Vermont Legislature SmartTranscripts:

[Rep. Sarah "Sarita" Austin (Clerk)]: What? Video

[Rep. Amy Sheldon (Chair)]: bumps. Morning. Welcome to the House Environment Committee. This morning, we are gonna get a sneak preview of a couple of bills that the, agriculture and forestry committee has been working on. With start off with the chair David Durfee. Welcome. Thank you. Good morning.

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: David Durfee, Chasberry, chair of the House Agriculture Food Resiliency and Forestry Committee. Thank you for having me. We have been working on a couple of committee bills that are on your agenda this morning. I've got a few minutes, so I think I'll just talk quickly about both of them and then let you hear from the judge counsel. Both of these are bills where we're sort of presumptuously infringing on your area of jurisdiction, so apologies in advance for that. The first is a is a bill, a forestry related bill. And act one eighty one, two years ago, included a a line or two with a request to the new land use review board to make some recommendations on easing the permitting process for wood products manufacturers. So sawmills, which had manufactured those kinds of businesses. And they were they were asked originally to make those recommendations by December 2024. And as it turned out, the board hadn't even been stood up yet at that point. So they requested a delay and received that delay permission and ended up issuing a report last June. So it was after we had left, and when we got back in January, we started taking testimony on that. So one of the bills is basically working on two two of the recommendations that they came up. They came up with a list of 10. Two of them required legislative action, and they proposed some language. We've heard in addition to their language, ANR has come in with some comments and some suggestions for changes, and we are still in the middle, although I think getting pretty close to a place where we feel like this is language that we could vote out. Given the time the timing, we wanted you, you know, to see it not on next a week from Friday or, you know, when we're back on the at the very last point. So Ellen can talk more about, you know, where we are with that and and what you're looking at when when she sits down. Unless there are any questions about that, I'll just move on to the other bill then. So the second bill has to do not with forestry, but with agriculture and with municipal regulation of agriculture. And you may have heard about this, from me. I've spoken about it in public a couple of times. Last last May, the Supreme Court issued a decision that upended decades of understanding about municipalities in Vermont and their ability to regulate agriculture through bylaws and zoning. It always been understood that towns could not regulate agriculture farm farming. And the court said we were reading the law a little bit differently, and our interpretation is that towns can do that. So over the summer, this happened right at the end of the legislative session. We didn't have time to react. Over the summer, the agency of agriculture, the league of cities and towns, and a collection of associations representing farm groups, farmers, all met, discussed what a path forward might look like. And when we got here in January, they were still having those conversations, and they are still today. And we've we've asked them to try and come up with a single position, and they've they've had trouble doing that, but are pretty close actually. Again, given the timeline, we can't wait too much longer. So we have language that I think it's what Ellen may show you today is it's still being worked on. We've got a new draft that I'm looking at, with our committee this afternoon. But the the intent is to try and get back to the status quo the way things were as much as possible. There's probably not gonna be a solution that satisfies everyone that that involves everybody being there entirely. So so no regulation at all, but with some limited regulation possible in certain areas by municipalities over farming. And then in addition to that, we are, at the same time, trying to say that not for farming, but just for individuals who wanna grow a garden or maybe a little more food for themselves and their neighbors that towns can't prohibit that, but may may regulate it. Chickens are also part of this conversation. So growing carrots is one thing. Having a few chickens is is another thing, and we want to make sure that right now, towns can and have always been able to say no chickens, and that doesn't happen in Vermont, fortunately. But it's it may be the case that it's functionally very difficult in some towns to have chickens, and we want to just say, going forward into the future, you can't ban it altogether. You can't ban somebody from growing vegetables in their in their own in their own yard. That's it, I think. Anything I might have left out? Turn it over to Ellen. Thank you.

[Rep. Sarah "Sarita" Austin (Clerk)]: Does anyone have questions for representative? Can you name, like, like, top two things that are different from after the Supreme Court decision? What are really two big things that are impacting agriculture? So right now, since the Supreme Court decision, a town could say to a farm, an existing farm, we

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: don't want you to run your tractors after 06:00 or Bed manures? Yeah. Right. Things like that. Or you you can't build a barn right there where

[Rep. Sarah "Sarita" Austin (Clerk)]: you wanna build it or put up a fence. Right. And can you grow hemp? Can can people grow cannabis? I'm gonna leave that

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: to Ellen. So so cannabis is not a part of this conversation.

