Vermont Legislature SmartTranscripts:

[Rep. David Durfee (Chair)]: All right. Well, I guess we'll just go ahead and have you get started. Can state your names and so forth for the record.

[Josh Shannon]: Great. I'm Josh Shannon, Director of Intergovernmental Relations at McMothen, Cities and Towns.

[Samantha Sheehan]: Hi, My name is Samantha Sheehan, the Municipal Policy and Advocacy Specialist also for the Vermont League of Cities and Towns.

[Josh Shannon]: So thanks for having us back. Thanks from hearing from so many interested groups. It's good, I think, that we all hear from each other and work together on this. Just level setting again, that VSP represents all two fifty one municipalities, their members by choice value our services, our resources, our advocacy that we provide them regardless of their size, urban, rural, Most of our members, 73% have population below 2,500 and include many farm communities. Again, we appreciate the work that the agriculture markets and foods has done to try and reach consensus with municipalities on these issues. We also appreciate those discussions with the farm groups. We each have real interest at stake regarding the outcome of this bill or the Senate version. I really truly believe we're each acting in good faith to try to reach consensus and compromise on our positions. We really want to talk to you today a little bit about what were your bills going and talk about some ways that may be constricting your interests as we think that would be acceptable municipalities, and then raise a couple of critical concerns we have in one of the areas. I think what is sort of different about municipals, municipalities concerns with this is, we're not really concerned with whether a farm even in a dense area is making 0 or $100,000 or $1,000 whether it's on one acre or 1,000 acres. The whole point is we're not really trying to regulate farming at all. What we need to do is have the ability to apply consistent land use regulations to all businesses and property owners living in dense areas. So to avoid the concerns that these favored areas for growth and development that the state has decided, this is where we're putting money, this is where we're removing Act two fifty land use regulations can be fairly managed. Because if it's not us, who is it? It's not the state. Is it gonna be the agency of agriculture managing a tenth of an acre lot determining agriculture or municipal zoning applies? Someone's got to call the balls and strikes, otherwise the courts will be deciding all of these issues all the time. And we think that's chaos. So we support the right to grow food, we support certain elements that you have in this bill, but we have some serious concerns about adding all livestock into this. Samantha will get into the details, but the reality is, if these aren't regulated farms because they're sub jurisdictional for maps, municipalities have been regulating backyard livestock for centuries, literally centuries. Municipal ordinances do that for the safety of the animals, the safety of the people, the neighbors, viruses, diseases, well contamination, and literally every municipality in the state allows backyard chickens. Some of them don't allow emus or ostriches because if they escape, there's a problem. And so we think going down this road is searching for a problem that doesn't exist. Could create a lot more concerns that I think you'll be confronted with deciding from other groups. Even in the city of Essex Junction, Tap Corners, they allow hens, six hens and other animals in the backyard. I'll sort of stop there and Samantha will present a couple areas where we think we can strengthen your intent, talk about that, and maybe give you a little bit more flavor for the livestock regulation not being included in that right to grow food exemption from all municipal regulation because it's already being regulated and has been for centuries in Vermont.

[Samantha Sheehan]: So I think I'll start and say a little bit more about the livestock provision and how this works now in communities across the state and works quite well in order to allow for the care and keeping of animals of all shapes and sizes, but in a way that's safe and appropriate and doesn't cause undue impacts in a neighborhood. So as long as people have lived in Vermont, they have lived here with animals. And for all that time that municipal governments have been organized, they have had the ability to regulate and enforce local laws pertaining to animal welfare and the care and keeping of animals. So if you think if you have a dog and you've licensed that dog, you did that at town hall. And you probably showed the age and the veterinary records and described what the dog looks like. And if you take your dog out to walk on bike paths or in covered park, your dog is on a leash. That's because of the municipal regulations of the city of Montpelier. And most places that have animal ordinance and really any sort of residential density have some type of animal ordinance that applies to large animals and livestock animals. In Essex, to use Essex, for example, you can actually keep any livestock. There are rules about if they have a significant setback requirement from the neighbor's property line. And then they also have requirements to do with the disposal of manure. In Burlington, you can keep chickens. There are a lot of chickens that live in backyards in Burlington. And there's a minimum square foot per chicken requirement on the coop. And the only other rule is they have to be put up at night. So these are reasonable regulations that people some families, some properties that are not farms have worked under these rules for generations. And it goes really well. One thing I said when we discussed this in the Senate is imagine going to town hall and trying to prove if you plan to eat your animal or not. You can't. And also, we don't care. We care how is the animal kept, where, how are you managing the waste, how many of them are there. If you plan to have three pigs for the natural life of those pigs, that's great. And if you plan to have a pig for a season and harvest it in the fall, that's also great. It's not about whether or not the animal is intended for food. You still have the ability to have them and to keep them well. Why this is really important is because most of the enforcement against animal abuse and crimes against animals is local enforcement. Not all, not in all cases. Some really complex and severe cases, of course, would be managed by multiple agencies, including the Vermont State Police. But even when a sheriff goes and serves orders and is involved in the forfeiture of an animal, usually what they're enforcing is a local law of that town that creates that opportunity to intervene and to bring the animal into a situation where it's being better cared for. So not only do we really care because this would upset decades and decades of existing municipal authority, but it would also complicate a number of state laws that pertain to the enforcement of these types of situations when animals are being abused or poorly kept or hoarded. So that's what we had prepared to say about that. Is there any questions we could any particular concerns about that?

