Vermont Legislature SmartTranscripts:

[Rep. David Durfee (Chair)]: Okay, good morning.

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: Good morning. For the record, I'm Josh Kelly, Solid Waste Program Manager at the Vermont Department of Environmental Conservation. Thank you, Chair Durfee and members of the committee for having me. For further context, I'm aware of this agriculture miscellaneous bill and further that it has multiple parts. And one of the parts addresses non sewage waste category that colleagues of ours in the Agency of Agriculture regulate. Let me first say, we appreciate the Agency of Agriculture for collaborating with us, sending us, language, statutory language to review. And, we worked with, Laura DiPietro and Steve Collier over at Agency of Ag on the language. My general awareness is that there were some concerns about waste materials coming onto farms, some concerns that farmers weren't telling them about things going into manure pits and and and general concerns about their regulatory limits of their reg their oversight. And so they wanted more more recourse to take action if they were concerned about waste materials. And that's what I think these changes achieve. There's a new waste material definition, that they've that they've, advocated for. And and from our perspective at the agency and the department, we're supportive of these changes. And I'm really happy to take questions or get more detail. But I'm only tangentially aware of the concerns Laura has shared with me and some of our staff.

[Rep. David Durfee (Chair)]: So we had a walkthrough of the language that the agency was proposing. We asked ANR to just take a look and see whether there was any flags raised. I'm not sure whether there were flags raised, but I do know that earlier this week, or maybe it was last week, I got an email from the Agency of Agriculture saying, We've had a conversation. Here are some changes to the proposed language. And we haven't had a chance to look at those changes yet. But when we do, we can feel confident that the Agency of Natural Resources is on board with that. Yes. Correct. I think that's our primary or at least a key concern is just that any changes that are made in an area like this are. Yeah,

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: there's definitely overlapping jurisdiction there. Because Agency of Ag has farm jurisdiction and we have general all waste jurisdiction. Then there's further buckets within the agency. We have an indirect discharge program, which is think of it as liquids that don't usually go to wastewater treatment plants but get land applied. We have the solid waste program, which is my purview. And then I have a colleague who's in the residuals program. Basically, it's still solid waste, but it's usually biosolids coming out of the back end of a wastewater treatment plant, the solids that get dried, the application of those. So those are the three parts that affect ANR or have cross jurisdiction, and we've worked out the language to be acceptable to us. Any

[Rep. John O'Brien (Member)]: questions? Just catch me up to speed on this. What's being changed?

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: The language that I saw from Steve Collier's memo, it's a March 6 memo from Agency of Ag, essentially is to the management of non sewage waste. And I'm not an expert, so I'll do my best to give the highlights as I see them. There's already a regulatory oversight by the agency of agriculture for non sewage waste, and there's an added defined term called waste materials that they want to add. It would apply to non sewage solid and liquid digestates from a certified solid waste facility. And I'm pointing to myself because we regulate those facilities. Those could be an anaerobic digester. There's one that used to be called Magic Hat Brewery. Purpose Energy runs it. It's in South Burlington. I think it's now zero gravity and many other brewers go through this one. So there's a digester there, does produce solids and liquids. So this would apply to that digestate. Digestate the post bacterial digestion of organic materials, and I say organic things that were once alive. Wheat that goes into beer making is some of the resultant sludges and digestates that are produced. So this category gives them oversight over solid and liquid digestates from facilities that we regulate. They get to regulate that when it's applied to a farm and brought to a farm. That's the short version. And right now, it's sort of just a whole or are you ready to I believe they have oversight over their non sewage waste category and mainly around nutrient management and water quality. And that beyond that, there's limits to their power. That's concern that was shared with me, that they want to not just be limited to NPK, nitrogen, phosphor, those sort of they wanna expand it to make sure that they can decide what's appropriate to be put on farms. So they'll get extra. We have regulatory jurisdiction and they want extra. What is the K? Phosphor potassium. Thank you. Sorry. Yeah.

[Rep. David Durfee (Chair)]: Figure out a cable. We need it up in the world. Know.

[Rep. Gregory "Greg" Burtt (Member)]: Got it. Represented us. Yeah. Thank you. So with this also take into account like compost and material from schools, municipal, hospital schools, homeowners and stuff that don't have a suitable place to compost, they could take it to a farm that has a robust compost that ain't going.