[Rep. Sarah "Sarita" Austin (Clerk)]: Okay.

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: Hemp is is different, and I'm I'm not sure that Ellen knows the detail there.

[Rep. Sarah "Sarita" Austin (Clerk)]: But Okay. Great. Thank you. Yep.

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: Because hemp is a little bit different too.

[Rep. Sarah "Sarita" Austin (Clerk)]: Okay.

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: Yeah. Federally.

[Rep. Amy Sheldon (Chair)]: Thanks for joining us.

[Ellen Czajkowski (Office of Legislative Counsel)]: I'm Chad Kasky, Office of Legislative Council. So I think on the agenda you have the wood products bill first. Is that what you want to start with? Sure. Okay. So the Iowa Agriculture Committee has been looking at the wood products manufacturer report that the Land Use Review Board issued. I had it posted under my name today so you can review it. It came out a while ago, so I'm not sure if you all had a discussion about it, but they to incorporate two of the recommendations from that report into a bill. And so that is what is in draft 2.1 of draft number 26 dash seven eighty seven, which is the regulation of forestry under act two fifty. So while this bill has is based on the wood products manufacturer report, the the intent of the language is actually specific very very clearly to forestry. It's not really about wood products manufacturing. It's about bringing parity to how agriculture is treated. Agriculture is treated with exemptions under act two fifty. Logging and forestry has long also had an exemption under act two fifty, but there are a couple of provisions that were also added for agriculture that are now being added in this bill for forestry and logging as well. So there were two recommendations in the report, recommendations number nine and ten. And so the bill doesn't line up exactly like that, but recommendation 10 was to strike from definition of wood products manufacturer, pulp yards and concentration yards, so that they can be exempt as part of logging and forestry. And then, as I mentioned, recommendation number nine is to have this same exemption that exists for farming, also for forestry. So, if you're looking at the draft, it's dated, draft 02/2001, 02:25, 11:15 a. M. So the first section is amending the Act two fifty definition section, 10 VSA 6,001. It's adding this new language in subsection F at the bottom of page one into page two. Subsection E is not shown here, but subsection F is nearly identical to E, and it's language that has already existed for farming. Subsection F is adding logging of forestry. So when development is proposed to occur on a parcel or tract of land that is devoted to logging and forestry, only those portions of the parcel or tract that supports the development, onto page two shall be subject to regulation under this chapter. So I'll stop there for a second. Broadly under Act two fifty, for nearly every other type of construction or development, when Act two fifty jurisdiction attaches, it attaches to the whole parcel, and the permit conditions can be on the whole parcel. This is recognizing that sometimes in agriculture, but also true for forestry as put here, someone may want to add something to a development, add a development to a parcel, but the rest of the parcel would be exempt because all that's occurring is forestry or logging operations. So this is saying for forestry operations, only a portion of the parcel that is around the development shall be subject to activity. And the rest of the parcels shall be exempt so that the exempt activity can occur. It goes on to say on line two, Permits issued under this chapter shall not impose conditions on other portions of the parcel or tract of land that do not support the development and that restrict or conflict with the acceptable management practices adopted by the Commissioner or Sparks and Grant. So the conditions on whatever other construction is being built shall not attach to the forestry part of the parcel and they shall not conflict with the acceptable management practices, which is the forestry practices that the commissioner adopts.

[Rep. Amy Sheldon (Chair)]: If they don't attach, why do you need the second part of that thought?

[Ellen Czajkowski (Office of Legislative Counsel)]: So there have been some very specific cases about tree buffers that need to be preserved for either aesthetic reasons or water quality reasons. So there's there have been a couple of very specific instances about, okay, forestry is allowed to occur, but there may be sort of these in between areas that may be either protected by permit conditions or some other aspect of the project. The Land Use Review Board has done a lot of research on some of the past permits. They did an extensive review of permits related to this, and I think they could give you some specific examples.

[Rep. Amy Sheldon (Chair)]: Are in the report?

[Ellen Czajkowski (Office of Legislative Counsel)]: I think so, yes. The report is very detailed.

[Rep. Amy Sheldon (Chair)]: Okay, great.

