 All right. Good morning. It is Thursday and this is House General Housing Military Affairs. And we are here this morning at H-232. We have an introduction to this bill by Representative Sims of Craftsbury several weeks ago. And I wanted to bring David Hall in to do a walk through of it as preparation for hearing witnesses next week on this bill. And if you've looked at it, you'll know that the bill proposes to promote land and home ownership and economic opportunity for Vermonters who historically suffered discrimination or unequal access to benefits and services, including black, indigenous and people of color, and to prepare for climate change, which is a theme of bills that we have several bills with the same themes in our committee. So I wanted to bring David in. David, welcome back. And now for something completely different. Thank you again for your work on 157. I know it's not done for you, but if you could take us through H-232, that would be great. And then after David's walk through at 11, we have representatives from VHCB coming in because this does discuss elements of their mission statement in statute as well as the makeup of their board. So David, the microphone is yours. Thank you. Good morning, Mr. Chair and committee. Long time no see. I hope you guys have been well since we were last together, been a while. I can share my screen if you want and take you through this. Is everybody okay with that? Yes. Yes, please. All right. So H-232, David Hall Legislative Council, H-232 is an act relating to promoting land and home ownership and economic opportunity. I will say to ground you in sort of where we are in the world of Vermont statutes, this really deals with VHCB, the Vermont Housing Conservation Board, and makes changes to how it allocates its funding, the composition of its board, some of its practices and considerations when it's fulfilling its mission. So I'm glad to hear you'll have them coming in to talk about what they do and who they are because I think you'll need to understand clearly what the status quo is and then how this bill would affect that and the extent to which it would affect that. So there are findings in purpose in section one. Before I even look at the words, let me sort of frame issues around state action and the allocation of benefits and services to citizens. And I want to bring this up because I know you're looking at a handful of bills that propose to do things that in some cases focus on communities that have suffered discrimination or unequal access to benefits. Sometimes that is also couched in terms of racial identification. And it's a thorny area of public policy and the law because like most things, it runs along a spectrum, right? Where there are times when race matters or gender matters or gender identity or any of those various classes, disability status, citizenship status. I mean, we have laws at the federal and state level that protect people on those bases. For instance, Public Accommodations Act or fair housing laws, those types of things are protective against discrimination on those bases. On the other end of the spectrum are not protections against negatives, but rather affirmative practices to promote advancement or the prosperity of populations on a certain basis. And when you get to the very far end of that spectrum and there is a line where you cross over into setting aside requiring benefits specifically on the basis of race or gender or similar factors where you start to run into the other side of equal protection problems. So equal protection, of course, into the federal constitution, but also we have different manifestations of it in our Vermont Constitution. But the basic premises that for the most part, 99.9% of the time government action should be blind to race, gender, other things. There are times when it matters, there are times when it's permissible. But when you again, when you cross a line over into, we're only going to give this certain benefit to this class of people based on race or gender. Most of the time, you are looking at a potential equal protection problem and the state in that case, state action requires a compelling government interest that is narrowly tailored to address a specific problem. And the burden is on the state to demonstrate why that particular solution addresses that particular problem. And it's basically the only way you can do it. So this bill, I'm not telling you that because this bill specifically raises any specific equal protection concerns at this point the way that it's written, I don't think that it does. But I am telling you this because in the context of this discussion about the BIPOC community or other classes where we're going to start calling out classes of Vermonters for benefits and services, there is a line that you want to be mindful of. And the other reason I raise it now at this point in our discussion is because as I said, you know, if there is a legal challenge, again, the state bears the burden of demonstrating why it is acting and the way that it is acting is substantiated. And findings and purpose can assist in that process, you know, to the extent committees take testimony and make findings and build a record to support the action that they're taking and can draw a line from findings to action, then that obviously serves to substantiate state action. Ultimately, if there is a legal challenge, any laws that you guys pass and there's a constitutional claim, it's up to a court to decide whether or not what you've done is permissible. And, you know, it will be up to the Attorney General's office in all likelihood to argue