Vermont Legislature SmartTranscripts:

[Rep. Michelle Bos-Lin]: Day in the house today as well.

[Sen. Alison Clarkson (Chair)]: Oh, how lovely. We've had a less flexible day. Welcome, everybody. It's Tuesday, March 31, the last day of March. Managed to make it through the eyes. Okay? And we're through frauds over. So we now get to address some of our house bills. I'd first so welcome to Senator Economic Development. I'd first like to thank Randy and Tom for doing such a rocky job on the floor. Great work on the Taiwan resolution. Much appreciated it. Photo at 03:00 in the Cedar Creek Room with our Taiwanese delegation. Thomas, you did a terrific job on S 198. Thank you very much. And I think anything further that's really substantive like diversion, I think we're gonna suggest that the house work on that. So today, we are going to turn our attention to h five thirty seven, an act relating to the right to grow vegetable gardens, which I think is so delicious for all of us to take on board in this committee. And, we welcome, representative Michelle Bossler. Introduce yourself and tell us what this does and why we should look at

[Rep. Michelle Bos-Lin]: it favorably. And just to clarify, Cameron's gonna do the official walkthrough after.

[Sen. Alison Clarkson (Chair)]: Right? Okay. That's that's why we

[Rep. Michelle Bos-Lin]: have Yep. Okay. So I'll give you the short version and I'll let him give you all the juicy details. So, I'm Michelle Flaslin, a representative for the Wyndham 3 District in Northern Wyndham County, and, I serve on the House Agriculture Committee, and we passed age five thirty seven not too long ago. The idea of this bill is that people should have the right to grow vegetable gardens, and as homeowners, you have the right to grow vegetable gardens, but as renters, you don't necessarily. There are lots of landlords who might restrict your ability to have a garden and the same thing if you live in a common interest community, you may not have the opportunity to grow a garden very readily. So we had a person who lived in a common interest community come to us, who lived in South Burlington, and she said there was a common garden space in her intention, her common interest community, her condo development, but it was very far away from her house. And her hope was that we would come up with some small, some allowance that you could have a small garden close to your house if you lived in a common interest community. We actually did not decide that. What we did decide was that if you live in a residential community that is monitored by an HOA, you must have the right to grow vegetables on any property that is exclusively yours. So if you have land immediately around your house a certain amount of it is, you have historically been allowed to plant flowers or something like that, you could put, you can now put vegetables in that space. So you can't be told in your own space if you're in an HOA that you can't plant vegetables. You can request additional space and it is encouraged that that be considered, but there's no guarantee that other than your own space if you live in an HOA, will be able to plant on common planted land. So that's if you're in an HOA. If you are a renter in an apartment, and you have a landlord, you may or may not have any land. So we do, describe what the conditions are if a landlord is gonna give you permission to plant in the land that the landlord owns around your rental unit, there are some conditions that can be placed on that. For example, an additional security deposit and either cleaning up the garden when you're done or the money would be sacrificed if you don't take care of them. The case of the renters, it actually is a more restrictive kind that is absolutely guaranteed, which basically is, in potted containers. So if you have a balcony or a veranda or something like that, there are some, rental units where they'll they'll tell you what you can and can't put on your veranda, on your balcony, etcetera. What our bill says is you are allowed to grow vegetables in pots on there and they can't tell you, the landlord cannot say you can't grow tomatoes, you can't grow basil, you know, whatever the vegetables are you wanna grow in pots, you have a right to grow vegetables in pots. So that's basically it. It doesn't change anything for homeowners. It does provide some flexibility for people that live in HOAs if they own their own land. It encourages opportunities for growing vegetable gardens beyond that, both from landlords and in HOAs, but it doesn't require that. And we did take a lot of testimony from lawyers, from HOAs, from and then from from the individual who asked us to bring this forward. And this didn't go as far as she wanted. But in the end, I think we did end up providing one that the renters or the landlords of the HOAs were contented with and it does expand people's opportunity to grow their own vegetables on a limited basis beyond what is available right now.

[Sen. David Weeks (Clerk)]: Which is great.

[Sen. Alison Clarkson (Chair)]: And encourages maybe a discussion in common interest communities about what land they might want to set aside for an allotment for a lot

[Cameron Wood, Office of Legislative Counsel]: of gardens.

