure out what do what do we do with livestock. We want everybody to be able to have livestock, but we also recognize that there are some places where livestock or a certain number of livestock aren't really reasonable. You can't have 50 pounds and 50 cows in Downtown Raleigh. So, and right now, as I said, there is no minimum land requirement to be covered by the RAPs. So we try to figure out what would be reasonable and what could towns live with because we do recognize I mean, towns, I've heard it described, including from people in the League of Cities and Towns. Some people believe the supreme court decision is the biggest wins for municipalities, the biggest win for municipality and local control in decades because it does give them local control they've never had, and every government likes to be able to control its jurisdiction. So we wanted to work within a framework that everybody could get behind because there's people throughout this building that need to get behind this proposal. And we think it's more important that something that protects farming gets passed than that we fight for every scrap. And so we're trying to find a consensus proposal that people can get behind. But that said, we want everyone to be able to farm in the state of Vermont subject to the exact same conditions as anyone else in the state of Vermont, provided they have enough land to do so. So with livestock, we started by just keeping the four acre threshold that already exists and the number of animals that already exist. Even though the Supreme Court finds that anomalous, it's not anomalous if you say that's what it is. So we started there because it's worked fine. The next question was, what do we want to make people have four acres? And we don't. We don't want to require that people have four acres, but we don't want people putting 100 pigs on a half an acre in the middle of town. Some even though we don't want it, we think that people can understand that that's unreasonable. So we thought about, well, what can we do to manage to sort of balance farming interest and the town's interest? So we said, well, how about we go down to one acre and give the towns less than one acre. If you're going to have livestock on less than one acre, the town can figure out how to regulate that. They may choose not to regulate it or they may choose to regulate it, but it's a small enough parcel that there can be some pretty densely populated areas and we could leave that to town local control. Not saying that's the right answer. It's just what we came up with while we were trying to work with the league in order to get a consensus proposal. So between one and four acres, we didn't want to try to lay out exactly how many animals on exactly how many acres, because that seems like a fool's errand. You can have one pig per acre. We just didn't want to do that. So instead between one and four acres, what we proposed and what the Vermont League of Cities and Towns eventually agreed to was that we, the agency of agriculture would have the authority, the discretion to determine whether or not the farmer had enough land for the animals they were managing to be able to manage reasonably their animals. That means manage the waste and manage the nutrients. So we can go out and look at a property if you've got three acres and you want to have two horses and everything looks great, we could say that apply that the RAPs apply. You are covered by the RAPs and towns can't separately zone you. What we agreed to do, the town wanted a voice in that discussion. So instead of us just, you know, so we we would, in our proposed language, we would have the discretion, but we'd have to talk to the town. I don't have a problem talking to the town. We talk to the towns all the time anyway. It's an extra step, but if they have a real concern they want to raise, that gives them an opportunity to raise that. Ideally, that's great because if the town has a legitimate concern, we can find a way to ameliorate it. So we built in a consultation requirement that if we're going to find on less than four acres that the amount of livestock is appropriate, we'll consult with the town. We still maintain the discretion, but we'll consult with them. So that's kind of where we landed on the livestock is that you can have livestock if you have enough land to properly manage them. And unless there's less than one acre and that's a, know, I don't know that that's exactly right threshold, but it seemed like a reasonable one. And with subdivisions and parcel sizes, it seemed like one acre is probably where you're more likely to have some neighbor impacts than on bigger parcels.

[Rep. John O’Brien (Member)]: How do apiaries fit into this? It's farming. Mean Right. And I could see you could have a whole nest of hives made 2,000 easily on half an acre if that was their base, say. Or I have 100 acre orchard and beefs in Cabot, but Downtown Cabot, I rent two acres and have hives there. Or a school like CBU has hives. Does CBU become a farm?

[Steve Collier (Agency of Agriculture)]: Right. So great point. And that is the sort of final piece of our proposal is right now, as you know, you can file a schedule F or you can get $2,000 in gross sales in an average year and you qualify for the RIPs regardless of your land, whether whether how much land you have. And so that's been a friction point in some situations, in some towns, including the tenth of an acre with the goats in the basement. And so, but we did not want to, we thought about and representative Bartholomew, think raised this last time a little bit was what about just getting rid of the income threshold altogether? And we thought about that, but there are a lot of people who farm very successfully on under four acres without livestock. And so, and those, a lot of those ventures may be dependent on a farm stand or on an accessory on farm business and the protections only, the accessory on farm business protections only extend to farms if they're subject to the RAPs. You can make a lot of money with a successful mushroom farm as an example on a very small parcel of land. So you could easily meet, you know, the $2,000 threshold. Produce can be grown successfully sometimes in very small parcels. And you can have, you might have a, you know, very successful accessory on farm business on your farm. And we didn't want to wipe away the we want everyone who can farm to be able to do it. So the four acres seem the four acres and then the one to four acres like middle ground for livestock, that seemed appropriate, but it didn't seem appropriate for growing food. Now remember, our first proposal is you can grow food without regulation, but that doesn't extend to selling food. So if you're going to be selling food and get the benefits of being regulated under the RIPS, when I said, I should also say it's being benefit from being regulated by the RIPS in that you cannot be separately zoned, but there are also legal requirements you have to follow. So part of the not having everyone covered by the RAPs was we don't necessarily want to apply the RAPs to a garden. And that's a judgment call, but there's some benefit to not being regulated at all instead of being regulated by the agency.

[Rep. David Durfee (Chair)]: Under your proposal, you wouldn't be regulating a garden or a backyard flock of poultry. Right. But you would be regulating more than you're currently regulating, lots of livestock on two acres, for example. That would be an expansion of the wraps, basically. Yes. That's the thought. Yes. Okay. Yeah.

[Rep. Gregory "Greg" Burtt (Member)]: You mentioned nutrient management and waste management. What about things like shelter, adequate shelter? Is it just the waste and nutrient?

[Steve Collier (Agency of Agriculture)]: No, that's a great question. So under as of the law exists now, even after the Supreme Court opinion, the agency of agriculture exclusively regulates farm structures. And that's because in the statutory and the statutory municipal exemption, what the legislature carved out was required agricultural practices as defined by the agency of agriculture, including farm structures. And then farm structures is also defined. So we regulate those now. We don't need to change that. So like what farmers have to do if they want to build a farm structure, they have to give notice to the town so the town's aware of it. And then they have to honor the town setbacks unless they apply to us for a variance. And if they because there's a litany of factors that they can show that a variance makes sense. And if they meet those factors, then we have the authority to grant a variance from the town setbacks. In that process, though, we talk to the town, we give them notice of the variance request, they publicly post it. There's a there's a process to that variance, but we're the ones who regulate the construction and citing of farm structures. It gets trickier when you're talking about multi use structures sometimes, and that that's a worthy conversation, but it's not currently part of this one.

[Rep. Gregory "Greg" Burtt (Member)]: I guess my concern, though, is if you were trying to evaluate whether someone has enough land, suitable land for a cow, that it's not just are they dealing with waste and nutrients, but are they providing adequate shelter? I think If they can't do that, then it's not just the waste and the nutrients, they can't do it because there's no place for shelter. No, a

[Steve Collier (Agency of Agriculture)]: perfectly legitimate point and the way that that is regulated is under the criminal law and it's under Chapter 13, animal cruelty laws. And if people there's shelter requirements in chapter 13, and we do have a role in that process and that's that if law enforcement is assessing whether to prosecute somebody for animal cruelty when it involves livestock, they're supposed to consult with us to evaluate whether or not the farmer is using appropriate husbandry practices or whether it's animal cruelty. So it's never been part of the RAPs, a shelter requirement, but if you're not meeting the law, then you're subject to criminal prosecution. So it's an interesting point that I hadn't really thought of.

[Rep. Richard Nelson (Ranking Member)]: Good enough. Thank you. So the concern from the industry that I partake in is the movement of feeds and waste and stuff when we need to open. Whether it's from seven to five, like a gravel pit, or it's at 10:00 at night. And that's where we need that protections. And, you know, farms some farms don't have the the ability to stay in one town, where one town may be alright to it. Some farms may have to roll through Fairleigh to get back to Bradford or roll through Bradford to get to Fairleigh.

