Vermont Legislature SmartTranscripts:

[Sen. Russ Ingalls (Chair)]: Good morning. We're back in action here. We've had a very busy morning, very informative morning, and looking forward to this next section. We're gonna talk with our legislative counsel, Bradley Schulman. Been stepped up into the role of my student as far as our other long time counsel, and we're gonna talk about municipal regulations of agriculture. Welcome, come on up. Thank you. The floor is yours, sir.

[Bradley Schulman (Legislative Counsel)]: Good morning, committee. Morning. My name is Bradley Showman. It's a pleasure to meet you all in person. Oh, do do do

[Sen. Russ Ingalls (Chair)]: you have anybody? We'll we'll just go around just in case you have a shout out.

[Sen. Brian Collamore (Member)]: Yeah. Brian Collamore. I represent the Rutland District.

[Sen. Steven Heffernan (Clerk)]: Great. And we've met Rob Plunkett, Bennington. Yep. Steven Heffernan, Allison County District. Great.

[Sen. Russ Ingalls (Chair)]: Joe Major, Windsor. Great. Ben Ross Ingalls, Overland Essex. Right.

[Bradley Schulman (Legislative Counsel)]: Pleasure to meet all of you. Again, my name

[Sen. Joe Major (Vice Chair)]: is Bradley Schump, and I'm

[Bradley Schulman (Legislative Counsel)]: also legislative counsel, and I will be giving an overview of tax, street decisions, and the impact on municipal regulation. Just going to share my screen here.

[Sen. Russ Ingalls (Chair)]: One second while I

[Bradley Schulman (Legislative Counsel)]: Okay, And so this presentation will give an overview of the full name of the decision as in ray eight Taft Street, TRV, and NOB appeals from the Vermont Supreme Court. We usually just refer to it as a Taft Street decision. This decision is dated May 30. I think we caught wind of it in June, so we might refer to it as the June decision. Yep. I might refer to it as May 30 because that's what the Supreme Court says on its paperwork. But just for that piece of clarification, we're talking about the same thing.

[Sen. Russ Ingalls (Chair)]: Okay. So

[Bradley Schulman (Legislative Counsel)]: before we begin, this is the relevant statute that the court was interpreting. The language is in bold here. So the statute prohibits a municipality in the regional planning and develop municipal and regional planning and development. Municipalities cannot regulate required agricultural practices. And traditionally, we thought that this meant that municipalities could not regulate act agriculture activity that is subject to the required agricultural practices. And we'll see that the court read the statute more narrowly, and I'll explain that in just a moment. But some facts that kind of brought us to this moment where we're taking another look at that statute. Facts here, the case itself concerned a Duffy cannabis farm in the city of Essex Junction. The city's land development co prohibited agricultural activity in residential areas. This farm was located in residential areas, but town issued several notices of violation of the city city's ordinances. The farmer appealed and the environmental division ruled in the farmer's favor. That court determined that the duck raising and cannabis operations were subject to required agricultural practices, so the city could not regulate that activity. And the farmer did not appeal to the Supreme Court. Sorry about that. The city and neighbors appealed to the Supreme Court and brought us to where we are here. And so the court ultimately took a much broader view. Again, prior to Tap Street, was generally accepted that municipalities could not regulate agricultural activities subject to the RAP's rule, and the RAP's rule section 3.1 defines what kind of farming activity makes a farmer subject to the RAP's rule. So if you meet that criteria in the RATS rule, it was generally understood that municipalities could not regulate the activity more broadly. So the court read the statute more narrowly. So instead of deciding that municipalities can't regulate agricultural practices activity subject to the RAPs rule, the court held that municipalities are only restricted from regulating what the required agricultural practices are. So the court reason, there's a difference between agricultural practices subject to GRAP's rule and agricultural agricultural practices required by the rule. Had the legislature intended to prohibit all municipal regulation of farming subject to the RAP's rule, it would have done so. However, it did not do so, and we presume it chose those words advisedly. The holding here is accordingly, the relevant statute does not prohibit all municipal regulation of farming if that farming is subject to the RAP's rule, and the landowner's dump raising operation now exempts municipal zoning solely because of his activities are subject to the RAP's roof. Rather, the statute prohibits municipal regulation required agricultural practices or the agricultural land management standards intended to protect Vermont's waters established by the RAP's rule and imposed on certain agricultural practices. So essentially, it's not the prohibition by statute does not prohibit regulation of agricultural activity. It just prohibits municipalities from regulating what those required agricultural practices are. So the secretary gets to make the RAP's rule, and the secretary of agriculture gets to make the RAP's rule, and municipalities cannot regulate how farmers are supposed to implement those rules. The municipalities can't regulate those rules themselves. That's how the court narrowed our understanding of municipal regulation. So what that means then, because municipalities are now only restricted You get that. To regulating what's in the RAP's rule itself, the zone or the the scope of what agricultural activity could be subject to regulation is not quite broad. So municipalities could subject could regulate agricultural activity in terms of noise, traffic, road set roads, road requirements, setback requirements, smell, hours of operation, parking, land use, and municipal regulation. There's broad authority for municipalities to now regulate agricultural activity when before we thought that they were prohibited doing that. Municipalities are restricted from regulating just the specific practices required by the RAPs rule. And the RAPs rule largely concerns water drainage, manure, buffer zones, animal mortality management requirements, and things of that sort. Municipalities can't regulate those specific activities, can't regulate how a farmer is supposed to manage water, drainage manure, and these things. Community status can't regulate those things that can regulate any other a lot of other things that would be related to farming. Other exemptions by statute are still in place, and so there are still protections from nuisance lawsuits. There are still Act two fifty exemptions that are still in place. The