[Ellen Czajkowski (Office of Legislative Counsel)]: Okay. So the next change I already mentioned is on page two, starts with line seven, and this is what is recommendation 10. So in 2022, there was an amendment in one of the big Act two fifty bills about creating specific permit conditions for wood products manufacturers. They have specific permit conditions they're allowed to add, protecting them with hours of operation and seasonality of their operation. So this definition of what a wood product manufacturer is was developed. However, one of the things that was included was log and pulp concentration yards. The latest review board in their report has pointed out that prior to the enactment of this in 2022, log and pulp concentration yards were considered to be part of forestry and logging, and so they had previously been exempt. So this is proposing to restore it to its treatment prior to 2022. Log in pulp concentration yards will be exempt as part of logging and forestry. Next, on page two into page three, the proposal from the Land Use Review Board included adding these definitions of logging and forestry. It's a little interesting because there has never formally been a statutory definition for logging and forestry under f two fifty even though logging and forestry was included in 1970. So they've added this definition. I will say yesterday, there was testimony, from one of the board members that they're considering actually removing this because I I thought it was interesting. I didn't I think it has been raised why do we need a definition after fifty six years? Will that just make confusion or conflict with prior president? So they're actually having a board meeting today to discuss the language in this bill, including whether or not they should actually define forestry and logging and just continue with the practice that they've been doing. But for your purposes, here is how they have described forestry. Activities related to the management of forests, including timber harvest, pruning, planting, reforestation, pest, disease and invasive species control, wildlife habitat management, and fertilization that comply with acceptable management practices, excuse me, adopted by the Commissioner of Forest Parks and Rec, and that do not conflict with or violate any finding, conclusion, or term or condition of a permit issued pursuant to this chapter with respect to any of the criteria. So that's on to page three. And then logging is essentially part of forestry, being defined as meaning the harvesting of timber and includes log and pull concentration yards that comply with the acceptable, applicable acceptable management practices adopted by the commissioner. Logging shall not conflict with or violate any finding, conclusion, term, or condition of a permit issued under this chapter with respect to the criteria. Section two

[Rep. Amy Sheldon (Chair)]: Is the lurb also debating the definition of logging and the merits of including it? Yes. Okay, thanks.

[Ellen Czajkowski (Office of Legislative Counsel)]: So section two is still part of this recommendation nine about trying to mirror what's already in statute for farming. So this is amending the exemption section of Act two fifty. This language is, nearly identical to language that does already exist for farming. I think it is subsection s, but it's adding this new section, subsection double e. No permit or permit amendment is required for logging and forestry below the elevation of 2,500 feet that will not conflict with or violate any finding, conclusion, term, condition of a permit issued pursuant to this chapter. Permits shall include a statement that logging of forestry is permitted on lands exempt from amendment jurisdiction under this subsection. So this language, is coming at the issue from a different angle than the first subsection. This is making clear that no permit or permit amendment is needed. And so this would be the case where someone already has an Act two fifty permit. This is intended at least partially to address the situation where someone already has a permit and they want to conduct logging on their property. They will not need to do, permit amendment to do that. This is making very clear that even though they already have a permit, they can log and conduct forestry on their property without getting an amendment.

[Rep. Amy Sheldon (Chair)]: Representative Austin? Yep.

[Rep. Sarah "Sarita" Austin (Clerk)]: I'm just wondering what the rationale was for turning the pulp and forestry back to 2022. So

[Ellen Czajkowski (Office of Legislative Counsel)]: Sorry, could you say that?

[Rep. Sarah "Sarita" Austin (Clerk)]: What do you mean? What was the reason that they agreed or went back to the regulations before 2022?

[Ellen Czajkowski (Office of Legislative Counsel)]: In the report, they cite that there was a very long standing determination under Act two fifty that they had found that, and had been practicing that log and pulp and concentration yards had been exempt. And so the board that currently operates was not the board that was operating in 2022. I remember fairly clearly being in this committee and having a lot of discussion with advocates on how to define wood products manufacturers. And I think, including myself, it was overlooked that these concentration yards had been part of logging and should not have been included in this other type of regulation. Thank you.

[Rep. Amy Sheldon (Chair)]: I think maybe just an overview of the other type of regulation. So, like, we were looking at hours of operation. There were there were some conflicts with neighbors. Yes.

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: I wanna use the right word. Forestry op.

[Ellen Czajkowski (Office of Legislative Counsel)]: It's it's the value added step after Value added step after forestry.

