Vermont Legislature SmartTranscripts:

[Unidentified Member]: All

[Representative Amy Sheldon (Chair)]: right. Welcome back to the House Environment Committee. We are welcoming our legislative council to continue testimony on S-three 25, is also going to potentially, when we're considering changes that were in our area of jurisdiction in S328, I think you're going to present a little bit on that. Did I have this wrong? I thought you had your slideshow for that.

[Ellen (Office of Legislative Counsel)]: I was going to do the slideshow on Act 181.

[Representative Amy Sheldon (Chair)]: Okay. What? They went together.

[Representative Shamir (first name only; unidentified)]: But that's Okay. Let's do

[Representative Rob North (Member)]: I 180

[Representative Amy Sheldon (Chair)]: thought you had on the amendments that we were looking at for threetwenty eight.

[Representative Chittenden (Guest)]: No, and I think I

[Unidentified Member]: already walked you through.

[Representative Rob North (Member)]: Yeah, I should do.

[Representative Amy Sheldon (Chair)]: We just took testimony on that. Okay, great. I just thought they were together for some reason. On 01/1981.

[Ellen (Office of Legislative Counsel)]: I'll check out the Office of Legislative Counsel. I'm going to share my screen. Yeah. So some of what this committee has been discussing is what element is in light of repealing tier three in the road rule, what are the elements that are in there that you may wanna consider addressing elsewhere, as well as what are the other outstanding projects that the Land Use Review Board has been reviewing. And so this series of slides are just copy and pasted from ACT 181. The first couple go through the tier three language and its process, and then the road rule and its process, and then the most, if not all, of the other reports that are being worked on from Act 181. So, tier three. There aren't very many mentions of tier three in Act 181. It's fairly short, but you gave a lot of authority to the board to develop a lot of the concepts within it. So first, there is a jurisdictional trigger created for tier three. And so, as you know, in 6,001 3a, that's the list of the definition of development which serve as the jurisdictional triggers for Act two fifty. So number 13 that was added is for tier three, and it reads the construction of improvements for commercial, industrial, or residential purposes in a tier three area as determined by rules adopted by the board. So the jurisdictional trigger itself is pretty broad. It's pretty vague. It delegated a lot of authority for the board to adopt rules determining how this jurisdictional trigger was going to work. You also added definitions in 6001 related to this. So tier two is defined as an area that's not tier one or tier three, but number 46 adds a definition for tier three. It means an area consisting of critical natural resources defined by the rules of the board. The board's rules shall, at a minimum, determine whether and how to protect river corridors, headwater streams, habitat connectors of statewide significance, riparian areas, Class A waters, natural communities, and other critical natural resources. You then provided a session lock provision on what should go into the rulemaking process and what should be considered. So the land use review board, in consultation with the agency of natural resources, shall adopt rules to implement the requirements for 6,013 a 13 tier three and six thousand and, one forty six, the definition of tier three, and definition 19, which is subdivision. So during the act one eighty one bill process in committee, you were considering whether or not the definition of subdivision should also be amended to address how subdivisions would be treated in tier three. So as you know, Act two fifty jurisdiction, the need for a permit is triggered either by the construction for development or construction of subdivisions, so the subdividing of land. And I think you talked about recently, it's in towns with zoning. Currently, the statute is that it's the the subdivision of 10 or more lots. In towns without zoning and permanent subdivision bylaws, it's six or more lots. And and if lots are going to be offered at public auction, it's five or more lots. So you did not make any changes in act one eighty one to the definition of subdivision, but you do ask further down on here if there should be a consideration for how tier three works in relation to the subdivision of land. You then included an intent section as part of the rule making. So it is the intent of the general assembly that these rules identify critical natural resources for protection. The board shall review the definition of tier three area, determine the critical natural resources that shall be included in tier three, giving due consideration to river corridors, headwater streams, habitat connectors of statewide significance, riparian areas, class a waters, and natural communities. Any additional critical natural resources that should be added to the definition, measures to ensure that no municipality or region is disproportionately impacted by tier three designation that would limit reasonable opportunities for tier one or tier two designations, and how to define the boundaries. Rules adopted by the board shall include Any necessary clarifications to how the tier three definition is used in Act two fifty, including whether and how subdivisions would be covered under the jurisdiction of tier three. Any necessary changes to how the jurisdictional trigger should be administered and when jurisdiction should be triggered to protect the functions and values of critical natural resources. The process for how tier three areas will be mapped or identified by the Agency of Natural Resources and the board. It goes on. And other policies or programs that shall be developed to review development impacts to tier three areas if they are not included in the definition of tier three. And if a critical natural resource area is not recommended for protection under tier three, it shall be identified in the rule and a rationale for being provided as to why the critical natural resource was not selected for tier three protection. And so you had provided them a list of the six natural I believe it's six that they shall consider, the river corridors, headwater streams, habitat connectors of statewide significance, riparian areas, class A waters, and natural communities. And you ask them to look at whether or not those are already covered by another program and protected, and then to address in the rule how they're protected and why they're not going to be included in the rule. It's very striking.