[Steve Collier (Agency of Agriculture)]: And, you know, to have an ordinance place, no truck traffic after, you know, such and such a time would be detrimental to the operation of those farms. If the law isn't changed, then a town that wants to can substantially limit farming. That's just that's the reality. That's why we think this is so important. I just got an email I actually need to respond to about someone complaining about farm having lights in their greenhouse and why isn't this regulated? I mean, are real things that people that some people want to do. And yes, they have their own legitimate reason for that. But the state of Vermont has taken the position previously that agriculture is very important and that it needs to be regulated, but it needs to be consistently and reasonably regulated. And I don't think anything is I hope nothing has changed about that sort of legislative intent and planning. So, yeah, you're absolutely right. I mean, towns and towns regulate businesses in a lot of ways that don't really apply to farming. I mean, it makes sense that a business in downtown can't be open at 3AM making a lot of noise, but farms need to be able to operate when they can operate. Generally speaking, they're not as in such of condensed areas, but there are times when that overlaps. So the question is, how do you manage that?

[Rep. Richard Nelson (Ranking Member)]: Well, you you also have someone that has a two acre highly productive garden, and they have

[Rep. Gregory "Greg" Burtt (Member)]: a little farm stand at their house, you know, that people need to be able

[Rep. Richard Nelson (Ranking Member)]: to convey back and forth. There will be some traffic. Right. There's a big big one going in Newcastle outside of the town of Newcastle, I think. But anyway, it's you know, to to hinder someone's ability to farm, feed themselves, or feed their neighbors and make revenue from agriculture, that's applied towards the 30 by 30, you know, 30% of our food in New England by 2030, which we're not gonna reach. Right. But we gotta have goals.

[Steve Collier (Agency of Agriculture)]: And on that point, we've made some, the lead to you all, made some wonderful strides on that exact point with accessory on farm businesses in recent years, because that farm stand now cannot only sell its own food, it can sell any farmer's food, which is amazing. That didn't used to be the case because it wasn't farming. But now if you if you are farming subject to the REPs on that two acre parcel, you can talk to all your neighboring farmers. You can get all their food if you have a great spot and you can sell it from your farm stand and you're an accessory on farm business that's protected. Interestingly, though, towns do have the right in that case, if you're selling other people's food and you're more than just farming, they can regulate you through site plan review and performance standards. They can't stop you, but they could say you can't operate this at 3AM. So there's, you know, all this is pretty complicated, but we are trying and we're making some headway in making sort of newer farming that is more prevalent in Vermont be able to be successful. But just on I think I'm almost done with what I kind of wanted to outline, which is the last piece is if you don't have livestock and you don't have a minimum land based requirement, what is the threshold? And currently it's it's to your point, representative O'Brien, it's $2,000 So if you're selling honey $2,000 then you don't need any land for that or even you do, but you don't. So like the question was, what do we do with that? And we talked a lot with the with all of the farm groups who've been wonderfully invested in this and really united, which has been terrific to see. And we talked to the league of cities and towns. And right now, there's we've gotten complaints kind of for a long time about the $2,000, but it's been there. It's been fine. And we talked to the league and said, well, what about because they they didn't like where it was at $2,000. And so we've built in these other things about protect growing food, protect poultry, make livestock reasonable. Like what's the one sort of loophole to that right now is the $2,000 And so we proposed $5,000 They countered with $10,000 We went back and said that's really too much. And eventually they agreed that $5,000 was reasonable. There's no magic number here that's right. But we believe that it was important to get the League of Cities and Towns agreeing that they shouldn't be the town should not be regulating farming. And this is one of the conditions that was important to them. So we agreed that $5,000 was not an unreasonable amount. Now that only even is relevant if you are are are talking about less than four contiguous acres and you're not talking about livestock. So what we're talking about is less than four acres, you're farming, like how else can you qualify? And so what we propose is the $5,000 trigger. And I, you know, I've looked and I have not, as far as I can tell, and maybe mister O'Grady may know better, but I I don't think that there was a very threshold before adoption of the RAPs. I don't I haven't found it in a quick look. The RAPs were adopted in 2016, I believe, the first time, and they were it was $2,000 at that point. So there's I don't know what the inflation is since then. It's probably 40 or 50%. So there's just some natural adjustment if if you're talking about consistency that is plausible at least. And again, there's the business plan piece of it. So even if you don't have $5,000 if you have a plan to be able to get to the $5,000 and you're not talking about livestock and you're talking about less than four acres, there still is a pathway there. But I understand why people are sensitive to having any requirement.

[Rep. David Durfee (Chair)]: When you say, and I got another couple of hands

[Rep. Richard Nelson (Ranking Member)]: out and

[Rep. David Durfee (Chair)]: recognize, but when you say we're not talking about livestock, Steve, do mean we're not talking about livestock over a certain threshold of animals or not talking about any livestock?

[Steve Collier (Agency of Agriculture)]: Well, you need for the life in our proposal, you need enough acres to reasonably manage it. So that could be four plus acres. And so then and then then the $5,000 trigger doesn't matter. Or it could be four to one acre and you have enough land. Again, if you're qualifying under that threshold, the $5,000 trigger doesn't matter.

[Rep. David Durfee (Chair)]: So let me say ask it this way. If so currently, if you had 14 goats or ten ten goats, so not not enough goats, But if you had $2,000 in sales, you would you would fall into the wraps regardless of your acreage.

[Steve Collier (Agency of Agriculture)]: Currently, if you had zero land and managed $2,000, you would fall into the RAPs.

[Rep. David Durfee (Chair)]: So is your proposal saying we're going to keep all of that in place except increase the 2,000 to 5,000? Or is there another piece of this?

[Steve Collier (Agency of Agriculture)]: No, it's keeping everything in place except that livestock would be treated differently than growing plants or food.

[Rep. David Durfee (Chair)]: That is a change. It's not just a change from 2,000 to 5,000. It's another change or?

[Steve Collier (Agency of Agriculture)]: Well, I guess it depends how you look at it. The $2,000 has always been sort of the catchall provision. I mean the threshold standard was four acres, you're growing food, four acres and you have a certain number of livestock or you can also meet it if you have the $2,000 That would remain true except for $5,000 except the idea was the sort of shared agreement is if you have less than four acres then and you're talking about livestock and then you need to have enough land to manage the nutrients and the waste and so we would be making that assessment. Do you have enough land to meet those requirements?

[Rep. David Durfee (Chair)]: And that's something that's not currently the case.

[Steve Collier (Agency of Agriculture)]: Correct, but it's an expansion like right now you there's no right if you have four goats and two acres, you're not covered by the RAPs. If you are selling enough milk to have $2,000 in sales, then you're covered. The idea here is we could say, okay, you want four goats on two acres? We can look at that and say, yeah, that's perfect. Great. And then you're covered by the RAPs. Right now, the only way to meet that threshold under four acres is if you have sales. So it's actually an expansion of an ability to have livestock, but it is increasing the if you're only following under the monetary sales threshold, then it wouldn't it would be more than doubling the report.

[Rep. David Durfee (Chair)]: Okay, good. Think I get that. Good. Thank you. Representative Burtt.

[Rep. Gregory "Greg" Burtt (Member)]: Yeah. So I know one of the issues was, like, you know, when saving the amount of noise coming out of a dairy facility or a hen house or something, fan running.

[Rep. David Durfee (Chair)]: And

[Rep. Gregory "Greg" Burtt (Member)]: then with the decision that was made by the Supreme Court, it said basically that really the only thing that the agency backed out through is regulating are things related to the RAP. So the well, oil level coming off the facility is potentially happening in your jurisdiction.

[Steve Collier (Agency of Agriculture)]: Currently it is.

[Rep. Gregory "Greg" Burtt (Member)]: So and but do you have language that would change that?