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: This change doesn't apply to that. It doesn't they already but the agency of agriculture, this committee, and the legislature has already given them power over food waste that comes onto a farm for composting. We have split jurisdiction right now. Basically, on farm composting is regulated by the agency of agriculture up until around 2,000 cubic yards. You go beyond that amount, then you're regulated by us, the Agency of Natural Resources as a solid waste composting facility. Many farmers don't want to be regulated as a solid waste composting facility, and so they are under the Agency of Agriculture regulation currently. And then but this is for those I understand about the digester.

[Rep. Gregory "Greg" Burtt (Member)]: I think it's in Middlebury.

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: Yes. There's one in Middlebury.

[Rep. Gregory "Greg" Burtt (Member)]: An issue with getting rid of their when they cleaned out their bats.

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: Yeah. The the concern I heard is that there was some stockpile digestates at one farm, and and I I believe the industry everybody was aware of it, but this is also concerns about ability to regulate what what they do with it beyond just nutrient management. That's what's been shared with me.

[Rep. Gregory "Greg" Burtt (Member)]: Yeah. Okay. And this has nothing to do with the sludge out of a sewage treatment.

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: Correct. It's it's it doesn't it's it means non sewage solid Yeah. And liquid waste. Alright.

[Rep. David Durfee (Chair)]: Perfect. Thank you. Yeah. Good question.

[Rep. John O'Brien (Member)]: So I was just wondering as an example, listen listen, Valley have a digester on-site. Right? So if they have residue

[Rep. Gregory "Greg" Burtt (Member)]: But that's majority their own product, and then they'd have to go through the PUC or and maybe AFM to bring in, like, something else to make it hotter, and that goes in the nutrient management plan. So they apply that.

[Rep. John O'Brien (Member)]: So they're already covered? Like farms with biodigester? Yeah. Like?

[Rep. Gregory "Greg" Burtt (Member)]: Yeah. Okay. So this is sort of off farm, like you said, or whatever with

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: It's the on farm, it can be things that come from off farm. So that purpose energy digester in South Burlington is not farm related at all. It's in South Burlington right attached to the plant where they're making the beer and the beverages. So they have material, liquid and solid, that they need to then do something with. I believe the liquids go to wastewater treatment. It's a pretreatment process, essentially. It's taking down the nutrients before it gets to the wastewater treatment. But occasionally, there's also solids they can't put down the drain. So those go usually to farm fields. And this gives them oversight over that digesting material.

[Rep. John O'Brien (Member)]: I was wondering, do the biodigesters already on farms?

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: Some of them are and some of them aren't. That Middlebury example, I believe that's direct piped from Cabot, I think, is part of it. Maybe Ben and Jerry's. There's this is an industrial park in Middlebury with multiple beverage producers on-site. I believe Woodchuck cider.

[Rep. Gregory "Greg" Burtt (Member)]: Yes, sir.

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: There's a kombucha maker. This is in the news. And so that one's not really on farm either. That's very industry specific. Basically, there's limits to how much wastewater can handle. Our treatment plants are fairly small. And to have industry grow, you need to be able to deal with their waste product. And they then take that on often to process themselves to then be able to send a cleaner product to the wastewater treatment.

[Rep. David Durfee (Chair)]: When

[Rep. Gregory "Greg" Burtt (Member)]: this nutrient base coastal farm has become a fertilizer or a amendment to manure or blended in with this, is it a positive for all? Yeah. Rather than It's a small positive. Yeah. A lot of times they take it and they they receive, I believe in some cases, receive a tip and treat. Yeah. But it's cheaper than running it through a wastewater treatment facility that might over burn that facility, you know, and it doesn't hurt the soil in any way. Has a small box of it. It's all organic. Yeah.

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

[Rep. Gregory "Greg" Burtt (Member)]: Got a new facility in St. Albans has taken Bennington's waste. Yep. I think that's purpose. I believe so as well. I think this is the third they have. So their liquids, they have digested. Their liquid, I think goes into the sewer plant, but they get a dumpster full of solids every week and I don't know where it goes. They were trying to get some farmers to take it, but it wasn't that good for enriching the soil. It was just like and we also had the chocolate factory, which continually plugs up our sewer pump in the industrial part because the stuff is liquid, and when it

[Rep. David Durfee (Chair)]: gets to the pump,

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

[Rep. David Durfee (Chair)]: this bill had, again, three sections. We've just heard about this one of the three. There was another section that we've also invited ANR, and I understand you're not the right person, Josh, but it was a section really that the agency was, in which the agency of agriculture was asking for some changes to be made for training And on the we've reached out several times to contact at ANR just to say, can somebody come in and just let us know that ANR is okay with this? And our committee assistant who is remote today may or may not have gotten somebody to come in. If I could just send you back with that, that's all we're looking for.

