Vermont Legislature SmartTranscripts:

[Rep. Amy Sheldon (Chair)]: Afternoon, and welcome to the Dallas Environment Committee. This afternoon, we're going to continue testimony on S-three 25, and we welcome members of the Land Use Review Board.

[Janet Hurley (Chair, Land Use Review Board)]: You, Chair Sheldon. I'm Janet Hurley, the chair of the board. I'm here with two colleagues.

[Brooke Kingljean (Member, Land Use Review Board)]: Brooke Kingljean.

[Brooke Kingljean (Member, Land Use Review Board)]: I'm a

[Janet Hurley (Chair, Land Use Review Board)]: member of the Land Use Review Board.

[Jenny Brown (General Counsel, Land Use Review Board)]: Jenny Morris, general counsel for the Land Use Review Board.

[Janet Hurley (Chair, Land Use Review Board)]: And I'm going to read testimony and then hope that there will be plenty of time for questions afterward. Chair Sheldon and members of the committee, thank you again for the opportunity to provide testimony on S three twenty five and the work of the Land Use Review Board. After our testimony of two weeks ago, the committee signaled that it would propose repeal of the Tier three and road rule provisions of Act 181 of 2024. With House and Senate leadership signaling support of this plan, the Board acted to suspend all its work on these two aspects of its Act 181 charge. This has been communicated through a press release and follow-up media appearances, updates to the Board website, and in public meetings held last week in Windhall and Halifax. This committee released draft 2.3 of S-three 25 on Friday, reflecting repeal of the Tier three and Road Rule provisions, among other revisions. At its meeting yesterday, the Board reviewed this draft, the draft 2.3, and has the following recommendations. We will address the Board's recommendations in the order that they arise in draft 2.3 and then provide comment on a provision that appeared in the prior version draft 1.2. Our comments were based on the version 2.3, and we just became aware of draft 3.2 this morning, and we'll do our best to address changes in our testimony as we proceed. So for Criterion 8C and rulemaking, the current draft provides for an extension of the effective date for Criterion 8C rules and related definitions from 12/31/2026, to 01/01/2028. However, it does not provide a necessary date change in the Section 14C of Act 181. That is the board's delivery date of Criterion 8C rules to the Legislative Committee on Administrative Rules. Furthermore, the Board requests the effective date to be pushed out to 07/01/2028, and the LCAR deadline to be extended to 01/01/2028. This will allow time for the LCAR process to conclude before the new effective date of 07/01/2028. Permits required an exemption. So the interim housing exemption for up to 50 units in place of what is currently proposed. The Board suggests allowing clear exemptions for these projects if the project area is located entirely within the area of exemption. The draft in version 3.2 introduces a new term of disturbed land that would be problematic to apply without further definition. We are proposing a different language basically that would read, including any land incidental to the use of the housing project, such as lawns, parking lots, driveways, leach fields, and accessory buildings. Regarding the committee's Yes. On this

[Rep. Amy Sheldon (Chair)]: one, in rule, we have disturbed land for municipal projects. So you all must have a definition or a way that you are addressing that in statute or in function already. What is that?

[Janet Hurley (Chair, Land Use Review Board)]: Can we have Jenny look and we'll answer that question? It would be not disturbed.

[Rep. Amy Sheldon (Chair)]: It's not actually disturbed land.

[Jenny Brown (General Counsel, Land Use Review Board)]: I mean, disturbed land itself has its own

[Senator Jacob (first name only; surname unclear)]: specific definition. A

[Brooke Kingljean (Member, Land Use Review Board)]: lot of the terms that we use are the commencement of construction, which suggests physical action on the land. And then we have this definition of involved land for certain kinds of jurisdictional triggers or governmental projects, for example.

[Janet Hurley (Chair, Land Use Review Board)]: So the question might be whether involved land would work here, Jenny?

[Jenny Brown (General Counsel, Land Use Review Board)]: Yes, but I'm not ready.