[Steve Collier (Agency of Agriculture)]: This language that we propose would change that because it would make clear that municipalities cannot use zoning bylaws to regulate farming, period just like it was. So the trickier question, I think somebody asked about this before was a noise ordinance. That's that's a little that's a trickier question. This is all has always been about zoning and we didn't propose changing that, but it's it's I think it's a little unclear about how separate town ordinances may apply under their police power and I think it probably depends on the circumstances and how they're applied.

[Rep. Gregory "Greg" Burtt (Member)]: So I guess my broader question is, is it the language making it clear that all activities related to farming are going to fall under the ANC's jurisdiction?

[Michael O’Grady (Office of Legislative Counsel)]: Yes. Trying to

[Rep. Gregory "Greg" Burtt (Member)]: do.

[Steve Collier (Agency of Agriculture)]: That the intent is to say that if you are covered by the RAPs, the agency of agriculture regulates you and towns cannot through zoning bylaws regulate you. It doesn't mean that a town can enact a speed limit and give a farmer a ticket. And so that's where the ordinances are a little bit trickier. And when you shot it like, so this is only about zoning and farming. It's not about other laws. And so I think towns traditionally have been pretty reluctant to apply separate ordinances like noise ordinances to towns. I mean, sorry, to farms, but I think it's a little murky there.

[Rep. Gregory "Greg" Burtt (Member)]: Which, I mean, if you have an extremely loud fan that could be quieter, then I can totally see. Summer breaks

[Rep. Richard Nelson (Ranking Member)]: on your vacuum pump in the middle of town.

[Rep. David Durfee (Chair)]: You gotta fix it. Yes, ma'am.

[Steve Collier (Agency of Agriculture)]: And the and the agency of agriculture does not have requirements for that in general for nuisance type activities, but we do under our authority to regulate large farms. We do have some ability to regulate nuisance in that space and that could arguably include noise. We try to hold all farmers to a reasonable standard. Manure stinks, so can't tell a farmer, we don't try to tell a farmer, your manure can't smell. But if you are not managing it correctly, then we would say, hey, we should manage this correctly so that it's not worse than it ought to be.

[Rep. Gregory "Greg" Burtt (Member)]: And I guess I have one other question. This gonna potentially impact the amount of workload that the agency has? Yeah. What does that look like going forward? Don't know yet, will cost that we're gonna get there?

[Steve Collier (Agency of Agriculture)]: I get some complaints for what I'm recommending. No, but we, you know, we the thing that's great about the agency is we've the people who work there really care about farming. It's incredible. So they are more than willing to do whatever they can. I mean, they obviously like things to be consistent and to be understandable. But I think what we're proposing would be, you know, there's some between the one and four acres, there's some judgment calls there and there's no necessarily easy answer. But it seemed better to leave it to the location, to the number of animals, to the landscape, whether they can fit with the RAPs than to try to prescribe a certain number of certain acreage that just seemed unwieldy to me personally. I would rather if we're talking about a smaller parcel of land, be able to look at it, be able to look at the nutrient management planning, be able to determine can somebody farm here and keep their waste off their neighbor's property? Can somebody farm here and keep the waste out of the water? You know, those are sort of threshold requirements that the RPs are meant to address. And I think it's easier to do that in that in a parcel by parcel basis. But yeah, it's tricky. But we already do that in some regards when we have, you know, goats in a tenth of

[Rep. David Durfee (Chair)]: an acre in a basement. So it's it's changing that. You actually is there a situation like that?

[Steve Collier (Agency of Agriculture)]: Yeah. We had a case where somebody wanted to milk goats and have $2,000 of income, and they were in a downtown, and they were the goats were basement. They had a ten eighth or 10 a tenth of an acre lawn with a swing set and a shed, and there was no space. Nothing against those folks wanting to do that. The question was how do you administer the REPs there? And there really wasn't a way that we could administer the REPs there. But under the law, there's also nothing in the REPs that said that's not you can't do that.

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

[John L. Bartholomew (Vice Chair)]: This might be a better question for our legislative council who are conveniently in the room.

[Rep. David Durfee (Chair)]: Yes, if you want to hold it.

[John L. Bartholomew (Vice Chair)]: But I don't, maybe you can answer this. The proposed changes, are these changes in the statute which will require the agency to go into rulemaking to change the required agricultural practices or would it be legislatively changing the required agricultural practices?

[Steve Collier (Agency of Agriculture)]: Great question. I'll hand out the language now. The the proposal is for you to change the RAPs because if you don't do it all in one fell swoop, then you got to go through your rulemaking and you've got the whole process. And it just seemed like if we can come to an if if you all can decide what's reasonable, it's better to change the stat statute and the rules simultaneously so we just have it. Yep. You're welcome.

[Rep. David Durfee (Chair)]: Cath, you had a question too.

[Rep. John O’Brien (Member)]: Yeah. Steve, so this came up yesterday. As the task street decision even though it wasn't its intention, farming exemptions to become synonymous essentially with accessory on farm business, because you can't ban those, but they have to follow municipal ordinances. It was farming essentially at that point now.

[Steve Collier (Agency of Agriculture)]: No, no, we're not trying to do that. We're trying to make I'm

[Rep. John O’Brien (Member)]: just saying, how's the decision, like right now in Vermont? Oh, it's worse.

[Steve Collier (Agency of Agriculture)]: No, it's worse. The current state in Vermont, in my opinion, is that a town can tell you you can't farm in certain areas. Now, you're already there, know, that might be trickier, but they can I mean, the whole point of zoning is to sort of designate areas that of what you want for development, but there's a plan and then there's bylaws that enforce that plan? And the law has been a town can't say you can't farm here. Now the law does not say that. So now if a town wanted to say, you know what, this half a town you can't farm, I think they can do it. Now, again, if there's existing farms there, there may be some rights they can't curtail. But that is my biggest concern about this is we don't farming is so valuable and farm and people being able to farm wherever it's possible is so valuable that we don't want to curtail anybody's ability to farm where they can. And oftentimes farming can be most successful in more densely populated areas because there's people there to buy your products. I mean, talked to a woman from Philadelphia a couple of years ago who started, she's a farmer, she started in her backyard in a row home. I used to live in Philadelphia. So I don't if you've ever seen a row home in a city, Tiny. Backyard was probably I don't know. She told me, I would guess it was 30 by 30. She started growing herbs in her backyard. And over after several years, she had a co op store that she owned herself in the city and of she had bought a lot of land outside of Philadelphia and a huge farm operation. It was inspiring, and she was young. And when our average age of our farmer in Vermont is about 58 now and new people aren't starting because it's too hard, frankly. People don't want to work seven days a week, a lot of people. So if you can get somebody like enable them to start that because people who like farming are passionate about so they will do the work, but they need a pass. So we don't want to say, you know, you can farm on this land, you can't farm on that land. We want to say, if you have enough land, you can farm there, please do. But, you know, we do recognize that you can't farm every you can't perform every type of agriculture in every plot of land.

[Rep. David Durfee (Chair)]: Who's

[Rep. Jed Lipsky (Clerk)]: that? Yeah. This was from discussion. Was were the goats in the basement, was it a walkout or a bulkhead or It's a walkout. Out to the kitchen door? It was a walkout, I think. It was a walkout.

[Steve Collier (Agency of Agriculture)]: I didn't go personally, but my memory is it was a walkout.

[Rep. Jed Lipsky (Clerk)]: It's relevant because I had a constituent who had a 10 or 15 chickens in the basement, and took him a year and a half to this is in village of Stoked. So

[Steve Collier (Agency of Agriculture)]: Different one.

[Rep. Jed Lipsky (Clerk)]: Think the are not I think we've got very

[Rep. Richard Nelson (Ranking Member)]: Yeah. Thank you. Well, hey. It's no secret. Where's our development? Where are our downtowns? They're on our best soils because they worked. You're not gonna put a development down on the clay in Addison County. It doesn't work. Your best development, just outside Stowe, where are your best agricultural soils? Richardson Farm. Absolutely. And and in Derby, in Derby Line, Iversburg, these communities are built on our best soils. And there's a, you know, standing order to grow our communities. So the communities are gonna infiltrate our ag lands. So short of making all prime ag land off limits to everything besides growing food, which sometimes I think I could go for. We need to have the ability to grow food on these proper soils. So thank you for what you're doing.