[Rep. Amy Sheldon (Chair)]: Yeah. The first is considered sort of like logging. You've taken it out of the woods, might have to store things places. It's very affected by weather and seasonality, and typically it's more remote in how it happens. So your neighbor conflicts, things like that.

[Ellen Czajkowski (Office of Legislative Counsel)]: Yes, and I think technically I am not experienced in forestry, but the concentration yards are where they just physically store the material until it's actually being something is done with it. So it's not it has been recognized here that it's not really commercial activity. It's part of still the the harvest.

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: Representative North. Yes. Thank you, chair. Thank you,

[Rep. Rob North (Member)]: Ellen. Question in in section two. I just wanna make sure I understand the the permit or permit amendment is not required. So a permit amendment to a permit that is already specific to forestry activity or just any activity?

[Rep. Sarah "Sarita" Austin (Clerk)]: Any other type of development. Okay. But say But you're not already doing a lot parcel,

[Rep. Rob North (Member)]: and you've got an act two fifty permit to build some structure. Yep. You're allowed to then start doing logging without an additional.

[Rep. Amy Sheldon (Chair)]: Correct.

[Rep. Rob North (Member)]: So I'll make sure that that's what that said.

[Rep. Amy Sheldon (Chair)]: Yep. Okay. Representative Morris.

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: Thank you, Madam.

[Rep. Kristi Morris (Member)]: At certain times of the year, town roads and municipalities have roads that get hosted due to limited weight, and logging is one of those operations that can impinge on the roads during those sensitive times. This is not going to supersede the town's right post limits on roads in the spring because it talks about the related operations and trucking, I would think would be a related operation. This

[Ellen Czajkowski (Office of Legislative Counsel)]: really is just about whether or not the Act two fifty program is gonna be involved. It does not, touch on any other authority from the municipality or any other agency.

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: Thank you.

[Ellen Czajkowski (Office of Legislative Counsel)]: I have one small thing to add. If you notice in the draft section three, there's just a small highlight. The prior version of this bill that the agency that the House of Commissions are working on is recommendation number one from the report was producing a guidance document for this industry. And, they originally had it in the bill, but the LERB has already finished it and published it. And so it is out now, and I haven't read it. It came out a couple weeks ago, but it is a fact sheet and guidance for logging and forestry and potential applicants who want to see what the it's to help people in the industry, especially because the first provision in this bill there's been a long standing rule under Act two fifty about narrowing the scope of the project that has been available, but people don't know to ask for it or ask for help on these things. And so they put out this guidance document to help clarify what are all the parameters that foresters have for eligibility and how the exemptions work for them. So that document has been published, and they've worked with the Commissioner on Forest Parks and Rec in it so that it can be helpful to the industry so that there isn't further confusion.

[Rep. Amy Sheldon (Chair)]: Representative Durfee mentioned there's a new draft of this bill that they're going look at or they're going to wait to hear what the LERB

[Ellen Czajkowski (Office of Legislative Counsel)]: They're going to wait to hear from the LERB. Yep. They're meeting today and are gonna provide their feedback.

[Rep. Amy Sheldon (Chair)]: One more. So

[Rep. Sarah "Sarita" Austin (Clerk)]: wildlife habitat management forestry means, and that's how we're impacted by it, this committee?

[Ellen Czajkowski (Office of Legislative Counsel)]: Well, broadly, Act two fifty is under the jurisdiction of this committee.

[Rep. Sarah "Sarita" Austin (Clerk)]: Okay.

[Ellen Czajkowski (Office of Legislative Counsel)]: So they are referring to that as the wood products field, but it really is just about forestry, not wood products, but you know how we call things around here. And hopefully, will get its its h numbers at some point so you can not be confused with the other committee bill they are working on, which is 26 dash seven seventy two, and that is the municipal zoning and farming bill. So I do have a PowerPoint explaining the Supreme Court case. So I will put that on the screen. I do wanna say, as we shift topics oh, I don't have it open yet. Sorry. The Supreme Court came out with this case on the last day of session last year. Mike and I were having so much fun on the last day of session last year with this case coming out. And it really does significantly alter the way farming has been viewed under zoning. And so since the start of the session, our colleague, our new colleague Bradley Schulman, has been working on this issue specifically with the agriculture committees. And so I have been not as hands on. And so I'm gonna I will I will say that I have this PowerPoint, but Brad it's plagiarized almost exactly from Bradley who made a lovely PowerPoint, but I didn't realize that he had one. So but I it really just highlights the basics of what happened in this case. And I I can't remember if last year if your committee took any testimony on this, but this was what we were calling the ducks and cannabis case.

