Vermont Legislature SmartTranscripts:

[Sen. Alison Clarkson (Chair)]: Great welcome everybody to Senate Economic Development Housing and General Affairs it is great to gather and particularly a really good start to our week to address a piece of work that we actually asked for in this committee in Act one hundred eighty one two years ago and we are delighted to welcome the Land Use Review Board to senate economic development to give us to prevent the report and to review its recommendations. Brooke, you're new. So I think we probably should introduce ourselves. We're expecting two other members to join us. I'm Alison Clarkson and senator from the Windsor District.

[Sen. Randy Brock (Vice Chair)]: I'm Randy Brock. I represent Franklin County in Northern Grand Island.

[Sen. David Weeks (Clerk)]: Good morning, David Weeks, representing Brock and Country.

[Sen. Alison Clarkson (Chair)]: So nice to see you all. Hi Brooke Dingle Jean, a member of

[Pete Dale (Executive Director, Land Use Review Board)]: the Land Use Review Board.

[Brooke Dingledine (Member, Land Use Review Board)]: I was a practicing attorney for three decades and so I was put in charge of spearheading the appeals study. So any questions that you have, I can hopefully answer for you or get you the answer.

[Sen. Randy Brock (Vice Chair)]: Great. We're we're very, very in favor of

[Sen. Alison Clarkson (Chair)]: spearheading. Okay.

[Sen. Randy Brock (Vice Chair)]: For the chin on the screen.

[Sen. Alison Clarkson (Chair)]: Yeah. Can you hear me? We can We need to work on our Volley. Did we work on our Volley with IC? I did. I have them come in. Let me do the Volley. But Right. So we can hear Janet better.

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

[Sen. Alison Clarkson (Chair)]: I can That's better.

[Janet Hurley (Chair, Land Use Review Board)]: Okay. I'm Janet Hurley. I'm the chair of the Land Use Review Board. I am speaking to you from, the my office, my newly acquired office in the Asa Bloomer Building in Rutland today. I live in Windhall, and before joining the board, I was, at the Bennington County Regional Commission. And for many years, I was the planning director in Manchester, and I've also been a planner in Chittenden County. So that's part of my background. And let's have Pete introduce himself.

[Pete Dale (Executive Director, Land Use Review Board)]: Well, good morning. I am Pete Dale. I'm the executive director of the Land Use Review Board. And thank you all for inviting us and having us in today. It's good to be here. It's been a little bit of a wild ride. We've had the Land Use Review Board on since January 27, and they're up and running and going. We we're excited to tell you about how that's happening. And I just it would be great to have Tom retrieve this.

[Sen. Thomas Chittenden (Member)]: I'm Tom Chittenden, representative of Southeast.

[Sen. Alison Clarkson (Chair)]: Great, so thank you.

[Pete Dale (Executive Director, Land Use Review Board)]: Take it away. Alright, great. Well, think I'm gonna start just a quick overview where we're going today. We'll talk a little bit about ACT-fifty program just so you know kind of where things are with the program itself, Then get into that one eighty one implementation. And Janet's gonna take the lead on that portion of the presentation. And then she'll hand it over to Brooke on the appeals report. So we'll back to 50. Quick slide here, more for reference than anything, but as you know, it's a statewide permitting system. It ensures that development conforms with 32 different sub criteria for protection of natural resources, historic sites, agriculture, transportation, etcetera. And there's various jurisdictional triggers for that. A couple of them listed here. It really depends on the size, the type, and location of those developments or subdivision that's going on. You can have six lots or 10 lots that would trigger jurisdiction. The reason there's a bifurcation there is the municipality has zoning or not. You'll see that same bifurcation there in commercial operations. It's either one acre or 10 acre. If it's on a partial one acre or 10 acre, depending if you've got municipals zoning subdivision bylaws. Where you have those, it's a larger jurisdictional threshold there. Provides a little more leniency essentially. Tell us.

[Sen. Thomas Chittenden (Member)]: Since you're the guy to ask, the group to ask. So I've always wondered where this 10 units came from. Is there some scientific or ecological rationale for that number 10 or was it just a number that was picked out of the air when that two fifty was passed? I don't

[Pete Dale (Executive Director, Land Use Review Board)]: know the historical background of that, sorry. Yeah, it has been in the statute for a long time. Yeah, since inception I think.

[Sen. Alison Clarkson (Chair)]: Yeah, I think ultimately the intent was to capture the larger commercial or residential subdivision kinds of projects not the you know the individual that may be subdividing their property for the kids that kind of thing so five was chosen for the one acre towns and 10 was chosen for the 10 acre towns.

[Pete Dale (Executive Director, Land Use Review Board)]: Is that am I saying that correctly? Thank you. So you can see the other jurisdictional triggers there on the screen, 10 units. There's a host of others as well. We won't get into those details right now. A couple important exemptions here, farming, logging, forestry, below 2,500 feet in elevation. There's again a host of exemptions as well. Most recently in Act 181, there was interim housing exemptions that we've gone from this committee before too. This is the map of our districts, kinda shows the outline of how that's set up. The overarching organizational structure here is you've got the land use review board, five new members under act 181 that are full time staff with the board. And then we have district commissioners, they're the ones that are intaking the applications for permitting and they are issuing the permits. They don't do that alone. We have staff that help out with that. So we have district coordinators and technicians that help with that process. And the district coordinators importantly issue jurisdictional opinions. That's deciding whether something is in Acting 50 land or outside of it. If it's in, then they go the permitting process and help applicants through that process.

[Sen. Alison Clarkson (Chair)]: Here's our org Carrie, just to remind us what the term limits are or the terms for district commissioners and coordinators. Coordinators. Scrantors and etcetera. Yep. But the commission, is it three year terms?