the state's case. And it will have to build its own record, make its own claim. But findings that you include in bills sometimes can serve to bolster the state's position because it's the, you know, it's the basis of your action. So that's a little bit broader than this bill I recognize, but in the context of a series of bills and also of proposals that are percolating this session, I wanted to give you that background. So with that data, I appreciate, yeah, no, I appreciate that because I think that this, and we'll need to hear it again and again, is that there is a line here that we have to be mindful of. And I appreciate you taking the time to explain it. Again, our committee doesn't often deal with findings like this, but the findings that are here in this bill and in 273 are pretty extensive. And what I'm hearing from you is that this is, that they lay a foundation for, and if we were to move forward, they lay a foundation for to inform people in the future of what our intent is and why we chose to work this way if we choose to move this forward. Yes. Let me add one, I'm sorry, did you- No, I was about to go to Representative Colacky, but go ahead please. Well, let me just finish this prologue by saying that the states, the states have police powers, which is a very, very broad authority given by the people to promote and protect the public health, safety, welfare, morals, and well-being society. And those powers, that power is limited only by the constitution of that state, but also the federal constitution. So that is the tension that we always face when the legislature acts. The legislature can do, can adopt any law it wants to, that it believes promotes the public welfare. And then if there is a check on that, it is somebody challenging the constitutionality of that law grounded either in the state's constitution or some provisions, some specific provision of the federal constitution. So again, the Equal Protection Clause is really, or the federal constitution is really the sort of the check on these types of issues. But I want to stress that the state does have very broad power to promote the general welfare and the actions that you take are presumptively constitutional and remain so until a court determines otherwise. I'll stop there. Okay, a couple questions. Representative Colacky in the trial. Thank you. And thank you, David. And welcome back, buddy. Yesterday, when we were listening to S39, which is the Senate bill, and there was a section taken out about the, let me, for the home ownership revolving loan fund from that bill. And there was a set aside for 25% for the BIPOC community. And as I understood, the administration was kind of walking back from that 25% set aside, saying that they got a lot of pushback about the constitutionality of that, to put it like that. So is that different than this kind of direction? Is this a constitutional issue that will be tested in the current bill, not yesterday's bill? Sure. So I would say that that provision of that bill is sort of the bright line. I mean, that is a reservation of a set amount of benefit for a specific population based on race, which is that if you're going to have a problem or a potential for a successful challenge, then that probably represents a clear, I'm not gonna, I can't tell you whether it's constitutional or not, but I'm saying that's the kind of framework that would be potentially problematic. I know we haven't jumped into this bill yet specifically, but it does not go that far. It doesn't specifically reserve anything for anybody. It, you know, there's a difference between demarcating funds specifically based on race. And by contrast, considering things in the grand scheme of how you're going to implement programs, considering factors like has this community historically not received as much benefit? Should we take that into consideration when we're allocating funds? Great. Appreciate that. Thanks. Sure. Representative Trunna. Yes, I was going exactly where Representative Kalaki just went. So my question is answered. Thank you. So let me, let me say too, in that context that this, this bill in contrast to the section of the bill yesterday you referenced, this bill doesn't always speak in terms of race. You know, sometimes it talks about communities that have suffered discrimination or unequal access to benefits on various bases. And, you know, that's a tension as well. Does it dilute what you're trying to accomplish by broadening the scope of the assistance? But think about it, you know, rather than saying we're going to give benefits specifically based on somebody's race, it's, which could be problematic, you can broaden it and say, you know, income status or, you know, proficiency with the English language or things like that, things that aren't race specific, but are maybe socioeconomic specific or demographic specific that have overlaps with racial or gender or immigration categories, but aren't specific in those ways. Those are possible approaches. And this bill does that a little bit you saw in the statement of purpose. But at any rate, I think I'll stop there and just we can quickly walk through this. So you'll see that this bill looks longer than it is. There's a lot of unchanged statutory material in it. So the findings here, there's only four in this bill that equal opportunity foundational to democracy, but it's not, you know, accessible to everybody. Under A2, Vermont lands are the historic and current territories of the Western Avanaki people's stewardship of these lands. It was removed from the Avanakis, Europeans made Vermont a state in 1793. Vermont