[Rep. Amy Sheldon (Chair)]: We did a little.

[Ellen Czajkowski (Office of Legislative Counsel)]: So the legislature was aware that there was this ongoing dispute between the city of Essex Junction and one of the landowners who had a farm in the city of Essex. It was an operation with ducks and growing cannabis. So basically what happened in this Supreme Court case, the city, their zoning prohibited agricultural activity in residential areas. The farm was located in a residential area, and the town issued several notices of violation. The farmer appealed to the environmental division of the Superior Court. And that court ruled in his favor because there is this long standing statute that says, and we'll see on the next page, that towns can't regulate farming, or so that's what we had thought it said. But the Supreme Court has determined that that statute is not totally clear, and so they ruled for the farmer saying that the duck and raising and cannabis operation were subject to the required agricultural practices. Oh, sorry. That's what the that's what the environmental division said. The farmer then appealed to the supreme court. And so this is a statute that the supreme court looked at. 24 v s a forty four thirteen, limitations on municipal bylaws. So a bylaw under this chapter, your municipal zoning, shall not regulate required agricultural practices, including the construction of farm structures, as those practices are defined by the Secretary of Agriculture, Food and Markets. It also goes on to include that they shall not regulate the accepted silvicultural practices as defined by Forest Parks and Rec or forestry operations. So just reading d one a, the grammar is a little awkward. It does not say farming. It says they shall not regulate through their bylaws required agricultural practices. So prior to this case, was generally accepted that municipalities couldn't regulate farming or agricultural activity. There was kind of this distinction between a small farm and a large farm, which was not written anywhere, but there was a general understanding that if it was a farm regulated by the RAPs, the municipality couldn't do anything about it in zoning. But if it was a smaller operation, chickens in the yard or a small garden, Municipalities did have authority over that. And the RAPs rule section 3.1 was used as the the dividing line because it defines what kind of farming activity makes a farmer subject to the RAPs. I don't have it open in front of me, but it's the list of 15 or more goats. 3.1 goes through a list of at what level of number of the herd or acreage or amount of income earned through farming. There's a $2,000 threshold of selling of your crops that makes you a farm. So there was these parameters set out in rule 3.1. And if you met that threshold, you were regulated by the agency. You were not regulated by your municipality, things under the threshold the municipality could put in their zoning. But the Supreme Court overruled that. They said they read the statute very narrowly and just read the language and said, instead of saying towns can't regulate agricultural activity, that the municipalities are only restricted from regulating what is required agricultural practices. What are the actual practices that the agency has jurisdiction over? Not the act of farming, but what are basically these water quality rules that the agency puts out for farms to follow.

[Rep. Amy Sheldon (Chair)]: I have a question. What did this statute read before we had RAPs?

[Ellen Czajkowski (Office of Legislative Counsel)]: That's a good question. I don't know the answer. I'm happy to get back to you. Don't know if statute was adopted in 2004, and I don't know what it said before that. So I don't know if Bradley has done that research.

[Rep. Amy Sheldon (Chair)]: The ADA wraps are much later than that.