[Sen. Russ Ingalls (Chair)]: stat

[Bradley Schulman (Legislative Counsel)]: the this court case did not affect those exemptions. It just narrowed our understanding of that kind of broader exemption that we thought that municipalities had on regulating agricultural activity.

[Sen. Russ Ingalls (Chair)]: So Scenario's dangerous, they're just dangerous stuff. I'm just going to try to paint it in a broader picture that would make more sense to us. You get a housing development, next to that's a 100 acre field. The municipality could say, You're not going to spread manure between the hours of such and such time. You're not going to go past 07:00 at night. You're not going to start any earlier than 05:00 if the wind's blowing in a certain direction. They could really just make any rule that they wanted to that they thought, and it's in their own fairness, they thought that was protecting this development from undue presence of agriculture, but they could make those types of rules.

[Bradley Schulman (Legislative Counsel)]: Yes. Yes. And and the the authority to meet those types of rules is is broad. And, you know, they could regulate noise and hours of operation to things that neighbors might find find to be annoying themselves. They could lobby their municipal governments, to pass an ordinance, to pass a claim that would restrict that activity. And they're currently now under this tax free decision. There's nothing necessarily stopping municipalities from doing that.

[Sen. Russ Ingalls (Chair)]: And it's not who was there first, any type of protection?

[Bradley Schulman (Legislative Counsel)]: Not necessarily. And so farmers could attempt to litigate these things and exercise their rights under the law as any party would exercise the right of the law. Like, if you had, you know, like a fence in your backyard or something and your neighbor wants you to remove the fence because they think it's an eyesore or something, and you might assert, okay, well, I've had this fence for a very long time, and I've been doing this for a very long way. Applying that to me, I should be grandfathered into I should be grandfathered or or granted an exemption or something of a sort. But that would require individualized litigation and individualized appeals and requests for variances, things of that sort.

[Sen. Joe Major (Vice Chair)]: As well as legal costs.

[Bradley Schulman (Legislative Counsel)]: As well as legal costs, yes.

[Sen. Brian Collamore (Member)]: Yeah. Thank you, Mr. Chair. So it would appear that this is a definitional issue to me, in that the general assembly didn't do enough of a job in defining what farming is. Somehow I got tied to the RAPs, leaving out enough area in a sort of gray zone, I guess. That's how I take the Supreme Court decision in Mean. They looked at it and said, I don't think they actually said this probably, but the end result might be the general assembly needs to go back and take another look at the way in which they define farming and expand it if they, in fact, intend to protect farm.

[Bradley Schulman (Legislative Counsel)]: I I I think that's right. And I I pulled the statute back up again, and the text might be a little small here, but I pulled the statute back up again. And the statute itself says, a bylaw shall not regulate required agricultural practices. And and they read that by the plain language that you can't regulate the required agricultural practices. Up until this point, we were thinking, or the state thought that that meant activity subject to the required agricultural practices. So your 15 goats, your cannabis farm, your duck raising operation, all subject to the required agricultural practices. That's not necessarily the case. Just the bold language is what the court is looking at there. And and you are correct that the court did use language that said if the legislature wanted to broaden the exemption that it could have chosen language to do that. Was still can. And still can. And still can. And I think that that may or may I I I think that that was the the practice up until this point, but the court wasn't looking at practices, wasn't looking at history, wasn't looking at testimony about how these rules have been working. It just looked at the plain language, and it just looked at the words on the statute, and it kind of ignored the broader scope of how we did things. And that is in line with statutory interpretation or some statutory interpretations that you'll get from judges is I'm just looking at the statute, and I'm not going cover everything else.

