 Good morning. Today is Friday, June 12th. It's 10 o'clock. This is a meeting of the Senate Natural Resources and Energy Committee. And we are working today on Act 250 and considerations that we are going to be placing into an amendment that will then be added to the housing bill S-237. The goal for today's meeting is to work through all the open items that we have and sort of straw-pull our way along. Yeses and noes to what goes into a final draft. We won't have a final draft, a voteable draft today, but I've talked to the Ledge Council and they've agreed kindly to work with the committee over the weekend to have such a clean draft prepared and we will reconvene on Monday thank you to committee members for agreeing to meet on a Monday to go through that final draft and have a vote. We'll convene at nine on Monday. So any committee questions in terms of our plan of action here for today and Monday? Okay, well, great. So with that, I'd like to ask our council, Mr. Chakowsky to walk us through the current first cut at an amendment to 237. It captures a fair amount of the things we've talked about this week, but there are more things to either add, remove or edit. So Mr. Chakowsky, are you ready to do that? Take the command of the screen. Sure. Okay. So have sent Jude this document to be posted on your committee page. It is, as Senator Bray just said a document containing what I think are currently all the pieces that have been under discussion for a possible amendment to S237. This document is not organized officially as an amendment because there are still a lot of decisions that need to be made, but I tried to organize them by topic so that they would be easy to read. And is it, all right, it is posted on your website under proposed amendments. So we, I do just wanna check, we have sort of a limited amount of time today. Senator Bray, is there anything you want me to start with particularly or just go as I have it organized? Let's just go right on through. And committee members, if you see something of concern, et cetera, you know, let's basically my, I'm always saying let's paint our, paint our way out of the room. So as we see things, if people are fine with it, we'll check in and then that's a check mark, at least for the next draft that that language is good and we're gonna keep that. So, and let's just start taking a tour. Okay, so the first topic is municipal planning. And so one of the things that we have talked about yesterday's witnesses talked a lot about the provisions that are in S237 related to municipal planning under title 24. So in conversations with the chair after the hearing yesterday, this amendment is going to propose to strike out the new subdivision B, which is the inclusive development provisions and the associated sections of the bill. So section three and section four and then section 26. And in its place, I haven't drafted it yet, but it would be a sort of study slash report back on recommendations from the department on a proposal that would increase housing density in municipalities while still preserving the ability of the municipality to have diverse solutions. So it sounded like the committee was interested in avoiding the cookie cutter mandates that S237 has currently. And so this is my attempt to address those concerns. We haven't talked about this specific model in committee yet, but this is, so. I think Senator Parent brought it up in his town planner, Mr. Sawyer, about naming, you know, a density, for instance, naming a density target, a performance target, and then allowing municipalities figure their own best way to achieve those kinds of targets. So the thought I had based on that discussion was just what Mr. Kausi said, go to a study and bring it back at the beginning of the session and equip ourselves to write a more flexible way of responding to planning. You know, I think back to our own committee's history of doing things by naming performance targets and then letting different groups figure their own way forward. We've done that in municipal planning, regional planning, statewide energy planning. So it would seem consistent with that approach. The other thing is I would hope that we could, we might be able to knit that into the zoning for great neighborhoods discussion that's going on. So that we're not creating parallel processes but that we end up pulling things together. And giving that we're talking about a three year cycle of replanning, having a report at the beginning of next year, my hope is that we would lose very little time in terms of making progress but have the benefit at the beginning of the next biennium of having that information. So, Senator Perrin, I think it was, you had said something along those lines and Mr. Sawyer, any comment on that one? Okay, so let's keep going then, please. So, Mr. Chair. Yes, Senator McDonough. This would also, yesterday there was a concern that the changes in zoning might upset the existing attempt to meld high income and low income housing in communities and that they didn't wanna throw that out. Is this amendment going to restore that, that can allay that concern? Well, I think that's something we're gonna come back to later in this discussion, we're being joined by Mr. Arminian from NRB and others to address some fairly technical considerations about how we define refer to and wire quote, quote, affordability into planning stash. Okay. Thank you. But thanks for flagging us, it's definitely in play. Okay, so, I am gonna draft up study committee language for that to add there. The next provision is the wastewater permit amendments that you heard about yesterday from Michael Grady. So, this is his language that he discussed yesterday. Great. Any committee questions on that? I think we are all set on those revisions and A&R also supported them. So, okay, great. So, good to go on the wastewater portable water. Yep. Okay. The next section is, all right. So then we get into the act 250 changes. So, as 237 does contain an exemption for designated downtown and neighborhood development areas, part of that proposal is that existing permits in those areas are automatically extinguished. So, this proposal is also something we have only talked about briefly but not seen language on yet. So, we've had discussion about whether or not the permit should be extinguished automatically. In conversations with the chair, we discussed that H926 had an additional proposal that was related. So, I tried to adapt the language and this relates to some of the comments Alex Weinhagen had yesterday about whether the district commission should be in charge of addressing whether the permit conditions in the act 250 permit should be added to the municipal permit. So, I have added a proposal here that you haven't seen this language yet but it's a change in jurisdictional use to release a jurisdiction over a permit. So, the downtowns and neighborhood development areas are going to be exempt. So, new projects in there will not have to go through the act 250 process but there are existing permits in those areas. Under this new language that I've added, those permits will be able to apply to have their be released from their permits. They will apply to the district commissions and the district commission will evaluate if the permit conditions are still relevant and necessary to mitigate impacts under the act 250 criteria. And the district commission has the option to approve or deny releasing the permit from jurisdiction. So, that grew out of the discussion and up around the notion of it's fine to sort of facilitate development by releasing an act 250 condition that was in the original permit if you're going to extinguish that permit or the requirement to have such a permit. But the sort of neutral party that reflected all the