[Pete Dale (Executive Director, Land Use Review Board)]: Yeah. So let's see here. I think it's four year terms, and then it's two years for the chair. It's in statute. I think I've got that right, but we can hook that up too. Yeah. And February is the appointment time timeline for that,

[Sen. Alison Clarkson (Chair)]: for reappointments. Yeah. And then as I mentioned, we have some amazing district commissioners who have served for long term time frames and we are so dependent on them. They are such value to our program. So I just want you get the idea that it's just four years people leave. Well done. Well done. And sometimes they say too long. I think it's that there's no term limit on on years. No.

[Pete Dale (Executive Director, Land Use Review Board)]: Yeah. Yeah. We are very happy to have have that volunteer base to help fund. And the governor reappoints them, right? They're appointed by the governor.

[Sen. Randy Brock (Vice Chair)]: Correct. Right. So everybody's

[Pete Dale (Executive Director, Land Use Review Board)]: still appointed by the governor. Yeah. In terms of staffing, here's kind of the org chart. I won't go through the details there, but you can kind of see there's three different areas of our organization that work together under the board to make this process work. I will just be back, Sarah, I will just highlight we had roving coordinators that were given to us through ARPA funding. And we were able to last year make those permanent positions with the program and we are working on finishing off the last bit of ARPA funds for one of those. And then we've already appointed or hired on one of them as a permanent. So we'll have two more roping coordinators which has been extremely beneficial for the program in terms of consistency of services and continuity of services throughout the district.

[Sen. Alison Clarkson (Chair)]: So this is staff is substantial staff. How does this compare other than the commissioners who volunteer their time? Right? Yeah. That's a volunteer job. Everybody else is how does this compare to pre lurb?

[Pete Dale (Executive Director, Land Use Review Board)]: Pre lurb? So we are now about a mighty 34 plus or minus staff members that are running. We had a few vacancies prior

[Sen. Alison Clarkson (Chair)]: to that before the alert.

[Pete Dale (Executive Director, Land Use Review Board)]: And then the five alert members were obviously additional. We had the previous chair. So really four members in that in that respect. And then we have gained an attorney position through 01/1981 as well. Yes. On the chart and that's been beneficial for rule making, etcetera. Yeah, Dave. Just

[Sen. David Weeks (Clerk)]: trying to understand your term. Do the commissioners work for the board or the executive director or what's the relationship?

[Pete Dale (Executive Director, Land Use Review Board)]: Yeah.

[Janet Hurley (Chair, Land Use Review Board)]: They're not employees. Commissioners are their own quasi judicial bodies, that are answerable to the people of Vermont, basically. They're not employees, so they're not, supervised, so to speak.

[Sen. David Weeks (Clerk)]: Yeah, supervised. We've get them all thinking alike.

[Sen. Randy Brock (Vice Chair)]: Yeah, so that's

[Sen. Alison Clarkson (Chair)]: gives them, charges them with consistent review?

[Pete Dale (Executive Director, Land Use Review Board)]: Yeah, so that, I mean, ultimately that flows down through the board as the executive director. That's one of my responsibilities, is making sure that staff are well trained to help the commissioners in terms of coming up with the decisions, but we also do trainings for the district commissioners as well. Certainly when they come on board, we give them a very comprehensive training and then throughout the year we give them trainings as well.

[Sen. Alison Clarkson (Chair)]: And there's an interaction. I mean, you know, Act two fifty is a very broad complex law and so there are rules that that the board makes and that we are engaging in updating. That's one of our important tasks for the next year. So policy is provided through rulemaking as well as the guidance documents that have been issued over the past ten years even though the rule making has not been kept up to snuff. But then there is our training as well as periodic guidance documents, for example, for the interim housing exemptions and the interpretation and application of those aspects of the law that have changed or are novel interpretations for our district coordinators, for jurisdictional opinions, well as for the commissions. So our legal staff is continually trying to update and help to train and provide guidance on those new aspects of the law so it is we've been talking about building the plane while we're flying it and so that is something that is kind of the basis for the time period on the case report that we're asking for in order to get all our housekeeping in order. Those are the various ways in which we control it and then our executive director is supervising our district coordinators as staff employees. The district coordinators provide great support to the commissions and help to write and put into the actual draft documents the decisions of the Kauai Judicial Commission. Great, thanks.

[Sen. Randy Brock (Vice Chair)]: Any other questions on that? So

[Pete Dale (Executive Director, Land Use Review Board)]: a couple of quick updates. This data from 2024 as compiled over kind of a running average five years or so. We're still working on the final issuance of our annual report, which you will get a copy of before the month is out. Well, early next month I should say, sorry. But roughly, you know, three fifty to 400 permits are issued each year. A very small number of those go to hearing, which we call the major process, about 5%. Very small number from that are denied, point 2%. And then in terms of ones that are appealed, one to 3% are appealed in any particular given year. We also have a fair number of jurisdictional opinions that are issued. That number has been increasing over the past several several years.

[Sen. Alison Clarkson (Chair)]: And jurisdictional opinion is required if with an appeal?

[Pete Dale (Executive Director, Land Use Review Board)]: Not the second one. Yeah, jurisdictional opinions are kind of at the beginning of the process. So if somebody is curious if they need an active 50 permit, they can

[Sen. Alison Clarkson (Chair)]: ask That's right. Then they ask

[Pete Dale (Executive Director, Land Use Review Board)]: if they want. Yeah. There is still a few remaining vestiges from Act 47, the Homes Act, in REAP, private housing projects that do require someone to get a jail, but for the vast majority of our projects, it's all still just if somebody wants something, can get one. Yes.