[Rep. David Durfee (Chair)]: Any questions about the history of what's actually happening in the municipal? I mean, there's 251 towns. Each have their own rules and regulations. I think you said that there's no municipality that currently prohibits Hens. Hens. Correct. Could could there could a could a pillier decide tomorrow that if you go through the process that you could not have hens?

[Samantha Sheehan]: I mean, under the law Under

[Rep. David Durfee (Chair)]: the law. Yep.

[Samantha Sheehan]: I'd like to see them cry. Like, you know, like, The reason why this is the norm is because it's part of the culture. It's the way people feed themselves. It's a neighborly experience. Folks generally like hens, and they work well. But there are places where you can have any type of laying fowl. There are places where you can have certain smaller birds. They might enumerate turkey, geese, duck, chickens. I know roosters are controversial. Lots of municipal ordinance allows roosters. So I think you were talking yesterday about there are some places that are really well suited to having a number of pigs or a small mix of animals as part of a homestead. And that's clearly true. That's the way Vermonters have been living for a long time. And part of why that works is because when it goes awry, a municipality has an enforcement tool.

[Rep. David Durfee (Chair)]: Since the moves have come up a couple of times Yeah. To I mean, you think about all the different species that somebody might have, and I don't imagine that every town has singled them out directly. How how does that work?

[Samantha Sheehan]: Yeah. So some like, so Essex wow. It's a possessive form of Essex. The Oregonian in Essex is quite simple. It's much more in the lines of, you can have livestock such as including horses, cattle, swine. I think goat is in there, but it's not comprehensive. So that's an inclusive version where they say, you can have livestock such as these animals as long as you follow these rules enumerated. Other municipalities like Burlington do the opposite, where they say these are the specific animals you may not keep in a residential district. And I love that one because it's literally rooster, cattle swine, emu, camel. And maybe someday when I retire, I will find in the Vermont state archives what happened with the emu and the camel that led to that legislative change in Burlington. So it's done both ways. Sometimes it's just like you can have animals as long as you have fences, as long as you have a safe enclosure with clean bedding, as long as the manure isn't near yours or a neighbor's well. Sometimes it's like that. Sometimes it does exclude commonly cattle and swine.

[Rep. David Durfee (Chair)]: Is it specifically

[Rep. Richard Nelson (Ranking Member)]: camel or is it

[Samantha Sheehan]: camelage? It's it's camel.

[Rep. Richard Nelson (Ranking Member)]: You can have albaca or Correct. Yeah.

[Samantha Sheehan]: Yeah, currently.

[Rep. Richard Nelson (Ranking Member)]: Back on it and go downtown. So

[Rep. David Durfee (Chair)]: as it stands right now, state law and municipal law, under state law and municipal law, a town can outright say, you can't have camels or fill in the blank. It could also say, you can have camels or fill the blank under these circumstances. Correct.

[Samantha Sheehan]: Yeah, that's what they look like.

[Rep. David Durfee (Chair)]: Each town has its own. Some

[Samantha Sheehan]: of them look like the wraps, where it's like you can have five horse, you can have six pigs. You can have 25 chickens. Some of them are done that way. Some of them the thing is, not to jump into criticizing the agency of agriculture's request, but in the one acre, one to four, in the management of acreage, the way local zoning laws typically apply for all sorts of things, like can you build an ADU, can you put a pool in your backyard, can you have a chicken coop, It is both the land area and the shape. So where are the setbacks from your neighbors and the public infrastructure? Many folks have these dog ear shaped parcels, they call them, so short frontage, large back 40. It's very suitable to the good management of animals as pets, including really large animals. So a lot of times, the way it looks at the municipal level is not you can have 25 chickens but no roosters. It's more like you can keep animals as long as you have the space and the setback and the land area to manage or to prevent well contamination, portable water contamination.

[Rep. David Durfee (Chair)]: So the towns are able to figure that out too on a case by case basis, whether And there's enough

[Samantha Sheehan]: a lot, it's really like if there's a complaint, someone goes out and looks, usually a zoning administrator, and maybe with a select board chair, and they agree that, oh, no, this person's following the rules. You might not like the way the animals sound or smell. But if the coop is the right square footage, if the manure pile is visible and we see it's 1,000 feet from the wellhead, then there's nothing to do here. But unfortunately, it is just true. It happens almost every year. Sometimes there are complaints. A local official goes out. An enforcement action is necessary. And it's typically for the safety of the animal.

[Josh Shannon]: For example, I live in Randolph. I'm on the planning commission. We do not have an animal ordinance, but we've been requested from a group of neighbors for more than a year to establish an ordinance because of a particular property that has two or three pigs, raises a number of turkeys, have year round chickens in a tight residential area on a third of an acre. And the neighbors have repeatedly asked for that. But so far the select board, it hasn't risen to their concern to establish annual ordinance yet. Maybe it will at some point and they might say on a third of an acre, you can't raise two pigs, but that's not the case yet.