interested parties at the time that conditioning took place is the act 250 panel. And the, they don't have a vested interest in extinguishing. They have an interest in seeing that the balance that the conditions attempted to achieve are in perpetuity are the remaining place. If a municipality believes that something ought to be waived or developers should be waived or extinguished, then fine, but let's not have. Otherwise, I think we place municipalities in a unusual position of removing conditions at another planned panel in place. And they may have very different motives. I'd like to ask whoever's not muted, if they could please mute because we continue to get background noise. Thanks. Thank you, Senator Campion. So, the other thing too, well, so let's look at the language together. As part of that discussion, I wanted to make sure that a municipality would always have the ability to participate in such a hearing so that we would make for ready access back to the act 250 panel in order to request such a removal of such a condition, for instance. Okay, yeah, I wrote this quickly so it might need work. So on an application signed by each permitee, the district commission may release land subject to a permit under this chapter from the obligations of that permit and the obligation to obtain amendments to the permit on finding each of the following. First, one of the following is true. And so this is language that was in 926, so it may not be relevant for your purposes so we can discuss that. The use of the land as of the date of the application is not the same as the use of the land that caused the obligation to obtain a permit under this chapter. So there has been a change in use. Or the municipality where the land is located has adopted permanent zoning and subdivision bylaws, but had not when the permit was issued. Or the land is located in a designated downtown or neighborhood development area that is exempt from this chapter. The use of the land as of the date of the application does not constitute development or subdivision as defined in section 6001 of this title and would not require a permit or a permit amendment, but for the fact that the land is already subject to a permit under this chapter. The permatee or permatees are in compliance with the permit and their obligations under this chapter. What's the chapter? What's the chapter we're talking about? We're in Act 250, so we're in chapter 101. Thank you, thank you. Under Act 250, that's what it means. Yeah. Thank you. It shall be a condition of each affirmative decision under this subsection that a subsequent proposal of a development or subdivision on the land to which the decision applies shall be subject to this chapter as if the land had never previously received a permit under this chapter. That language may not need to be in there actually if you decide to pursue this proposal. An application for a decision under this subsection shall be made on a form prescribed by the board. The form shall require evidence demonstrating the applicant complies with subdivisions 1A through C of this subsection. The application shall be processed in a manner described under the section of Act 250 of governing hearings and may be treated as a minor application under that section. In determining whether to treat as a minor application under this section, the district commission shall comply with the criteria of this subsection and not the subsection 6086A in this title. So it gives the commission the option to either treat it as a minor application with no hearing or as a major application which would be a hearing process with parties. Does it have also have the option of saying that Act 250 just flat out no longer applies because for, may I give you an example, Mr. Chair? Yes, please. I've got a small town has two issues. One, it had a former private school that did some stuff on its campus but it covered scores of anchors and the school's gone defunct, campus isn't there, the land is owned by different people in blocks of five acres, 10 acres, 20 acres. And when they go to do something, they find out their land is under Act 250 but there are no records in town of the decisions, they can't find the records of what used to exist in the 80s, the same with the municipal building that was purchased from a private enterprise on a large tract of land, all of which is now subject to Act 250. There are no records that the district commission and no records in the town, it's no longer a commercial activity and they have to go through Act 250 whenever they wanna do something on that ordinarily wouldn't be necessary, does it include those? It does include those, although I guess I'm a little confused how if there's no records, how do you know that there's a permit? Because in the record sense, the land is subject to Act 250 review but that's in the deed somewhere. So every time anybody wants to do something or put a culvert under their driveway, they have to, this has been an ongoing problem in this very small town that was very informal back in the early 80s, mid 80s. Yes, so the House committee did spend time on that issue and that's what this provision was related to originally. I should have just asked, is the provision in the House bill which deals with this still in there? Thank you very much. So we haven't fully talked about this topic in this committee and so in trying to address the chair's concern, I thought it would make sense and it maybe needs a little more tightening up but I did also add this paragraph at the end. The district commission shall evaluate the conditions in the permit and determine whether the conditions are still necessary to mitigate impacts under the criteria in section 6086A. If the district commission finds that the conditions are necessary, it shall deny the application or approve the application on the condition that the necessary conditions are added to the municipal permit. So this applies from one end of the town to the other, not just to the downtown, is that correct? Yes. Thank you very much. I think it's, the concept here is extinguishment with some review on why the extinguishment would be allowed. Okay. Thank you. Okay. So I then added in here that currently S237 has an amendment for the definition of mixed use under Act 250. And you have received a proposal from Evan from the Natural Resources Board and you're going to hear about it. So I didn't know if you wanted to include his specific recommendation or keep what's in S237. So I wanted to flag that as something we should discuss. Why don't we briefly go through it and then we'll make people somewhat familiar with it and then we'll dive into it in the last half hour of our meeting this morning in more detail. But maybe you can just- Can we not? Not sure. I see that we have quite a bit more. So let's pass it on and do it all at once. Okay. And that frankly to me is more of a legalities of housing- Is more of a technicality? Yeah. And our focus is, so I think that the issues coming up is important that it gets flagged. I don't know that we're the right committee to sort out legal definitions around affordability and et cetera in terms of pure housing. But I think it'll be a disservice if we see the conflicting memos and don't bring the issue and get it on the table. So. Okay. So then criterion 1D under Act 250, we discussed that this is a fairly non-controversial, maybe even considered a technical change. This is in age 926. So this is changing the definition of floodway to flood hazard area and floodway fringe to river corridor. And then updating those definitions and then updating their use in criterion 1D. And so this matches ANR's recent developments in this area. Okay. Thank you. Any committee questions on that one? All right. Onward. So then we have recreational