[Janet Hurley (Chair, Land Use Review Board)]: So can we come back to that chair Sheldon? So in terms of the interim exemption dates regarding the committee's conversation last week about moving the dates up or down, The board recommends having firm expiration dates for the interim housing exemptions that are informed by the tier one a and tier one b approval process. It provides certainty for developers as to what their act two fifty obligations will be, and allows municipalities to work on their plans, zoning and Tier one requests at their own speeds without fear of losing critical housing projects. Regarding the permanent exemption for PHPs, draft 2.3 of S-three 25 eliminates draft 1.2 secondtion six's amendment of the permanent PHP exemption at 10 VSA 60,000 and one-thirty '5 to include Tier 1B and Tier 1B eligible areas. The Board wants to ensure that the committee is aware that as it currently exists in law, PHPs are limited to designated Downtown Development District designated new town center designated growth center or designated neighborhood development area under 24 VSA Chapter 76 a first chapter 76 a is set to be repealed effective 07/01/2034, to be replaced by the designation program outlined in 24 VSA Chapter 139 and effective upon the Board's approval of the Regional Plan future land use maps. Second, these Chapter 76A designations do not align with the future land use areas in 24 VSA 43 48A and their corresponding Chapter 139 designations, regardless of whether the municipality seeks Tier 1B status. In other words, once the future land use maps are and regional plans are approved, there will be no areas eligible for exemption of PHP projects in the state. If that is not the committee's intent, the board suggests reinstating the as passed as three twenty five language to include tier one B and tier one B eligible areas. Regarding temporary Because

[Rep. Amy Sheldon (Chair)]: you were actually the person who brought to our attention the tier 1B eligible areas was very unclear. So have you gained some clarity on that?

[Janet Hurley (Chair, Land Use Review Board)]: Did we? That tier 1B eligible was unclear?

[Rep. Amy Sheldon (Chair)]: Yeah, you had a lung.

[Janet Hurley (Chair, Land Use Review Board)]: I think, yeah, you're right. I think that because the board hasn't well, what the distinction is the board hasn't evaluated areas for tier 1B status that are not proposed for tier 1B status to us. The RPCs are saying that they have. I think that they testified to that effect a few weeks ago. But I was making the point in committee that the Board has not evaluated all Tier 1B eligible areas to make sure that the municipalities meet the criteria for Tier 1B status. We are only evaluating those municipalities for Tier 1B status that are proposed for Tier 1B status at the time that the regional plans come to us. Does that distinction

[Rep. Amy Sheldon (Chair)]: I didn't feel like I was confused. I felt like you thought it was unclear. If it's clear to you now

[Janet Hurley (Chair, Land Use Review Board)]: No. What I was suggesting is the board did not evaluate any areas, any municipal, any municipalities to see whether they meet the criteria for Tier 1B status. Eligible means. Right. So the board said that we did not do that. VAPTA maybe came in and said, we're doing that. So the question is whether and maybe I should ask the board this whether the board trusts that anything that's proposed as a village center, a village area, a planned growth area,

[Rep. Amy Sheldon (Chair)]: and

[Janet Hurley (Chair, Land Use Review Board)]: a downtown those municipalities meet the criteria for tier 1B status. We didn't discuss that explicitly.

[Rep. Amy Sheldon (Chair)]: Jenny? There's a number of things that are problematic with this for me, but we can talk about this one.

[Jenny Brown (General Counsel, Land Use Review Board)]: I was going to say, I think the board's current recommendation is simply to reinstate the language that was passed out of the house.

[Janet Hurley (Chair, Land Use Review Board)]: At the Senate?

[Jenny Brown (General Counsel, Land Use Review Board)]: By the Senate, excuse me. And I mean, certainly we could pursue different areas. It's mainly we're trying to bring to the committee's attention that priority housing projects will functionally not be able to get active.

[Rep. Amy Sheldon (Chair)]: Right, that makes sense. Yeah.

[Senator Jacob (first name only; surname unclear)]: So I'm a little confused because in current state, priority housing projects are supposed to end on 01/01/2027, which is in eight months?

[Rep. Amy Sheldon (Chair)]: No, that's the unlimited unit exemption. They continue on, but the point is that the land use categories have changed. So we just have to line them up. That's the succinct thing.

[Janet Hurley (Chair, Land Use Review Board)]: So, temporary exemption for PHPs, draft 2.3 eliminates the previous draft's amendment of the interim PHP exemption at 6,001, which would have exempted PHPs from Act two fifty if they were located outside of river corridors and floodplains except for infill areas. Sorry, that should say inside. Consistent with the other interim housing exemptions that apply to market rate housing. This correction is an issue of environmental justice as law currently enacted has the unintentional effect of allowing affordable housing units to be built in areas that have been deemed unsafe for market rate housing and putting the most financially vulnerable Vermonters at risk for flood damage. We strongly encourage the committee reinstate the language that would not allow the PHP exemption in flood hazard and river corridor areas except those areas suitable for infill development. Regarding the municipal transfer process, the Board supports the proposed revisions to 24 VSA 4460 to clarify that the authority to enforce Act two fifty permits resides with the Act two fifty program until a permit is transferred to the municipality through a permit amendment. In addition, the Board supports restoring Section eight of the as passed version of S three twenty five, which strikes the word rare on page nine line 13 of the unofficial version. Regarding the public outreach framework now proposed, the Board supports engagement of a neutral nongovernmental entity to prepare and implement a public engagement process to examine equitable, efficient, and effective regulatory or nonregulatory tools to protect these working lands and critical natural resources. The Board requests revisions to this section to clarify the following: What is the full scope of the public engagement? Does this replace the board's obligation under the EJ law to develop a community engagement plan? What does the legislature want to see in the board's report, and what is the due date for that report?