[Rep. David Durfee (Chair)]: So as you were, I think, suggesting earlier in Montpelier, probably be difficult to get the political support for a ban.

[Josh Shannon]: I don't think chickens,

[Rep. David Durfee (Chair)]: I just don't think that will

[Samantha Sheehan]: happen. Not

[Josh Shannon]: tenable. Would be a public process for those members that are elected to those positions to make that decision. You would hope they'd be representing the greater will of their public would suggest that's not a good idea.

[Samantha Sheehan]: I don't know if folks here worked on the compost law.

[Rep. David Durfee (Chair)]: Before all of our

[Samantha Sheehan]: Oh, was it?

[Rep. David Durfee (Chair)]: It was in this committee anyway, yeah.

[Samantha Sheehan]: Well, let me did you work on it, Brian, the compost law? Caroline did? Okay. So the compost law passed. And I guess in the first version, as enacted, it prohibited or somehow got in the way of selling eggs from chickens fed compost. And I thought my town was going to burn. I've never seen an issue like this. We closed the school with less drama. And I'm not being dramatic. That town meeting year, it was 2016, our representatives, it was Representative Conlon at the time, and Senator Hardy, and Senator Bray, they heard what for over the compost law. And I was a relatively new resident to town, and had no idea this many people had chickens or compost. But it's a part of life here.

[Rep. David Durfee (Chair)]: Before we go ahead, Doctor. King here.

[Rep. Gregory "Greg" Burtt]: So in the case that has triggered all of this conversation in the first place, I'm guessing that I'm curious to know what the bylaws were in, is it Essex? City.

[Josh Shannon]: Bylaws now the City Of Essex structures.

[Rep. Gregory "Greg" Burtt]: Specifically the bylaws that weren't in place, that I'm guessing weren't in place in order to be able to address this process so that it went to court instead. Is that why It

[Josh Shannon]: was determined to be a farm. So then the municipality couldn't enforce its ordinances, have certain they allow poultry, waterfowl, they have certain setback requirements and amounts. Because it was considered a farm determined by the agency of agriculture, then the municipality couldn't enforce that. And it was the neighbors that brought soup plants. And so this is, I think, perfect segue into one, we want to codify in a stronger place in the law, the right to grow food. The municipality shall not have the right to functionally prohibit people from growing food. As you've defined it, removing the livestock. Because that as we've described would be a considerable upending of centuries law in Vermont. That I was here for more than just growing animals, safety, animal cruelty prevention. So that's what we've been talking about so far. And we can show you where that is, I think in the existing structure of municipal law zoning bylaw under VSA 24. And then talk about tier one areas as you've defined with some exemptions for existing agriculture practices that may be in those areas when they become established. If a town decides to pursue it and then decides to regulate agriculture, I think sort of mirrors some of your thinking.

[Rep. David Durfee (Chair)]: So I'm sorry, just wanted to be Yeah. I will just be quick, but I just wanna be sure that representative Burtt got the answer to the question because it was important to know that Essex does have strong bylaws, and they were everybody thought that it didn't matter because they were farming under the wraps, because they had more than $2,000 in sale of duck eggs. When the court said, actually, no, you're not a farm, we're reading the statute differently, then the bylaws kicked in.

[Samantha Sheehan]: This is the bylaw for Essex. And again, this is not for properties which are not a farm. This is what a bylaw looks like. So it'll have enumerated sections that looks a lot like a state law. And so you can see at the top here, it says, for these agricultural uses, including horses, cattle, hogs, sheep, goats, poultry, except with or with the exception of uses exempted by the wraps. So thereby, lawizing, if you keep all these animals, that's Okay. And if you're not subject to the wraps, then these things are true. And then these sections describe how big and how far apart buildings should be based off of the zoning district. So I'm not familiar with these zoning districts, but presumably these are high density residential zoning districts. And then have a separate set of rules for feedlots, runs, pens, etcetera. There are other standards related to the management of manure and soils, some that are particular to chickens. So this is a well developed local package of regulation that is quite inclusive of all sorts of animals. It doesn't say what kind you can or can't have, but it is quite specific based off of where you live in the community of Essex and what type of lot size and shape you have and what existing structures are there, how those animals should be kept. So this is their example. So this is what a bylaw looks like. And now I want to talk about our suggestions for your bill, which would go oh, wait. I think I have to switch my screen share. I'm a person that keeps a lot of tabs up.