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: Yes, I can run that back.

[Rep. David Durfee (Chair)]: And I think it was just some miscommunication about that. Okay. Good. And then just for the committee's sake, the third section has to do with the unit pricing. If you remember, we had a brief conversation about that on store shelves Dynamic? Yeah. Well, Dynamic was part of it, but there were also some other more technical changes. So we have made some time tomorrow for Mark Paquette, who was our host down in Randolph, and we toured the, ways and measures facility that day. He'll be testifying tomorrow. A So lot's more excitement to come. Josh, thank you very much. Any other questions before we move on? All right, thank

[Josh Kelly, Solid Waste Program Manager, VT Department of Environmental Conservation]: you for coming in. Thank you very much.

[Rep. Gregory "Greg" Burtt (Member)]: Is this in our house miscellaneous or the center?

[Rep. David Durfee (Chair)]: It would be in ours. Yeah. Yep. So before we break for lunch and, again, I know that there is an event that's actually scheduled to start a little before 12:00, so some people may have to leave early childcare early childhood. Early childcare.

[Unidentified Committee Member]: There'll be people from all of our districts sitting at tables wanting to talk to us about what's working and not working.

[Rep. David Durfee (Chair)]: Well, maybe she'll be here, I'm not sure, yeah. Well, she's no longer with Let's Go Kids. So we've got Chris Jensen, who has joined us online, and legislative counsel, Cameron Wood, who is here in person. And Cameron's just here to listen, I think. But Chris is here oh, yes. Please go on. Right up. Thank you. Chris is here to speak to h five thirty seven. This is the act relating to the right to grow vegetable gardens. And I'll just remind the committee that we took some testimony a couple of weeks back from the Vermont Landlord Association, which is that testimony was addressing part of the bill that dealt with landlords and tenants. Another part of the bill that deals with homeowners associations and residents is why we have Chris Jensen here this morning. Nope. I hope that that none of that comes as a surprise to you, Chris, that I characterized that correctly.

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: Nope. Not at all.

[Rep. David Durfee (Chair)]: Okay. Good. Well, then I will turn it over to you if you want to just introduce yourself and share your perspective. Tell tell us who you are, who you're with, who you're representing, all of that, and then your any feedback or input you might wanna give us.

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: Great, thank you. I'm Kris Jensen. I am a lawyer with Primer, Piper, Eggleston and Kramer in Burlington, but I'm here today as the chair of the Community Associations Institute, that's a mouthful, Vermont Legislative Action Committee. And what we do on the committee is monitor and respond to proposed legislation that can impact common interest communities in Vermont, like this one. So we did submit written testimony, and so I'm going to try to be brief today. I know it's just before lunch. You guys have a lot on your plate. In general, we are supportive of this bill. We appreciate that it's narrowly drafted. There are a couple of concerns that we have with it though. I want to start out because common interest community law is pretty specialized. I've already tortured Cameron with this a little bit. But one of the challenging things in Vermont is that we have a huge variety of common interest communities, whether they're planned communities, which is what this bill would apply to, or condos. We've got old Victorian buildings in Burlington that have been converted to condos. I've got another condo that I work with out in Williston that is single family homes on lots that are limited common elements. So it's it's a real challenge in terms of draftsmanship for statutes that apply to this. We are lucky that we have the Common Interest Ownership Act that is a comprehensive piece of legislation that was adopted back in 1999. It's been amended to address changing circumstances. And so that statute addresses some of the elements that this bill is trying to address. The other thing to to keep in mind, unlike the landlord tenant situation, when a unit owner buys into a common interest community, they know what they're getting into. So they're the sellers required to provide document, the documents that govern the community, the declaration that defines who owns what and permissible uses of those parts of the community, the bylaws that talk about governance of the community and set out the owners rights to run for the board, participate in decisions, amend the documents. All of that information is provided when people buy into common interest communities. Excuse me. What's important about that is a couple of things. These communities are governed by volunteer boards. They're not paid. They're neighbors. They own units in the community, and it can be really challenging for associations to find people to fill the boards because, as you can imagine, it can be a thankless task at times. So those sort of underlying principles are going to govern a lot of my comments here. My primary concern is, and this is going to sound pretty basic, but the term vegetable garden is vague. I've seen a whole variety of vegetable gardens. My own have run the gamut from, you know, tidy to sort of running a muck with supports and things like that. And I think it can be really challenging to decide what an appropriate vegetable garden is. Can you bring in a lot of soil amendments involving tractors, things like that? Are supports permissible, fencing to keep out rodents and deer? Those I think are going to be really challenging issues. It's also not entirely clear what it means to effectively prohibit or unreasonably regulate it. That I understand is a huge challenge from a drafting standpoint, but from an association standpoint, and I've done a fair amount of litigation in my practice, those types of terms can be invitations to disputes or litigation just because they're really challenging to apply in the particular. The enforcement as a practical matter of the, you know, a when a garden is approved by an association, the enforcement is going to be challenging. So we've got appropriate requirements, I think, here for conditions that a unit owner has to maintain it properly. And if it's unused for, you know, some period of time, and that could determined by the terms of approval. But what happens if that unit owner does not remove the garden when they're required to? The way the statute's currently drafted, almost all associations and the declaration can provide otherwise, but that's a fairly new provision. But ordinarily, the cost for the association to remove that garden is going to be borne not by the violating owner, but by the members of the association as a whole. And that's not fair. So that could be addressed by providing that if an owner fails to meet the conditions of approval, then any cost, you know, maybe you give the unit owner ten days or a couple of weeks to comply. But if that owner doesn't comply, the cost to do it on the association's part should be borne by the violating unit owner, not by everyone else. The last comment that I'll make is with respect to the deemed approval provision after sixty days and a penalty that is imposed for violations. These are I would suggest that those provisions be removed because these are, again, volunteer boards of non professionals. A lot of associations are really small. They don't want to call an attorney every time they have to determine something. And permissible uses of common lands can be a can be a really thorny issue requiring review of the declaration, review of the bylaws sometimes. So those can be thorny issues. I think that the sixty day period. Oh, I apologize. Boards are already required to act reasonably with respect to unit owner applications, approvals, etcetera, and the decisions that they make and conditions they impose. So I would suggest that the statute already contemplates that the boards will act reasonably. That reasonableness is going to be determined in part by the type of association, the size, the layout, the general community standards. So all of that is already encompassed by the statute. The statute also provides in section four one seventeen provisions for violation. So if the act is violated, unit owners already have a cause of action against the association, and the court can award reasonable attorney's fees to the substantially prevailing party. So the good news is that's already covered, which goes back to the comprehensive statute. And other than that, I think it's a carefully drafted bill. I recognize that there's a lot of work that went into it. I don't know if you guys have any questions for me.