trails and we discussed the language around the recreational trail amendment recently. I did work with the stakeholders to come up with some new language. And again, I don't know if you wanna discuss this, the changes I made right now or if you want me to continue with the other pieces of the amendment or if you want me to show you what we discussed. Let's see what we discussed on this one. Okay. So I worked with the stakeholders on updating the language to make sure it better conformed to some of the existing definitions in Act 250. So the changes are in yellow. I did also hear some feedback from the Natural Resources Board. And so some of the changes, the changes are all from that process that we discussed in the last few days. So slight change to the definition of trail. So trail may be used for recreation, transportation or other compatible purposes, but the primary purpose shall not be the operation of a motor vehicle. As used in this subsection, motor vehicles shall not include all train vehicles or snowmobiles. And this is- I pause and ask, I don't remember the phrase, I don't remember any discussion around purpose, as a primary purpose versus other purpose. So the concern here is because if you're adding the road rule, we wanna make sure we distinguish something that is a trail from a road. Okay. Then we have the definition of recreational trail that will be added to Act 250. So it matches that definition I just mentioned. And then we add the definition of Vermont Trail System Trail to Act 250 also. I added the word county just so that it matches the phrasing that is used in Act 250 already. And then we have the jurisdictional trigger for Vermont Trail System Trails. So you recall in our discussion, Vermont Trails, the Vermont Trail System is established in chapter 20 of title 10. And it gives the agency, the Department of Forest Parks and Recreation the ability to recognize trails as part of the Vermont Trails System. So development is defined to include the construction of improvements for a Vermont Trail System Trail on a tract or tracks of land involving more than 10 acres. This subdivision shall be the exclusive mechanism for determining jurisdiction over a recreational trail that is or is proposed to be a Vermont Trail System Trail and shall only apply to the construction of improvements made on or after July 1, 2020. So maybe you're gonna get to this. The question I have when I hear that, read that, is the or is proposed to be. Cause we talked about this in committee the other day. What if someone, I don't, not anticipating this, but we always try to guard against something being gained. So merely making, how does one demonstrate that a trail is proposed to be part of the Vermont State Trail System in order to gain this special status for being reviewed? So I will say that I worked on this language. I attempted to make it a lot more clear than the prior draft. And I think that it is more clear and easy to read. But in my redrafting, I struggle with that same point and I actually, I think that this language, I think it is not advisable to add this recreational trail amendment. And the reason is largely due to what Senator Brangess asked about. So there is a problem in administering this, this sort of section technically because typically or the process plays out that a trail is recognized as part of the trail system after it has been completed. However, an Act 250 permit needs to be received before construction begins. So you do have a problem of evidence about whether or not someone is going to be able to prove that they are part of the Vermont Trail System. I think that there is a difficulty because I don't think there is currently as part of the process for the Vermont Trail System. I don't think there's a pre-approval that is given. And I think that there have been recent examples of this happening where there have been potential, there may have been some instances recently where someone applied to be a trail and did not receive recognition from the Vermont Trail System. So while this section largely restates existing law, that Vermont Trail System trails are for a public purpose, having it as a jurisdictional trigger creates this sort of odd logic problem because they can't be determined to fall under the jurisdictional trigger if they aren't actually in existence and we don't know if they're going to get their recognition. Is the test for recognition into being accepted as a Vermont Trail System trail include having received all necessary permits? I'm not certain. And I was having trouble finding the specific criteria for becoming a Vermont Trail System trail. It's not in statute. It's a criteria established by the Department of Forest Parks and Recreation. So I don't know specifically. Okay, so let's find out as a question. I mean, it is very, whatever, challenging construct that evidence to be admitted into the trail system is, as I understand and having all the necessary permits, but we're excluding someone from getting an active 50 permit. And if that's one of the major criteria for acceptance, then I don't know what level, I don't know what the analysis will be for what happens during this time period that we have for laying out here. So. Mr. Chair. Senator McDonnell. Just I keep asking myself, is this an attempt? And I say it's a good faith attempt to sort of say recreational trails shall be regulated outside of act 250 by a non-act 250 entity that incorporates a host of requirements, specific, germane and worthy of trail management. Is that what we're trying to get to? I would say yes. And what's happening now that's making this tricky is that rather than saying, here is the way we would do exactly what you just said. We're gonna figure out how to do what you just said. And in the meantime, we want to use an alternative, which is this language that would let people move forward now until that language and program is developed, presented, codified, et cetera. So if we were we to move in that direction, where does the decision-making for, if we move in that direction, I think that might be work well. If you had to establish the administrative body that would regulate this, but would be separate from act 250, how are decisions made between trails that are cross-country skiing and walking? And on the other end have various degrees of loaders and vise to use of the same trail. Where would those decisions be made? And how does this transition period alter or not alter how those decisions are made today? That's a great question. I don't know how it would play out under this proposal. I mean, what we're talking about is transition provisions because these are sun-setted. Is it 2021? It's 18 months, so January 2022. So this may not be the right time to ask this question and I'll be glad to listen later, but if there is a trail that allows some footpaths and cross-country skiing, maybe snow would be old, maybe not. And during this 18 month period, who makes the decision of, well, this is going to be open to ATVs or motorbikes or pedal bicycles, something that was not, the trail had not yet been open to. How would those decisions be made during the 18 months? So we're not creating a full exemption from Act 250, but what we're sort of doing is, if something is proposed to be part of the Vermont Trail System, they use the involved land calculation of physically altering land, which is a higher threshold. More land is going to be required to trigger Act 250. We're also trying to understand, I think I tried to use expression yesterday, we all know what a spaghetti lot is, but a trail is pretty much an angel here a lot. It's very, it takes many, many miles to add up to something that's reviewable. We're trying to deal with that in this bill and hopefully in wherever we get