[Rep. David Durfee (Chair)]: So

[Samantha Sheehan]: here is your bill that was posted yesterday. And you can see that where it makes changes to what's allowed in municipal bylaw is in section D1 of 4,413. And that is the old place where an existing law, it discusses rats and farm structures. When it comes to the right to grow food, which I want to make sure we're really clear about that, when it comes to plants, orchards, and maple, we ask for this protection and law. We support it. And we don't care at all if someone's selling eggs or apples for a couple of bucks here or making a trade for some other food or service. If they have a short term rental like an Airbnb and they stock it with blueberries from their blueberry bushes, that's great. We don't care if it's a paying customer, a house guest, a family member, or a neighbor. So we actually suggest, we think, a strengthening change that would make that an even stronger protection of the right to grow food in the law, which is to move it up a section out of the farm regs and into this 4,413. So 4,413 A1, These are some of the oldest and most significant preemptions to municipal regulation for bylaw. And they include state owned buildings, schools, churches and places of worship, hospitals, transfer stations, that's what a solid waste management facility is, hazardous waste management, and several newer ones of the past couple of years that pertain to homeless shelters. And so what we want to do is basically add ABCFGHI. We want to add an I that is and the right to grow food, including plants, orchards, people from your bill, period. No for the homeowner or family or non paying. We're just like, you can grow food. But what it would do by putting it here is say, everyone can do it, whether they're a renter, a homeowner, whether they occupy that land as a resident or not. I know folks who live in apartments or very small places on Main Street, and they own large parcels of land elsewhere where they grow a lot of food. So you don't have to live in the place where you're growing the food, which we think is an improvement. But it would also say that the municipality could regulate some stuff. So maybe you can have apple trees but not over the sidewalk where they will fall and get in the way of pedestrians. You can have them in the backyard. Or it may say, your raspberry hedge is tearing down your neighbor's fence. It's time to move it back and stay within the setback of your property. So they would have to allow the food to be grown, but they could make sure that it's not impacting in a negative way public rights of way and public property or other private property nearby.

[Rep. Richard Nelson (Ranking Member)]: I'm saying nothing. So this would work well for sites like community gardens?

[Samantha Sheehan]: Yeah. Often community gardens are owned by the municipality or on public lands already. There are many that are not, like, of course, like in different types of housing communities or the church.

[Josh Shannon]: Or school or housing projects often build land gardens in the back.

[Samantha Sheehan]: Yeah, that's great. So unlike the draft language you looked at yesterday, if a church or a synagogue or a youth center wanted to have a community garden or a small orchard, this would protect their right to do that. So we're not just talking about residents or renters, homeowners or renters.

[Rep. David Durfee (Chair)]: And this wouldn't preclude a landlord from writing a contract with a renter saying you can't do it.

[Josh Shannon]: Exactly. The renter landlord law would be another series where the landlord could say, actually, we don't want you growing this that's in our contract. This wouldn't prevent the property owner from determining its use of the property. The property owner allows it, the municipality has to also allow it.

[Samantha Sheehan]: So the lease could say you can have dogs but not pigs, Or you could have a garden planted in the existing garden bed, but not beyond the existing garden bed. I've had a couple leases like that myself. That would still be allowed. Yeah.

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

[Rep. Gregory "Greg" Burtt]: The nature of the list is one of structures.

[Samantha Sheehan]: Yeah.

[Rep. Gregory "Greg" Burtt]: What do you think about the fact that growing food is really an activity? I mean, it involves physical things, obviously.

[Josh Shannon]: A greenhouse could be a structure. Oh,

[Rep. Gregory "Greg" Burtt]: they're definitely structures in the house.

[Samantha Sheehan]: There's a lot of activity that happens at schools and hospitals and churches, including parking, the movement of people in and out, playgrounds and play structures, public events and public event permitting, church bells, big loud noisy things. So it's inclusive of all of those types of regulations. So the municipality, again, can regulate only to the extent that the regulation does not have the effect of interfering with the intended functional use. So Randolph, where Gifford Hospital is, could say, you have to have your ambulance bay on the back or the south end of the building away from the daycare that exists to the north end of the building. And that would be allowed. But they cannot say, we don't like ambulances. They're loud. They're fast. And they might run someone over. Because it's a hospital, the hospital has to have ambulances to function for its intended use. This comes up in homeless shelters because there were cases where a municipality permitted the structure of the homeless shelter, but then attached permit conditions that made it impossible to be used as a homeless shelter. So hours of operation, where the entrances could be in, if they could be locked or unlocked, things like that. And so adding that to this type of preemption of bylaw made it so that a municipality cannot do that. They can't say you can build a homeless shelter, but people can only go in and out from seven to 8AM.

[Josh Shannon]: That Liberty doesn't Shelter, this was added. There's been three new shelters in Vermont in those communities. The folks trying to put a shelter have been working on it for ten years. But the Minnesota bylaws and the way they were designing it was essentially functionally making it impossible to do it, even though technically they were allowed. So the only way they could change that was by putting it in this section of a municipal law that says, you cannot not allow this. And that's why we think having the right to grow food is important here. I get your question because it says structure, how that would be maybe some general, your alleged counsel or our attorney could have that discussion and make sure that there isn't another tweak somewhere in that language to structure an operation or suppose anything that would make sure that works.

[Samantha Sheehan]: This would allow, for example, if someone was using lights in their greenhouse, one of the things that could be required is screening. So they can't stop the grow lights or the greenhouse, because that's for the purpose of growing food. But they can say, will you plant a hedgerow, or will you raise the height of the fence? Shining into the bedroom 10 feet away or whatever? So that would be the impact. But this is a strong protection. This is where the right to do something goes in Title 24.