[Sen. Thomas Chittenden (Member)]: I hope I'm not derailing the conversation, but whenever I see these statistics, what's always come up in my time and travels in the city council and in

[Pete Dale (Executive Director, Land Use Review Board)]: this role is it's

[Sen. Thomas Chittenden (Member)]: not necessarily the ones that we that are denied or even that go to appeals for projects that are never even starting the process because they're either intimidated by it or they know how rigorous that act two fifty and expensive the act two fifty process so it has a cycling effect. Do we have any metrics or do you have any response to to such a thing? And yet on that same point, I hear that current developers, developers in Vermont like the Act two fifty process because it gives them an advantage cause they know how the process works and it keeps money at bay, money from investing in Vermont because they just are fearful of how rigorous, detailed and lengthy Act two fifty process is. Do you have any response to the permits that aren't being applied for because of how fearful Act two fifty can make people?

[Pete Dale (Executive Director, Land Use Review Board)]: It's hard data to capture that way, but I will say that I agree it is a comprehensive law that's been built out that way. But I do, I would say that, you know, in terms of those that do go through the process, these statistics I think are promising for folks that are going through that process. I don't undermine in any way the fear that people may have about that, but I think the statistics this way do speak for themselves that generally the participants in the process are getting to yes. Yeah, the

[Sen. Alison Clarkson (Chair)]: vast majority of questions. My data question would be what is the length of time? Do you have an average data on length of time that a permit's take and the cost?

[Pete Dale (Executive Director, Land Use Review Board)]: Yeah, so minor permits are somewhere in the range of about three months. Major permits are six to nine months. Again I don't have the up to date data on that right now, those are general numbers for you.

[Sen. Alison Clarkson (Chair)]: In cost, do you

[Pete Dale (Executive Director, Land Use Review Board)]: have an average on cost? Off the top of my head but I'm happy to Yeah, I think those

[Sen. Alison Clarkson (Chair)]: are the other, I think those are the things that keep people.

[Pete Dale (Executive Director, Land Use Review Board)]: And it does vary quite a bit in terms of the cost, It depends on the construct, for the most, there's a number of different costs in our fee schedule under the statute, but one of the predominant ones is based on construction costs. And so it depends on what the cost of those construction is. And David, that's a question.

[Sen. David Weeks (Clerk)]: So cost has two perspectives. One is the fees they pay for their permitting process. The other is to react to, to provide materials for the review process. Both of those are equally important. If there's any metric that could be collected, that's very valuable to us. And

[Sen. Alison Clarkson (Chair)]: we heard this issue raised repeatedly during the appeals study because yeah we were looking at the statistics of the cases that had gone through seven and you know how many were appealed and all that and the housing advocates really wanted a strong voice and to be heard on the issue of you know they're just not coming to build and so that is one of the really important aspects of the recommendations to the legislature about the appeals report because there's a third bucket and that is how much does it cost to pay the lawyers to go through the appeals process when it is appealed and that the exorbitant. Right. Janet?

[Janet Hurley (Chair, Land Use Review Board)]: I just wanted to add that, you know, you all passed act one eighty one, which institutes areas of exemption in areas that are planned for growth. And so the idea is that we would relieve areas planned for growth of the Act two fifty burden, permitting burden altogether. And so we'll talk about that a little bit in the next, section of our presentation.

[Sen. Alison Clarkson (Chair)]: Greg, we

[Sen. Randy Brock (Vice Chair)]: Greg. You may have covered some of this while I was out in my other meeting in the hall, but the underlying question I hear so often is, why does it take so long? What are you doing to make it not take so long?

[Sen. Alison Clarkson (Chair)]: Which part of the process? Because I did that overall process.

[Sen. David Weeks (Clerk)]: Do you want me to

[Sen. Alison Clarkson (Chair)]: start with I ultimately only have an hour, so I want to make sure we get through your whole presentation.

[Pete Dale (Executive Director, Land Use Review Board)]: So let me be succinct about it. In terms of the permitting process, I will say that we are fairly flexible in terms of the applicants needs and the parties needs in process. So if they're and I'm happy to come back and talk more about But there's oftentimes, I was just reviewing a case the other day that it took about four months where we had issued a incomplete letter and said, you know, you have gotten us everything that we need. And it took four months for them to come back with that information before we could continue that process. So when you take that four months out, it really collapsed the timeframe, right? And so one thing that we're doing about that, and I'll get to that actually, if you don't mind, I'll just go right to the next slide here with that, we, you can see that third bullet there. David, do you

[Sen. Alison Clarkson (Chair)]: have something on statistics before we leave them?

[Sen. David Weeks (Clerk)]: I do, before we get into a whole new conversation area. I'm curious, so from a LCAR perspective, the rules, writing perspective, there's always in the packages which are submitted to LCAR, economic impact, positive or negative? I'm curious because it's not covered as one of the key synergies in your efforts. Is economic impact positive or negative for trust during the reviewing process to give it a leg up or we cannot? Yeah,

[Pete Dale (Executive Director, Land Use Review Board)]: there is criteria on economic impact within the analysis. There's, as I said, there's 32 criteria and there is review of economic impacts in that process.

[Sen. David Weeks (Clerk)]: Okay, Good. Thank you.