[Rep. Amy Sheldon (Chair)]: For It's in a report. And I actually

[Janet Hurley (Chair, Land Use Review Board)]: So, it says report in the final sentence. Yeah. Okay. So, we want to clarify what is meant by that. Working through this together.

[Rep. Amy Sheldon (Chair)]: Okay. That distracted me. So it's a framework. It's not I appreciate the question. I think it's a good question about EJ. I don't know the answer. It's not So it's a framework, and we know it needs to date. It probably already has a date.

[Janet Hurley (Chair, Land Use Review Board)]: For timely action in the 2027 legislative session, the contractors should be engaged by the fall of this year, if that is your intent. And the Board's well, if it's not a report

[Rep. Amy Sheldon (Chair)]: It's just developing a framework.

[Janet Hurley (Chair, Land Use Review Board)]: So the Board is delivering the framework from the contractor to you. Okay, so that should probably be delivered earlier than in It the

[Senator Jacob (first name only; surname unclear)]: seems like there's some confusion based on what you have written and are sharing here. It is not intended to prepare and implement a public engagement process, only to prepare for a public engagement process. Okay. The date to hire the contractor and then a date to deliver the contractor's deliverable to the legislature. So that's I think it's October September 15 to hire the contractor, then I think it's February 15 or March 15 to deliver the delivery. Okay. Okay. Happy to talk about I drafted this, so happy to about the intent or what I'm trying to do here. But I think that it's really meant to not be a project for LERB. It's really meant to pass through the LERB to inform us so that we could consider taking an action to develop a public engagement and outreach effort. Okay. So it's the last year, so chooses. That makes sense?

[Janet Hurley (Chair, Land Use Review Board)]: Okay. So I'm not sure, given that representative shape and whether everything else that I've written here is still relevant, but let me read it. We note that draft 3.2 provides additional items for public engagement and have concerns. Section 8A references environmental justice requirements that are under consideration for a longer time line to implement. It is unclear how we could be in compliance in coordination with environmental justice law and policies that are to be in effect after deadlines proposed for the Board. We additionally have concerns with the scope increase to the public engagement plan. An example is the introduction of the term rare natural communities that is not well defined. We request a well defined scope that is not overly broad and is specific to the legislature's desired outcomes. So, understood now that the word report, yeah, maybe can be jettisoned. So, you are tasking the board with this, with putting out an RFP, getting and choosing a consultant from the proposals that we get and then providing that to you.

[Senator Jacob (first name only; surname unclear)]: Yeah, there is actually not a requirement

[Janet Hurley (Chair, Land Use Review Board)]: for But yes, that would satisfy. I think we would have to.

[Senator Jacob (first name only; surname unclear)]: That would satisfy. And just related to the environmental justice laws that LERB is also required. We've just been having some conversations to understand. And I'll just explain that it's our intent to make sure that this is in compliance and dovetails with that, but they are different populations. Exactly. It's really up to the LERB and the Environmental Justice Office

[Janet Hurley (Chair, Land Use Review Board)]: We're just being responsive to trying to eliminate So those I think we just probably will have some language to clarify that there's a distinction here, because it needs to be distinct. We are working on community engagement plan. We spent two hours today working with all the other covered agencies toward developing that community engagement plan.