[Rep. David Durfee (Chair)]: So using that example, we're thinking here about small homeowners, but not just homeowners, as you've said. But using that example of the greenhouse would bring this language in here also allow protect a farmer with a greenhouse in the same way?

[Samantha Sheehan]: So that's a great question. So that's a choice. It's a policy choice. So right now, what your draft bill does is and to be honest, it's a choice we're agnostic to in how you facilitate it through the legislation. As we've said, our concern is clear objective standards that are fairly applied in the densest mixed use areas. So that is traffic, how traffic flows in and out and onto public roads and across sidewalks and crosswalks. It's the form and density of buildings and setbacks so that fire suppression and emergency services and other types of public services and utilities can reach properties on all sides of a property line. These are the things we're worried about. We do not want to get into the intensity of cultivation or soil quality on a vegetable farm. That is a regulation of agriculture, which should be done best by the Agency of Agriculture, Food and Markets, not by a municipal zoning department. So right now, what you've done is you've put this section here, B, which is farther down. And it basically says, a municipality, through its bylaw, shall not regulate farm structures on wrap farms except farm structures in Tier 1A created through Act 181. So it says, a municipality shall not regulate farm structures on a designated farm. They can regulate farm structures on a designated farm in one way, except for farms that existed before or the structure was built before this summer. We agree. We have testified and believe that very few, if any, existing operating farms will become inside of this initial mapping of Tier 1A areas. And on the chance that one or two or three existing farms does end up inside Rutland's Tier 1A or St. Albans City's Tier 1A, we agree. They shouldn't face retroactive new regulation that they didn't plan for when they created their farm. So we'd also like to make a suggestion about how to strengthen that protection for existing farm structures. But sorry, back to your question, Mr. Chair, which is you've done that here, which kind of works, but is also complex because there's stuff we care about, like how trucks move in and out of main roads, including state highways and main streets, that is not encompassed by sticking to farm structure under the current definition of farm structure. We don't really care to open up the definition of farm structure either, which would mean maybe having to think really hard what are important reasonable things to add here if you leave it in this section. However, you have a choice. It's totally a policy choice that should be discussed. But you can move it up here to where hospitals, churches, town dumps, and homeless shelters are. And you could say the following uses may be regulated. So the municipality may regulate this specific list of things size, density, setback, parking, lighting, noise, landscaping, screening, etcetera. And you could put farms under wrap in tier 1A here. And so this would allow a municipality to say, we have to be able to see through your fence because that allows oncoming traffic to see each other. So you can have a fence because you're a farm and you need a fence. But we need the fence to look like this so that it doesn't cause car accidents. And again, this is like think about visiting a hospital. You were able to get there. There was probably a stoplight, a bus stop, a crosswalk, not a lot of snow or ice that you had to navigate to get into the building. There were linen trucks and refrigerated food trucks and medical supply trucks coming in and out. You probably didn't see them or hear them. There were ambulances moving 20 fourseven. That all works because of the planning and the participation of the municipality in the hospital. But the municipality cannot get in the way of the hospital operating. It can't say you have to close in the middle of the night. You can't have outdoor lights. You can't have a parking garage. You can't have an ambulance bay. The things that are necessary to operate a hospital have to be allowed. But the things that impact the properties and the public infrastructure around it, such as signage and crosswalks and where you pull in and where you pull out and whether that should be a one way or a four way, those are the things that the municipality can influence in its regulation against the hospital.

[Rep. David Durfee (Chair)]: We're

[Rep. Richard Nelson (Ranking Member)]: limiting our talk right now to tier one a. Haven't dwelled in-

[Rep. David Durfee (Chair)]: Great question.

[Rep. Richard Nelson (Ranking Member)]: One b, because that's where there's more commercial frown operations. It's going to get in the creation of tier one b and I might live it.

[Josh Shannon]: It's a great question because tier one a doesn't exist anywhere in the state right now. We're not sure if there'll be more than a couple. But in order to be Tier 1A, have to be Tier 1B first. Tier 1B is what is being mapped today, and is what, for example, the city of Essex Junction is today, and probably will always be. And so the reality is that unless there's some other measures added, the Tier 1B that is the city of Essex Junction and the problem that created this will continue, and you'll have many more of those. Because they will be the biggest communities in Vermont for several years, and a few of them will advance to tier 1A. So we're not really addressing the problem, and the problems that will arise from lawsuits, unless we have some other measure, like adding 1B to that, or having the wraps that reduce the acreage size down to one. We have testified in other groups that opening the wraps may have some concerns, but if you choose to approach, and as Samantha said, this is a policy choice how to address this, and you only leave one A, that will not fix the problems that have got us to this point, and we'll have to have another trigger such as acre size that removes some of those problems because they're not regulated as a farm by the agency of agriculture in order to not go backwards from where we've been and create more farms. That was gonna be our next segue. We understand where you're at, but this is the reality.

[Samantha Sheehan]: Also, this might sound like a trick, but it's truly not a trick. As I explained the first time we testified, this mapping process that creates an eligible area for 1A or 1B is quite long. It's done by the RPC, not the town. And it is authorized and approved and gone through by the LERB. And they do look at the current way the land is being used that's being proposed to be in the tier one eligible area or in the tier two area.