[Sen. Alison Clarkson (Chair)]: Exactly. Great. Just shining a light on it is is good. Yeah. That's great. That's great.

[Sen. Thomas Chittenden (Member)]: Holy sports. This is great. My question is, you say vegetables, and I've seen vegetables in there. Are spices vegetables and are fruits vegetables? Is that all encompassing terms? You said basil, so that does that fall into that category?

[Rep. Michelle Bos-Lin]: Yeah. You know, you might have to ask Cameron what counts as a vegetable, but I believe all herbs would count as vegetables. I don't know if all fruits I mean, fruits are technically not vegetables. You'd have to ask tomatoes for fruits. Right. You know what, I don't think we've really got into that. You guys might need to clarify. That's okay.

[Sen. David Weeks (Clerk)]: Just look think up whether or not poison ivy is a vegetable and it is not.

[Rep. Michelle Bos-Lin]: Okay, well I don't think most people would want to grow that in pots in their garden.

[Cameron Wood, Office of Legislative Counsel]: Well, they don't like their neighbors. And

[Sen. David Weeks (Clerk)]: their neighbors.

[Sen. Alison Clarkson (Chair)]: Hopefully there are many vegetables people that are vegetables that are actual fruits.

[Rep. Michelle Bos-Lin]: That's true. And that actually didn't come in our committee, but it's true that it's worth thinking about because there are a lot of vegetables that actually are fruits. Yeah. They're all delicious. Indeed. I think the spirit of what we passed was you can grow anything that you would want to grow that you would be harvesting to.

[Sen. Alison Clarkson (Chair)]: And that's appropriate for a pot on

[Sen. David Weeks (Clerk)]: a Exactly.

[Sen. Alison Clarkson (Chair)]: Great, well thank you very much. Any other questions for Michelle? Thank you. Alright, I will give it to Cameron

[Rep. Michelle Bos-Lin]: to give you the details.

[Sen. Alison Clarkson (Chair)]: As a vegetable gardener I bought this effort.

[Rep. Michelle Bos-Lin]: I have to say it was not a very controversial deal.

[Sen. Alison Clarkson (Chair)]: No, how delicious. Yes. As a Enjoy. Thank you very much. Always a pleasure to have a non controversial bill. Vegetables are good. Exactly. Except beets. Except what? Beets. Right. God, I love beets. Beets and spinach. Just two of them. How did that ever come off of beets?

[Sen. David Weeks (Clerk)]: Raised it too. Whom did

[Sen. Alison Clarkson (Chair)]: you raise it? That was exception bar in the 12. Alright. Okay. Cam, welcome.

[Cameron Wood, Office of Legislative Counsel]: For the record, Cameron Wood, Office of Legislative Counsel.

[Sen. Alison Clarkson (Chair)]: And we have this bill on our desks.

[Cameron Wood, Office of Legislative Counsel]: Ready to sink our teeth into May? Sure. So

[Sen. Alison Clarkson (Chair)]: And our hands into

[Cameron Wood, Office of Legislative Counsel]: the soil. That's right, that's right. As was mentioned, there's really kind of two parts to this bill, one of them addressing common communities and the second portion addressing circumstances for renters in the landlord tenant relationship. We've talked at least briefly about common communities in the committee. I know that you all wanted to spend a little more time in it with your bill, which is where we landed with the study.

[Sen. Alison Clarkson (Chair)]: So you can I can add this to your study?

[Cameron Wood, Office of Legislative Counsel]: Good. Good. I don't think the I mean, aren't bill. Yes, ma'am. Right. There there aren't as many legal issues, you know, in this regard. However, just keep in mind that you're thinking about this, a few things that are relevant to the discussion. Do you wanna make this retroactive? What entities do you wanna apply it to? There are, as you heard testimony, many different types of common interest communities depending on the circumstances of the location and how they were created with the declaration, etcetera. So just with that, jumping into section one, this is requiring that the provisions of the section related to the right to grow vegetables would be applicable retroactively to all common interest communities that contain 12 or more units that may be used for residential purposes. That's there on line seventeen and eighteen. Why is it limited to that number?