[Ellen Czajkowski (Office of Legislative Counsel)]: So, the court said there is a difference between agricultural practices subject to the RAPs rule and agricultural practices required by the RAPs rule. And had the legislature intended to prohibit all municipal regulation of farming subject to the RAPs, it could have done so. However, and this is very important, it did not do so, and we presume it chose its words advisably. The Supreme Court has used that last, quote many times. I had it hanging in my office for a while. It is sort of why you have legislative counsel. The court has established this presumption that when you put something in the statute, you put it there for a reason. And I that is why I always hope you all are carefully reading the things that I'm helping you draft because they do look at this specifically and say, well, they didn't say towns can't regulate any farming. They didn't say that, so that's not what they meant. But I'm not sure that's not what you meant. So accordingly, it does not prohibit all municipal regulation of if the farm is subject to RAPs, the landowner's DUC operation is not exempt from municipal zoning solely because its activities are subject to the RAP rule. Rather, prohibits municipal regulation of required agricultural practices or the agricultural land management standards intended to protect Vermont's waters established by the RAP rule and imposed on certain agricultural practices. So the court sided with the town, not the farmer. So the impacts of this are fairly substantial. Now towns can regulate agricultural activity within their jurisdiction. Previously, there and and it's broader than just, some of the things representative Durfee just said. It it could include anything that towns historically regulate for all other land uses. Noise, traffic, roads, setback requirements, smell, hour of operation, parking, and any of the other things that they include for other types of buildings. So, this gives the town a lot more authority than it previously has been recognized to have over towns. It could potentially even just, like, zone out farming. What court is saying is that they can't weigh in on things like water, drainage, manure, buffer zones, animal mortality. So very specific things towns maybe actually don't have the expertise on that is truly the agency of agriculture's expertise. But all the other things that towns regulate for land use, they find. I will say the court did not at all talk about the silviculture or forestry parts of this statute. So so far, those are still intact and the towns can't regulate forestry. But for municipalities, and zoning, farming is on the table for regulation. So that's what happened in the case. Posted on your website today under my name is the the PowerPoint I just went through, the the text of the case, if you'd like to read it, And then also the draft that House Ag was working on on Tuesday. So I not I only got involved with House Ag on Tuesday, so I'm a little bit out of the loop. So I'm glad you heard from rep Durfee about where they are, but, they have this draft 3.1 of 26 dash seven seventy two, the municipal regulation of agriculture. And so, both House Ag and Senate Ag have been taking testimony on what should be the level of review towns have over, zoning. They have been interested in partially restoring what happened before this case, but also they have an interest in protecting sort of small I don't want to call them small farms, but the gardens and the animal raised small amounts of animals like chickens on properties that had been had been occurring in Vermont before this. So, they are still working on striking the balance. Bradley and I have been working on a new draft for them, that may or may not be ready today that is different from 3.1 based on the conversations, but they're still working on it because it is a There have been a lot of advocates and a lot of input on how exactly the law should look now. So, would you like me to walk through this draft?

[Rep. Amy Sheldon (Chair)]: I think so. How different are you heading? Is the thing you're working on for later just completely different, or is it following a path?

[Ellen Czajkowski (Office of Legislative Counsel)]: It's fairly different. And I guess part of the reason why is because they have been looking at 4413, which your committee did last year. And as you recall, forty four thirteen is this interesting statute where subsection d, as you saw on the slide, said towns can't regulate farming or forestry. Subsection a, which is what's being amended in draft 3.1, is that list of things town have limited regulation over. Community facilities, hospitals, waste facilities, and then emergency shelters was added to it a couple years ago. So they have been contemplating adding language to that statute for farming.

[Rep. Amy Sheldon (Chair)]: So we also have a section of statute that does call out what towns can regulate for farming, like setback or there's a there's a specific list. Is that the same forty four one three d? There

[Rep. Rob North (Member)]: there's

[Rep. Amy Sheldon (Chair)]: a certain, like, set of what towns can regulate or, like, a farm building.

[Ellen Czajkowski (Office of Legislative Counsel)]: Oh, specifically for well, so there's accessory on farm business. No.

[Rep. Amy Sheldon (Chair)]: You know, there's a place where it says, like there's there's not many things on the list, but there was that list.

[Ellen Czajkowski (Office of Legislative Counsel)]: So no. I'm not I'm not sure what you're referring to, I'd have to get back. I don't I don't know what you're referring to.

[Rep. Amy Sheldon (Chair)]: I'm find that. And I'm pretty I'm very curious about the wrap replacing because what I'm imagining is that we were so into using the RAPs to define a regulated farm that we replaced farming in that section that now the supreme court is saying, well, you were pretty clear. It says RAPs. But because when you talk about the Noah's Ark thing of, like, what is a small, medium, and large farm, you get

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: to well, then

[Rep. Amy Sheldon (Chair)]: we decided those were farms. If you were regulated under the wraps, you were a farm. Mhmm. And if you weren't, you were Right. Yeah. And that's I'm guessing I'm very curious to see what that language was before the clean water work that we did. And make sure there's a list what towns can regulate somewhere.

[Ellen Czajkowski (Office of Legislative Counsel)]: Okay. So do you want me to walk through the line, please?