to at the end of 18 months. So during the 18 months of in-between, what will the standards be? They would be the other existing standards. And it really is fact-dependent on what the trail is going to require, if it's going to require any construction or any other potential permits, like a wetlands permit or a municipal permit. So we're not changing any of that. Perhaps the commissioner of forests and parks is ahead of us in knowing where this might be going and might be able to help be helpful on that. But I don't know. We're gonna get that answer and I will be quiet and listen to those who. So the commissioners on the call, whatever, on the meeting. So commissioner, good morning. Could you address Senator McDonald's question and then when you're done with that one, double back to what is the test for admission into the remote trails system for any applicant? Sure, thank you, Mr. Chair. I'm happy to, for the record, Michael Snyder, commissioner of forest parks and recreation. I think I'll start with the last piece. The criteria we use would be includes as you indicated, having your necessary permits in place, which typically would involve more the ANR, DEC type permits, stormwater, et cetera, wetlands, that the trail would be open to the public, that they meet certain environmental standards for trail construction use and maintenance. That's sort of beyond the normal permitting, but is in the realm of best practices for recreational trails. All of which is intended to really to get at the key piece here, which is that it's to ascertain that it's for a public purpose, meeting certain thresholds. We use the Vermont trails and greenways council, which exists in statute to provide advice in this to us as we make the determination. So it's permits open to the public and non-commercial. I failed to mention that a suite of environmental considerations that we make beyond the environmental permits that were local permits that might be necessary. And to kind of basically ascertain again that this is a relatively high standard and that it is for a public purpose. So that's the, and we use the trails and greenways council for advice and consent on this. And so with that, I hope that's helpful, but I could use a little help. I'd love to help with Senator McDonald's question. Could it be reframed and just as a direct question so I can try to address it? Yes. Almost most people would look at the former railroad bed right away and say, wow, what a great place for ATVs to travel in snowmobiles in the wintertime. And they might look at the Ike from Spuggers, not to the top of Mount Mansfield and say, yeah, that should be for people only and maybe a dog can go with you. How would the commission, how would the decisions on trails be made between those two extremes during the 18 months period and thereafter? I guess what I would say is with the way we do it now, so we have within the Vermont trail system, there's quite a variety of trail types and user groups that span from, as you indicate, sort of traditional hiking trails, but includes thousands of miles, frankly, of snow machine trails in the vast system, the Vermont Association of No Travelers, in the VTS. Similarly, we had different standards and different approaches for those that are in many, many local chapters of the Vermont Mountain Bike Association that are within the trail system. And so this spans both public lands and private lands. And the idea here is to extend the different treatment for trails of a public purpose, like those in state lands or municipal lands, to these private lands that meet that public purpose test. And so with appropriately differing criteria for the different trail types, just recognizing, as you say, that a single track mountain bike trail is inappropriate for an ATV, but other trails, other places would be appropriate. And so we wanna make, for whatever the use is, we wanna make sure that they have the appropriate design and maintenance and use standards in place. And that's the process we go through. I hope that helps. It helps, I'm helped in understanding the breadth of possibilities here. And I don't know how they would be, I wanna use the word reigned in, but maybe for picking and choosing, on what the uses might be. Can I double back, Commissioner Snyder? So the, can you just, I don't know what the numbers are. Can you just ballpark, what percentage of Vermont trail system trails developed or accepted into the program? And I'll ask something of whatever, 10 years to have an active 50 permit. Boy, how about that? It's still uncommon. I think so, potentially Jamie or Warren, I believe are probably on the call, could back me on this. My understanding is it's relatively uncommon for these, this type of recreational trail systems that are purely recreational trail systems and not associated with other development. So correct me if I'm wrong, people, but my take is it's relatively uncommon. Senator Bray, would you repeat your question? My question was, what percentage of trails added to the Vermont trail system in the last decade include an active 50 permit? Thank you. I don't know how often jurisdiction that permit becomes part of the criteria for acceptance or not into a system. Well, so commissioner, do you have any concern about someone who might bring forward an application under this language where someone says, I'm proposing to join the trail system when I'm done. And now we're changing the review criteria for their project. But in fact, when they were done, they might not, I don't know if they'd be obligated to actually apply or they might not be willing or able, financially for instance, to build to the level that would win acceptance in the trail system. You know, I could imagine engineered culverts are way more pricey than something a group of volunteers might put in on the weekend, that kind of thing. Yes, that's a lot there. I'm trying to digest and give you a straight answer that's concise, you know, there, we have encountered this with, and as Ellen, the ledge council has indicated, you know, perhaps she's referencing, there's a network of trails now. You kind of get this chicken and egg kind of situation develops where they ask us, we'd like to be in the trail system. We say, well, part of that is the permits. If they know they have, if they've triggered Act 250, then they need to get their Act 250. But if they don't know or it isn't jurisdictional, we would say, then you're good to go as long as you're open and not commercial. If there's a jurisdictional opinion, then that would question that, that would put it on hold, I suppose, because that would suggest they need to have the permit. And, but we've not, we have seen, you know, particularly with the proliferation and expansion of world-class mountain biking in our state, it had been in the last 10 years, a number of them added to the system that have not triggered Act 250. Similarly, they come with a proposal, they ask, does this meet it and meet the criteria you're in. And I think that's what we're struggling with is what if Act 250 applies? That's more of the question. I'm trying to give you some color around the issues as we've experienced them, you know. Great. Okay, so I appreciate it. I mean, we're talking about hypotheticals, which always get a little dicey. Mr. Coleman, you had offered some language or thoughts on this provision before. Can you speak to it again this morning? Yes, I'm happy to. Thank you. First, just one, in terms of this chicken or egg piece, really the entity that's going to have the challenge in front of them is going to be the organization that's proposing a trail. If they come in and say, we're going to propose a trail and it's going to be part of the VTS. And for some reason, Vermont Trails and Greenways Council