[Sen. David Weeks (Clerk)]: Has So it did they did do retroactive.

[Cameron Wood, Office of Legislative Counsel]: They did do retroactive, but here's here's what I'm discovering as I've been reviewing this. As I mentioned before, you have the Condominium Ownership Act that applies to a condominium that created before 1999. In 01/01/1999, you all enacted the Uniform Common Interest Ownership Act. There's a section in there that says that the title applies to all common interest communities with 12 or more. Later on, you added another sentence that says amendments to the title apply to all common interest communities with 12 or more units that were created after 2011.

[Sen. Alison Clarkson (Chair)]: The left. Right. I remember those are

[Cameron Wood, Office of Legislative Counsel]: the two points. And we Right. Implying that there's two checkpoints. There's if you create an amendment to the title, it would apply to everything created post 2011. So you need to make it apply to things pre-twenty eleven. And then when you look at that, it says that amendments to the title apply to things post 2011 if they have 12 or more units. Why 12? I don't know. So that was a phenomenon. Correct. It may not have been arbitrary. I just clearly, I was not here in 2011. I guess it's not clear.

[Sen. Alison Clarkson (Chair)]: Maybe it's in the '9, 2011?

[Cameron Wood, Office of Legislative Counsel]: To be clear, I was

[Sen. David Weeks (Clerk)]: not here in 2011. Could hear me now?

[Cameron Wood, Office of Legislative Counsel]: And so I'm not sure why that number was chosen, but it's in here to simply be consistent with what's already in

[Sen. David Weeks (Clerk)]: the statutory section. So if you're

[Cameron Wood, Office of Legislative Counsel]: just asking why 12, that's why. It's in the statutory section, so I'm being consistent with that. So this amendment would apply to all common communities that contain 12 or more units. Simplest way to describe it. Section two, next page, page two, vegetable garden. It has a definition. It's where a person cultivates, this is lines six through 10, a person cultivates plants for personal consumption or donation. So it doesn't distinguish between vegetable and fruit, it just says plants. So already both of them would be considered there, just on a plain language reading. And the land and the activities are not subject to the required agricultural practices. They sent that to me initially as the drafting request. I was trying to figure out how to define this, and I was looking at what some other states have passed. There are a few other states that have some similar types of provisions, and so I took the baseline from, I think it was Florida, but I'd wanna go back and double check. But then I worked with Michael O'Grady on it because he covers, you know, a lot of environmental and agricultural stuff. We have a new attorney who covers agricultural now, but at the time, I was working for O'Grady to try to figure out what made sense. He recommended including the language that the activities are not subject to the required agricultural practices. So we're not talking about some sort of mass agriculture here. Right? Just talking about a vegetable garden. And I can gather some more detail if you all want, but just trying to make sure there's a description here. If you're subject to required agricultural practices, that's not what we're talking about. So it's a plot of land where a person cultivates plants for personal consumption or donation. Then we get into sub B, this has just standard language that you've seen as it relates to some of these types of bills. The key language is that the HOA cannot, starting on lines 15, effectively prohibit or unreasonably restrict the installation or use of a vegetable garden in the areas designated for exclusive use of the unit owner. So the area has to be someone's exclusive use. It could be their backyard if they're It given exclusive use of could be an area of the front of the property if it's designated for their exclusive use. If the entire front lawn is a common element that is not their exclusive use, it can't put a vet's role guard. So two here, just if installation is required, so you could have an HOA that has certain rules around installation of changes to the limited common elements, and if you're required to notify them and get a preapproval or you install anything on your limited common element, then you have to go through that same process. Required? One change from similar language that you've seen is on page three, line three. There was a request about some of these HOAs, they have volunteer boards, and they may have to consult with attorneys, etcetera, before approving something, and so it was sixty days, and there was some concern about that being too short of a time frame. The house agriculture fraternity didn't want it to be too long because the growing season is not very long in the state, relatively speaking, so they wanted there to be a period in which a decision They had to be chose ninety days.