[Josh Shannon]: Great example we looked at the other day is South Burlington. Red And Butter Farm, we've heard that. Red And Butter Farm is mapped out of any potential tier one or 1B area. In the city of South Burlington.

[Samantha Sheehan]: But the South Burlington TIF District mapped in to tier one. So that existing farm is known and is accommodated for to the best of the RPC in the state and the town's ability now. And so that's why we said we're Okay with this going backwards clause to protect existing buildings. It's almost definitely a current operating dairy will not end up in a tier one area this year. So this is why I say this sounds like a trick, but I swear it's not. What could happen is a new future farm after basically January 2027 could think so if you pass a version of this law you're looking at that says 1A, farm buildings in 1A can be regulated, but not 1B. What could happen is a new future beginning farmer could acquire property in an existing 1B community like Essex, like Waterbury, like Richmond, like Fairleigh, lots of many places in Vermont. And they're like, all right, 1B. I'd only have to look at the agency of ag regulations. I don't have to look the municipal regs because I'm exempt from those. And then at any point, that municipality could meet the 1A standard and apply for it, and that farm could get rolled up into 1A. So the 1A application can happen any time. The regional 1B mapping happens every eight years through this big community process. But South Burlington will have its 1B eligible area, which works to not include any existing farms today. It'll get 1B status probably within the next six months. And then it might say eight months from now, two years from now, well, we don't really want all this to be 1A, but we want the TIF district to be 1A. So then they apply for that and it gets approved. But then maybe five years from now, they say, actually, now we're ready. We want the whole 1B to go to 1A. And that change could happen. So with what we're asking for, which again is not to regulate agricultural practices, but to be able to apply fair land use law that is clear, easy to understand, and not vulnerable or ripe for legal challenge in the courts, but to allow farming and protect the right to farm and the right to grow food at the same time, If you only provide municipal authority in 1A, it could complicate life several years out from now for a farmer acquiring land, leasing land, expanding their farm enterprise in a 1B, as well as it would not resolve the Essex issue specifically.

[Rep. David Durfee (Chair)]: And it may not be practical in every case or any case, but anything that's eligible for tier one today, starting out with tier 1B, any of that could be tier 1A. Mean, stacks on the ground might make it hard to do that.

[Samantha Sheehan]: So the thing that 1A and 1B have in common as a statutory criteria is zoning and a municipal plan, flood plain by law, water and sewer, or suitable soil to add sewer or septic. And that's basically one B, along with some controversial opinions, we think, from the LERP, like is there a church, or it shouldn't include a mobile home park. But that's what the law says in Act 181. And then the statutory criteria for 1A are much more about the capacity of the municipality. So it's like, do you have bonding capacity? Do you have capital planning? Do you have sufficient technical staff and planning and zoning staff?

[Josh Shannon]: Do you have endangered species regulations?

[Rep. David Durfee (Chair)]: It

[Josh Shannon]: ups the ante to be less about, oh, okay, in this area, you've got water and sewer and you've got zoning and bylaws. But in addition to that, you have all these other things that cover all of Act two fifty basically.

[Samantha Sheehan]: So a community like Essex or Waterbury.

[Josh Shannon]: It removes all Act two fifty because you already regulate all that. So why do you have to go through a permit and have everyone else sign off because you've thought about all those things in that area? And so that's why the tier 1A list is going to be very small at first.

[Samantha Sheehan]: It's going be like the current tips. Yeah. But I what I just want to make sure everyone understands is a lot of communities that are regional centers, like Newport, the RPC will say, we see you have some public utility service. We see you have zoning and bylaw. They actually have form based code, which is a very high level. We see this part of Newport

[Rep. Gregory "Greg" Burtt]: City Of Newport.

[Samantha Sheehan]: City Of Newport. Yeah. This part of the City Of Newport has density existing and apartment buildings and houses and coffee shops, we say this is 1b. So the RTC says, we say this is 1b. The LERB approves it. Then in time, as time moves forward, the city of Newport could work towards those other criteria. Now we want to write a capital plan. Now we want to get our finances ordered and get a capital bond. Now we want to grow the staff in our permanent office so we have a stronger regulatory arm locally. And then at a certain point, again, a year from now, twelve years from now, they could say, we're ready for 1A. We want to release ourselves and our local homeowners and developers from Act two fifty. We're going to go for 1A.

[Josh Shannon]: It happens in reverse, too. In Clinton County, the city of Essex is in for 1B, they're opting in. The town of Essex is not opting for 1B at all, either is the town of Colchester. So, they're not even going to have a chance to regulate agriculture under what we're proposing at all.

[Samantha Sheehan]: It's about an 85% opt in rate right now.

[Rep. David Durfee (Chair)]: So I think we're getting the point here that 1A could appear somewhere down the road and and then then what? So do you have a suggestion or a recommendation or a preference for how we We

[Josh Shannon]: think you should just say tier one.