[Rep. Amy Sheldon (Chair)]: Yeah. Sure. I mean, I think yeah. Maybe we'll

[Ellen Czajkowski (Office of Legislative Counsel)]: So the first section is a findings section referencing the case. So the General Assembly finds that since the enactment of twenty twenty four Acts and Resolve No. 115, so since the 2,004 Acts, it has been both the intent of the General Assembly and controlling law that a municipality shall not regulate farming, including the construction of farm structures. It is the intent of the General Assembly to clarify that municipalities lack authority to regulate farming or the construction of farm structures as set forth in '24 BSA 4,413, with the exception of farming and the construction of farm structures within tier one a and tier one b areas. So, I haven't mentioned this yet. So the House Agriculture Committee has been thinking about whether or not to give towns authority in tier one a areas and tier one b areas the authority to limit agriculture in light of those areas being identified for development and housing. So this draft does start to carve out and allow for municipal regulation of farming in those tier areas.

[Rep. Amy Sheldon (Chair)]: Interesting. Are they still headed in that direction? Yes. Representative Tagliavia.

[Rep. Michael "Mike" Tagliavia (Member)]: How does this wording affect future land use crops and what is now currently a farm but could be also included in a growth area in tier one a and tier one b?

[Ellen Czajkowski (Office of Legislative Counsel)]: So well, so nothing in section one, and I'll talk to you about what's happening in section two. They are considering also a grandfather I don't like the word, you know, but a grandfather clause of any area within those areas that are already being farmed would be exempt from municipal regulation. So there is a lot going on in this bill. Has a lot of caveats. So they are considering a lot of different things. So I'm gonna walk you through rest through the language so you can get a sense of what those are. So section two is amending 4,413, and I I think some of you remember our discussions from at least last session. The the following uses may only be regulated with respect to location, size, height, building bulk, yards, ports, setbacks, density of buildings, off street parking, loading facilities, traffic, noise, lighting, landscaping, and screening requirements, and only to the extent that regulations do not have the effect of interfering with the intended functional use. So this is a part of statute. Towns go about it in some different ways, but often what happens is for these things on this list, and you will see that currently on the list includes emergency shelters and hotels and motels converted into affordable housing, they have the ability to do review of those criteria in subsection A. And so they usually do that through conditional use review or some sort of permit review. This is a permit process. So by adding farming to this list, it will necessitate that farmers get a permit, which is why I went in there and have suggested perhaps we could put this in a different statute if their intent is to avoid farmers having to go through the permitting process, which is their intent. And so we are working on language with them so that farmers don't have to get a permit. But that is under discussion. But as this is phrased now, at the bottom of page two, so adding to this list, cultivation or other use of land for growing plants for food for personal use, donation or sale, including orchard crops, viticultural crops, and for maple sap, onto page three, or the raising, feeding, or management of poultry, excluding roosters, for personal use, donation or sale. So this is a new concept that's being added here, but it is attempting to sort of get at what were those things below the wrap thresholds that towns previously had some discretion over, so gardens and chickens and small amounts of livestock. But it's adding it to this list in '40 four-13A. But it's then on page three, and they're adding farming. So on line three, farming that meets the minimum threshold criteria for the RAPs rule and is therefore required to comply with the RAPs rule and the construction of farm structures provided that regulations pursuant to subdivision A, And here's where we get to the caveats. Only apply in a municipality's tier one a area and tier one b area established in accordance with that section. Do not apply to farming that took place prior to 07/01/2026 or farm structures built prior 07/01/2026, do not apply to noise, smell, lighting, or hours of operation, and are limited to ensuring safe ingress and egress of vehicular traffic, ensuring pedestrian safety and including regulating parking, signage, pavement, markings, functional enclosure of livestock adjacent to roads, and if required, regulations related to training personnel to manage vehicle movement on and immediately surrounding the premises, citing and setback requirements for newly created infrastructure, including farm structures, in a manner that does not create public safety concerns, onto page four, including fire safety concerns for neighboring buildings or requiring that buildings be open to the public to be developed and in compliance with the Vermont Fire and Building Safety Code. So that part is for tier one a areas and tier one b areas. There would be a permitting process for farms. There is a limited subset of criteria for towns, but they are also changing the criteria for what towns can do. But then it goes on on page four, defines farm structure, farming, food, and poultry, but they've re and they're proposing to rewrite d. So I do think this is, I think, where most people are, is sort of restoring the pre tapped decision here in D. So a bylaw under this chapter shall not regulate farming that meets the minimum threshold criteria for the RAPs and is therefore required to comply with the RAPs.