[Sen. Russ Ingalls (Chair)]: But they typically will make interpretations based on precedent. Yeah. And they just didn't on this time.

[Sen. Joe Major (Vice Chair)]: In in

[Bradley Schulman (Legislative Counsel)]: let let me I can answer it this way. I I'm not familiar with another supreme court case Right. In which they have interpreted the statute more broadly. Right. So in in that sense, I I don't think that they're not looking at their precedent. What they're not looking at is the precedent set by how the state has managed

[Sen. Russ Ingalls (Chair)]: Two hundred years of

[Bradley Schulman (Legislative Counsel)]: activity. Exactly. You know? And then I think was chatting about this with Mike, but I think, you know, our understanding of this rule, the drafting goes back twenty five, thirty years of this drafting in particular. We don't have a specific date, but it's been a long time and a long understanding of how we've done this. And so the court didn't look at that history or or or precedent, so to speak. But in terms of its own precedent, I'm not familiar with another case that they have addressed this particular statute in this way.

[Sen. Russ Ingalls (Chair)]: So why haven't we had conversations, counsel, from Ancient Agriculture or even from this committee? I mean, I think you've shed some light onto all language. Why hasn't there been so far any conversations about changing the language?

[Bradley Schulman (Legislative Counsel)]: I think that that is those conversations are coming. And I don't want to speak for the agency of agriculture, on their behalf, but I I do anticipate that they will propose, a sort of legislative fix for this committee to consider.

[Sen. Brian Collamore (Member)]: Okay. Yes. Thank you, mister chair. Riley, are you familiar with any other case apart from this farming piece where a Supreme Court decision was reached, and in the immediate session following that decision, legislation was introduced which further clarified, if you wanna take one way of looking at it or countermand it, what the Supreme Court did in their decision.

[Bradley Schulman (Legislative Counsel)]: That is a good question. Not in the agriculture context. I do know in the housing context many years ago, if that's helpful for you. Sure. But in the housing context, the supreme court ruled that if you're trying to terminate someone's tenancy, landlord trying to terminate a tenancy, and they the landlord gives a notice to vacate, saying, I want to end your tenancy in thirty days, and then they give a subsequent notice vacate, saying, Okay, I want you to terminate your tenancy in another thirty days. The Supreme Court ruled that the subsequent notice to terminate tenancy voids the first one. And that might make sense, you know, and but in the statutory context, in that statutory world, that may not have been the intent of the legislature, and it certainly wasn't the intent of landlords. And so the legislature did pass a law either the subsequent session or maybe two sessions later. It was very close in time to this decision saying a subsequent notice to attorney tenancy does not void first one. And so that there's precedent for the legislature to take action from a supreme court case that has inserted laws in ways that perhaps are new or unexpected. I'm not familiar with the agriculture context though.

[Sen. Brian Collamore (Member)]: Okay. Good answer. Thank you.

[Sen. Russ Ingalls (Chair)]: I said earlier today that there's rumors or there's gossip, but then there's things that just seem to swirl around. And I'm not in the habit of criticizing any court, especially the Supreme Court, but it seems to be floating back through that it seems to that maybe they got this one wrong. And maybe they should have put more contest with their decision. I don't know that to be true, but I do think that now, very helpful meeting with you today, that there is tricks to it. I feel that, and it's not, and I don't think it's gonna be something that it's gonna be a legal battle to do. It seems like it's just, okay, well, yeah, no, fix your language. Fix your language and we'll be fine.

[Bradley Schulman (Legislative Counsel)]: And I think that's the right way to go about it. You know, I think for better or for worse, this decision is one that the legislature and the agency and and farmers are are stuck with, and trying to take action to clarify and change the statute to comport with a different interpretation, think, is wise.

[Sen. Steven Heffernan (Clerk)]: Sure. Well, yeah. Are you guess so let let's imagine we're we're trying to replace this with instead of required agricultural practices, it's farming or some phrase as defined in some citation and statute. Do you know where that citation and statute might be of what was understood prior to this decision. What would be is it just farming as as defined in 12 or wherever?