[Senator Jacob (first name only; surname unclear)]: It's our intention that this will feed into that? Yeah, so we can

[Janet Hurley (Chair, Land Use Review Board)]: work on language then together. So, the joint legislative Environmental Oversight Committee. The board is happy to interface with an oversight committee as we continue to roll out Act two fifty reforms. We welcome opportunities to report on our progress outside of the legislative session and check-in with legislative liaisons to be sure we are implementing the way the legislature intended. We request more specificity about the scope of oversight and how the Board will communicate with the committee. We recommend considering statutory language from the Health Reform Oversight Committee 2VSA Chapter 20 or the Transportation Oversight Committee 10VSA Section 12B to address this. We have concerns about permit oversight in particular and request clear articulation as to how oversight over permitting processes would be exercised. The Board notes that the interagency permit modernization tool being developed in response to the Governor's housing EO has the potential to be used more broadly when this work is concluded. In addition, the Board is committed to continuous improvement of the permit process and is currently working to bring efficiencies and consistency of completeness determinations across the program. The Regional Plan Amendment Process. We support providing this shortened process for plan amendments, non minor future land use map amendments, and standalone Tier 1B requests. Essentially, this would eliminate the sixty day pre application review for these amendments and separate Tier 1B requests. Elements of a Regional Plan. The proposed amendment in draft 3.2 to 24 VSA 4348A for downtowns and village centers adds language requiring centers contain buildings that are listed or listed on or eligible for the National Register of Historic Places. The addition of this language would create disparity among regions, as some plans will be approved with these benefits prior to July 1, while other regions would then become ineligible. Are there any questions about that?

[Rep. Amy Sheldon (Chair)]: Why don't you say what it means to you?

[Janet Hurley (Chair, Land Use Review Board)]: We've already gone through the pre application process for several regional plans, and we've got one in the final process right now, and we will be making a decision on that before July 1. And if the terms change for downtowns and village centers, it may mean that what was eligible before July 1 was more expansive than what is eligible after July 1 because of this National Register requirement now.

[Rep. Amy Sheldon (Chair)]: That was always the requirement before. So the new length, the change is what's been proposed, my understanding.

[Janet Hurley (Chair, Land Use Review Board)]: Right, and I think we were supportive of the changes that

[Rep. Amy Sheldon (Chair)]: You shouldn't be applying to what you're doing now.

[Janet Hurley (Chair, Land Use Review Board)]: I think it was that the board the statute uses historic in three different ways, at least. And the board didn't take it as explicit as this change would require it to do. It talks about historic and traditional centers, and the board's interpretation was that that does not mean that you have to have something that's eligible for the National Register. And this is only for the Community Investment Program that you don't oversee? Right, we don't, but it's still changing something in the middle of this approval process that we are engaged in, and our approval does confer the designation. So maybe you just want to hear from VAPTA on it and ACCD.

[Senator Jacob (first name only; surname unclear)]: And if this particular section was effective upon passage, meaning it'll potentially go into effect sooner than July 1? Yeah.

[Janet Hurley (Chair, Land Use Review Board)]: It might avoid, yeah, it depends on when we get that first. We have a hearing in mid May, and then we have two weeks to issue a decision.

[Senator Jacob (first name only; surname unclear)]: I think this is very consequential for this program on the NOBRII and the resources that haven't changed. And so I think it's really our intent to try and make this work, at least for this period, until we have more resources for that program. Thanks for attention. Also, this

[Rep. Amy Sheldon (Chair)]: is an artifact of having to separate the two using the Community Investment Program for land use, that the whole point is we're taking this apart, and there's going be bumps along the road, we're going to have to just be

[Janet Hurley (Chair, Land Use Review Board)]: I wonder if another way to address it is change the steps. Everybody can come in at step one, But if you want the historic tax credits, have to have x. Or step two Maybe. Maybe. But when you look

[Rep. Amy Sheldon (Chair)]: at the other steps, they're actually also really important to me, to the rural economic or the rural assistance that steps one and two provide are also really critical.

[Janet Hurley (Chair, Land Use Review Board)]: So

[Rep. Amy Sheldon (Chair)]: we talked about that. Duly noted.

[Janet Hurley (Chair, Land Use Review Board)]: So draft 2.3 of S. Three twenty five contemplates charging the board to report on whether to repeal 24 BSA 4,476. The board supports repeal of this statute rather than to rewrite it such that it would put the board in place of this previous committee. The board suggests that the legislature make this decision now rather than waiting until next session. The board recommends repeal of the provisions that allow for formal review of regional plan adoptions because this is duplicative and conflicts with the Act 181 Regional Plan approval process that we are now conducting. However, the Board recommends seeking testimony this week from municipalities and VLCT about whether to repeal the provisions that allow formal review of municipal plan and municipal planning process confirmations by regional planning commissions. So, the question is whether those decisions by a regional planning commission to confirm a plan, a municipal plan, or the municipal planning process deserve somebody's reconsideration. And don't I think the board isn't prepared to tell you that. I think the proper people to tell you that are the municipalities and maybe the LCT. So if they want this process, we would be happy to serve as that body. So we would just request an effective date with enough time to set up guidelines around that.