[Sen. Randy Brock (Vice Chair)]: Okay, madam chair. So being here, we just came out the floor, we had a conversation with the intersection of cannabis and tobacco and several. Going back a couple steps into page two, line nine. Curious if you can illustrate some of the tension that might have been in the House Committee on the cultivation of cannabis. Right. Now that it's legal, etcetera, just to kind of like break, not not gloss right over that, but.

[Cameron Wood, Office of Legislative Counsel]: Thank you sir for bringing it up. I did not gloss over it intentionally, and so thank you for bringing me back to that. I did specifically draft it up to say that it does not include the cultivation of cannabis or any unlawful crops or substances. The primary reason I initially included that was because I know you all have very extensive laws and regulations about the growth of cannabis and its legality and how much you can use, etcetera. My understanding is there are also restrictions on outdoor growth, etcetera, and so I didn't want there to be any ambiguity there or possible conflict between what you have regarding the growth of cannabis products versus this. I wanted there to be a bright line distinction that, that it's not that. The committee did not did not, at least when I was in the room, did not have a lot of discussion about Well, that's why wanted to keep

[Sen. Randy Brock (Vice Chair)]: it noncontroversial or because they wanted to pursue the discussion conversation

[Cameron Wood, Office of Legislative Counsel]: personal growing. I don't know. It's just they didn't they I I think they were

[Sen. David Weeks (Clerk)]: and I let me put

[Sen. Alison Clarkson (Chair)]: a pin in it because Yeah. It's absolutely some something. It it could be for personal consumption. It is an a a legal product now, and, it's something I think we should chat about.

[Cameron Wood, Office of Legislative Counsel]: And and they didn't do a lot of discussion when I was in the room. So, but senator, thank you for bringing it up. I I I did not mean to, like I said, intentionally kinda gloss over that. So very, very important point that the vegetable garden does have that condition that it does not include cannabis products or other other crops or substances that are

[Sen. David Weeks (Clerk)]: When we say consume, it doesn't it couldn't mean a number of things. And it looks as though, as I read the definition of what a vegetable garden is, you can't have a garden without poison ivy. But The way the definition begins.

[Cameron Wood, Office of Legislative Counsel]: I don't see anything that would stop you from putting I

[Sen. Randy Brock (Vice Chair)]: mean I'm happy to transplant everything I have

[Sen. David Weeks (Clerk)]: to your place. Go ahead.

[Cameron Wood, Office of Legislative Counsel]: So to that point, take poison ivy or daffodils. I I feel like that as I read this, the plain reading of it, that where a person cultivates plants for personal consumption. I I assume consumption means incestation. Is that not the case? Can you consume flowers by just putting them on a table? Can I not grow maybe we're Absolutely? But that's the

[Sen. David Weeks (Clerk)]: poison ivy. We eat nasturtium. Nasturtium. We eat nasturtium. We grow them, and

[Sen. Alison Clarkson (Chair)]: we got grape salads with them. They're edible.

[Cameron Wood, Office of Legislative Counsel]: And there was there was some discussion of this So we eat zucchini flowers. Didn't necessarily get into looking at the words individually, consumption versus non consumption, etcetera. I think I think my plain reading of it and the House Agriculture's Committee understanding of it is that it would include the ability to grow certain flowers that, although you may not be ingesting them, you know, you may you may grow them and pick them and put them

[Sen. David Weeks (Clerk)]: in your house, etcetera. It's consumption or donation. Correct. A number of people I certainly don't get poison. I may just

[Cameron Wood, Office of Legislative Counsel]: So you can donate flowers, so then it's fine.

[Sen. Alison Clarkson (Chair)]: None around this table, Leo. The I'll say assumption is given the cannabis piece, a point for us

[Sen. David Weeks (Clerk)]: to continue to discuss. That's just a definition, like well needs some too many Absolutely. Absolutely. I mentioned

[Cameron Wood, Office of Legislative Counsel]: it to the committee that, you know, this is one of the pieces that they may, you may want to be very clear on about what you mean by vegetable garden. Again, I kind of borrowed it from what another state has used just for a baseline, but for example, also there wasn't anything that was amended because of this comment, but a comment was brought up in committee about, let's say that you have the right to grow a vegetable garden, the landlord gives you permission to grow an actual installed bed, and then you can plant some sort of very large tree, apple tree for example, would that be considered ripe in the definition? I said, based on my reading, likely, but, so, yes. I'm enjoying this conversation on poison ivy, and I wonder I mean, I I can think of neighbors living close to each other wanting to either grow that to keep kids away, or, also, there's plants that are, like, poisonous to cats. I can see if they don't like the cat. I mean, So it seems worse before we open the floodgate for people being able to grow whatever they want might be some consideration for us, toxic plants, if there's any type of legal definition