[Rep. David Durfee (Chair)]: Thank you, Chris. Are there any questions? I think what we might do next, and I'll give people a chance to raise their hand before we do move on, but what I was going to suggest was see whether Cameron could bring the bill up and we could walk through it. And Chris, if you're able to stay with us, you're welcome to. As we walk through the bill, Cameron, you could point out to the extent that you're clear, I don't want to put you on the spot, it sounded like maybe you've had had a chance to look at this earlier again.

[Cameron Wood, Office of Legislative Counsel]: Sir, and I actually have some potential recommended adjustments as well that it may be worth looking at.

[Rep. David Durfee (Chair)]: Let me just Do need permission to share your screens?

[Cameron Wood, Office of Legislative Counsel]: Possibly, I'm in. Let me grab the bill and then and see if I can share.

[Rep. David Durfee (Chair)]: While we're getting set up with the tech, does anybody have a question for Chris? Well, Chris, maybe you can just repeat again the different types of I keep using homeowner association. Maybe that's not the right technical term. Common interest community, what?

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: Yes. Yeah. So, right, what you're talking about are common interest communities here. So there are condominiums and planned communities. Those are the two primary types in Vermont. And the difference between them is who owns the common elements. So there are units that are individually owned and then there is common. Oftentimes it's land. Sometimes there are, you know, rec centers and things like that. And in a condominium, the common elements are owned by the unit owners as tenants in common. And in a planned community, the association itself, excuse me, owns the common elements.

[Rep. David Durfee (Chair)]: Oh, okay, I see. So if you've got 10 people who are part of one of these communities, in one case, they would individually have a share in the common elements. But in the other case, there's an association that is a legal entity that owns the common areas.

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: Yes, with a caveat. In both cases, there's an association that's a legal entity, and the association is composed of all of the owners of units in the community.

[Rep. David Durfee (Chair)]: Yes. Yes. Good. Thank you. Represent Bartholomew.

[Rep. John L. Bartholomew (Vice Chair)]: But in in neither case, the owner of the unit owns the land. It's like upheld in collective in both those cases. Is that right?

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: Not quite. So this, I told you there is a big variety of common interest communities. So unit is defined in the declaration, and it can be defined as a portion of a building from the Sheetrock Inn, or it can be defined as a building sitting on land with no land, or it can actually be defined as a building with an area of land around it. So I could write a declaration that says a unit is this building and one acre of land around it, and that's individually owned. That's not usually the case.