[Pete Dale (Executive Director, Land Use Review Board)]: Right. Okay. Let's keep moving. So, yeah, to return kind of to senator Brock's question and and get to that third bullet point there. We are launching a new application form in January, I don't want anybody to be misdemeanor about this. It is comprehensive, as I said before. But one of the ideas there is that we have looked back at incomplete letters, for instance, from previous applications and said, what is the some of the common themes that are being Right. Done? How can we highlight that in our application process? And maybe we don't have that four month delays. We don't have those delays. And that's one of the things that we're focusing on getting, you know, that better guidance for applicants making those applications more That's on the front end so that the process itself moves more smoothly as we go along. And do

[Sen. Randy Brock (Vice Chair)]: you believe that the new application form format will A, get things done faster and B, will not cost any more than the old process. Or are you adding things that will make it even more complex in order to get the kind of completeness that you're looking for

[Pete Dale (Executive Director, Land Use Review Board)]: and how you're getting. I think it's the idea is to make it as complete on the front end as possible. And yes, there may be some added complexity to that. There could be some added cost to that. But the bottom line is is that that rather than waiting for that complexity and wants to be added later, it's happening in the front end, getting things moving more complete, that it

[Sen. Randy Brock (Vice Chair)]: can go through the process more. When we talk about time, there's there's

[Sen. David Weeks (Clerk)]: an issue that always comes up and

[Sen. Randy Brock (Vice Chair)]: that is the time for the entire permit process includes it seems the time for the permitting agency to review what you've submitted and to have certain people go and inspect and look at, but doesn't count the time that it takes to get ready to go through this in the first place. And so what is the process of six to nine months is a process of a year or year and a half? Is that something that you are aware of and are trying to do something about? Well, one one thing we

[Pete Dale (Executive Director, Land Use Review Board)]: do is we always encourage folks to come in for a pre application process because, again, front loading that will will be very beneficial for them in the long run. Making that process go through. And I understand, you know, there are projects where you're testing things out and trying to understand what is feasible or not feasible, which direction do you want you want to go. So we do do always encourage our staff, district coordinators to reach out to folks and encourage them to come in for a pre application meeting because that can really help get the parties to the table. Great.

[Sen. Alison Clarkson (Chair)]: And I'm gonna encourage us, away thirty minutes left, I'm gonna

[Pete Dale (Executive Director, Land Use Review Board)]: encourage you to keep going. Great. I will just leave this slide with you. These are some ongoing projects that the organization has been working on.

[Sen. Alison Clarkson (Chair)]: So you have electronic filing, which is great.

[Pete Dale (Executive Director, Land Use Review Board)]: Yep, yep. So that again is very helpful for folks that are public in and applicants and certainly our own staff as well. We've got, as I mentioned before, our expanded capacity with our roving coordinators. We're looking forward to having them on full time. And then the Erica funded projects, we're continuing that process. We have reached out to folks over 500 different projects that are going on and collaborating with our sister agencies on that processes to make sure that folks are getting the attention that they need, understand that they have the option to get a jurisdictional opinion to determine whether it's jurisdictional or not. And we just hit the 100100% mark the other day. So we're on a good target there. So with that, unless there's anything else on that kind of update, so turn it over to Janet for status report on F-one 1. Great.

[Janet Hurley (Chair, Land Use Review Board)]: So Pete touched on the interim housing exemptions, I don't so I'm not gonna spend too much time on that, but they are in place. And as we start approving tier one a and b's through, you know, a few years down the road, those exemptions will be sunsetting. Part of what

[Sen. Alison Clarkson (Chair)]: Sorry, Jan. At the moment, it's sunset in '27 or '28? It's both. Yeah. That's right. It

[Pete Dale (Executive Director, Land Use Review Board)]: depends on the particular exemption.

[Janet Hurley (Chair, Land Use Review Board)]: Senator Clarkson, I couldn't hear what you asked. Could you repeat that?

[Sen. Alison Clarkson (Chair)]: Pete answered it a bit. I just said we have sunset dates and the sun when are the sunsets? And I thought it was '27, and then we extended them.

[Janet Hurley (Chair, Land Use Review Board)]: Yeah. Oh, wait. '9?

[Sen. Alison Clarkson (Chair)]: '27.

[Janet Hurley (Chair, Land Use Review Board)]: Or '30. Yeah. In any case, I'm sorry I'm not there today. I was in Montpelier on Thursday and Friday and then had to be in Rutland this morning. So K. It if people have questions, I'm gonna have to let Pete and and, Brooke, field them because I can't you know, I see you as tiny little tiny little people on

[Sen. David Weeks (Clerk)]: my screen.

[Sen. Thomas Chittenden (Member)]: So When those phone lines came in line, I remember wanting them to be extended. I feel like they've been working. Do you all have any comments or positions on whether or not we were to extend these exemptions for another two to three years to let continue to allow them to do what they've been doing?

[Janet Hurley (Chair, Land Use Review Board)]: Well, I think what will happen is as I if you let me go through the regional planning future land use map areas, those will be in effect after the end of this year. And so and so far as each of the municipalities involved has opted in for the tier 1B, you'll see those housing exemptions in effect based on these new Act 181 compliant regional plans across the state. So the idea is, I think that the legislature understood with this new tier, tier jurisdiction with exemptions in tier one A and tier one B areas that it would be okay to sunset those interim exemptions.

[Sen. Alison Clarkson (Chair)]: Right. Sorry. We should let you keep going because you're it's a little more awkward if you Okay.