[Rep. Amy Sheldon (Chair)]: You were going to, you explained to us how reconsideration might work in the civil aspects that might already be in place. Did you

[Janet Hurley (Chair, Land Use Review Board)]: We're about to get into that, for you. It's separate reconsideration question. This is reconsideration or sort of an appeal light of a Regional Planning Commission decision.

[Rep. Amy Sheldon (Chair)]: Yeah, I know what we're talking about.

[Janet Hurley (Chair, Land Use Review Board)]: And the other, yeah, is sort of permit related.

[Rep. Amy Sheldon (Chair)]: Right. But they're related in the function of the LERB and how it presents to its staff and oversight versus appeals. I mean, I think they are related because you're asking, but

[Janet Hurley (Chair, Land Use Review Board)]: it doesn't matter. Okay. So, any questions about that formal review? Okay. So, the request for reconsideration. The board supports the removal of Section eight of Draft 1.2, which would have transferred the process for reconsideration of permit denials from our district commissions to the Board. We believe that the current process described below provides an important opportunity for applicants to correct a project deficiency that was the cause of a permit denial by redesigning their project in accordance with the reason for the permit's denial without having to go through an entirely new application process. The board stresses the distinction between reconsideration by the original tribunal versus appealing to a new tribunal and the time and cost savings related to that. Under Act two fifty Rule 31, reconsideration of decisions, there are two kinds of reconsideration of decisions of district commissions. Subsection provides that any party may file a motion to alter the decision within fifteen days. All requested alterations must be based upon the existing record. New arguments and new evidence are generally not allowed, and requests are limited to instances of manifest error, mistakes, and typographical errors and omissions. These motions are commonly referred to as motions to reconsider. Subsection provides an additional process for applicants to request a reconsideration of a permit denial from a district commission or from a court by applying to the district commission for reconsideration within six months pursuant to 10 VSA 6,087 and demonstrating that the deficiencies causing the denial have been corrected. The District Commission then holds a new hearing within forty days of receipt of the request for reconsideration noticing all parties to the proceeding. Review is limited to those aspects of the project which have been physically modified to address the grounds for denial. Relitigation of issues is not permitted, nor are changes in statute or regulation or other factual grounds for reconsideration. The District Commission also has authority to expand its review where a change in circumstance that has occurred since the date of the prior permit decision may have significant impact on any finding, conclusion, term or condition of the project's permit or upon the Act two fifty criteria. In conclusion, the Board agrees that Section eight of Draft 1.2 should be removed and that 10 VSA 60.87C and Rule 31 be left intact. The Land Use Review Board appreciates the committee's work to refine Act 181. If you would like further input from the Board as you finalize revisions within S-three 25, we are happy to return for additional testimony.

[Brooke Kingljean (Member, Land Use Review Board)]: And Chair Sheldon, if I could just add, based on our conversation the other day that was off the top of my head in terms of the reconsideration. Just wanted to point out the manifest error, the factual errors kind of reconsideration that's called a motion to alter. That's in subsection A of our Rule 31. But the important aspect that you folks were asking about had to do with the denial of an applicant's permit. And so the second portion of that rule that's based on the statutory grant in our Title X, provides this opportunity. It gets six months so that you can correct the deficiency, cure the problem as to why you were actually denied. And denials require specificity of what exactly it is that is causing the permit to be denied. So it is a robust process whereby you're given another opportunity. It is not, your only option is not to appeal to a higher authority. It's to go back and say, we corrected the thing that you pointed out that prevented us from getting the permit. The advantage to that is you're at the same decision maker. They know the case. There will be a hearing, but it it can be a very finite and shortened process. And going back to that original tribunal is beneficial. Having said that, this happens infrequently. And the reason why it happens infrequently, perhaps, is because there may be other parties. So there might end up being an appeal in the long run anyway. But it is an option for the applicant, and it's a very important opportunity for them to be able to move quickly and not have to relitigate or to create a new application. So we do think that that's a strength of the Act two fifty process, and we would definitely suggest that that remain intact. If there is an appetite or desire for more of an appellate look to come to the LERP, we could certainly discuss and provide other language that would accomplish that goal. But I would not want to see this particular avenue foreclosed for applicants.

[Rep. Amy Sheldon (Chair)]: I'd to go back to removing a rare, because you already have guidance that includes it as written, the challenge.

[Janet Hurley (Chair, Land Use Review Board)]: I'm sorry, what are we reading that?