[Sen. Alison Clarkson (Chair)]: or plant that can cause harm to domesticated animals. Well, you might well want to grow something that's toxic to that cat you eat that's next door. Alright. Anyway, I think we should maybe consider a definition of Let's keep going. Let's see if we can finish this by noon because we have a. Okay. So

[Cameron Wood, Office of Legislative Counsel]: sub three here, we we are back to page three. The unit owner, each successive owner is responsible for the cost of installing, maintenance, repair, removal, damages to common elements or limited common elements, cost of any water or electricity associated with it, and disclosing to prospective buyers about its existence. Sub c, nothing is prohibited from the common interest community or the association from an active bylaws or rules that reasonably restrict the installation, then it gives a list of some of those examples. So regulating the erection and installation of permanent structures. They were thinking about structures that could go into place to facilitate the growth of vegetables, acquiring that the vegetable garden be maintained in good condition if visible from the street, faced by the lot, or from an adjoining lot, requiring the dead plant material and weeds are regularly cleared with the exception of straw mulch compost and other organic material intended to encourage vegetation and retention of moisture, restricting the use of property owned in common and not for the exclusive use of a unit owner. So actually gonna go into the example that was brought up earlier just because you want a vegetable garden closer to your location doesn't mean you can just plop one out in the front of your lawn if that lawn is not reserved for your exclusive use. Lastly on five, prohibiting the use of pesticides as that term is defined and any other synthetic chemical product commonly used in growing a plant of crops. So those are reasonable restrictions that an HOA association could put on the vegetable garden itself.

[Sen. Randy Brock (Vice Chair)]: David? Does that include, fertilizers?

[Sen. Alison Clarkson (Chair)]: No, fertilizers are not pesticides I don't believe, but we should look at the definition of what it does. So

[Cameron Wood, Office of Legislative Counsel]: I think if, yeah, I would look at it to determine whether or not it's a synthetic chemical product or if it's organic material.

[Sen. Alison Clarkson (Chair)]: Yes, it's organic fertilizer. The

[Cameron Wood, Office of Legislative Counsel]: association can provide a written notice if there's a violation of the bylaws or the rules adopted, give the unit owner not less than ten days to correct. The association may take steps to correct the violation after ten days and then the association may charge those costs back to the unit owner. So that's the common interest ownership piece. The rest of it is related to landlord tenant. So this would go in title nine, new section under the residential rental agreement chapter that we've all been walking through. Same definition. What's primarily different is the landlord has to allow the tenant to grow a vegetable garden in portable containers that are approved by the landlord. Separately, the landlord may authorize the tenant to install a vegetable garden on the rental property. So the thought here being that, you know, rental properties are on the gamut of, you know, whether or not there's actually any land available to have a vegetable, you know, like a raised bed or something of that nature. So you can do it on portable containers, that's a shell, a landlord may allow the individual to install something else on the property, so the landlord's not obligated to do that. And then the reasonable restrictions are very similar. Keeping it in good condition, removing dead plant material, not using pesticides or synthetic products, etcetera. The landlord may require the tenant to pay for the excessive water or electricity or waste collections. The landlord can and one other thing, I think they're on top of page six, sub four. The landlord can require that the placement of the vegetable garden or the potable containers does not interfere with parking spaces or create a health or safety hazard, block doorways, interfere with walkways, utility service equipment, etcetera. And then lastly, the landlord may charge a security deposit for the installation of a vegetable garden, and the remaining provisions of four sixty one apply to the security deposit, so that's where the landlord can deduct certain things from your security deposit, has to provide the security deposit back within fourteen days after the termination of the agreements, etcetera, so the remainder of those sections you would have to apply, but the landlord can charge a security deposit

[Sen. David Weeks (Clerk)]: for

[Cameron Wood, Office of Legislative Counsel]: the purposes of securing against damages and require removal of the guard when the individual leaves the exempt truck. If you move forward with the seven seventy two, the landlord tenant bill that you have, it has a security deposit cap. So if you're going to move forward with both bills, it may be worth a quick Price record. Tune up there just to make sure that it's clear that if the landlord's charging a security deposit for the installation of a vegetable garden, it's not subject to that two month cap that's in $7.07 2 Yeah. If you keep that language in that. So I'm just pointing that out. It may be worth a double check.