[Representative Amy Sheldon (Chair)]: It was to identify the process for how tier three areas will be mapped, not to map them. That's not what we asked them to do.

[Ellen (Office of Legislative Counsel)]: And then finally, as part of this rulemaking section, the rule, they were supposed to, by 01/01/2025, convene the working group to provide input on the rule prior to pre filing it with ICAR, the Interagency Committee on Administrative Rules. And these are the stakeholders that were listed in the statute, in the session law provision. So to they had to include representation from regional planning commissions, environmental groups, science and ecological research organizations, woodland or forestry organizations, Vermont Housing and Conservation Board, the Vermont Chamber of Commerce, the League of Cities and Towns, the Land Access and Opportunity Board, the State Natural Resources Conservation Council, and other stakeholders such as the, Vermont Ski Areas Association, the Department of Taxes, Division of Property Valuation and Review, the Department of Forest, Parks and Recreation, the Department of Environmental Conservation, the Department of Fish and Wildlife, the Vermont Woodlands Association, and the professional logging contractors of the Northeast. Additionally, so the due date for the rule was supposed to be filed by 02/01/2026, and then also submit a report describing the rules and issues reviewed to this committee and the Senate committee. And then also subdivision D was included. So during the rule development, the stakeholder group established under subsection B shall solicit participation from representatives of municipalities and landowners that host tier three critical resource areas on their properties to determine the responsibilities and education needed to understand and manage and interact with the resources. Education needed to understand, manage and interact with the resources.

[Representative Amy Sheldon (Chair)]: Okay.

[Ellen (Office of Legislative Counsel)]: So, also in ACT one eighty one, as you have discussed, the road jurisdictional trigger. This was added as 6,001 3A number 12. So, again, part of the definition of development as to what would trigger Act two fifty jurisdiction. So unlike tier three, there is a very long statute on the road jurisdiction and a very short rulemaking section afterwards. So a lot more detail in the statute on the road rule. So, an Act two fifty permit would be needed for the construction of a road or roads and any associated driveways to provide access to or within a tract of land owned or controlled by a person. For purposes of determining jurisdiction under this subdivision, any new development or subdivision on a parcel of land that would be provided access by the road and associated driveways is land involved in the construction of the road. Jurisdiction under this subdivision shall not apply unless the length of any single road is greater than 800 feet, or the length of all roads and associated driveways in combination is greater than 2,000 feet. As used in the subdivision, road includes any new road or improvement to a Class four highway by a person other than a municipality, including roads that will be transferred to or maintained by a municipality after the construction or improvement. So private roads not constructed by the municipality or the state. Routine maintenance and minor repairs of Class four highway shall not constitute an improvement. Routine maintenance shall include repairing a culvert or ditch, applying new stone, grading or making repairs after adverse weather. Routine maintenance shall not include changing the size of the road, changing the location or layout of the road, or adding pavement. For purposes of determining the length of any road and associated driveways, the length of all other roads and driveways within the tract of land constructed after 07/01/2026 shall be included. And so you will recall that this, section still hasn't has not taken effect yet. It's to take effect on 07/01/2026. And so that marks new roads constructed after that date, not already existing roads, are what could trigger the Act two fifty permit need.

[Representative Amy Sheldon (Chair)]: Representative Satcowitz has a question. Ellen, do we have a definition of roads or indoor driveways somewhere?

[Ellen (Office of Legislative Counsel)]: No.

[Representative Amy Sheldon (Chair)]: Yeah. Absolutely.

[Representative Rob North (Member)]: Is that gonna be the factors that what makes something a little retractable? Is that something that is, like, maybe left in the beginning? I thought I heard that.

[Ellen (Office of Legislative Counsel)]: So there is there is a rulemaking section after this Yep. Giving authority to clarify any necessary position, parts of the provisions of the rule. I think in discussion, the concept is that a driveway generally only provides access to a single property. Road has more uses, but defining a road is one of the issues historically with this type of provision.