[Bradley Schulman (Legislative Counsel)]: I don't have the citation off the top of my head, but, the the answer your question

[Sen. Steven Heffernan (Clerk)]: is yes. So there's some definition Yes. In there somewhere?

[Bradley Schulman (Legislative Counsel)]: Yes. Yes. And and I think that there is language floating around. Yeah. We haven't seen the language. Right. Right. Right. That that might get to that point, but then that is that is good thinking, and and that is coming.

[Sen. Russ Ingalls (Chair)]: That's great.

[Sen. Steven Heffernan (Clerk)]: Is that something we will be able to put in the miscellaneous book? Yes. Yes.

[Sen. Russ Ingalls (Chair)]: Yes. Yeah. We'll be having some conversations about that. I could we can be sure. So we have the agency coming in, and we'll yes, we'll work with Council Chillman, this is the AT and Collier and yeah, we will will tackle this for sure.

[Sen. Brian Collamore (Member)]: Anything else? No, great job.

[Sen. Russ Ingalls (Chair)]: Great job. Thank you. You were very, very impactful, and we appreciate you. Very nice to meet you. We look forward to having a great working relationship with you.

[Bradley Schulman (Legislative Counsel)]: I I appreciate that. Aileen's Mutual, and it's a pleasure to meet all of you.

[Sen. Russ Ingalls (Chair)]: Thank you. Thank you, Javier. Take care. From any anything else? Any any conversations about today?

[Sen. Joe Major (Vice Chair)]: Not today, but I

[Sen. Russ Ingalls (Chair)]: don't know if you've

[Sen. Brian Collamore (Member)]: been aware, but house passed at sixty nine. Each. Obviously, it has inside

[Sen. Joe Major (Vice Chair)]: of the field. Yeah. So the only thing which we're gonna have to discuss is they excluded this portion. Yeah. And so Thank you, counsel.

[Sen. Russ Ingalls (Chair)]: I I

[Sen. Joe Major (Vice Chair)]: I don't know, and we're gonna have to leave a line whether we want to go as is or go to confidence.

[Sen. Brian Collamore (Member)]: So let me ask you, Senator Major. Didn't it get passed and then sent to the House Appropriations Committee? Because I don't know if there's any money in the bill. There is none.

[Sen. Joe Major (Vice Chair)]: There is none. Okay.

[Sen. Steven Heffernan (Clerk)]: Right.

[Sen. Russ Ingalls (Chair)]: So I think to your, Senator Major, I think we have to have a conversation because the sponsor of the bill is in the Senate Natural Resources, and then where they handle forestry. So they might not be too keen to I'm with you. I I agree with think that we need to have a conversation with them to whether they wanna they're you know, we're we're gonna be stepping on some pretty big toes if if we

[Sen. Joe Major (Vice Chair)]: go down that route, but I I hear you. And, you know, in the

[Sen. Russ Ingalls (Chair)]: And maybe we ought to before you go, and I apologize. No. No. It may be we ought to have a conversation with the sponsor of the bill Yes. If it if that was your if that was her intent.

[Sen. Joe Major (Vice Chair)]: Yeah. And and she's in that as So the other part of it is I mean, I think we were asking for a million, if I'm not Well, were up million.

[Sen. Russ Ingalls (Chair)]: I know. That's right.

[Bradley Schulman (Legislative Counsel)]: Ended up like this.

[Sen. Joe Major (Vice Chair)]: Yeah. Or or this. But I I mean, just to to have something, even if it's just almost a placeholder to get it through. But so let

[Sen. Russ Ingalls (Chair)]: me throw something else out there Sure. With that. Why couldn't we partner with these folks in some way? Because they seem to have the monies. It's a lot. It's a throw out into left field. But I'm wondering if there's any ways that we could craft S60 to, I don't know, they seem to have plenty of money. And maybe again with the offline discussion that we had about the trust of who you do business with or not, maybe that would be the way. It's not anything that we make a decision on today, but it would be nice to get in that bill some real dollars. Yeah. I'm sorry.

[Sen. Brian Collamore (Member)]: Well, the only thing I was thinking, these are

[Sen. Joe Major (Vice Chair)]: loans for the most part.

[Sen. Brian Collamore (Member)]: S 60 were More grant. More like grants. Good.