[Janet Hurley (Chair, Land Use Review Board)]: So, So one of the major points of Act 181 was to have this consistent regional plan future land use map that used consistent future land use map area categories across the state. And four of those areas, downtown and village centers being two of them, and planned growth areas and village areas being the other two, will be eligible for the state designation program through the community investment program, what used to be called the Vermont Downtown Program. And so as the Land Use Review Board approves these regional plans with their future land use maps, those state designations will be automatically conferred on those four land use categories. The centers will be called designated centers and the plan growth areas and village areas will be called neighborhoods. And the community investment program will administer that program of development incentives for those areas. So Act 181 also established a new tier of jurisdiction, a location based jurisdiction, which, which would protect or give extra protection to critical natural resources. So the board is in the middle of developing rulemaking around that tier three, and I'll talk to that a little bit more later. And then as you may all recall, there is now a five member full time professional board of which Brooke and I are two of the five members. Go ahead to the next slide, Pete. So here's an here's a depiction of the tiers of jurisdiction. Tier one a, those will be areas where there will be no jurisdiction, no act two fifty jurisdiction, no permit necessary. The areas eligible for that tier one a designation are the centers and the neighborhoods, the the downtown and village centers, planned growth areas, and village areas. Tier one b, those same areas will be eligible for tier one b. Those are areas that a town has asked for this limited jurisdiction over housing in those same areas. And then, as I said, we are developing tier three rules, which would establish tier three, and everything else in the state will be referred to as tier two. That's sort of the status quo area, but Act 181 also put in place a road construction jurisdiction or put back into place. In the first half of the life of Act two fifty, there was a road jurisdiction trigger. It's now being put back into place as of July. Pete, next slide.

[Pete Dale (Executive Director, Land Use Review Board)]: Okay.

[Janet Hurley (Chair, Land Use Review Board)]: And tier 3 is supposed to be a very small area of the state, really focused on critical natural resources. It is not an area where there will be no jurisdiction. It will just require a permit based on the presence of what are, going to be defined as critical natural resources. So part of why we're here today is that we have asked as a board for extensions to some of the Act 181 deadlines. We have asked for an extension to the rule submission to ALCAR on the tier three, and that's because we really, really needed more time for public input and public outreach to get to, an appropriate final rule before submitting to LCAR. So instead of submitting in February, we're asking that we submit in September. It will not affect the effective date of tier three, which is 12/31/2026. We were also to report on, the tier two, area by February 15. We're also asking for an extension to September 30 on that, and we are anticipating I did, send an official memo to the chairs, including Senator Clarkson, on on our request for extensions on those first two. I anticipate that I will be sending you another on, the Criterion 8c. And for the same reason that we need this extension for tier three, we need it for criterion 8c and the rulemaking on that to make sure that we have enough time for public engagement on on the development of those rules. So go ahead.

[Sen. Alison Clarkson (Chair)]: We granted those extensions. So you now have those extensions.

[Janet Hurley (Chair, Land Use Review Board)]: You granted them on the condition that we come in and talk to you about them. So here we are. So Yeah. Fulfilling that that little last little requirement, Senator, thanks. So, we are currently working on the road construction jurisdiction guidance that will, as I said, that new road construction jurisdiction will go into effect in July. We have taken in three regional plan pre applications and are about to receive a fourth. We have 11 regional planning commissions. Act 181 set up a pre application process that we worked out guidelines for that and have undergone three of those. We will be doing that for each of the 11. And then as the pre applications are finished and the regional planning commissions go back and make any revisions and then adopt their plans, they must come back to the board for a final determination of compliance. And so at some points during this year, we will be reviewing five and six regional plans at any given time through the end of the year. As I said go ahead.

[Sen. Alison Clarkson (Chair)]: Yeah. Just, on the three regional plans that have been presented, they have been approved?

[Janet Hurley (Chair, Land Use Review Board)]: They no. This is just the pre application phase. So what we and I'll talk about that on next slide, I think. So I'll try to answer that momentarily. As I explained, we are working on the tier three and 8c rulemaking. Those are both effective, December 31. The environmental justice law also implicates us to do work as a covered agency under that law. We must develop a community engagement plan by 07/01/2027. Oh, here's where the interim housing exemptions expire, January through July 27 and And '20 then finally, we are due to provide you an Act 181 implementation report in 2029. So next slide, Pete. We have produced for you a wood products manufacturers report as charged by Act 181. Kirsten Sultan was the board lead on that, and we presented to the House Ag Committee on Friday. If you have questions about that, we can I would direct them to Kirsten, but I think, today, we should probably move along without, going into the details of that report? So here's a slide sort of explaining how we review the regional plans, and we'll be doing that through the end of this year. We are reviewing those plans for compliance with state statute, and we're also reviewing the 1B requests that come with submissions. What we are doing is asking, do those plans meet the statutory goals of Title 24 and the required elements within Title 24? And then do those new future land use maps reflect the future land use areas as they are described in the statute? And I already described which of those future land use areas are eligible for the state incentive program. And then we will be asking, do those tier one B areas that have been requested, do they meet the statutory requirements for the housing exemptions? The process includes this pre application phase. It's a sixty day process in which the job of the board basically is to coordinate a comment period so that we are reaching out to partner agencies within state government and other interested entities, asking for comment on the draft plan from each of the regional planning commissions. And then giving a written response, which is not our determination, but an assessment of the draft plan. Once the regional planning commissions have that, they will go back to their regions and go through their adoption process, perhaps after having made some revisions in response to the pre application commentary. And then once they have adopted that plan, they must come back to the board and apply for a determination of compliance. In that capacity, we are a quasi judicial body, and we will be holding a hearing and issuing findings of fact and conclusions of law, and basically doing the same assessment as with the pre application, but in a more formal process that will end up with a determination of whether that plan is compliant with statute. Once we have determined a plan compliant, as I said, those tier one B statuses will go into effect and the state designations will go into effect. Pete, go ahead to the next. Here is a depiction of our map viewer that we are using as we review these plans. So the regional planning commissions will and in this case, you see a little bit of Chittenden County and then Grand Isle and Franklin County. And this is a depiction of their future land use map. And in this map viewer, we can turn various data layers on and off to assess whether the boundaries that are being proposed, are in align with the descriptions of each of those each of these different future land use map categories.