Commissioner Snyder don't think it's eligible, then that's their problem. They're the ones that maybe we're now going to have to go back and seek a permit that they didn't get. So I don't see how someone's truly going to game a system. But to allay those concerns, Matt Chapman and I've had some language that may put sort of an end point to this that basically you would say, the subdivisions shall be the exclusive means for determining jurisdiction over a recreational trail that is a Vermont Trail Systems Trail. And then here's the new language or has enrolled a Vermont Trail Systems Trail within three months of the completion of the construction. So it puts a finite backstop on somebody to get into the program within a certain amount of time after that trail is completed and not have just sort of this infinite amount of flexibility. We are really trying to deal with the practical situation that historically most trails have applied after they've built, but it would seem that it would be actually very practical for people to want to apply to be recognized as part of the Vermont Trail Systems Trail before they spend the time, energy and money to develop that trail system. So that's all we're trying to do is recognize that most people want to get into something before they actually spend the time and money. But Ellen has that language, we thought it put a hard stop, a cap on when somebody had to fulfill that obligation to be in or out and not have sort of this revolving chicken and egg potential issue that I think we're all struggling with a little bit. Okay. And what's the consequence of failing to meet that obligation? They say in good faith that they want to be in, but they don't develop in such a manner that they- Well, they only benefit here from being part of Vermont Trail System is that you're recognized for a public purpose and you have a 10 acre threshold. That's really all we're talking about here. So if somebody has built something, it really depends on what, if you're in a one acre town and you've built five acres of trail and you're not part of the Vermont Trail System, then you may have triggered Act 250. I mean, that's the consequences. If you don't build your trail and build it to the standard to get in, then you may have to go back and get review of that project. That's really the only thing we're talking about here is that 10 acre threshold. Okay. So the fact that someone would develop during this 18 month period under these set of criteria is laid out in the bill now. Yep. It doesn't have a right to continue to operate that way. Can you say that again? Well, I'm just wondering if after the fact, someone could say you didn't get into the trail system so you're not demonstrating a public good. So therefore Act 250 on our ordinary circumstances would have been triggered. Does the state have recourse to say that yes, in fact, you will have to meet Act 250 if you want to operate or by letting someone proceed under this language? Okay. I don't want the state to lose its ability to regulate. No, the state wouldn't. If somebody needs a permit, they can be required to go back and get it. I think the more likely scenario is Commissioner Snyder would say these are the deficiencies, go get either the necessary permit or fix whatever the deficiencies are that they've recognized and have the trail was constructed, fix those and then you can be admitted. I mean, there's really not a lot. There's no advantage for somebody to go spend the time, money and resources to build like this and try to get admitted and then say, man, never mind, we don't want to be part of the system. That's just, I don't quite understand that I don't really don't think any of the people that are building trails that want to be in part of Vermont Trail System are coming to this with that intent or mentality. Okay, that's just, I think we're talking about hypothetical, but also in a very short amount of time we're talking about here. So let's, if you could send that language to Mr. Kowsky, please, then we'll- No one has it from an email from Matt Chapman yesterday. Okay. So then I think let's keep going through this section because I know there's more to come. And at this point, we don't have to dot the I's and cross the T's, let's just see what we have so we can finish the walkthrough of all 24 pages. Sure, so I restructured the next section in this and added some consistent terms. So for this subdivision involved land includes land that is physically altered, including any ground disturbance and clearing that it will occur, infrastructure that is incidental to the operation of the trails, including restrooms, parking areas, shelters, picnic areas, kiosks and interpreted and directional signage. And so this, as we've just discussed, really is sort of the heart of it. We're talking about what is considered involved land and that is what's used to trigger active 50 jurisdiction. So what is physically altered is included and is included in involved land and then the incidental structures. Okay. But for purposes of the subdivision involved land does not include land where no ground will be disturbed or cleared or any Vermont trail system trail constructed before July 1, 2020. So then there's this further language around recreational trails. Subdivision involved land does not include land or no ground or cleared or any Vermont trail system trail constructed before. Okay. When jurisdiction over a trail has been established pursuant to subdivision A of this subdivision, jurisdiction shall extend only to the recreational trail and infrastructure that is incidental to the operation of the trail. Jurisdiction shall not extend to the remainder of the parcel or parcels where the recreational trail is located unless otherwise determined to be jurisdictional pursuant to another provision of this chapter. So this language is- Is it rule C3? 71, yes. 71 being moved into statute. Okay. Thank you. And then this language is sort of the inverse of the rule 71 development that includes a Vermont trail system trail shall include that trail for determining the amount of involved land but shall not consider the construction of improvements for the trail as part of the review of the permit application for the development. So again, this is still a very odd provision. I worked on trying to make it more clear but it is about the trail is part of the involved land calculation but it is not part of a permit application for development that isn't a trail. Okay. So what are we getting at that? I don't know. If you decided to develop I think who brought up the provision? Someone's going to develop a brewery and a parking lot next to their trail system and it's going to be biking in brewery. And this is the same thing too. Sorry, Mr. Coleman, I saw your hand go up. Yeah, I think we're talking about this. We maybe can't put that example that's maybe more likely. It's not as exciting as the brewery example but somebody's building a subdivision with a number of houses and as part of that project they are going to build recreational trails for as part of to include as part of that project and say they're in a 10 acre town and the houses and that development is basically nine acres or something and the development of those trails would put them over into a 10 acre, basically threshold. That's the issue I think that and this was mostly from the Forest Partnership wanted to make sure that somebody couldn't, that we weren't going to take something that would normally be considered development other than a trail, something that was typically considered development or Act 250 and have it not be captured because it was associated with the trail. So that's what we're trying to, that's really what we're trying to get at here is if your project is sort of a normal