[Sen. Russ Ingalls (Chair)]: Good point. Good point. I missed that. I didn't miss it. I just hit

[Sen. Joe Major (Vice Chair)]: But I I I mean, it's plenty money. But to your point, you know, maybe they have some kind of grant program separate to Yes. Yes. That we could Call and get you know? You're calling me?

[Sen. Russ Ingalls (Chair)]: Sure. Okay.

[Sen. Brian Collamore (Member)]: She might be able to say we can't, but

[Sen. Russ Ingalls (Chair)]: Yes. Right. Yes. X, y, and

[Sen. Brian Collamore (Member)]: z would be able to do something.

[Sen. Russ Ingalls (Chair)]: Because the Will you talk to senator Hardy?

[Sen. Joe Major (Vice Chair)]: Yep. Because the what I what I've heard is just the drought is, you know Yeah. The testimony is killed. I mean, for my in my district. And it's not and sometimes we that was the the one thing. Sometimes we just think of of cry lost, but it was cattle farms because you had to bring in the feed and dairy farmers as well. Yep. Was just all around, you know, and it was just so hurtful. Yeah, dairy farmers that

[Sen. Steven Heffernan (Clerk)]: are bringing in the feed as far as Minnesota.

[Sen. Joe Major (Vice Chair)]: Yeah, yep. And then having to truck in water as well is, you know, what I was hearing. But you know what? Farmers are resilient, you know, going to the fairs across on the Addison. They're resilient. They all had a smile on their face and willing to to get through. We wanna try to support them as much as we can. Absolutely.

[Sen. Brian Collamore (Member)]: So I applaud you.

[Sen. Russ Ingalls (Chair)]: You know where we need to be on language as far as for the sticks that we're doing. You're comfortable with that? Well, yes. I think

[Sen. Steven Heffernan (Clerk)]: it's gonna be more of a discussion. My druthers would be to just return everything to where it was before the decision, rather than trying to finagle something. But, you know, still How do you think that's The LGT's proposal makes some sense. I don't know a lot of the details on whether any of those places could potentially be even viable for farming. It might be just a new point on tier 1A being still being regulated. So I think there's still some questions on that. But I wanna see the the language proposed by the agency.

[Sen. Brian Collamore (Member)]: I think you'll find there's more than one definition of farming.

[Sen. Steven Heffernan (Clerk)]: Oh, there are. Are many definitions. It's, know, which one do we point to to be the one that was understood prior to that decision. And so, but there's still some questions, but before,

[Sen. Russ Ingalls (Chair)]: I think we'll get there, won't

[Sen. Joe Major (Vice Chair)]: be that difficult, what he said.

[Sen. Russ Ingalls (Chair)]: Do you think so? I mean I think so.

[Sen. Brian Collamore (Member)]: So we are The House started to look at this too? I

[Sen. Russ Ingalls (Chair)]: I don't know. We're the Senate. Alright.

[Sen. Joe Major (Vice Chair)]: No. You know what? No. Because they're they're speaking to him tomorrow, they said.

[Sen. Russ Ingalls (Chair)]: Yeah. Okay. We'll we'll get it all those things on, Senator Plunkett.

[Sen. Steven Heffernan (Clerk)]: Yeah, I want to say I shouldn't say

[Sen. Russ Ingalls (Chair)]: anything at all because I talked to Dave Derby and

[Sen. Steven Heffernan (Clerk)]: I don't think we had mentioned this, but I don't.

[Sen. Russ Ingalls (Chair)]: Well, great morning. Good job as always. We're proud of this committee. I'm sorry to say that over and over and over, but I am. Well, we never tire of beer. I think you will end up doing a great job. It's all I think we had

[Sen. Steven Heffernan (Clerk)]: a Joe knows, it's good practice for me.

[Sen. Russ Ingalls (Chair)]: It is. No. We had a great day. We had yes. And, yeah, you did a fantastic job of setting up our agenda today. We we flowed right straight through. Was a really, it was really good day. So, yeah, so we have a lot of stuff to show. So I think that you're seeing a lot on how this session's going to lay out from the start of the discussion that we had on the first day about touching a lot of things. We're just going to touch them, we're going to grab them as they come by us. Sometimes you can lay out the greatest plans in the whole wide world that you want, but if you don't have the information as far as how you're going to get there, you have to hear that first. I think this last section was I think the whole day was good. Thank you guys for your hard work and