[Samantha Sheehan]: Yeah, we should say 1A or 1B, because tier 1A doesn't exist in the law. I bet Ledge Council would agree. But we think it should be both. And again, the initial mapping is very unlikely to include operating farms. If it does, we agree. Their structures should exempt them. This is no new surprises for the current farms. We're suggesting this I can share my screen again. We're suggesting moving this up out of where the ag language is now and where we talk about wraps and up into this stronger, more limiting type of bylaw. So it's not anything a farm does the town could regulate in tier 1A or 1B. It's just these specific things that really apply, like traffic, lighting, setbacks. This is stuff we've been communicating to you our members care most about being able to make sure works in these areas that have water and sewer, have crosswalks, have churches, have schools, have businesses and apartment buildings, and may have a farm in the future. We just want to make sure it all works together.

[Rep. David Durfee (Chair)]: I appreciate your point, Josh, about the Essex Junction situation specifically, the concern about lawsuits. Well, I think what we've drafted here would preclude that, though, because the first thing the very first thing that we wanted to do was to clarify the intent that we think that the court missed when it made that decision back in May to say that if you're a farm, now I'm thinking not tier one specifically, but

[Rep. Gregory "Greg" Burtt]: if you're a farm,

[Rep. David Durfee (Chair)]: then the town can't regulate you. So I think the way that this would be written right now, the law would be clear, but it would be clear that you could have your ducks back basically.

[Josh Shannon]: It would undo what the city of Essex Junction has for zoning bylaws, assuming they still remained a farm under the agency bag under the existing RACs which don't kick with the $2,000 limit and all the things correct. So it would bring that back forward and

[Rep. David Durfee (Chair)]: yeah. So a couple more questions, then did you have any more that you want?

[Samantha Sheehan]: No. No. Wanted to get over. Yeah. We

[Rep. David Durfee (Chair)]: do. Nelson and then representative Burtt. So if

[Rep. Richard Nelson (Ranking Member)]: Essex Junction and Colchester don't opt in to tier one one b Yep. Do they automatically become tier two or they just stay Tier two. Yeah. So the road rule will be in effect. Yeah.

[Samantha Sheehan]: Yeah. Road rule is in effect everywhere.

[Josh Shannon]: Unless it's delayed this session.

[Rep. David Durfee (Chair)]: Yeah. Which we're adding to people. Okay. Yeah. But also it would mean that the town would not be able to regulate government.

[Josh Shannon]: Correct. And they wouldn't have the exemptions for more housing from Act two fifty.

[Samantha Sheehan]: And they wouldn't lose many state incentives through the designated program.

[Josh Shannon]: Which I'm not sure everyone is

[Samantha Sheehan]: Which is fine. That's their authority, and we support But their use of that you see how we're back to where we started, VLCTA. In the vast majority of the state, we don't care. We don't want to regulate farming. We want farms to continue and to prosper and to make decisions according to how they want to grow.

[Josh Shannon]: And how the experts regulate them and advise them. It's not a municipality.

[Samantha Sheehan]: But in a place that is ambitious for growth that has mandated housing targets where the state has required 20 units of housing per acre. In Milton, 20 units of acre per housing required, whether Milton wants it or doesn't want it. And then if Milton says, Okay, we also want 1B, and we're also going to draw down downtown tax credits, we're

[Rep. Gregory "Greg" Burtt]: going

[Samantha Sheehan]: to use CHIP, and we're going to build the housing that the state is asking us to build, then we say, there, let's make sure that the farming is working with what is happening in Milton for the future. That's what we're trying to get at through our legislative proposal.

[Rep. Richard Nelson (Ranking Member)]: But if the farm is there

[Samantha Sheehan]: We agree. Protect it. Yeah.

[Rep. Richard Nelson (Ranking Member)]: Protect it. Yeah. They can run their trucks at 10:00 at night Yeah. To judge you gotta get the crops at.

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

[Rep. Gregory "Greg" Burtt]: for that.

[Josh Shannon]: That would be the putting in that one in that first area with the exception for existing farms as of July 1 Yeah. Would do that.

[Rep. Richard Nelson (Ranking Member)]: Father, where mayor Buford Chase is he's gonna make Newport dark pink or whatever color that is.

[Samantha Sheehan]: Yeah. You know?

[Rep. Richard Nelson (Ranking Member)]: That's gonna be our Yep.

[Rep. David Durfee (Chair)]: Dense area.

[Josh Shannon]: Once we fix the coal fixed

[Rep. Gregory "Greg" Burtt]: and fixed.

[Samantha Sheehan]: I thought there was one more question.

[Rep. Gregory "Greg" Burtt]: So just looking for a little more clarity. So are you suggesting one of the areas would, if the law is on an existing farm now or as of July, whenever you implemented, then you could continue to practice farming without coming under municipal by law. Correct? Correct. But in 1A?

[Josh Shannon]: Both 1A and 1B. 1A and

[Rep. David Durfee (Chair)]: 1B. And

[Rep. Gregory "Greg" Burtt]: what would be the process for figuring out who was an existing farm before?