[Rep. David Durfee (Chair)]: Good. Let's let's take a look at that and have Cameron No. Not available yet to us. This is introduced, right? This is as introduced. Just as introduced, yes. So it is available as introduced.

[Cameron Wood, Office of Legislative Counsel]: Okay, so I will just, for the record, Cameron Wood, Office of Legislative Council, and to the extent that I can, because I have the opportunity, I will just thank Chris for her help. If you all remember, I think we walked through this earlier towards the beginning of the session, and I was letting you know this was a new area for me. And I was doing research for the House General Committee, and I've had to do additional research for the Senate Economic Development and Housing Committee. They have a few provisions dealing with common interest communities. And so subsequent to when I first walked through, I've learned quite a bit. I was put in contact with Chris through the Senate committee, and we had a conversation last week. And I just will thank her for taking the time to help me learn a bit. And I think she's been a great resource to me and hopefully to you all as well this morning. And so I just echo one thing that she mentioned there. I learned that these could be very unique communities, all depending on how the declaration lays out the initial organization of the community when it's created. So just keep in mind as you're walking through, I think it's pretty obvious when you're thinking about the landlord tenant. I think the testimony you all had from a few weeks ago, the unique circumstances of what the tenant is renting could depend on how this will play out in practice and on the ground. Same thing with the common interest communities. It's really going to depend on the unique nature of the organized community itself. But that's why for starters, will kind of skip to one of the points here on page five, and then I'm gonna come back and kind of start from the top. But I will just mention one of the provisions in here as drafted was that the section shall not apply to a condominium. And I mentioned at the time when we did the initial walk through, that may not be appropriate. You may want to, if you kept that in, it wouldn't apply to condominiums, it would apply to planned communities. I don't know that the legal distinction between those two is really a good legal reason to have that distinction in here. So I think if you were to move forward with the bill at this point, unless there was reason behind the committee wanting to exclude condominiums For practical purposes of what you're trying to accomplish, I don't think there's a good distinction between a condominium or a planned community. So I just wanted to kind of start there. I'll bring you back to the top because the first section is about preexisting common interest communities. And this was here because there's a question about if you were to enact this, what entities do you want it to apply to? There is the Condominium Ownership Act that applies to these communities that were created prior to the enactment of the uniform law that went into effect 01/01/1999. And so what this first section is doing here is it's making these provisions retroactive, and it's making the provisions apply to common interest communities that were created prior to the uniform law going into effect. If you're wanting to be as comprehensive as possible, you may want it to apply retroactively that way. But I mentioned when we first walked through, and I'll mention again, I do think you have some issues with applying this retroactively because you are impacting the agreements that are in place at that point in time, kind of implicating the contracts clause of the constitution, impairing contracts that are already in existence. I think that there is a justification for doing so, or you could make a justification for doing so. I'm not here to say that it would be struck down. I'm just indicating to you all that by having this Section I, making it retroactive to these entities that are pre-nineteen ninety nine, you do potentially have an issue there. You can apply it to the uniform law, in which case it would apply to all of these communities that existed post 2011. And so you're probably sitting there saying, well, why are we gonna go back to 2011? Isn't that retroactive as well? There were amendments made to the Uniform Act, and they state that any future amendments that come after 2011 will apply to common interest communities that were created post that date. So those entities have been put on notice at that point in time that if you all make amendments to the Uniform Act, it's going to apply to them. So you have less of a potential issue there. So I know that's a little convoluted and complicated, but just mentioning to you all section one, you may want to keep, you may not. It's really about how far back do you want to impact these communities that exist.

[Rep. David Durfee (Chair)]: And whether we're comfortable with a possible constitutional issue. Yes, sir. Yes, sir. Okay.

[Cameron Wood, Office of Legislative Counsel]: So then we have Representative O'Brien.

[Rep. John O'Brien (Member)]: Is there a way to, on those very old communities to have a voluntary adoption? What the board's vote now, would that apply to those contracts, separate Two obligations at

[Cameron Wood, Office of Legislative Counsel]: things I would say, and I may invite Chris to jump in here too. Prior to 1999, those entities, they can voluntarily elect to amend their declarations and come under the provisions of the Uniform Act. And I believe that many of them have. How many of them exist in each bucket, I'm not sure. Conceptually, there are some that could exist that have chosen not to come under the Uniform Act. And I think it's probably a good bet to say there are some out there. But there's already a legal mechanism by which they can bring themselves under the Uniform Act if they so choose. And then the second piece I would say is those entities, they can do so, in which case this would apply to them if they brought themselves under the Uniform Act moving forward. And then those communities can allow this to happen on their own, if they so choose, through their own governing rules and documents, etcetera.