[Rep. Amy Sheldon (Chair)]: The recommendation to remove the word rare, the Tier 1A requirements. And I guess you already have guidance that's provided to towns on how to meet this requirement. So I guess I'm interested I feel like the database that towns would use to show that they were making this consideration of wildlife set up rare, threatened, endangered. It's the data they would use the easiest way for them to include it in their planning.

[Janet Hurley (Chair, Land Use Review Board)]: I think we support the ANR position that rare be removed because I think that they don't regulate rare. And

[Rep. Amy Sheldon (Chair)]: But but this is using this in totally different ways. There's they're looking at individual permits, and this is a town planning for rare, threatened, endangered species in order to meet the criteria. It's very it's a different application.

[Janet Hurley (Chair, Land Use Review Board)]: We can we can discuss it further as a board in light of that and get back to you.

[Brooke Kingljean (Member, Land Use Review Board)]: I think it was a data issue. The way that I understood the issue from ANR was that they didn't necessarily have the information that would be easily accessible, whereas the Endangered

[Rep. Amy Sheldon (Chair)]: the case, they've been together. RTE, it's a database. You can download it. It's a GIS shapefile. That's what Townsend has been using. That's what anyone who's interested in the topic has been using for a very long time.

[Brooke Kingljean (Member, Land Use Review Board)]: I myself was shocked at it. RTE was in my brain as well. Never a long time.

[Rep. Amy Sheldon (Chair)]: Do members have questions, further questions? Representative Austin?

[Rep. Sarah "Sarita" Austin (Clerk)]: This is about the appeal when it's limited to instances of manifest error mistakes and typographical errors and omissions. Is that both on the applicant and on the commission district commission?

[Brooke Kingljean (Member, Land Use Review Board)]: Well, it it's for the decision of the district commission Right. Or or a reconsideration for district coordinators. This a JO could also be asked for.

[Rep. Sarah "Sarita" Austin (Clerk)]: Right. But is the mistake could it be the district commissioners making a mistake? Or Yes. The applicant made a mistake and wanted

[Janet Hurley (Chair, Land Use Review Board)]: to It could be either. Either.

[Brooke Kingljean (Member, Land Use Review Board)]: It could be a factual correction. Mhmm. If there were information that they were relying upon factually that was error erroneous. It's the body of information, factual and legal, that they are utilizing to make the determination.

[Rep. Sarah "Sarita" Austin (Clerk)]: But it could be either the district commission or the applicant, is saying, didn't realize this as well. Is that Or is it just the district commission's kind of error?

[Brooke Kingljean (Member, Land Use Review Board)]: It's more to if there's a correction to the record. Okay. We gave you something that said the sky was blue, and it was really green Mhmm. As opposed to, oh, we want to give you more evidence that on more days, there's green, not blue sky. It's to keep the record intact, but to give an opportunity in case there was a big mistake or misunderstanding of the record itself. It they try not to alter the record Yep. In most situations. Thank you.

[Senator Jacob (first name only; surname unclear)]: Chippen. Go back to the interim exemption dates. And I guess I think we did what you're saying here, but you're unclear if you're supportive of the dates or not. So we did sort of move them all to 01/01/2028, given like that was in line with giving municipalities an alert ample time to sort of establish those tier one, knowing that more municipalities down the road might make choice to opt in to one down the road, that there would have been ample opportunity for municipalities, including after some of the provisions in here go into effect that make it perhaps more appealing to be a one.

[Janet Hurley (Chair, Land Use Review Board)]: Think what the board is saying, we support that they're all the same. And I think there may be some understanding from some of us that worked with municipalities that it takes municipalities quite a while to come around and get all their ducks in a row. So, we were comfortable with the Senate dates, but that's for you to decide. As long as we're just saying we think they should all be the same. Related

[Rep. Amy Sheldon (Chair)]: to this, I'm interested in having a pause at 2028 because a couple of things. One is it does give towns a year, actually more than a year, because presumably if they were interested in tier 1a, I know towns are already talking about it, to do that process, but also because of tracking the houses. And I'm curious, are you still issuing JOs on housing projects? And if so, are you keeping track of the type of housing projects and where they're being proposed? And thinking about a tracking that would have the LER keep track of priority housing projects. But is there a role for you in tracking the other housing projects as well?