[Sen. Randy Brock (Vice Chair)]: So section two and section three are both playable vegetable gardens. Section two is vegetable gardens specific to common communities.

[Cameron Wood, Office of Legislative Counsel]: And then section three is specific to renters. Yes, Respect to what? Renters, the Right. Plant or tenant

[Sen. David Weeks (Clerk)]: I again look at page six, line four, prohibiting the use of pesticides. There's another synthetic chemical product commonly used in growing plant crops. I understand the notion of pesticides because you don't like a pesticide presumably affecting your neighbor's problem. But on one hand, people use pesticides in small gardens over, should there be an absolute prohibition on it? Should the prohibition be, in fact, prohibiting pesticides that are so strong or pervasive that they infect the neighbor's property. Right. Person would not be able to spray a pesticide on a property in that garden that doesn't really migrate. Don't know how you measure how they migrate. So that's just a question.

[Cameron Wood, Office of Legislative Counsel]: A great question and one that is, it was a concern of mine as I was drafting it because it is way outside of my area of expertise in any sense, and so the thought being that just providing the common interest community itself or the landlord, because it's the landlord's property, the ability to regulate them, and then the community gets to decide itself. Right, exactly. Think that

[Sen. David Weeks (Clerk)]: makes sense. That makes sense. And the other is any other synthetic chemical product commonly used in growing. There may be synthetic commonly used chemicals that actually help growing. Again,

[Sen. Randy Brock (Vice Chair)]: that's a question.

[Sen. David Weeks (Clerk)]: I think we will great. And I know this is

[Sen. Alison Clarkson (Chair)]: a Let me explore this. Maybe we can bring Michael Grady in as a special expert with this on this. But this is this is a great start to this. Thank you. And a simple little build yet again may have some complex aspects to it. So, David, do you have a last thought?

[Sen. Randy Brock (Vice Chair)]: You have two thoughts.

[Sen. Alison Clarkson (Chair)]: Two last thoughts.

[Sen. Randy Brock (Vice Chair)]: Very sure. One, this came out of house act. Why not it's a senate act? Because it had to do with housing communities. Okay. And then did it come through house General Housing? General Housing. I'm sorry. I'm just curious.

[Sen. Alison Clarkson (Chair)]: Yeah. It's an unusual path, but I can see why it landed here because it addresses permitting in housing community.

[Sen. Randy Brock (Vice Chair)]: Second point, very quick. This bill affects potentially a couple 100 people, a couple thousand people. It's got good intentions. There's 10,000 interesting items which we could deal with with legislature. I'm a little hesitant to put additional time into this bill while we, you know, while we maybe dilute our attention towards economic development issues for the entire state, which affects everybody in the state.

[Sen. Alison Clarkson (Chair)]: I don't disagree. I think that once we have gotten all the House bills that we're gonna get, probably at the end of this week, we will get all the House bills that we're gonna get. We're gonna have a discussion about how we prioritize because we're getting a ton of bills and we're getting some big ones that we've discussed. The landlord tenant bill we're getting. We're getting you know, we have some big ones. And so I think we will have the opportunity to prioritize them and agree. And this might fit in nicely into a short period of time we have it between things. Who knows? But I appreciate thank you, Cam. Thank you, everybody. Good questions. Everybody, very attuned. I will see you tomorrow. We will see you tomorrow. I we have a press conference on our housing bill, on our two housing bills right now in Rutland if anyone wants to come and join us.

[Cameron Wood, Office of Legislative Counsel]: I think it's

[Sen. David Weeks (Clerk)]: been shifted

[Cameron Wood, Office of Legislative Counsel]: to an enlisted session.