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: Can I just jump in here for a second? Yes. Because I agree Cameron's summary was really accurate. I would add a couple of things. First, that associations exist communities existing prior to 01/01/1999 have the option to opt into all or selected parts of the act. They can pick and choose. Also, the associations already have the authority to regulate the use and modification of common elements, including limited common elements. So any association, including pre existing communities, can already permit vegetable gardening on limited common elements. So as I see this bill, it goes goes beyond that to prohibit associations from unreasonably regulating or which frankly is already prohibited in my view, but I understand it or effectively prohibiting guarding. So this goes beyond the existing authority to invalidate provisions of governing documents.

[Cameron Wood, Office of Legislative Counsel]: That would deny somebody the ability to do this.

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: Right.

[Rep. David Durfee (Chair)]: Okay, okay.

[Cameron Wood, Office of Legislative Counsel]: Okay, so that's section one. Now we get to section two, vegetable gardens. This is the section that applies to the common interest communities. And as you all take a testimony, there's similar provisions later on that apply to the landlord tenant relationship. If you all remember, when we did that initial walkthrough, we spent a lot of time on this definition of vegetable garden and kind of talking about it. And I mentioned to you all that I had kind of pulled this from some of the language that I'd found in some other states, but further defining what a vegetable garden means may be worth time with the committee. Think there was conversation about,

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

[Cameron Wood, Office of Legislative Counsel]: would it include things like trees that were planted, etcetera? I remember that being one of the things that we discussed seems to be a little more, how do you remove that in the event somebody wanted to plant that? It seems to be a little more problematic. So anyway, I somewhat just echo the comments that Chris made in the sense that there are no restrictions currently in the draft if you wanted to put some in there to say a vegetable garden does not include things like permanent structure other than the bed itself, or if you wanted to prohibit specifically a vegetable garden, including things like an external fence surrounding it. And then just echoing what she brought up and mentioning that you have this definition that would really, I think, be the thing driving what you're talking about. What is the common interest community restricted from prohibiting? It's all gonna come back to this definition. So just making sure it is how you all want it to be worded. And then we have in the sub B, covenants, restrictions, conditions contained in the deed, contract security instrument, other instrument, or any of the governing documents. So line 21, moving on to the next page, the governing documents such as the declaration bylaw rule. Technically, the declaration, as I've learned, is probably more appropriate. The first piece is that the declaration is really more of a covenant or a restriction as opposed to a governing document of the association. But it's okay. All of those things cannot unreasonably restrict the installation or use of a vegetable garden in areas designated for exclusive use of the unit owner or is in conflict with the sections as void and unenforceable. If approval is required for the installation, the application shall be processed and approved by the association in the same manner as approved for architectural modifications, and then the sixty days. And this is, I think, what Chris was bringing up about having that sixty day mark for approval may be problematic for certain communities that exist. It's not a requirement. It was piggybacking off some language that had been introduced in a prior legislative session addressing electric vehicle equipment, of electric vehicles. So please just understand that's not a legal requirement there. It was just included for conversation among the committee if you want there to be a kind of point in time in which the common interest community needs to make a decision. I would echo one thing that Chris had brought up. There is a separate provision that does require rules to be reasonable. So I think an individual does have some recourse if they would need to move forward, the community was just sitting on an approval and not moving it forward in a manner that is reasonable. It's up to you all of whether you want that policy piece in there. Sub three, we have the unit owner being responsible for the cost of the installation and maintenance, damages to the common elements or limited common elements, costs for the water, electricity. One thing I think just in response to what Chris mentioned, if you wanted, you could include another subdivision here about the unit owner being responsible for any action that the common interest community needs to take to correct a violation of the rules that govern the vegetable garden itself. You could add language in there to accomplish that goal if you wanted to. And then you have page four, the section shall not prohibit the association from enacting bylaws or rules that reasonably restrict the installation. We don't want this to be interpreted to say that the common interest community can't enact anything to govern them. Enacting rules to require be maintained in good condition, removing dead plant material, etcetera, Those are all by the statute considered reasonable. And then we get to D, intentional violation of a section, shall pay civil penalties. I'll echo what Chris said. There is a separate section that deals with how to address violations. So in putting this in here, you would be having somewhat inconsistent application in the sense that you would have a specific violation for this section when there's already language that kind of governs global violations. So I would kind of echo, you're wanting consistency, which I think for common interest communities and the Uniform Act, that's probably statutorily and legally a good thing. You may want to consider whether or not you need that subsection D or whether just the general penalties provision can apply to a violation here. And then I already mentioned the subsection C of whether it's really appropriate to apply this just to planned communities or whether condominiums should be included as well. Again, a policy decision for you all. I just think at this point, having moved further and learned the distinction between these two legally, I don't know that that makes any necessary sense.