[Pete Dale (Executive Director, Land Use Review Board)]: I'll just note that digital infrastructure funds that you all appropriated last year were in part helpful to create these maps.

[Janet Hurley (Chair, Land Use Review Board)]: Right. And and they're really essential for us to be able to take a really studied look at what is being proposed for those maps. And then the other aspect of the tiers is that once a regional plan is approved, a municipality can come to the board and apply for tier one A status. The tier one B, as you recall, is for limited housing exemptions for projects with up to 50 units. Tier one A is an exemption from Act two fifty altogether, and municipalities are the applicants in that case. We adopted guidance on Tier 1A application and review in December, and we expect to start seeing applications probably in the late spring. Sarah Hadd is the lead on, our tier one a work, and you can direct questions to Sarah.

[Sen. Alison Clarkson (Chair)]: And I I I mean, I wanna get to the recommendations in report just because we have so such a little time left. We'll obviously have you back because, as you know, there's much response to this, report and the recommendations, but I am hearing that we have fewer than anticipated numbers of 1a's and 1b's applying so this is concerning I think that's a concern for us anyway Yeah.

[Janet Hurley (Chair, Land Use Review Board)]: Yeah. And we'll see in the end. It's still pretty early in the process to know.

[Sen. Alison Clarkson (Chair)]: Yeah. I agree.

[Janet Hurley (Chair, Land Use Review Board)]: But you're right. I've heard that too, senator, that there are municipalities that are saying, we're gonna wait and see. So, tier three, we are, Alex Weinhagen is the board lead on this. And I think I'm gonna, you know, just keep moving here because we are low on time and I do wanna let Brooke, discuss the appeals study for the most part. So go ahead to the next slide, Pete. The tier two reporting, this is the charge basically that we would be addressing fragmentation of rural and working lands while allowing for development in this largest sort of tier of the state, tier two. We would be also specifically looking at primary ag soils, whether criterion 9L is effective in avoiding sprawl and strip development, and we will be reporting on one aspect of that charge this year still by February 15 to the ag committee, the ag and forestry committees. They wanna hear from us on the recommendations that we may have for accessory on farm businesses. Kirsten and Sarah are the leads on that. Go ahead, senator.

[Sen. Alison Clarkson (Chair)]: Right. No. I mean, as you know, we've been needing resolution on that for a while. Yeah. Okay. Great.

[Janet Hurley (Chair, Land Use Review Board)]: The road construction jurisdiction trigger, as I said, will be going into effect in July. Kirsten and Sarah are working on guidelines for that. At this point, we are drafting guidance. It could be that in future years, we might go through the rule making process to establish rules on the road construction jurisdictional trigger. There's a summary here of of the 800 foot long single road or 2,000 foot, with a road and associated driveways that would trigger. The purpose is it's important to note of that new road construction jurisdiction rule is to encourage sub clustered subdivision and development that doesn't fragment tier two and three areas. And we will keep that in mind as we develop the guidance in the next few months. Criterion 8c is, is to prevent habitat fragmentation in the face of sprawl and protect wildlife travel corridors between larger habitat blocks in the face of climate change. So Alex Weinhagen and Kirsten Sultan are the leads on our rulemaking effort there. It's still in the fairly early stage. They're meeting with stakeholders, and have not yet, presented a draft rule to the public. So, that's where we are on that. And next slide is it I'm gonna turn it over to Brooke if you have any quick questions on the rest of the act 21 implementation before Brooke starts, but I do think you do wanna hear from Brooke first. So

[Sen. Alison Clarkson (Chair)]: Also, we'll be hearing we'll be going through some of this again with, Ellen Chittenden, our legislative council on Friday. So Right. On the appeals report right now.

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

[Sen. Randy Brock (Vice Chair)]: Thank

[Sen. Alison Clarkson (Chair)]: you, Janet.

[Janet Hurley (Chair, Land Use Review Board)]: You're welcome. Thank you for having us.

[Brooke Dingledine (Member, Land Use Review Board)]: Oh, yeah. This is a start to to one of our big pieces of work this year. Let me jump in very quickly and try to buzz through stop me if you have any questions. I have been in touch with Ellen I reviewed the bill that she we saw a different version I thought about a month ago but my house is working on a different version so they had more time yeah so she and I did did speak about it and we're gonna work together because I think some of the ideas that we're trying to accomplish aren't quite on point yet. So let me start. And she's wonderful we've been I've known her for years. This is just want to say upfront, we have great respect for the judiciary. Our environmental court judges are top notch. They are wonderful jurists. This is in no way suggested that they are not doing a super job and in fact there have been significant fixes already in terms of pushing back and controlling the process. Senator Brock, asked, you know, what takes so long? What takes so long is that it's important and there are civil rules of procedure, are rules of evidence, there's discovery and what we have tried to focus on is accessibility and speed because that clearly is what is necessary and needed to try to resolve the housing crisis. Now our first recommendation I'm gonna skip by we had a very robust stakeholder process. You did. We had a summer of fun together and really appreciate all the input from folks. So let me just get right into the recommendations. Number one is Act two fifty appeals originally were reviewed on appeal by the environmental board and that it was replaced for the last twenty years by the court. We are proposing for policy reasons, for consistency reasons to take back those appeals. There are very small number of them, 15 at most. Usually it's 10 to 12 of them and almost all of them, maybe one or two of them end up going to hearing. We instead of being in control of anything we become a party at the environmental division so instead of being a regulatory body that is reviewing a decision from a tribunal below, we show up and we're just one of the people that gets to tell the court what we think and it is not healthy for our for our program. It would be much better to be able to close that policy loop and be able to implement the policy that we are putting into the rule making process into the guidance documents into the supervisory role that we do have because again the coordinators and the and the district commissions are statutorily charged with the authority to make these decisions. We are to ensure that consistency, understanding regional differences, and that by design there will be some differentials in terms of decision making. Now the other recommendation is when somebody comes and has a permit project and they need act two fifty they typically also need zoning. If they're in a municipality that has a zoning ordinance that you

[Pete Dale (Executive Director, Land Use Review Board)]: have to follow as well.