[Rep. Amy Sheldon (Chair)]: Doesn't that solve the problem?

[Ellen Czajkowski (Office of Legislative Counsel)]: It house ag is considering these other things. So I have not been with them for the full development of this bill, so I know. But some of that language that I read you on the prior page came from advocates, and so there has been a lot of input on this bill. So it is going to change later today, some of it. But but this part, yes, indeed, is restoring what was the prior understanding, before the case, and whether or not there will be any other changes for other aspects is still under discussion. But it's, on page five, it's also further, again, adding back in their construction of a farm structure authorized under wraps, so shall also be exempt.

[Rep. Amy Sheldon (Chair)]: Representative Seth.

[Representative Seth (unidentified)]: You might not know the answer to this, but as as we've been hearing at least I've been hearing that as the tier one a and one b processes are getting spit up and towns are considering them that towns are that there's a number of towns that are choosing to not opt into those designations. And so it seems like we might be reaching out a bunch of, you know, densely populated areas that we might wanna consider here. I'm just wondering if the the has been discussing that that possibility if you

[Rep. Sarah "Sarita" Austin (Clerk)]: I don't I don't know.

[Rep. Amy Sheldon (Chair)]: Representative Hoyt?

[Rep. Rob North (Member)]: Just wanna check. So the municipality could not regulate the areas where farming took place prior to that?

[Ellen Czajkowski (Office of Legislative Counsel)]: In tier one a. Yes.

[Rep. Michael Hoyt (Member)]: And so any farming before July 1. Like there's no further like definition of farming. And what happens if the the farming took place prior to 01/2001 that ceases? You know, would that return jurisdiction to the municipality?

[Ellen Czajkowski (Office of Legislative Counsel)]: So we did just discuss this in house ag yesterday, and they want to avoid that situation. So there is an intent to phrase it so that where farming has occurred prior to 2026. Going back Yeah.

[Rep. Michael Hoyt (Member)]: Indefinitely? Yeah.

[Ellen Czajkowski (Office of Legislative Counsel)]: And I do think another aspect, is that some of these areas, especially in tier one b, there may be agricultural, easements. There have been a number of properties that BHCB has been conserving over the years. I don't know where they are located, but I do think that's another relevant consideration of if there are existing easements in some areas, shouldn't those also be allowed to have agriculture?

[Rep. David Durfee (Chair, House Agriculture, Food Resiliency and Forestry Committee)]: Thank you.

[Rep. Amy Sheldon (Chair)]: Let's keep going.

[Ellen Czajkowski (Office of Legislative Counsel)]: So then the last the last part is this study. Agency of AGGEL can see a stakeholder group to study and report on how to address municipal regulation of agriculture to better support farmers and their role in the agricultural economy. They shall examine current and prospective municipal regulations of agriculture to identify how the regulations are currently working and whether there are shortfalls shortcomings or challenges. They shall also address how municipal regulations have affected or could affect existing farms statewide and regional food security, farm succession, and the establishment of new farming operations, including whether municipal regulations have significantly restricted or functionally prohibited or could significantly restrict farming, the group shall examine whether municipalities should be prohibited or restricted from regulating the raising, feeding, or management of livestock, including providing a model ordinance that would permit the necessary function in raising, feeding, and managing livestock. And that's due that's from the agency of agriculture due December 2026. So this is a live moving bill. I will be going in there later today. I don't think they're trying to finish it today.

[Rep. Amy Sheldon (Chair)]: Thanks for this. Very helpful. I'm really curious about what the language was prior to the wraps and and also that list of things that towns can regulate. I know it's there, like, agricultural buildings and stuff.

[Ellen Czajkowski (Office of Legislative Counsel)]: So there is a mention in 4four 13 that does mention that as well, it does say as part of agriculture, farm structures are included. And currently, the agency of agriculture does have this sort of approval process of whether or not a a structure that's being built is a farm structure and not a regular designation.

[Rep. Amy Sheldon (Chair)]: Maybe it'll be just this section. It also seems like there's a simpler solution to the challenge before us rather than this. So, anyway, thanks so much for for sharing with us this morning. More soon, I think, on this for us. I'll say, we have colonel Steadman joining us at ten, I think. Representative Tagliavia requested that as part of our conversation around hosting bill, and he's gonna he's able to join us at today via Zoom. So we'll take a five minute break and come back at the top of the hour and hosting.