[Rep. David Durfee (Chair)]: I'm wondering, thank you, Cameron, and I'm wondering, I'll pose this question to both of you, whether that, so going back to the definition of a vegetable garden, so the beginning of what is, it's a little vague. Would it be if we agreed that we thought that bill would be improved by putting some guardrails on that or more clearly defining what we mean, is the place to do it in the definition or in perhaps where we just sort of ended up where Reasonable. Yeah, including that list of what the association could reasonably prohibit or regulate. Yeah.

[Unidentified Committee Member]: Yeah. So sort of along those lines, I know at one point it describes what's being allowed as a series of potted plants pulled together. Like, I mean, I think that was the original version. I don't think that we've actually changed the language.

[Rep. David Durfee (Chair)]: You might be thinking about the rental section, which we haven't gotten to here. In

[Cameron Wood, Office of Legislative Counsel]: the rental piece, it starts out initially as potable and the landlord has to approve that structure. It was kind of mirrored on what some other states had done. The thought for me of drafting it that way, as I was discussing with the sponsor was, in landlord tenant circumstance, you may not have land access for the tenant to use.

[Unidentified Committee Member]: So we might have different definitions of the garden. So a garden in one setting might be an in the ground garden and in the tenant situation of the landlord it would be only limited to having pirate plants. There's more than one definition potentially.

[Rep. David Durfee (Chair)]: There is, yeah. If we went further down we'd see that definition, yeah. All right. But just back to my question, I'm wondering if either of you has a

[Cameron Wood, Office of Legislative Counsel]: I'll give you my reaction, but then pose it to Chris as well. I think it would be up to you all about how restrictive you want the statute to be. And what I mean by that is if you put different limitations on the definition of vegetable garden, statutorily, that's what's going to apply, whether the common interest community wants it to or not. If you were to add some language into the section about these are reasonable restrictions that the statute is going to identify community can put into place. If you wanted to put some language there to say that the communities can put limitations on the structure itself, you are giving flexibility to the community to make that decision on its own. And so it's really, I would articulate it back to you as a policy decision of where you want that authority to exist. If you all don't think like, hey, we don't want to apply a circumstance for every common interest community that exists, let's let them make those determinations. You could give them the legal authority to do that.

[Rep. David Durfee (Chair)]: Okay, they have the option. All right. Okay. Thank you. Yep.

[Rep. Gregory "Greg" Burtt (Member)]: Other committee questions? Yeah. I was just thinking on vegetable garden and and I like his answer he just said, you know, if if we just give him the parameter and then let those common interest communities kinda set up their own parameter, you know, maybe, you know, as I mentioned earlier, fruit trip, you know, that's gonna take three, four years to get established and then, you know, if that person moves away before then and who is burdened with a fruit tree and you know, do you you want them as annual crops that are planted and harvested and cleaned up there in the winter and whatnot? Perhaps you get the associations the chance to set up guidelines.

[Rep. David Durfee (Chair)]: There you go. Chris, does that make sense to you?

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: That does make sense to me. I'm just thinking about the various concerns that associations might have. One of them is with respect to permanent structures or semi permanent structures. And this goes back to the variety of communities that we're dealing with here. In some cases, the associations responsible for maintaining the limited common elements. So, you know, mowing, for example, and it's one thing to have your your mowing guy, you know, mow around a square or rectangular patch, it's another thing to have them mow around a bunch of raised beds. So I appreciate the appreciate the recognition of the need for flexibility for associations in this case.

[Rep. David Durfee (Chair)]: John? Can Renewal Man any

[Rep. John O'Brien (Member)]: restrictions on planting invasives in Vermont?