[Brooke Dingledine (Member, Land Use Review Board)]: And so to preserve the ability of consolidation so that only one hearing has to be had in front of whoever the appellate body is and then a decision can be made based on all of that evidence on the act two fifty permit as well as the zoning permit. That preserves the ability for consolidation, but it is only by the permit applicant themselves. We do not allow anybody else to ask that a zoning case be sent over to the LERB instead of being litigated by the court. It's a small number of cases but at least preserves that authority on the part of an applicant. Those are the two major aspects that we think that we can as initially step into as appeal board. Now let me just quickly say a couple other things. In terms of other kinds of jurisdiction in the court, do not think it's appropriate for for us to take on ANR permitting. There there are one one case, two cases in a couple years that might actually have implications in terms of consolidation. It is very rare that that happens and so ANR being the highly technical many many different areas of expertise that we as a board don't have that level. We have an engineer, Kirsten Sultan, but we think that that should stay and ANR is very vehemently supportive of staying with the court. So ANR, we have set aside everyone's in agreement that that should stay with the court. The other issue that we believe should stay with the court are all enforcement cases when somebody either should be getting and should have gotten a permit and they have developed a valid one, for example violating the conditions of their permit, we become the prosecutor and we want to be able to continue to go to the court to be

[Pete Dale (Executive Director, Land Use Review Board)]: the treasurer to decide

[Brooke Dingledine (Member, Land Use Review Board)]: if there's fine and, you know, impose that kind of thing. So we think that the court staying as it is is very important. Now, right now going beyond that to talk about something is a very challenging area to try to make recommendations at because we do not know what's going to happen to the volume of permits either Act two fifty or zoning. For example, will there be more appeals if there's no Act two fifty in a tier 1A area they're still going to have to go through zoning and one of the reasons why we are taking away and eliminating Act two fifty jurisdiction is because the municipality has sufficient resources and documents and regulatory control over permitting sufficient such that Act two fifty eight can disappear. So, Thomas?

[Sen. David Weeks (Clerk)]: So I have some concerns about transferring to

[Sen. Thomas Chittenden (Member)]: the board. If you are the entity that issues a ruling, why would the appeal go back to you and why would it not like the other cases go to a impartial adjudicator of the law being the courts? I can't see why you would do anything other than reinforce your previous ruling. So I'm I'm I'm struggling with that first recommendation.

[Brooke Dingledine (Member, Land Use Review Board)]: Sure. We are not the decision maker. By statute, the district commissions make that determination for permits. Okay? They're the authority. And they are assisted. They sit as a cross state judicial board and they have Who? Like the zoning board would have a zoning hearing. And they would make it they make a decision on act two fifty. And the only way that we are involved in that is we rule make so that that helps to interpret the statute. In terms of

[Sen. Thomas Chittenden (Member)]: share staff resources across. Don't your staff support those district commission boards? So there is one entity that you're all sharing and pooling intelligence and expertise.

[Brooke Dingledine (Member, Land Use Review Board)]: Right, so we do have three lawyers and those lawyers are available if the district missions or the coordinators need assistance they will go and ask the lawyers for help and you know research whatever they need. Now in the board model that we have proposed as a result of the appeal study we have built in firewalls that will create that lawyer if they were involved in helping the District Commission with a decision and it's it's not a usual thing I don't think it happens, I don't know how to describe it, but it they certainly can go and get legal advice and it does they do avail themselves of it does it happen on every case not at all so I because our district coordinators are very very well versed so we have built in that that wall so that that lawyer that helped below would not be allowed to infiltrate into any advice that's given to the board if the board is sitting as an appellate body and needs assistance by our legal staff. And and I think if the assumption is as a quasi judicial body and a professional body, which we have not had before, but the underscored assumption is that you would be impartial, that that would be you'd be hearing it in an impartial quasi judicial fashion. Don't we assume that all quasi judicial boards are in our

[Sen. Thomas Chittenden (Member)]: Talking about property rights and these individuals need that have also confidence that they're gonna have their day in court. So I just have concerns with this. I appreciate we're running out of time but just I think we need to come back to this.

[Brooke Dingledine (Member, Land Use Review Board)]: I just wanted to get us started. Yeah. And and there is an ultimate judicial review by the supreme court and just and so the way that we have built the structure of the appeal is the same as the public utility commission. That is a three member board. There there is a full time chair and 280% I think commissioners. They when they make a decision that goes that can be appealed to the Vermont Supreme Court. It's on an abuse of discretion basis. So it's a fairly high standard but the but the that's on factual findings but the application of law is looking to notice. So you do have that other branch of government as the check and balance so that it's not just an executive branch or regulatory process it is still going to the courts eventually. So we didn't get resolved.

[Sen. Thomas Chittenden (Member)]: Insurance persists but to be continued.