[Samantha Sheehan]: I would love to maybe confer with Ledge Council and also the agency. I think what you have drafted might might be ripe for lawsuit, depending on the activity the farm decides to do. Because remember, have construction improvement. Whenever you get specific, you're muting things out. And so then if the farm goes to do that, is someone going to say, that's not construction? I think I'm not a lawyer and appreciate the input of the lawyers, but want to suggest it would say farms designated or farms subject to required agricultural practices prior to 07/01/2026 shall not be regulated by municipal by law. Whatever anything they do,

[Josh Shannon]: like it is now, we're trying to define just rehabbing a structure. Oh, we're building a new structure, it all burned down, there wasn't a structure. If it's a farm regulated by RAP in these new one in 1A and 1B areas prior to this date, then they're exempt from this new municipal regulation. We think is the smoothest compromise to get us to a place that recognizes like you've been operating here, these new rules are gonna apply, no fault of your own, but there was this court case and there's development coming here, let's protect you. But in the future a new farm moves in, you should probably know how to get the right permits and work with your dense neighbors because there is gonna be constraints here. We wish the same issue would have been applied to the three acre rule frankly for all of our residents and neighbors because that's going back thirty, forty years and suggesting go fix something that you had no clue was going to come law thirty years after you bought this home. So to prevent that scenario from happening, we're recognizing that there are some things in place that to force them into new regulation today could create problems.

[Rep. Gregory "Greg" Burtt]: One more follow-up question. There's also concern that with having this stipulation to put 20 units per acre on tier 1A, do we have in place in Act 21 or Act two fifty or potential rules coming out for LERD to make sure that this idea of the right to grow food is great, but if there's no land to grow it on in tier 1A, to making sure that there is land preserved for those people that live there to do that.

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

[Rep. Gregory "Greg" Burtt]: any stipulations of, if we put up a whole bunch of apartment complexes, but a person has to go a mile away in order to plant something now. Is there any provisions to say we want to carve out X amount of area to leave as open ground for food security for those individuals who live in the

[Samantha Sheehan]: So Act two fifty and the tiered exemption exists in Title X. What's weird about that is it's not where municipal planning exists, which is Title XXIV, what we're talking about today. When Act 181 creates the LERB and tells it to decide if this can be 1A or 1B, it tells it to look at a bunch of things. One of the things is a mix of uses. So public lands, places of civic, important, natural resources, etcetera. So I would say, in an obtuse way, it asks for that. It asks for the LERB and the Regional Planning Commission to know that there will be open public land available in this tier 1A area. It's not going to be all buildings. And we think that could be better. And we've talked to the farm groups about that. And there are states that have certainly superior direction to the planners. Remember, sometimes the planner is a town official, a volunteer, or an employee. Most of the time, it's a regional official that doesn't work for us. And so we agree that that instruction for including considerations of where people can grow food and safely manage animals that they own and keep and enjoy things like community gardens like Granville has many fruit trees planted on its town green. It would also be great to see more people living close enough to walk there and enjoy the fruit trees. That's part of the smart growth plan that we're looking for. And we agree maybe there's something to do. It wouldn't be in this bylaw section. It would be in this other elements of a municipal plan section. But hopefully, we could work on something like what other states have that provide for that.

[Josh Shannon]: I think a real opportunity is as we and our works on more floodplain regulations, river corridor regulations. Every time we have these floods, there's buyouts in these areas. No one's going back to live there. Are we ensuring that these floodplains are now available for agriculture? Because that's a compatible use with areas that flood as long as you don't have struck. Could be positive to some smart growth here where we're backing out of these areas that we historically settled one hundred, two hundred years ago, but flood all the time in exchange for moving our population into safer areas and now opening up this floodplain for compatible uses such as agriculture. I think our municipalities would be interested in that. But this isn't the place to do it. I think that's a bigger discussion as we talk about twenty, thirty by thirty, fifty by 50.

[Samantha Sheehan]: It's good time to do it too.

[Josh Shannon]: Act 181.

[Rep. David Durfee (Chair)]: Yes.

[Samantha Sheehan]: Because everyone's planning now. John,

[Rep. David Durfee (Chair)]: thank you for trying to wrap Just the grandfather in question that you were just addressing a moment ago with your thought. Would that still leave the individual in Essex who was subject to the wraps a farm?

[Samantha Sheehan]: If they're currently subject to the wraps as of the date effective of the If you make the change we're suggesting to use the wrap.

[Rep. David Durfee (Chair)]: So timing would be important there. Okay.

[Samantha Sheehan]: You may also want to say upon passage. Because Rutland County might be adopted before July. Thank

[Rep. David Durfee (Chair)]: you very much. Graham, I know you are here this morning and maybe not this afternoon, and I don't know how long our discussion will continue today. So if you'd like to come up and add your input, that would be great. Thank you. And Steve, thank you for being patient. Committee, we're all ready here to focus on our next witness. Ukraine, do you want to post anything? I would love to. Okay, can we just grab that sharing?

[Rep. Gregory "Greg" Burtt]: I'd be able to do that now?

[Rep. Richard Nelson (Ranking Member)]: I should

[Samantha Sheehan]: be able to, but it's sometimes it'd be in circuit double. See

[Rep. Gregory "Greg" Burtt]: what I can do.

[Rep. David Durfee (Chair)]: Should we take a short break?