Act 250 development and it includes a trail component to it, it's all one project, that you count all of that disturbance for purposes of jurisdiction. That's all it's just trying to get at. Was this in a, I'm just trying to remember, is this new? You haven't done a prior section. Ellen just moved, we just reordered this and Ellen made it read more clearly than it probably did before. Okay, thank you. So let's keep marching on if there are not any committee questions on it. All right, so now we're in section 6081 of Act 250 which is the exemption section. So no permit or permit amendment shall be required for the construction of improvements on attractive land that would provide access across a trail provided that the access is not related to the use to the permitted recreational trail. I would not establish jurisdiction under this chapter on its own. This is the example of a landowner creating a driveway or something that would cross a trail. And then this new language in Z is the so-called moratorium language. So until January 1, 2022, no permit is required for a Vermont trail system trail recognized pursuant to chapter 20 of this title if the trail was in existence prior to July 1, 2020. Well, let's keep going. So that's basically what's been built is built, right? Okay, so let me just ask, are there, there are, this is the so-called moratorium on JOs. Is that, I know people don't like that language, it's sort of inflammatory in some circles but is that basically what we're saying? Yes. Yes. For a window of time, trails built before July 1, 2020 do not need a permit. Right. But once we get to July, To exist, to exist or to be altered? To exist. And alterations? Alterations are not addressed under this. So we got an unaddressed 18 months period where what you have is okay and what you add to it is not yet addressed. So if you have a permit already and you're going to make alterations to your trail, it will go through the amendment process and that's not, this language does not apply to that. So if you are grandfathered on the 1st of July, what may you do additionally after the 1st of July during the 18 months period? I mean, everything from hauling fill and building retaining walls or blasting rock, what is not permitted during the 18 months and what is pretty? So this is only applying to things that are already in existence. So it will not apply to things added after July 1, 2020. A permit may be required. Other than routine maintenance, but there won't be any. Correct. No, no, I mean, that's clear. Routine maintenance. Routine maintenance is not addressed in this. This is not going to apply to that. Senator McDonald's point, is there any kind of trigger where someone might say, this amount of maintenance is actually, we might call it further development? Right. So that's not what this is talking about. Okay. Does this get talked about somewhere else? It's, I don't think that's that issue at all. We're not trying to change trail maintenance procedures. Right. I, that's understood. I'm not worried about trail maintenance procedures. I'm worried about, we have 18 months to build some retaining walls, blast some rock, build a causeway, do things to, because we, when this thing, at the end of 18 months, we want to switch from this use to ATVs or motorcycles or whatever. Is there any restriction during those 18 months on new constructions of trails? So. Snack bars. They will, if they trigger act 250 during that time under this new language, then yes, they will need to get an act 250 permit during that time. This is saying that things that are currently in existence or will be built in the next two weeks. And then we stop. Those will not need a permit. So if the trail was built illegally, but exists, it'll be legal for this period of time, even if it wasn't. No. No, these are for Vermont trail system trails that are in existence and currently recognized by the state. That's, that's what we're talking about. We're not talking about illegal trails. We're not talking about new trails. We're talking about Vermont trail system trails that have been recognized as of July, that are in existence as of July 1st, 2021. That's, it's a very narrow subset so that people are not having to respond to jurisdictional opinions while they're trying to make a transition to a new program. That's all this is doing. Thank you, Warren, very helpful. You're welcome. And timely. Thank you. So let's keep cruising, please. So the report of the recommendations, we changed the language slightly on or before December 15th, 2020. ANR shall report back to the legislature with recommendations for best management practices driven program for the Vermont trail system trails. That is administered by the agency of natural resources. The report shall include recommendations for revisions to the Vermont trail system trail chapter, including revisions to mapping legislative authority to administer the program and potential funding sources and staffing needs. Natural resources shall consult with stakeholders on the proposed program, including the trail alliance forest partnership and VTRANS. Okay. Thank you. So committee, are most people set with what we have? I still have a bit of a question, but I think I don't want to bog us down entirely sorting through a few details on it. No, I'm okay. I mean, we're on the floor in 25 minutes. So I think we've got to try to get bogged down too much. Yep. So let's take a look at what remains. Forest blocks. So I think based on the conversations that we had recently, I think that this committee was leaning towards the language that is in 926 as opposed to 233, which amends criterion eight and has an undue adverse impact standard that references avoid minimized mitigate. So the language is here. So will not result in an undue adverse impact on forest blocks, connecting committee or connecting habitat or rare and irreplaceable natural areas. If a project as proposed would result in an undue adverse impact, a permit may only be granted if effects are avoided, minimized or mitigated in accordance with rules adopted by the board. And then there is this rule-making provision that I added. So make the pitch for what we're about to go through. And that was the avoid minimized impact discussion that we've had in 233 and 165 was being replaced by the no adverse impacts and so I would say the goals of the committee repeatedly have been avoid minimized mitigate. And so as we asked for rule-making, let's be explicit that that's our goal in the rule-making so that we get rules back that aim to achieve that. So that's all. So yeah, so the language I added includes rules adopted shall include how forest blocks and connecting habitat are further defined, including their size, location and function, which may include information that will be available to the public to determine where forest blocks and connecting habitat are located or advisory mapping resources, how they will be available, how they will be used and how they will be updated. Standards establishing how fragmentation of forest blocks or connecting habitat is avoided or minimized which may include steps to promote proactive site design of buildings, roadways and driveways, utility location and location relative to existing features such as roads, tree lines and fence lines. Criteria to identify when a forest block or connecting habitat is eligible for mitigation. Standards for how impacts of forest blocks or connecting habitat may be mitigated, including appropriate ratios for compensation, appropriate forms of compensation such as conservation easements, fee interests and lands and other forms of compensation and appropriate uses of onsite and offsite mitigation. Having a working group and then this has final proposed rules January 1, September 1, 