[Cameron Wood, Office of Legislative Counsel]: I do not off the top

[Rep. Gregory "Greg" Burtt (Member)]: of I my would I mean, because I know most of, or a lot

[Rep. John O'Brien (Member)]: of our bad invasives all came herpes recently. Right, right. And things, even common things like Norway maple or burning bush, honeysuckle, all these sort of bad things. So I'm just wondering at these different levels. Right, exactly. Bamboo, one of these common interests in the community, if they, like where, who sort of has jurisdiction number saying you're not gonna plant bamboo here? Or if a municipality said that or if the state says it, at what point does somebody supersede somebody else? I will check with O'Grady

[Cameron Wood, Office of Legislative Counsel]: and Bradley. My assumption would be the state, if there is some sort of prohibition on invasive species, that's gonna apply, whether it's in a common interest community or not. And that would control. So even if a common interest community was like, yeah, you can plant that, we don't have any issues or concerns with that. If the state is saying, no, it's an invasive species and you can't, then that's going to control. But I just, I wanna check with those two gentlemen to figure out what exactly is that legislation so I can point you to it.

[Rep. John O'Brien (Member)]: Because I just wanna If

[Cameron Wood, Office of Legislative Counsel]: there is some, I mean, I'm assuming there has to be, but

[Rep. John O'Brien (Member)]: Yeah, are there tensions then same sort of realm between a municipality, which we've been talking a

[Rep. Gregory "Greg" Burtt (Member)]: lot about with agriculture and these communities too? Let me let me check. Just thought about it with the cannabis thing, like a town might say, okay to grow cannabis with a license here, but then. This is saying no. I

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: would think that those would by definition be reasonable restrictions though.

[Cameron Wood, Office of Legislative Counsel]: Right, right. At the state or the

[Rep. David Durfee (Chair)]: municipality prohibits. Chris, do you have so Cameron's pointed out that the bill as written says condos are not part of what we're talking about. Do you have concerns if we were to strike that language from the bill? No.

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: No, I think Cameron's analysis is spot on. Yeah, I think the I I think the intent is to include community or the intent as I as I read the the bill, the intent should be to provide for use of limited common elements, so areas allocated to the exclusive use of one unit. That's where gardens should be prohibited. It shouldn't depend on whether it's a condo or a planned community.

[Rep. David Durfee (Chair)]: I will say that I think we're not envisioning structures. Building buildings, will say, as soon as you get into fences, gardens often have fences, so that's something we would need to just be clear on. What's a permanent fence versus what's not a permanent fence? Row covers or small trellises. So these are things where we may need to just try and be a little more precise. We don't have a lot of time, I will say. Chris, as you may know, we're trying to get all legislation out of this room by Friday, by the end of the day Friday, for crossover. And Karen is probably working on other bills. I don't think this is the only bill he's got in his portfolio. But we'll do we'll do our best. I I think that we should direct Cameron to incorporate the suggestions that we've heard this morning, incorporate his suggestion that we strike the language on condos being excluded. And then we had also taken some testimony last week, the week before from the Landlord's Association. They had a couple of reasonable recommendations too that we would like to incorporate. And then Cameron, you and I can check-in later to see when a time might be a reasonable time for you to come back and walk through that.

[Rep. John O'Brien (Member)]: Does the committee have recommendations on vagueness

[Rep. David Durfee (Chair)]: of vegetable gardens? Yes. So if if either now while we have a minute, if anybody wants to throw out an idea, we can do that. I think it seems to make sense perhaps to have the definition, to leave the definition as is, but then down in the areas that can be regulated, incorporated there. Does that make sense, John? Yeah.

[Rep. Gregory "Greg" Burtt (Member)]: Changing the safeguard, making flowers or vegetables?

[Rep. David Durfee (Chair)]: Well, yeah, I don't think it's so much that as what then can the homeowners association or the common interest community say you can't do. So perhaps, and we've talked about this, you can't grow things that are a certain height or you can't grow things that are gonna, like, squash. It's gonna take over the

[Rep. Gregory "Greg" Burtt (Member)]: Or the Trinity that's gonna get this crazy, break out of the

[Rep. David Durfee (Chair)]: roof. So that's where the devil might be in the details. And Cameron, I don't know you can't do the thinking for us, but I think if you can sort of block out where

[Cameron Wood, Office of Legislative Counsel]: Try to come up with something. Okay. You know, in particular, just about the size limitation, the permanent structure, giving the common interest community, it may be reasonable for them to outline some regulations around that. I'll see if I can pencil something out as a starting point.

[Rep. David Durfee (Chair)]: Thank you for joining us. Chris, thank you very much for the thought you put into this and sharing your time with us this morning.

[Kris Jensen, Chair, Vermont Legislative Action Committee (Community Associations Institute)]: Thank you very much for the time and the work on this. Appreciate it.

[Rep. David Durfee (Chair)]: All right. We are gonna break for lunch, and we'll be back at 01:00.