[Steve Collier (Agency of Agriculture)]: Absolutely. It's and I I wanna I I think I said this before, but it it really has been. It's been very fulfilling for us that both the league was so amenable to talking with us and that all of the farm organizations that we always try to work closely with were so invested in this too. It's I think farming doesn't have an active enough voice in the state house, and it's great to see people coming together and building consensus because we're a dwindling industry in many ways, and that doesn't bode well.

[Rep. David Durfee (Chair)]: All right, so just another question, then why don't we have you say whatever you want to say about the language?

[Steve Collier (Agency of Agriculture)]: So in terms of the language, basically just says what I pointed out for principles. Don't feel like I need to, I'm happy to walk through, but I know you have lots of council here. If you have any questions, I'd be happy, but I'm happy to come back anytime as well.

[Rep. David Durfee (Chair)]: Brian, you want

[Rep. John O’Brien (Member)]: Just thinking from from the opposite point, can a town zone some of its town as only agricultural?

[Steve Collier (Agency of Agriculture)]: Theoretically, but then you wouldn't have very many residents.

[Rep. John O’Brien (Member)]: I mean, Derby wanted to stay like Derby is right now, and they say, what's being farmed is going to stay farmed. So

[Steve Collier (Agency of Agriculture)]: they can absolutely create different requirements in different zones. I'm not a zoning expert, but I think they tend to have agricultural zones, have bigger parcels. Know, they have parcel limitations so that you can't break them down into parcels that aren't sufficient for farming. And then they have industrial areas, residential areas, but some of them also cross those lines. So I don't I don't I think it'd be very hard to say you can only have ag, but you can definitely create an agricultural zone that precludes other types of development that would ruin the agricultural zone. They probably call them ag and forestry normally, but there are other people that sort of

[Rep. Gregory "Greg" Burtt (Member)]: rule residential. Yeah.

[Michael O’Grady (Office of Legislative Counsel)]: Yeah.

[Rep. Gregory "Greg" Burtt (Member)]: So

[Rep. David Durfee (Chair)]: You're all set then?

[Steve Collier (Agency of Agriculture)]: I mean, I'm happy to walk through the language, but I know I've been it's whatever you Yeah. No.

[Rep. David Durfee (Chair)]: We can have can have Legg Council do that if they're comfortable doing that. And just before we switch, have you switched seats, are you are you staying, Steve?

[Steve Collier (Agency of Agriculture)]: Yes. And if if you want, I'll just give a very quick run through just so you know what we're thinking. So I'm not putting that on mister Sheldon who may not

[Rep. Gregory "Greg" Burtt (Member)]: be. Yeah.

[Rep. David Durfee (Chair)]: It is your I wanna yeah. We should be out there to the committee and to everyone else. This is not legislative language that we have, I mean, it's not language that anybody in the legislature has proposed. So it's the agency's language.

[Steve Collier (Agency of Agriculture)]: So I'll start right on D1. So the first part of this is the statutory language. And you'll see that currently, a bylaw under this chapter shall not regulate. And this first paragraph is what paragraph A is what we're talking about and precluding the regulation of growing food. And it's the same definition that's currently in one of the prongs of the farming definition. But if you look at the first line, A, the cultivation or other use of land for growing plants, that plants we added in there, it's not in the Act two fifty farming definition, it's not in the RIPs, but just to be clear that we're talking about plants, not amps in this case, so that we're not arguing about whether growing a chicken is growing food just for the purposes of implementing this. The next part, and again, this first one would not mean that the agency of agriculture is regulate you growing food. It just means that towns can't regulate you growing food, just growing plants, you can't regulate it. Next one is the small backyard poultry flock that I talked about. The raising, feeding and management of the small backyard poultry flock, excluding roosters. We talked about a number of animals. I'm sure that's going to come up. Nobody knew what that number should be, and there were different opinions about it. Sometimes you don't want to get over technical, but the point was you can have some poultry without being regulated out of that ability, without towns regulating that. But again, this does not mean you're regulated by the agency of agriculture. It just means towns can't regulate it.

[Rep. David Durfee (Chair)]: Just because the conversation started with ducks, Because of ducks. Ducks or poultry?

[Steve Collier (Agency of Agriculture)]: Yep. They'd be covered.

[Rep. David Durfee (Chair)]: They'd be covered. Okay.

[Steve Collier (Agency of Agriculture)]: Under this proposal, as long as it was

[Rep. David Durfee (Chair)]: a small Some undefined number.

[Steve Collier (Agency of Agriculture)]: Right. Right. Right. It wouldn't be covered by the agency, but it would be towns couldn't say you can't you can't have these ducks or regulate the ducks. So that but the league was okay with that. I mean, when we talked with the league, was plants, small number of poultry, you know, livestock tend to be the area of more contention. So the next part of the statutes section C is is just clarifying the existing language to make it clear that it's not required agricultural practices or accepted agricultural practices that are exempt from zoning. It's farming, which was always, I think the intent, but just making that very clear that farming, but that meets the minimum threshold criteria and required agricultural practices. So that's why it's important to change the RIPs if we're going to, if you're going to at the same time. So and then the paragraph is just broken into two because it was kind of a run on sentence and because we're changing it, it felt like it was easier to break it out. So in addition, as already exists, farm structures would be exempt. That's not a change. That's just breaking it into a separate paragraph. So then if you go to the next page at the top, because we're now talking about exempting farming instead of required agricultural practices, farming is defined, and it's just the standard Act two fifty definition. We also put in as defined in the required agricultural practices rule just because the rule defines farming very slightly differently. I think it's the word civil cultural as in RAPs and not in Farm Act two fifty, but if there's a word or two that are different, they're not interpreted differently, but instead of creating an area where suddenly silviculture is not covered, we just put them both in. The next change is because we're talking about a small backyard poultry flock, we define poultry and that's important because under their RAPs livestock is defined as including poultry, but instead of sort of tampering with that and we could instead, We just said, okay. We're gonna say poultry. We're gonna define poultry in the statute for application. The subsection that's being cited just says any domesticated bird. So poultry is

[Rep. Gregory "Greg" Burtt (Member)]: a domesticated bird. Representative Lipsky, on under the farm structures, if you had a shed that you stored a baler or tractor in, is that a farm structure?

[Steve Collier (Agency of Agriculture)]: You're really gonna make me go there? It's no, I know. We so there was a long time.

[Rep. Gregory "Greg" Burtt (Member)]: Repair shop

[Rep. Richard Nelson (Ranking Member)]: for that.

[Steve Collier (Agency of Agriculture)]: Multi use structures are challenging. We for a long time, the agency said that a farm structure needed to be exclusively used for a farm structure to be covered. We no longer do that because that's not what the law says, it says used as a farm structure. So I haven't had conversations with our folks who make this decision in little while, but I think we basically try to apply a primary, primarily used, it's a pretty defensible, you know, it has to be mostly a farming structure, but there's no building that's only used for one thing in reality or almost there are some. But so it's a good question. Multi use structures are important especially so arguably though, and this is an argument, as the law exists now, if it's not exclusively used for farming, then a town could arguably say that's not a farm structure because it's not exclusively used for farming and we're going to regulate it too. We haven't had towns have been good with us on that issue for the most part, so we haven't had a lot of issues and generally if it's being built for a tractor, then that's a farm structure. If it's being built for your car and you occasionally park your tractor in it, that's a much more questionable issue.

[Rep. David Durfee (Chair)]: Thank you. Representative Boston.

[Rep. Michelle Bos-Lun (Member)]: I have a question about domestic fowl in terms of the definitions. I don't know if you list those or not, but are guinea hens included in that?