[Brooke Dingledine (Member, Land Use Review Board)]: Yeah, understood. Okay now see one thing that I just wanted to mention and this this is not necessary well hang on a minute let me go back to the recommendations because I know we need to get through this. Expediting housing appeals what we have suggested is if this goes well and we can get up and running for the Act two fifty appeals, at that point we would like a check-in because we want to see what happens with the volumes of appeals. Right now it is a complete unknown and we can't even throw darts at a dark room at this point really to predict what's going to happen so we believe that in the next year while we do our housekeeping bring all the rules and turn much of the guidance into rules that that should go through Elkhart and all of that. We think time wise as well as the review of the regional plans that in a year and a half if we had a check so that we could see what was happening with tier one a, tier one b, what's happening with actual, you know, loss of projects in active 50, but is there a an increase in the zoning cases? So once we have more data at that point we are would like to report back and say hey this is looking fine we think we have

[Pete Dale (Executive Director, Land Use Review Board)]: the capacity and we can move it.

[Brooke Dingledine (Member, Land Use Review Board)]: So you're proposing taking this shift actually having implemented in '27 or '28? That would be in '28 and it would only be for the tier one a and the tier one b houses so tier one a that's where everything becomes you don't need that two fifty permit for any but you still need the zoning. So if there were a zoning appeal to help with the housing crisis and to more alleviate what's the cases that are at court Now the whole basis of what we're doing here is not the same as the court. We're not trying to compete with the court. We are offering a streamlined process and the basis of it is we are eliminating things like discovery, but we are providing that information upfront in a streamlined this is what you have to do after you appeal. You have to provide both sides have to give the tribunal, the appellate tribunal, as well as each other the documents, the list of witnesses, a summary of their testimony. So that everybody comes and we don't have to to allow people to spend time and effort and money on the discovery process asking for documents. So how much time, I mean I'm just curious as we because how much time do you think this by shifting in this as you're recommending, how much time do you think we would say generally on an appeal? We created in the report some we threw out some guidance and and the problem is it really depends on the case right and how complex it is but I think that you know you're looking at a potential of anything from minimal because some cases don't have discovery, people don't get involved with it, but all the way up to many many months of process at depositions, all of that. Unless there's some really important good cause demonstrated to this appellate board that you need to take somebody who's deposition. Depositions are not normally going to occur. So that's the part of the process that we're trying to shrink down, give everybody everything ahead time so we're not missing out on due process, but shortening it so that it doesn't take as long. Right. Which is what what what what people are asking for. And, you know, is it and it hopefully is more accessible. It will be less expensive. I will just say from my personal experience helping anybody litigate in the environmental division, I would say get out your checkbook from a private attorney perspective to represent someone in that arena, you're looking at a minimum of $50,000 and and a better estimate typically would be 30,000 or more. It is a huge endeavor to go to court and what we have tried to do is figure out how can we make it more more accessible while preserving due process for all of the people involved because I come from representing all sides of these issues. I have represented neighbors and municipalities as well as small and large developers. So we have endeavored to ensure that people still have the right, if they can demonstrate, they have standing to be involved in the process.

[Sen. Alison Clarkson (Chair)]: But we don't want them to delay it. Give it our time. We'll have you come back if we obviously have a couple of questions. Sure. And I am happy to come back at any point. Just a couple of things I just wanna mention on on the way out. There have been some pretty significant improvements from this study. The Jim Dumont who's a practicing attorney in Act two fifty, he suggested that we require in rule five at the environmental division for the statement of the issues to be filed with the notice of appeal which say is twenty eight days and even more than that because what happens is sometimes particularly perhaps pro se people might not file it and then they go chasing after it and where is it and you know there there are delays because of the paperwork. So that's one thing that has already put been put into motion by the judiciary to suggest to make that change to the existing environmental board rule court rules, pardon me. So that was wonderful and the other thing is that as I mentioned before they are pushing back so that there is less accommodation of parties who are wanting more and more time. However, and this is very we went into a lot of detail in the appeals report because we wanted to answer the very question that senator Brock was asking. Why does it take so long? And it's the nature of litigation. But it's important also to understand how the environmental division works, what they are providing in terms of protection of due process and also allowing the litigants and particularly the applicants to drive the bus to a certain degree because they wanted to make sure that prepared cases tend to go through the system much better so while there has been a lot of autonomy, maybe that's not the right word, discretion or recognition that parties need time to prepare. They're really pushing back to try to reduce that time frame down and right now there are 55 cases pending at the environmental division. That is not a huge case. So we also want to be fair and make sure and we try to endeavor to do this in our report to really paint a very accurate perception of what's actually going on at the court. This is about choosing a different option, choosing something that is not designed as a an adversarial system. That is what litigation and that is sort of what permitting now has been turned into in my opinion personally because now we are fighting over it we're fighting over it in a court of law instead of looking at it as an administrative process. So with your recommendations, would just some of them are less adversarial, saves time saves money and in some ways I think what I appreciated you saying is you're implementing the policy that you only oversee and ensure consistency in some of those rules which which at its best The difference is a law trained judge which is wonderful. They're they're great judges but as opposed to five people collectively with different perspectives, different geographical regions that they come from, coming together and making a permitting decision that often involves what are the best conditions. We have an engineer. We have planners. We have an act two fifty attorney. We have an act two fifty former district coordinator. And and the process of collaboratively approaching how does this work best for an applicant and for to protect neighbors. It's just a different group making it making a decision, getting to the same goal, but it is hopefully less adversarial, more accessible and more streamlined hopefully resulting in shorter time and shorter less money. Thank you. Well we will have you back because this is a big discussion and as you, you know we have lots of questions and lots of concerns and I just want to say thank you. I think all of us appreciate the Lord having taken this on and doing the really tough work of listening to everybody and then trying to figure out a path forward on one of the things we really desperately wanted to make some progress on. So I'm very grateful that you've done that and you've given us something to work with which is which is great, and we obviously will hear from many many different sides of it. As you know, the house is working to build on the recommendations they're also working. So thank you very much. More to follow, but we really appreciate you getting us launched into this discussion. Thank you very much for your work. Appreciate it.