2021. So a little over a year. Okay. And that's the language from 926. Just so you know the rulemaking language. Then the road rule is in here. Resource mappings which was part of both 233 and 926. So it does require that ANR's maps do include the forest blocks. And then the last, the very last thing is the language related to the forest products industry, the permit conditions for the forest products industry and the change in the calculation for primary ag soil mitigation for forest products industry. And I think we have no changes since the last version we went through and committee the other day, correct? Correct. Right, okay, great. And does that bring us to the end of this? I see it. Yes. Great. So thank you. I know people are gonna have more thoughts and I'll ask people to read this comment and the goal will be to have a more formal draft for Monday's meeting that will be in votable shape. Ellen, would you mind just emailing that draft to us? Sure, it's on the website, but I can send it. Do you mind emailing it to me? Sure. That'd be okay. Thanks, appreciate it. Do you want me to just look at it? Yeah. Yeah. Would you do the same to the rest of me, please? Thank you. The rest of us will send it to the... Yeah, I can send it to everybody. Or Jude, yeah, thank you, Jude. Thank you. Thank you. So now we are gonna throw that discussion to park for a moment and turn to Evan Meenon sent a memo was shared by the Natural Resources Board. Mr. Meenon is speaking on behalf of the NRB. The concern, as I said, is a little bit, I think outside our jurisdiction, we don't get into the definitions of affordable, et cetera. But we are on the way to preparing a draft for the floor. So I'd like us to just pause for 10 minutes and hear about these definitions and make sure that all parties have sorted out the definitions. So we don't end up constructing something with unintended consequences in the end. So Mr. Meenon, if you could speak to the committee about sort of a high level walkthrough of your memo and flag the issues that you were seeing as, I guess I'd call it my concern. Absolutely, and thank you for the opportunity to testify for the record. And I'm the Associate General Counsel for the Natural Resources Board. And the purpose of my testimony today is, as mentioned, to give a very high overview of a May 19th, 2020 memo from Diane Snelling, the board chair of the Center for Fine Arts Committee. That memo deals exclusively with section five of draft 9.1. Yeah, I don't know if, I'm having trouble hearing you, Mr. Meenon. I don't know if others are. I'm wondering if suffering. I can't hear him. Yeah. Okay, I wonder perhaps if you went to sound only, sometimes that helps people. If we just get the drop out the video load on the channel. We hear their voice better than we can watch the video. Let's give it a try and see if that works. Right, that sounds better already to me. So far, so good. Fantastic. That might mean I put on my coat and tie for nothing, but that's okay. You made a good first impression, so that's it. Excellent, excellent. So I wanna first clarify two points about the memo. The first is that the board is not taking a position on any affordable affordability thresholds outside of the context of Act 250. And S237, a majority of it does not deal with the concerns raised in the memo. So we're not taking a position on what affordability thresholds should be used in, for example, federal and state housing finance programs. The second caveat is that the NRB is also not actually taking a position on what the appropriate affordability threshold is in the Act 250 context. The NRB is an Act 250 expert. It's not really an affordable housing expert. And our primary goal was to flag a very discrete issue which is the potential for a rise in the maximum permissible sales price of some types of owner occupied housing. And that's an important issue because the maximum potential sales price dictates which types of housing developments benefit from the special jurisdictional trigger that applies to priority housing projects. The issue of priority housing projects is somewhat complicated because of the multiple different definitions that you need to consult in order to determine whether it's a priority housing project and what criteria a project needs to meet. Those multiple definitions, there's six of them are discussed on pages two and three of the memo. It's very, they're very complicated, the interplay. I tried to uncomplicate them to the maximum degree possible in the memo itself. I'm happy to answer questions about those definitions but my plan was not to try and explain them in detail right now. Instead, I was going to skip right to the problem that the board has identified. Yeah, thank you. So section five of S237, specifically page 11, lines one through seven replaces the definition of owner occupied mixed income housing with the definition of owner occupied affordable housing. In other words, there used to be two separate definitions of affordable housing for two different jurisdictional triggers, one for priority housing projects and one for permanently affordable housing. The proposed amendment S237 would take one affordability threshold and apply it to both jurisdictional triggers. This has the secondary effect of increasing the maximum potential sales price of priority housing projects and the estimates of those potential increases appear on pages three and four of the memo. There is an alternate proposal already on the table for addressing some of the issues related to priority housing and that alternate proposal is discussed on page four of the memo. That proposal is similar to the one in S237 in two ways. The first of which is that it attempts to close what we've been calling the PHP loophole. And that loophole is the fact that the maximum potential sales price of housing is not tied to the size of the housing unit. So for example, as of just a few weeks ago, the maximum potential sales price of a unit in a priority housing project was $270,000. That was true whether it was a studio size condo, a one bedroom house or a five bedroom house. And that was creating issues because you could have the proper amount of units cost $270,000 but charge that amount all for a studio size condo, even if studio size condos in the market were fetching for less than that money. So that is a positive step that both proposals try to make. The other similarity between the two proposals is that they both use a percentage of area median income as the affordability threshold. But here is the difference. The S237 proposal wants to use 120% of area median income. Right now that is the affordability threshold for permanently affordable housing in Act 250, but it is not the affordability threshold for priority housing projects in Act 250. The affordable housing threshold for priority housing projects is much lower. And so for example, under the proposal in S237, you could have a housing development project consisting exclusively of one bedroom homes in Isle-Lamotte, Vermont, and you could charge approximately, and these are rough estimates, $295,000 for all of those one bedroom homes in Isle-Lamotte and qualify for the preferential jurisdictional trigger for Act 250 purposes. Now, the Natural Resources Board is not necessarily saying that $295,000 is affordable or unaffordable. What we are saying is that at a minimum, that is a $25,000 increase from what would currently be allowed. And what the Board would like to bring to the entire legislature's attention is that fact and encourage the legislature to say, as a matter of fact, is that affordable for individuals living in, for example, Isle-Lamotte. And as we suggested in our memo, we would encourage this committee and every other committee taking at best S237 