[Steve Collier (Agency of Agriculture)]: So the definition is cited is in our animal health statutes. It just says any domesticated bird. So if you were raising it, I think it would be domesticated. But I'd want to talk to our state vet to be sure because it's little It's certainly not a wild bird.

[Rep. Michelle Bos-Lun (Member)]: I mean, I just wonder because if you're exempt, if you're saying that roosters aren't covered in the automatically, it's fine category. I don't know how many people have had gay hands in their backyard, but like, if you get an awful lot of noise and if my neighbor had one less than enthusiastic about that. So I don't know. I'm not maybe it's petty, but I used to live on a farm that had them. And if they were outside your window, you were waking up early.

[Rep. Richard Nelson (Ranking Member)]: Is that right? We had it we heard about it last year, the the Cabot paddles. Okay. I put guinea fowl down right next to the neighbors. That was supposed to be good. But I have

[Rep. Gregory "Greg" Burtt (Member)]: a two sticks when they had roosters and guinea fowl on in the village, and the setback from the two residences closer than this room based upon. And it caused huge controversy. And there's a nationally movie about it acquired near that scene and very, very damaging to the paper.

[Steve Collier (Agency of Agriculture)]: Well, it's not something I thought about, so it's a good it's a good question, and it may be worth considering.

[Rep. Gregory "Greg" Burtt (Member)]: Yeah. Yeah.

[Rep. David Durfee (Chair)]: We can

[Rep. Michelle Bos-Lun (Member)]: have a committee discussion.

[Steve Collier (Agency of Agriculture)]: So the next section are the proposed amendments to the RAPs themselves. And you look at the beginning of section 3.1, the underlying part that's new makes it very clear that not only are these the described agricultural practices, but that if you're following these you are not subject to municipal zoning bylaws. This is just trying to close the loop to say this is a uniform system and we say what we mean. The next section is in subsection B, you see the change from $2,000 to $5,000 that we discussed. Then the next subsection is C, so we propose expanding that not only if you're growing food for sale, which is the current standard, but if you're growing food on four contiguous acres for donation, because we have some philanthropists who want to give away food and we don't want to stop that. That seems like

[Rep. Gregory "Greg" Burtt (Member)]: a pretty good thing to do.

[Rep. John O’Brien (Member)]: Over Brian? Steve, with the expansion we talked about for this, are you going to have somebody essentially meeting the minimums on the one to four acres? Is the agency really gonna require a nutrient management plan of those people? You're saying you have to follow the RRPs then?

[Steve Collier (Agency of Agriculture)]: Yeah, I don't know what the NMP requirements would be. It's in the RRPs for that small of a farm, but what we would assess do they have the land base to properly manage the nutrients in the waste. So there I don't think there would

[Rep. David Durfee (Chair)]: be a nutrient management plan required,

[Steve Collier (Agency of Agriculture)]: but you still have to stop. You can't have discharges. So you've got to have a land base to if you're storing your manure, because you're on a quarter acre, that wouldn't apply to say you're on one one plus acre, and you've got a huge, you know, manure pit right next to your neighbor's property. Well, that's not going to work. So you have to figure out can you meet the setbacks? Can you manage it in accordance with the RIPs? So that would be the kind of assessment on the ground for the one to four acre parcels. Was there? So the next so the so then so the you see the animal numbers don't stay the same. That's all for four acres. Subsection e is where we change to incorporate that one to four acre threshold, which would give us the discretion to determine, and there's the language after consultation with the appropriate municipal authority, if the land base is adequate to properly manage the number and type of livestock while evaluating whether compliance with the required agricultural practices is reasonable or infractical. So that's the one to four acre threshold. The next one is really has nothing to do with zoning. The next section right now we can choose on an individual farm to apply the RAPs if think there's an adverse water quality effect. This is not stopping a town. This next subsection is not to stop a town from zoning, it's to enable us to step in if a town does not have zoning and there's a significant adverse water quality effect. So this is to address a situation where you're either on under one acre and you have livestock or you're on between one and four acres and you have livestock and you're not subject to the RAPs, but you're also not subject to any town zoning and we think there's a problem. So this would give us the discretion to say, you know what, you're not subject to any of these things, but you need to be subject to the RAPs because you're polluting the water. So that's a lot. It's just a water quality protection practice that's already there, but it's tweaked because of the change for the one to four acres. And then again, in 3.2, you see again, we just repeat that if these are the agricultural practices that you are performing and you meet the minimum threshold criteria that we talk about, then you're governed by this rule which had already said and also you are not subject to municipal zoning bylaws. That's to just try to erase any confusion if this should happen to go to a court again and that's it.

[Rep. Gregory "Greg" Burtt (Member)]: Go ahead, Gregory. There's a schedule ten forty f that's crossed out. Is that

[Steve Collier (Agency of Agriculture)]: Yeah. Sorry. That I did chat about that before, but I didn't see that yet. That is the other so in in addition to the $2,000 requirement, this would be changing schedule f requirement, which right now you can file a schedule f with this won't change schedule F, it's just that if you have any farm income you can file a schedule F with when you're filing your taxes and that was just one of the requirement, one of the ways that could trigger the RAPs, but I understand that if you have $50 in farm sales and you want to deduct your costs from that and when you file your taxes, you can do that. This wouldn't change that. It's just saying that filing a schedule F does not qualify you on its own. You would have to have four acres or you'd have to be livestock on one to four acres to qualify or you would have to have $5,000 and this was because the league was uncomfortable with our $2,000 requirement, so schedule f is actually even lower than the $2,000 requirement. So it's just not saying it's the right answer, but it's what It has It has changed. Yes. Absolutely. Correct. Sorry. Thank you for pointing that out.

[Rep. Richard Nelson (Ranking Member)]: Yep. Page four.

[Unidentified (likely Agency staff or Legislative Counsel)]: Yeah. Page. Top. It's f. It's top. It's a fur yep.

[Rep. Gregory "Greg" Burtt (Member)]: Sorry about that. Thank you. As far as

[Rep. David Durfee (Chair)]: rule goes, and some of us are not experts on business and how this all works. Does does the agency and maybe this is your I'll ask you, but I'll ask our legislature counsel too. Does the agency need legislative approval to make the changes that you've outlined here to the rule? So starting at the top of, or starting on page two and halfway downwards, R and D rules. Could the agency just go start a rulemaking process right now without being told to or getting permission from the legislature?

[Steve Collier (Agency of Agriculture)]: We could, but we wouldn't be precluding municipal zoning by doing that. That's a general question. We could as long as we're within the scope of our rulemaking authority, as long as we're not exceeding what we're empowered to do. So yes, we could change these. We'd have to go, you know, to ICAR and have the other agencies weigh in. Then we'd have to have the public input. We'd have to assess what everybody thinks about what should be the standard. So yes, we could, but it would all sort of be for not unless we knew that it was also the reason to do this is to restore the municipal zoning exemption, not not because we think these thresholds as they are aren't work aren't workable, but but in order to get the law changed, we'd like to have a consensus of people who are willing to do that. Okay.

[Rep. David Durfee (Chair)]: Right, not seeing any other hands, this has been very helpful. Thank you for not just walking through, but I think the explanation is very, very thorough. Thank you. Thank you all. Yeah. So Bradley, do you want to join us? And Mike, if you want to, we have two chairs available up here.

[Michael O’Grady (Office of Legislative Counsel)]: I can go alone, but I don't

[Bradley Shuman (Office of Legislative Counsel)]: want to preclude the committee to get your expertise.

[Rep. Gregory "Greg" Burtt (Member)]: But I'm happy to sit up here.

[Bradley Shuman (Office of Legislative Counsel)]: Good afternoon.

[Rep. Gregory "Greg" Burtt (Member)]: Good morning, Joe. Good morning.

[Bradley Shuman (Office of Legislative Counsel)]: Good morning. Good grief. Good morning. Bradley Shumman, officer of legislative council. And I think that I may have first of all, I'm happy to answer any questions that the committee has about the municipal zoning regulations. Is that the the scope of what you'd like me to speak about? I do there are other sections in the bill that we didn't hear from from Steve on, but I'm happy to take directions from the committee in terms of what you'd like me to speak about.