[Representative Larry Satcowitz (Ranking Member)]: Thank you.

[Ellen (Office of Legislative Counsel)]: But it does go on to say what this what is not a road for these purposes.

[Representative Amy Sheldon (Chair)]: So North has a question.

[Representative Shamir (first name only; unidentified)]: Oh, sorry.

[Representative Rob North (Member)]: This might just be a silly question, but you're Ellen, thank you for explaining this all to us. It's helpful. Does this all fall under a paragraph that says this is when Act two fifty jurisdiction applies? You keep saying Act two fifty jurisdiction. It doesn't say that anywhere in this word. So I'm just is this in that section? I'm wondering how

[Representative Chittenden (Guest)]: that Yeah.

[Ellen (Office of Legislative Counsel)]: So the the reference up oh, the reference up here at the top, 60013A12.

[Representative Rob North (Member)]: Yeah.

[Ellen (Office of Legislative Counsel)]: Yeah. So that's the language in the statute that is this is the definition of development, and act two fifty jurisdiction is triggered by the construction of a development or subdivision. Yes. Yeah. And it's a little bit of a Long Road. So Yeah. 6,081 a is the primary language about when something needs a permit, and it says construction of a development or subdivision. And then we use the definition of development three a as a list. And so currently, it's 13 items long, what's included in the definition of development. It also says what development does not include. And then there's also a definition of subdivision. So what's under development and subdivision are the jurisdictional figures.

[Representative Rob North (Member)]: By that fact, thank you. Implementation mechanism for controlling things within these areas, including Tier three and the group, is Act two fifty. That is implemented. That wasn't a choice by the local. That was the choice of the legislation to say this is going to be Act 50 jurisdictional triggers

[Representative Amy Sheldon (Chair)]: I because of where it think that this, to me, is saying that not necessarily in tier three, but yes, in the road construction. So, we left the tier three program, I think, more definable. We wanted recommendations.

[Representative Rob North (Member)]: In terms of the mechanism for implementation.

[Representative Amy Sheldon (Chair)]: Right. How would we work with landowners to work to protect these resources?

[Representative Rob North (Member)]: Okay, that was part of my question. Maybe, again, I misunderstood the answer. Are both of these voter restriction and tier three within the section that defines, here's where that two fifty applies.

[Ellen (Office of Legislative Counsel)]: Yes. They both are. They're next to each other. Yes.

[Representative Rob North (Member)]: That's different than what I Different jurisdictional triggers, still triggering active 50 as the controlling mechanism.

[Representative Shamir (first name only; unidentified)]: Yes. Right. Except that Tier three was really open ended, so it's not implied that all of the Act two fifty criteria would apply to a Tier three area.

[Representative Amy Sheldon (Chair)]: So, it even says, on this third slide, one, two, three, any necessary changes to how the jurisdictional trigger should be administered and when jurisdiction should be triggered to protect functions and values of resources?

[Representative Rob North (Member)]: We have still jurisdiction of active fit. Sure.

[Representative Chittenden (Guest)]: Representative Chittenden. I mean, think what you're bringing up, Representative North, is sort of like the conundrum that we've sort of witnessed play out, and that's that tier three was set up in here to be a potential development under Act two fifty, but it also gave all this language around, we want you to look at all these different natural resources and identify ones that are already covered by other permit programs and maybe make recommendations to us about how, if you don't think this should be under Act two fifty, how it could It's very verbose and I think was intended to give a, I mean, a humongous amount of latitude to learn, is a brand new formulated thing. It was not natural resource specialists for planners and process folks. I think that that's sort of how we got here is that not everybody who crafted this language presumed necessarily even any of that would end up under a two fifty jurisdiction, or at least not for single family homes. Maybe it would if it was a larger development. So I think there was just so much Just

[Representative Rob North (Member)]: to the statute.

[Representative Chittenden (Guest)]: Exactly. And so when you're a literal entity that's brand new, you might take that to just focus on where is Act two fifty going to apply. I guess I think this is where we had a lot of different room for interpretation and intention and got into a narrow space with him. That's not the case for the road rule. Road rule is clearly just about action.

[Ellen (Office of Legislative Counsel)]: Trying to

[Representative Shamir (first name only; unidentified)]: be clear. Also, I'll add something. But I will say, even with the so first of all, nobody should have seen tier three maps.

[Representative Amy Sheldon (Chair)]: It says in here, how will they be mapped?