[Jenny Brown (General Counsel, Land Use Review Board)]: Jenny Brown, General Counsel. The only required jurisdictional opinions were in the Homes Act, and that's since been changed. So we do have people seeking jurisdictional opinions, but they're only doing so voluntarily, not because it's a requirement of being able to take advantage of the exemption. So we do have data, but it's not a complete representation of what's happening on the ground necessarily, because there are lots of people who developed a project that they feel very confident falls within the exemption. We are tracking a lot of the housing projects that do come through us are being tracked and reported on a quarterly basis through the executive order six-twenty five. So we've done two quarters of reporting on that already as far as how we prioritize those permits and jurisdictional opinions. So there's some data, but it does not represent what's on the ground. Only what we see from the NOC.

[Rep. Amy Sheldon (Chair)]: Do you have thoughts on how to track this?

[Janet Hurley (Chair, Land Use Review Board)]: I think the executive order work that we're reporting for, they're collecting from other agencies, and probably that information could be used to track.

[Rep. Amy Sheldon (Chair)]: That's the ACCD website.

[Janet Hurley (Chair, Land Use Review Board)]: Well, no, it's not on the ACCD website. This is a separate interagency committee that's looking at all the permitting and developing a tool that would track permitting for housing and could probably be used for more than just housing. But it's a tool that is being developed in the executive branch.

[Rep. Amy Sheldon (Chair)]: Are they gone?

[Rep. Sarah "Sarita" Austin (Clerk)]: No. They presented to the caucus on Friday, the Economic Caucus, a tool that they were using. And I did think it might be something that we would want to have teeth, I believe. You hear that, Rob? I

[Rep. Rob North (Member)]: did not. No, because I was here. I stayed here. That's too as well. I would like to. Interesting.

[Senator Jacob (first name only; surname unclear)]: Just to confirm that we're talking about the same tool, you're speaking about the AI tool? No. I'm not sure that we're actually actually speaking about

[Rep. Sarah "Sarita" Austin (Clerk)]: talking about chat and one not chat. One, they said they're moving into AI, but this is an inter agency permitting.

[Senator Jacob (first name only; surname unclear)]: Yeah, just not sure that we're talking

[Janet Hurley (Chair, Land Use Review Board)]: about Yeah, I'm not sure that we are either.

[Rep. Sarah "Sarita" Austin (Clerk)]: But I do think that would be good for what they presented on Friday on housing permitting. Further questions?

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

[Rep. Rob North (Member)]: Yes. Thank you. S three twenty five draft number 1.2, you're stepping back in history here for this request for reconsideration. I think what you were saying there is that you'd like us to go back to what was in 1.2 for that or that

[Janet Hurley (Chair, Land Use Review Board)]: I think we just wanted to make sure that the committee understood the distinctions between the types of reconsideration that applicants

[Rep. Sarah "Sarita" Austin (Clerk)]: have access to in our program.

[Rep. Amy Sheldon (Chair)]: Change it. Leave the reconsideration the way it is, because it's working for what it does.

[Brooke Kingljean (Member, Land Use Review Board)]: The thing to also keep in mind on reconsiderations or appeals are when cases do go up to the environmental division on appeal, the lawyer becomes a party to the proceeding. And often those cases are resolved through a settlement agreement. All parties would have to enter into that. So, if there were neighbors or municipality, as well as the applicant, that they would all have a say in whether or not that case could be disposed of by the court. But there is also that opportunity for the LERD to have decision making authority with regard to what happens to the case on appeal. So if we perceive that there were a decision that was made not on the right basis, or there was a policy reason to alter that determination, we do have the power to do that through our statutory authority.

[Rep. Amy Sheldon (Chair)]: Senator Jacob?

[Senator Jacob (first name only; surname unclear)]: I don't think you commented on what's now in the bill as an appeal of a tier two area report. I'm just curious if you have a comment on that. I

[Janet Hurley (Chair, Land Use Review Board)]: mean, I think that your public engagement idea is a replacement of that, right?

[Senator Jacob (first name only; surname unclear)]: In some ways. Yeah. Entirely, but

[Janet Hurley (Chair, Land Use Review Board)]: And actually, I wondered if in a previous version of this testimony I included, do you wanna expand the scope to include everything that was in the tier report? But yeah, that's up to you. So we will still probably want to work on the AOFB question because it's a problem for our program. The difficulties of determining whether something meets exemptions. And there is another bill that provides language that would say that if the AOFP didn't make more than 2 and $50,000 a year, that it could qualify or something. But how do you determine what the future revenues of an AOFB are gonna be? It doesn't necessarily solve the problem of making it easier to determine. So it's something that we'll look into anyway, regardless of whether you tell us that we should.

[Rep. Amy Sheldon (Chair)]: Related matter, the soils. I mean, there's some things that I don't want to get lost. I'm glad you'll do. The AOFB anyway, the list was ag soils.