[Rep. John O’Brien (Member)]: So I

[Rep. David Durfee (Chair)]: think we're only interested in talking about what is on these five pages.

[Bradley Shuman (Office of Legislative Counsel)]: Okay.

[Rep. David Durfee (Chair)]: That's your question.

[Bradley Shuman (Office of Legislative Counsel)]: Okay. Yes. Yes. And And I think I have a different five pages than the committee.

[Rep. David Durfee (Chair)]: They're extra copies, I think.

[Bradley Shuman (Office of Legislative Counsel)]: If I may. Thank you so much. I just wanted to see what Steve shared here. Okay. No. That that's fine. My apologies. I think I just had a different document, and that was my going to be my question earlier. But I think Steve did do a thorough, examination. Thank you. Did do a thorough examination of the municipal bylaws and regulations piece. I think the only thing that I wanted to, in addition to Steve's commentary, point out is that this is this does, in many ways, as the committee heard, broaden the scope of what the agency could regulate as farming versus what a municipality could regulate as farming than we were used to prior to Taft. And so the agency made a number of changes to the rules, both in terms of the statute, but also in terms of the rule itself, that would, exempt certain agriculture act activity from municipal regulation to allow individuals to have backyard chickens, when in the situation prior to Taft Taft Street, a municipality may have been able to say no chickens at all. And so this statute would, preclude a municipality from saying that you can't have any backyard chickens and and things of that sort. And to speak to the question about rulemaking earlier, I I agree with mister Collier's assessment that the agency could go through rulemaking, and I also agree with the assessment that it would not address the the municipal issue. That is the municipal issue that was raised in Taft does require a statutory fix similar to what is here. I'm happy to answer questions from the committee. But I think my biggest takeaway from my assessment was that this does, take us back to Taft, but also broadens the broadens the scope of what is agriculture and narrows the scope of what a municipal government could regulate prior to TAFT.

[Rep. John O’Brien (Member)]: Bradley, what other tools in a municipal toolbox could be used besides bylaws? Like I'm thinking, say they really don't like farming. Can they use health, for example? Like, we don't want any backyard blocks because of the threat of avian flu in this town. Can neighbors use takings, for example, like that's emotionally there? So that's

[Bradley Shuman (Office of Legislative Counsel)]: a good question. And I think that there are two You raised two separate issues in question. So one is what a municipal government might be able to do, and two is what a neighbor might be able to do. And in terms of a municipal government's regulation, it may be within their their authorities, their legal authority to do ordinances zoning. If I'm not as familiar with health department reviews, but to the extent that they have local control and local authorization to enforce health and safety rules and guidelines, municipalities could potentially engage in those activities to regulate agricultural activity in where we are right now. The other piece, and it is important to kind of make sure that we're distinguishing what a municipal government can do and what a neighbor could do. And so a neighbor might have tools in their toolbox to sue, to stop a farming activity in their neighborhood by pursuing a nuisance lawsuit or some other kind of perhaps personal injury lawsuit or some other act, some other legal action that any two individuals might have, against each other. You know? So if we're just thinking neighbor on neighbor outside of the farming context, neighbors might be upset at each other from a vicious dog. They might be upset at each other for noise. They might be upset at each other, for other kinds of harassment, you know, calling each other names or or things of that sort. And and they might be able to engage in the civil process in that way. That is is still permitted with the exceptions of, with respect to farming and agriculture, there is the right to farm. And so, farming and agriculture gets a presumption of, that their activities are not a nuisance so long as they're provide they're following required agricultural practices and are properly registered with the agency.

[Rep. John O’Brien (Member)]: But the task three started as a neighbor versus neighbor thing. Right? And then ends up changing

[Bradley Shuman (Office of Legislative Counsel)]: The procedural history of Task Street is complex, but there were certainly neighbor complaints, and the city did step in to enforce its own ordinances. So it is kind of a mix. You're correct. It is kind of a mix of the two. So it does conflate the two. Ultimately, what got to the supreme court, what was decided in the supreme court is based on municipal authority. And the and the neighbors seeking to help enforce those municipal ordinances. But the scope of that decision was municipal authority. But you are correct to know that there is that other tool in the toolbox that a neighbor might have through civil litigation.

[Rep. David Durfee (Chair)]: A lot of the examples that heard or used involve noise, so with either animals or equipment. And I've also heard possibly that noise might be an ordinance rather than a bylaw, And that fact, maybe there's nothing that's happened here that makes any change to the noise. So I could use some clarification on that. And I guess maybe starting with is does noise always fall under ordinances rather than bylaws? And so does that matter?

[Bradley Shuman (Office of Legislative Counsel)]: That I'm actually I'm not familiar enough with with local governance to answer that question right now. I am happy to call on Mike, who is sitting here, to help assist with that question. I'm also happy to research that question and get back to the

[Rep. David Durfee (Chair)]: If if Mike is here and wants to answer it, that seems like a good approach.

[Michael O’Grady (Office of Legislative Counsel)]: Curtis, Michael Gray with Dutch Council. The noise authority from municipal regulation is under, under twenty two ninety one, but there is a section under zoning bylaws 44 to forty four twelve or forty four thirteen that allows municipalities under zoning bylaws to regulate certain uses for noise. So there there is a little overlapping authority in zoning bylaws for noise. Does that answer your question?

[Rep. David Durfee (Chair)]: So it it it does. I mean, noise examples are are useful. Good examples here. It does does matter.

[Michael O’Grady (Office of Legislative Counsel)]: Yeah. I I think it's forty four twelve. Let me that's the section that says you can't regulate away something, like a state building or a church or something that, for some reason, municipalities might not want in their town. But you can regulate it for the traditional things you write so it's used for it. In that section, they say noise.

[Rep. John O’Brien (Member)]: Just a follow-up on this. So as it stands now, say at the Nelson Farm, Derby could have an ordinance with noise so that a milk truck couldn't pick up milk at 3AM, but the log truck comes to pick up wood, they're exempt, So that's a forestry operation?

[Bradley Shuman (Office of Legislative Counsel)]: Forestry operations would be exempt, and that exemption is still in place. And so municipal bylaws could potentially not or could not regulate that activity because those exemptions are still in place and have not been touched by the Taft Street. So it it is a possibility that that that situation could could exactly play out. Is that for one purpose, it could be regulated. For another purpose, it could not be regulated.

[Michael O’Grady (Office of Legislative Counsel)]: Can I just on the forestry issue, this definition includes silvicultural practices or silvicultural that that creates confusion to me because the forestry operations and the accepting practices regulated by the Commissioner of Forests and Parks for Silvicultural Practices? Now you have the Agency of Ag regulating silvicultural practices. I don't know what that means.

[Rep. David Durfee (Chair)]: So that's a change because the existing statute

[Michael O’Grady (Office of Legislative Counsel)]: It says the cultivation and other use of land for growing plants, including for food, fiber, Christmas trees, things, horticultural, silvicultural, and orchard crops. What's a silvicultural crop?

[Unidentified (likely Agency staff or Legislative Counsel)]: So I can, if you want, I can temper.

[Michael O’Grady (Office of Legislative Counsel)]: Great, but that's under forestry operations and accepted that in forestry. For us.

[Rep. David Durfee (Chair)]: So the question is in the proposed language here. This is at the very beginning of the language that we have in front of us, part a. And yes, Steve, do you wanna give us a Yeah, sure. Bit

[Steve Collier (Agency of Agriculture)]: So Steve Collard, Agencies of Agriculture, it's already in

[Unidentified (likely Agency staff or Legislative Counsel)]: the farming definition under the RIDs, silvicultural, it's in

[Steve Collier (Agency of Agriculture)]: there and what we interpret it

[Unidentified (likely Agency staff or Legislative Counsel)]: to mean and we work with Forest Park and More Icon this is if a farmer is growing a tree as a crop, so it might be Willow for energy production or it might be in Christmas trees I know are separately answered, but there are certain types of trees that are actually grown as a crop and not just passively managed for pulp or firewood. We don't regulate pulp and firewood, but if someone is growing a type of tree, and that's in the farming definition, it says growing fiber, so it's already fiber includes trees, so it's it can get a little bit tricky sometimes, but it is currently in the RIT.