[Representative Shamir (first name only; unidentified)]: That should never have been put out into the world. That was unfortunate. I'd also say that the initial maps, I believe, mapping out the road world were just factually correct. Because they did not assume driveways. They assumed roads. It was just

[Representative Amy Sheldon (Chair)]: premature in that sense I as also would say in the tier three, slide four, other policies or programs shall be developed to review development impacts to tier three areas if they're not included in the definition of development. So, it is saying they may not be included in the definition of development.

[Ellen (Office of Legislative Counsel)]: Yeah, and I guess I would also just add, I find the way that tier three statute is phrased is significantly more vague than the other active 50 jurisdictional triggers, and I don't feel could have actually worked unless the rules were formally adopted. Because you can't just look at the statute and know who's going to be covered by it, which is not how we try to craft laws. So it would have needed the rules in order for people to understand how the law would have impacted them.

[Representative Shamir (first name only; unidentified)]: And Logan? And I'd just add to that. We made it intentionally vague so that there could be a community driven process around defining what tier three even meant, and certainly how it functions. That, you know It

[Representative Amy Sheldon (Chair)]: to be that.

[Representative Rob North (Member)]: Thanks, Shamir. Thank you.

[Representative Amy Sheldon (Chair)]: Representative.

[Unidentified Member]: I I just wanna say that I do think this, you know, is a good opportunity to not lose how we got here and try to avoid that situation again, at least learn a lesson from this So we're not here because it sounds like there was a lot of misinformation presented as reality and validly people were upset, but it wasn't based on, you know, it wasn't accurate. And that's, I think, unfortunate.

[Ellen (Office of Legislative Counsel)]: So on slide seven, still in the statutory jurisdictional trigger for the road jurisdiction subdivision four here in the middle of the page. So it says what is not included in a road. So it shall not apply to a state or municipal road, so we're talking about just private roads, a utility corridor of an electric transmission or distribution company or a road used primarily for farming or forestry purposes development within Tier 1A or Tier 1B and improvements underway when this section takes effect to a class four highway that will be transferred to the municipality. So roads constructed in tier one a or b were not going to be included. The conversion of a road for farming or forestry purposes that also meets the requirement of the subdivision shell prostitute development and this committee had a lot of discussion about forestry roads often start as just a trail to get the logs out of the forest, but then what if people build houses along them? So there's contemplation that it could apply to things if farming or forestry roads started being used for development. And then finally, the intent of this subdivision is to encourage the design of clustered subdivisions and development that does not fragment tier two areas or tier three areas. So then there was also a rulemaking section significantly shorter than tier three. So the board may adopt rules after consulting with stakeholders providing additional specificity to the necessary elements of the road construction statute. It is the intent of the general assembly that any rules encourage the design of clustered subdivisions and development that does not fragment tier two areas or tier three areas. You gave them the option on this for May. They may adopt rules because this statute is significantly more specific than Tier three, and so whether or not you need rules to give additional specificity was up to them. And I think they issued a guidance document instead, which does not require the full rulemaking process or a draft guidance doc. I don't know if it I believe they were working on guidance as opposed to a full rulemaking. So earlier this session, you did hear about the appeals report that you asked the Land Use Review Board to undertake as part of Act 181, but there were a number of other reports in Act 181 that you asked the Land Use Review Board and agencies to work on also. So another one that is relevant to this conversation you're having around land, the location based jurisdiction is, the tier two area report. So that was due February 15. It says the board shall report recommendations to address Act two fifty jurisdiction in tier two areas. And that is because in the statute, tier two is just things that are not in tier one and tier three, and so there were no changes made to the way Act two fifty functioned in that area, with the exception of if the road rule was going to take effect. That would have been the change in those areas. Otherwise, the other Act two fifty jurisdictional triggers that exist would have functioned as normal. So asking them for recommendations that shall recommend statutory changes to address fragmentation of rural and working lands while allowing for development, address how to apply location based jurisdiction to tier two areas while meeting the statewide planning goals, including how to address commercial development, and which shall also include review of the effectiveness and mitigation of impacts on primary agricultural soils and make recommendations for how to improve protections for this natural resource. Review of the effectiveness of jurisdictional triggers for development of retail and service businesses outside village centres and criteria 9L in addressing sprawl and strict development and how to improve the effectiveness of criterion nine l.