to consult with individuals who do have more of an expertise in setting housing prices, including VHFA, who I know is on this call, including ACCD and really drill down on two issues. What is affordable, actually affordable for folks and what types of affordable housing projects should benefit from special Act 250 permitting treatment? That is a very high level overview of the memo. I would be happy to answer any specific questions the senators might have about the memo, but I also wanna be cognizant of the fact that you do have commitments to be on the floor very shortly. Okay. Senator Perry, can you have a question? I'll say, okay, all right. Thank you very much, Mr. Mead. And that was perfect for the size window we have to work in at the moment. So now I'd like to end, I know that we have a number of people from the housing community on the call. And so I'm not sure who amongst you that would like to go first. Ms. Collins, I see your hand up. So. I'm gonna unmute myself. Good morning, my name is Maura Collins. I'm the executive director of the Vermont Housing Finance Agency. And I put my hand up because VHFA is the agency that's named in this piece of the statute. I know you were short on time, so I'm gonna be as brief as Evan was. The change that House Natural approved and was vetted by the Senate Housing Committee was needed because currently in statute, the definition of affordable housing for home ownership that's currently in statute refers to VHFA's purchase price limits that no longer exist. We've known about this for a couple of years. Y'all don't open up the Act 250 statute very often. And so we waited until there was an opportunity to fix this. And we've had a workaround for the last few years that I'll explain in a second. But in preparation, knowing that you were gonna be looking at the Act 250 legislative language, VHFA partnered with the Vermont Housing Conservation Board, the Vermont Affordable Housing Coalition and the governor's administration. And we all worked on a solution that we all agreed to that uses a traditional definition of affordable housing for home ownership. Because in the housing world, we gauge incomes, not by dollars and cents like normal people, but we do it based on a percent of area median income, which we call AMI. And we typically see that rental programs go to 80% of the area median income AMI. And for affordable home ownership, it's typical to set that limit at 120% of AMI. There are government programs that target households below 120 AMI, but those are usually funding programs, meaning that there's government money to subsidize the housing and make it affordable under 120% AMI. Obviously, the priority housing project Act 250 exemption is not cash, it's not funding, it's regulatory relief, but it doesn't come with direct dollars to reduce the cost of housing directly and get that purchase price down. So I mentioned that we've had a workaround. The workaround is that since there's no programmatic, new construction targeted area purchase price limit established by VHFA, since that doesn't exist anymore, VHFA created a website and said, hey, communities and builders and everyone else, this is that limit. But I want you to know that there's no rules on VHFA about how we get to that number. It's a statewide number, it's not county-based. So people in Chittenden County, housing in Chittenden County or Isle-Lamotte, like the example used, it all uses one. It doesn't differentiate by bedroom size. As Evan pointed out, that's problematic. There's a lot of problems in why this fix in S237 was necessary. And the reasons that all the affordable housing groups agreed on the language that we did that's in S237 is that it makes sense for a lot of reasons. And I've talked with Evan a bunch and I've looked at what VNRB has proposed and they have been using 85% of AMI and that's not calculated by any of us. That's not a number we work with. So it is virtually impossible for a developer to build a newly constructed house and come in below 85% AMI. So if you essentially want the priority housing project to not ever work, then you could do that definition, it won't work. And there's been talk about extending the affordability requirements to 15 years for home ownership, which would require probably leans and you'd need to set up a state agency, name a state agency that would have to create this program and then administer it and enforce it and be looking when there's closings to make sure that are we within the 15 years or not? You're gonna need funding, frankly, for a state agency to do this work because this doesn't exist outside of, there are government agencies like VHCB and VHFA and others who do administer long home ownership programs with these kind of longevity terms, but it's because we're administering dollars funding, not just regulatory. So last thing I want to say is that it's... Did you have a question? I'm sorry. Well, I was just gonna say, so we're not proposing in this committee a change to this language. It was just simply that a question was put on the table for us and I wanted to make sure that we weren't sort of blindly passing along a bill without doing our due diligence and to say have these definitions been reconciled by interested parties and do all the interested parties support the language as it currently exists in 237? I will say the interested parties I named, meaning, well, Jen's on screen, VHCB, the Affordable Housing Coalition and DHCD for the governor's office does support this. And the last thing I was gonna say is that it is true that the maximum sales price that Evan pointed out has happened. So when we first published that workaround number, it was at $300,000 statewide. Now it's $350,000. But I just wanna say that is not because the mission-driven affordable housing agencies are trying to drive up the cost of housing or trying to do this. That's a function of the increased housing costs that we see in the state and how much it costs to build new construction over the last several years. So... Okay, we're gonna have to pause there because we're on the floor in just five minutes. Ms. Holler, if you wanna sort of weigh in and just say whether you're, I see you nodding, but we're not gonna, that's not really gonna be recorded. So if you could just give us a little bit of a... Good morning, Jen Holler with the Vermont Housing and Conservation Board. I concur with everything Maura said and can confirm that all of us in the affordable housing community along with the administration and others feel like the language that's in 237 right now is necessary and it works. Okay, great. Do I, any questions from the committee this part of the bill? All right. So thank you everyone for hanging in there and thanks for being brief, but we covered what we needed to check in on. Mr. Nelson, you know, my apology that when we got to the force frag provisions, we had to change channels and go to housing. I will follow up with you offline and I'd like to reschedule your testimony to Monday morning if you are available. Sure. Thank you, Senator Brey. I appreciate that. So with that, we have. I didn't know if you could hear me. Sorry. So I'll follow up with you and we'll reschedule. And again, I'm sorry that we were unable to hear from you this morning. Sure. Okay. That sounds great. Thank you to everyone. I'll anticipate if you see issues of interest in the draft that we walked through today that I would ask people to weigh in. If you have concerns, I would ask that you not just weigh in because they have a concern, but to propose a specific change to language you see so that we know exactly what you mean if you were the one writing that section. And with that, we are adjourned. See my colleagues on the floor in three minutes. Thanks so much, everyone.