[Rep. John O’Brien (Member)]: It doesn't say silvicultural,

[Michael O’Grady (Office of Legislative Counsel)]: says horticultural, viticultural, virgin crops.

[Unidentified (likely Agency staff or Legislative Counsel)]: But it's in the farming definition, it's one of them or it's I don't

[Rep. Gregory "Greg" Burtt (Member)]: Where does that stop?

[Rep. David Durfee (Chair)]: While you were looking that up, we're taking an internal question here.

[Rep. Gregory "Greg" Burtt (Member)]: Just wondering where maple production falls in terms of whether it falls under silviculture or not.

[Michael O’Grady (Office of Legislative Counsel)]: So maple sap is specifically called out and I would recommend that it continue to be specifically called out because there's been disagreement between the agency and the Department of Forest and Parks Lab who actually regulates that, and I

[Rep. Gregory "Greg" Burtt (Member)]: think it's good to have it there. Agree. Good.

[Unidentified (likely Agency staff or Legislative Counsel)]: If you're happy, I'm happy. So

[Rep. David Durfee (Chair)]: let's just refocus here and I guess direct our questions to the witness at the table if we have questions or a comment. So, counselor,

[Rep. Richard Nelson (Ranking Member)]: noise ordinances or zoning of noise, but if we the right to farm bill for these changes and the right to farm bill, If it's part of a accepted agricultural practice Mhmm. Where we have protections for that.

[Michael O’Grady (Office of Legislative Counsel)]: I or

[Rep. Richard Nelson (Ranking Member)]: did TAP remove those protections without fixing it or with fixing it or we still protected under the Right to Farm Bill?

[Bradley Shuman (Office of Legislative Counsel)]: That's good question. The Task Street decision did not affect the Right to Farm Bill or did not touch on the Right to Farm Bill. And so the Right to Farm Bill offers a number of nuisance protections and assumption that farming activity is not a nuisance. So broadening the definition of what we define as agriculture activity and farms that are registered with the agency. Broadening what we will put into that net will also give them the protections and the right to farm bill. Okay.

[Rep. Gregory "Greg" Burtt (Member)]: Yeah. Clarification on our representative policy is a concern point concern of all. I'll give you an example. When a municipal municipality holds roads because it's mud season, A milk truck is exempt from Any rice truck. A grain truck. A crop harvested at a given time, whether it's three in the morning, was a perishable necessary ingredient to have a productive farm. So I think it's important that we protect. There's a major tea storm front coming in. They can't be in the field if they get into a I didn't move that out during the night. That's appropriate. Needs to be exempt. Just to let you know, Rep Lipsky, think that's a nuisance too, but we have to. It's a necessary Repinative verdict. I'm wondering if that when it talks about harvesting crops being under on our APs, I believe.

[Rep. Richard Nelson (Ranking Member)]: Part of the

[Rep. Gregory "Greg" Burtt (Member)]: preparation, chilling, preservation planning, radiation, harvesting across, would that include, you know, trucking notes on the road? Does that include the entire process involving me, I guess, getting the plant off the field and into its storage place? Or out of the tree?

[Rep. Richard Nelson (Ranking Member)]: It harvests the Sugar house. Same thing.

[Bradley Shuman (Office of Legislative Counsel)]: So I am unfortunately not familiar with the scope of the definition of harvesting in the required agricultural practices. I would be happy to defer that question to Mr. Collier here if the committee would like.

[Rep. David Durfee (Chair)]: That's fine. Yeah. I didn't hear me, sir.

[Bradley Shuman (Office of Legislative Counsel)]: So the question oh, I you representative Burke, for you to repeat your you may repeat your question.

[Rep. Gregory "Greg" Burtt (Member)]: Yeah. Just wondering what the definition of harvesting is in 3.2 d harvesting of crops, it's that encapsulates the transportation of those crops to where they're being stored.

[Unidentified (likely Agency staff or Legislative Counsel)]: I don't think it's defined harvesting, but we've always read the accepted agricultural practices a report required agricultural practices as being inclusive of all of the affiliated activities, and I think that's true under Act two fifty as well. There's very broad categories and in our estimation anything that you're doing that's connected with that is part of it. Someone could challenge that, in my experience I don't think that they have, but you need to be able to take every step necessary to harvest for it to be part of it. So yes, I think it's the transportation that's definitely within that.

[Steve Collier (Agency of Agriculture)]: In chapter two fifteen, though a few years ago,

[Unidentified (likely Agency staff or Legislative Counsel)]: we also defined what and tied it up to the right to farm protection. Very, Mr. Brady proposed a lengthy list of definitions which is quite extensive about what types of activities are encompassed. Can't remember what's agricultural activities I think it's defined as, but I believe that certainly the intent is to capture it broadly, people can always challenge the language, and if it's weaker than it should be,

[Rep. Gregory "Greg" Burtt (Member)]: you can think about that. Yeah, I guess, given the moment that we're in, it just seems like the more clarity we can bring that would make sure that essential components are not going to be affected by bylaws.

[Unidentified (likely Agency staff or Legislative Counsel)]: Agreed, it's important to understand that if it's happening on a farm it's covered by the RIP. If it's anything related to farming, towns shouldn't be selling it. I don't know. At least the league, I think, is under that same shared opinion. But but yes, you're right. People can challenge the laws as a right. So

[Bradley Shuman (Office of Legislative Counsel)]: If I may, and just to your point, Representative Burtt, and in terms of trying to suss out what is subject to municipal regulation, what is not subject to municipal regulation, you're correct that as much detail and definition as we can get to remove that ambiguity is certainly a good thing. I think what this the agency's proposal here does try to amend statutory language to say that anything subject to the required agricultural practices would be essentially exempt from municipal regulation. And to know if something is subject to required agricultural practices, we're looking more so at section 3.1 and whether you meet those threshold requirements. So $5,000 in receipts, number of acreage, number of animals that you're having, looking at those threshold requirements. And it does take a touch of the ambiguity out of there, so we don't necessarily have to suss out, is this harvesting? Is this not harvesting? You're looking at those threshold requirements in 3.1 to determine if something is subject to farming. There are some other exemptions here as well, but that's the biggest key to help us out what is in one bucket versus the other.

[Rep. John O’Brien (Member)]: Well, I guess connected. I just wondered if post past street decision landscape that municipal bylaw authority is on this litigious collision course with right to farm and that a farmer potentially could push back on a municipal bylaws, a noise or ordinance, and say, this is a nuisance lawsuit because I've been farming this way for so long, and this threatens the practices we've been doing for the last one hundred years. Could a farmer have that suit against municipality and say, this is thanks to my right to farm. It's interesting.

[Bradley Shuman (Office of Legislative Counsel)]: Allow me to try and grapple with the question here. So essentially, if you're envisioning a scenario where a farmer is being told by a municipality not to farm based on their ordinances or based on

[Rep. John O’Brien (Member)]: So they pass a noise ordinance.