[Janet Hurley (Chair, Land Use Review Board)]: The last version added working lands. That's why I took that out, because it seemed like you were trying to get there anyway. But,

[Rep. Amy Sheldon (Chair)]: yeah. Well, but what's happening So another thing that's come up repeatedly from different angles is this 1B area.

[Senator Jacob (first name only; surname unclear)]: The reality ag soils.

[Rep. Amy Sheldon (Chair)]: And ag soils. Yeah. Need to be part of our conversation.

[Janet Hurley (Chair, Land Use Review Board)]: Yeah, and not just for tier two, which may not exist anymore, but in the tier ones. Yeah.

[Rep. Amy Sheldon (Chair)]: Reiterating, we're moving away from tiers and haven't done it in this yet, but whole state is still covered by act two fifty, and environmental regulations apply to the whole state. So stay in there. Representative North?

[Rep. Rob North (Member)]: Yeah. I'm I'm sorry to go back to the same topic again. It's probably just because I don't understand the whole reconsideration and permanent denial. We we did hear some testimonies from a few different people about about getting an adverse j o and having to go back to the same coordinators being a real problem, the same coordinator if you submit an appeal or request for reconsideration or whatever it's called, you're just going get the same answer back again. That what you're asking to remain the same, or could we encourage a different I think both the right term, a reconsideration appeal?

[Senator Jacob (first name only; surname unclear)]: When I spoke to you

[Brooke Kingljean (Member, Land Use Review Board)]: the other day, I was really just focused on this limited, very narrow kind of reconsideration. It's you know, there's been a mistake here, is is the point to it. It's a red flag. So it's a very limited process. And it does seem unusual to go back to the same decision maker. But understanding that it's like, okay, this is only if there was some manifest error, some misunderstanding. Beyond that, you have the appeal. So if the committee were interested in some other kind of either second look by the lurb, we could certainly provide language in that regard. I think that it would be more in the idea of an appeal, or as we discuss this other denial option, to provide some more information later. So we certainly could suggest other avenues if you wanted to alter the structure. And so understanding what the goal would be, we could certainly work back from that and provide language that would accomplish the goal, if you wish.

[Rep. Amy Sheldon (Chair)]: It would be helpful. It may not make it this session. I it's an interesting I don't know how often someone gets a JO they don't agree with and goes back to the same coordinator and gets a different answer.

[Rep. Rob North (Member)]: We heard it twice in testimony so far.

[Rep. Amy Sheldon (Chair)]: That they didn't get a different answer. Right.

[Brooke Kingljean (Member, Land Use Review Board)]: My sense is, because I've seen this, this is a normal thing in civil practice, and that's what I was explaining to you the other day. I think more likely, things are just appealed. And then often there are conversations between our general counsel and the applicant on a jurisdictional opinion. But keep in mind, jurisdictional opinions can be requested by anyone. It doesn't have to be just the applicant. And sometimes, people are not happy with a neighbor asking for it when it can become a binding decision on someone's land. So there is also that aspect of it. It's not quite as simple as and straightforward as, oh, just an applicant going for reconsideration, because there there are these other folks that may have standing based having an interest that could be impacted by project. So happy to look further into that and provide you with more information. But it's not quite as straightforward as it might stand.

[Jenny Brown (General Counsel, Land Use Review Board)]: Just note that the language that had been proposed, that we are enthusiastic about having been removed, would not have actually addressed the problem.

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

[Jenny Brown (General Counsel, Land Use Review Board)]: recommendation didn't fully understand how six eighty seven worked, and therefore it kind

[Senator Jacob (first name only; surname unclear)]: of brought us on this peer group.

[Rep. Amy Sheldon (Chair)]: Did the board, I mean, did you talk about whether or not people should have the right to appeal the regional plan?

[Janet Hurley (Chair, Land Use Review Board)]: Act 181 said there shall be no appeal, and we haven't questioned that.

[Rep. Amy Sheldon (Chair)]: When you said you didn't want to weigh in on it, I guess I thought maybe you had discussed it. But that's fine. That's fair. We need to move on.

[Janet Hurley (Chair, Land Use Review Board)]: If you want us to weigh in, I guess we could.

[Rep. Amy Sheldon (Chair)]: Members have further questions?

[Janet Hurley (Chair, Land Use Review Board)]: Okay. Thanks for testimony. Yeah. Thank you.

[Rep. Rob North (Member)]: Take a

[Janet Hurley (Chair, Land Use Review Board)]: break

[Rep. Amy Sheldon (Chair)]: till