[Representative Chittenden (Guest)]: The required

[Ellen (Office of Legislative Counsel)]: act one eighty one nine l was the most recent, jurisdictional trigger that had or a criterion for review that had been included, and it's to address sprawl and strip development when seeking an Act 50 permit. And review of whether and how Act two fifty jurisdiction over commercial activities on farms should be revised, including accessory on farm businesses, which in Act 181 were given a specific exemption as defined in Act 181. Section 35 of Act 181 also had a wood products manufacturer report, and you heard about this earlier this session because H nine thirty two came out of the recommendations of that report, which was more about supporting the forestry and logging industry generally as opposed to just specifically the forest products manufacturers. And then also, Section 36 had another related report, location based jurisdiction review report. This one is pushed out a few years because it's checking in on how the jurisdiction framework was working. So on or before 02/01/2029, the Land Use Review Board shall review and report on the new tier jurisdiction framework used to establish location based jurisdiction for Act two fifty. The Board shall report on the outcomes and outline successes and any changes that are needed. The board shall undertake an in-depth review of the Act two fifty updates, including the duties and responsibilities of all the staff and the board itself, specifically whether the updates have reduced appeals and whether the updates have created more equity and cohesion among the district commissions and district coordinators. And that relates to part of the Act 181 that we haven't talked about in committee in a while, which is the first dozen or so sections of Act 181 talked about changes to the Land Use Review Board going to the Natural Resources Board to the Land Use Review Board, giving them some additional staff, including executive director and additional attorney, and making board members full time because there were a lot of discussions about cohesion among the district commissions and coordinators and making sure there was consistency to the extent possible. Alright. And then I think this is the last one. No, there's two more. So section 37 was an affordable housing development regulatory incentives report. This one has also already been completed. It's from the Department of Housing and Community Development with the Housing and Conservation Board, the Land Access and Opportunity Board, and the Vermont Housing Finance Agency. They shall engage with diverse stakeholders, including housing developers, local government officials, housing advocacy organizations, financial institutions and community members to identify regulatory policies that incentivize mixed income, mixed use development and support affordable housing production as a percentage of new housing units in communities throughout the state, including examining the impact of inclusionary zoning, and develop recommendations for legislative, regulatory and administrative actions to improve and expand affordable housing development incentives within state designated areas. And then finally, there was another report. I'm sorry that the my my font on here got so much smaller than the other ones, but and PowerPoints aren't my strong suit. Sorry. So section 37 a was a transportation support study. There is a a mechanism in act two fifty that we haven't discussed in this committee, I don't think, in a while. Transportation impacts districts and transportation impact fees, which the district commissions have the authority to collect fees from projects that are going to have traffic impacts so that those fees can be can go towards the traffic impacts so that adding another lane or a stoplight to improve traffic efficiency so that one development doesn't have to take on all those costs. They're spread across multiple developments. And so potentially, of the impacts of tier one would be that in those areas, those developments would not contribute to the traffic mitigation. And so that's what this report was looking at. So on a report 12/15/2025, the Agency of Transportation, after consultation with the Department of Housing and Community Development, Vermont League of Cities and Towns, the Vermont Association of Planning and Development Agencies, which are the regional planning commissions, and the Natural Resources Board shall review the revenue collected by the state, both current and projected, for transit support through Act two fifty and the revenue and benefits to developers, to the state, and to the community received through transportation impact fees and shall suggest processes to preserve these revenues, requirements, and benefits. The agency shall consider including transportation demand management and subsidies requirements in development review authority for municipalities, the authority or ability of the agency of transportation to enforce transportation impact fees as part of the municipal process and any other proposals. They shall hear from a diverse group of stakeholders, including developers, local government officials, alternative transportation organizations, transit providers, and financial institutions. And that report was due 12/15/2025, and it was submitted by the Agency of Transportation.

[Representative Amy Sheldon (Chair)]: Might have said this, but was the affordable housing one also submitted?

[Ellen (Office of Legislative Counsel)]: Yes, it was submitted on 01/15/2025. It's at the very end. And I can't remember if you took testimony on it.

[Representative Amy Sheldon (Chair)]: I'm sure it's on our webpage. This is very helpful. Members have questions? It's to read. It's just a little teaser that gets you to read all of Act 181.

[Representative Chittenden (Guest)]: See any good things in there,

[Representative Amy Sheldon (Chair)]: despite the publicity? Thank you, Ela. So, members, right now we don't have I don't think we have anything on the agenda tomorrow because we don't actually know, like, will the floor be long or short? But I guess I'll say stay tuned, and we may just come back. We'll see where we're at. Maybe discussion or maybe break into small work groups or I'll do a temperature check with all of you. Or feel free to check-in with me. With that, we're adjourned for the day.