[Bradley Shuman (Office of Legislative Counsel)]: Pass a noise ordinance. Okay. And so municipality is telling a farmer, you can't make noise at 3AM or something of the sort. And a farmer is saying, you're interfering with my right to farm. So there's two potential solutions for that farmer. So the the status quo as we have it right now is that a municipality could potentially pass such an ordinance and a farmer might get cited and could go through an appeals process to to say that this ordinance, as applied, you know, violates, you know, their right to farm. This ordinance as applied violates, you know, their constitutional right to use their property or or any kind of defense that anyone might use to say that an ordinance has applied to them is wrong. And so those same civil options are still available to people. It is litigious, and it would require some legal actions. The farmer could also seek an exemption from the ordinance, a variance, and the farmer could also, ask to be grandfathered in, and say, I've been doing this for so long, and now all of a sudden, I'm subject to this. I, you know, asked to be grandfathered in through through a different kind of of variance procedure and go through the appeals process themselves. But you but you're right. I think that that involves an an amount of litigation. It involves a conflict between the town and the farmer. And that would likely, if both sides are not willing to settle or come to an agreement or some kind of mediation or something of the sort could wind up in litigation. I think the second thing that could happen is that, not necessarily saying this is the language, right, but to amend the statute to prohibit a municipality from doing that in

[Steve Collier (Agency of Agriculture)]: the first

[Bradley Shuman (Office of Legislative Counsel)]: place. And so that would give the farmer more protection that they wouldn't necessarily have to go through the legal system to enforce. That said, even if we do pass or even if the legislature does pass a law that will attempt to undo Taft Street, that doesn't necessarily stop parties from from doing things that we don't want them to do or don't intend them to do. So municipality could still try anyway and interpret the language in their favor regardless of what the legislature intends.

[Rep. Gregory "Greg" Burtt (Member)]: Same to your

[Rep. John O’Brien (Member)]: It's interesting given in the worst developed decision, it's like potentially here's a farmer who's not following the letter of the law, whether it's ANR or AFM law, whereas a farmer say who has been following the rats all of a sudden because of its snows in violation, because there's a bylaw, a municipal bylaw. Okay. Interesting because the farmer is still following all the state rules and statutory requirements, but yet now they've run afoul of.

[Bradley Shuman (Office of Legislative Counsel)]: Yeah, and without, right, and that's correct. And so, and without a a statutory change, you know, the status quo would would subject that farmer who has been following the rules to potential municipal regulation. And and that is correct. And someone could be flouting the regulations for for many, many years. And, you know, and that and that seems unfair.

[Rep. David Durfee (Chair)]: We're okay. Got an eye on the clock here. We're gonna we're gonna stop sharply at twelve, and I wanna be sure that alleged counsel has a chance to say everything they wanna say. Representative Burtt.

[Rep. Gregory "Greg" Burtt (Member)]: I got one last question. No. No. Go ahead. Just do towns or municipalities right now have the ability to regulate the time that trucks are on the road? I guess I'm not familiar with that if on class three, class four roads. Is that something they have the authority to do? And they're late probably they can't tell you when or when

[Steve Collier (Agency of Agriculture)]: or when my truck's gonna

[Rep. Gregory "Greg" Burtt (Member)]: be up with two on

[Rep. John O’Brien (Member)]: the station.

[Rep. Gregory "Greg" Burtt (Member)]: Well, I'm down any hour,

[Unidentified (likely Agency staff or Legislative Counsel)]: so I'm just curious

[Rep. David Durfee (Chair)]: if that's even a problem. But were you talking were you referring to the weight when you a moment ago, we're talking about it's farm vehicles can Well,

[Rep. Gregory "Greg" Burtt (Member)]: yes. Because it specifically pulls the weight limit A bridge. Number of road on a posted road for I'd see.

[Rep. David Durfee (Chair)]: So it wasn't the time of day. It was it was exceeding the weight limit.

[Rep. Gregory "Greg" Burtt (Member)]: Time of day. Most road commissioners will say, you can truck at three in the morning because it it's frozen. As soon as the sun hits that road, it's gonna turn the soup. So you'll see a lot of truckers moving all night during those posted roads Yes. Verbal exemption. Use common sense. They don't wanna break.

[Rep. David Durfee (Chair)]: Does that answer your question or answer?

[Rep. Gregory "Greg" Burtt (Member)]: I guess I'm just curious if it's even on the you bring up the example, I don't know if it's something that miss families do radiate or can't, the time the trucks are on a road.

[Bradley Shuman (Office of Legislative Counsel)]: It is something that municipalities can regulate, but I think representative Lipsky does make a good point which is for certain activities, you're exempt from those kinds of regulations. And I'm not familiar with the extent of the regulation or the potential conflicts with municipalities in terms of trying to enforce things of

[Rep. Richard Nelson (Ranking Member)]: that sort or if they've tried to do that. It's within the realm of possibility. I don't think municipalities should regulate the road per se, but they can regulate a business in town. So perhaps if my farm is in the town of Derby and we're trucking through Newport, Newport can't tell us we can't truck through Newport. They can tell us we can't use Pleasant Street extension, which they have, but we can use the truck route and go through Newport. But the town of Derby could say, you cannot operate your feed harvesting during the hours of 08:00 at night till six in the morning.

[Rep. David Durfee (Chair)]: It You

[Rep. Richard Nelson (Ranking Member)]: know, like like, they kinda grab a bit. Right. You know, you can only operate your gravel pit between these hours. Can't stop trucks from traveling over, you know, commerce, but you can close the rabbit pit outside. If

[Bradley Shuman (Office of Legislative Counsel)]: I may, my hunch is that attorney O'Brien might have some good history here.

[Michael O’Grady (Office of Legislative Counsel)]: Municipalities do have the authority to regulate use of vehicles, more vehicles. But there's also the implements of husbandry law, which allows the operation of farm trucks and farm equipment on roads, including a certain distance from a farm for delivery, so there and towns do have the ability to regulate types of vehicles on roads, as Ruth Hardison already referenced, but

[Rep. John O’Brien (Member)]: that gets a little hanky if I

[Michael O’Grady (Office of Legislative Counsel)]: don't want to talk to Damian about what level of regulation into the list on a farm truck that's away from the farm, not delivering, and therefore not under the Implements of Conspiracy Law. Does

[Rep. David Durfee (Chair)]: any of what we've just been talking about, the detail of this need to be clarified in order to understand what our decisions might mean, or it's all gonna be wrapped up in?

[Michael O’Grady (Office of Legislative Counsel)]: I think you have some words to do in the side of For I'd say,

[Rep. John O’Brien (Member)]: example, what is the plan

[Michael O’Grady (Office of Legislative Counsel)]: for something to do cannabis?

[Rep. David Durfee (Chair)]: Cannabis is something, Okay, yeah, and there may be other things that we want to pick apart. I just wanted to ask generally, we've heard some concern about opening up their apps and what the implications of that might be, broader implications than anything to do with this bill. And maybe you could just the Arlington Council could just say, as you understand that concern, what does it mean? And is it about changing the rules or changing statute or both?

[Bradley Shuman (Office of Legislative Counsel)]: So you mean opening up the wraps

[Rep. Richard Nelson (Ranking Member)]: to The title 10 part.

[Bradley Shuman (Office of Legislative Counsel)]: Opening up the wraps to rulemaking or opening up the wraps to input from the public. Is the that is the first opening up the wraps as a concern in and of itself is the first time I'm hearing it referred to in that way. What I could opine on is that having the wraps go through rulemaking through the Administrative Procedure Act would require notice and comment and public input. And the extent of that public input would likely be fairly high, you know, given the things that the required agricultural practices do touch and how farmers interact with those water rules. And so I think opening changing the wraps by a rulemaking process would result in a much longer process with a lot more public input and a lot more things to grapple with. I what the agency is asking the the legislature to do here is just to amend the wraps without having to go through that process, having to open it up to public notice and comments. And there are pros and cons to that. Know, changing it in by legislation is arguably a faster and simpler solution to changing what we mean for farming. As Mr. Collier pointed out before, changing the wraps doesn't fix Taft. We need a statutory fix. In addition, we need a statutory fix to change Taft. So changing the RAP's rule through legislation, you know, limits public comment, limits public input. And there's pros and cons to that. The biggest con meaning that you're not hearing from the public on the RAP's rules. It would open up the entire rule for public comment, but we're not hearing that feedback from individuals the way that you would if you went through notice of comment.

[Rep. David Durfee (Chair)]: All right, I'm gonna stop there. I need to be somewhere else and maybe other folks do. We'll probably back at one. And just a reminder, we have a bill on the floor today at three at SXT, and we need to talk about that before 03:00. We'll be back

[Rep. Gregory "Greg" Burtt (Member)]: here at one.