has one of the highest home ownership gaps between black and white residents in the country with 72% of white households and just 21% of black households own their homes. And for the state has a responsibility to recognize and work to redress inequities and its policies and programs that serve as barriers to equal opportunity. So based on those findings, the purposes of this act are to support VHCB and expanding pathways and opportunities for Vermonters who have historically suffered discrimination or unequal access to benefits and services, including BIPOC Vermonters, to access land and home ownership, support the education and capacity of other organizations seeking to do the same and to enhance the board's work in land use planning and conservation to address climate change. So it's, you know, it's interesting that this bill has these dual purposes of sort of addressing racial or other wealth disparities among Vermonters, but also climate change. I find that I point that out because, you know, VHCB has itself has this dual purpose of preserving open space, natural space, conserving land for recreation and other purposes, but also affordable housing. So it's okay for things to, you know, appear juxtaposed in that way. Funny that it's in the context of VHCB. So the next series of sections are in, again, the title 10, the chapter dealing with VHCB. So you've created this organization and this trust fund and statute. You've designated it as one of the primary entities for managing funds for housing and also for conservation. And so these definitions relate to the board and to the conservation trust fund, which are established and statute. You'll see the eligible activity. So what does it do? It's any activity that will carry out either or both of the dual purposes of creating affordable housing and conserving and protecting important Vermont lands, including activities that will encourage or assist. We have a, this is the housing component, preservation, rehabilitation or development of residential dwelling units that are affordable. So right now, either to lower income Vermonters to if it's owner-occupied housing for Vermonters whose income is less than or equal to 120% of AMI based on statistics. And then this new addition on page four, again, this is under the affordable housing category. Three, Vermonters who have historically suffered discrimination or unequal access to benefits and services, including black indigenous and people of color. So the way this is constructed, remember, we're talking about the eligible activities of VHCB and we're saying in 3A that preserving, rehabilitating and developing affordable housing is one of the eligible activities that they do. And affordable means to lower income Vermonters, the owner-occupied specific or to now as proposed Vermonters who have suffered discrimination. So they have other eligible activities as well that are all in existing law, retention of ag land, wildlife habitat, historic preservation, outdoor recreation, multi-use lands, surface waters, et cetera. So that is the change there in the eligible activity. And it's talking about, you know, making housing affordable to these populations that have suffered discrimination. Lower income, by the way, is a defined term there. And it's equal or below AMI. So that's it for the definitions that the change in 311, this is where VHCB is actually established. The strike on 17 and 18 is just a drafting thing. So we have next though, it's starting at the bottom of five, moving into six. It is the composition of the board itself. And I want to note this is an error. This should be 12 based on the proposal that you have. I'm sorry that we missed that. But right now, so the board has, you know, this membership and the changes you'll see. We have secretary of agriculture. It proposes to remove the secretary of human services, secretary of ANR, the executive director of VHFA. The addition here and for what would be for would be to add two public members appointed by the executive director of racial equity with the advice and consent of the Senate, who are residents of this state, and are representatives of non-white Vermonters or from Native American Indian tribes recognized by the state, pursuant to one VSA chapter 23. This is composition of a board that does certain activities. This is not the kind of, you know, race based benefit allocation that would be potentially problematic. So I don't, I think this is just a policy choice. Who are you putting on the board? Who do they represent? What does it reflect in its operations? So in five here, going down from three to two public members appointed by the governor, residents of the state, experienced in affordable housing and conserving land or recreational lands or in racial and social equity policy. So those are, those are ores there. So these two public members appointed by the governor are experienced in one or more of these things. It doesn't have to be all of them. And you've got options. You've got affordable housing, ag forest land, historic properties, natural areas, rec lands, or racial and social equity policy. So obviously those things are not necessarily going to all be represented by these two members. And even though you're adding in the possibility of experience in racial and social equity policy, it doesn't necessarily mean that that is the box that gets checked. And you'll see on lines 15 through 17, a little more specific here. One of the governor's appointees has to be a representative lower income for monitors and one has to be a farmer or a forester as defined. So slight change there. In six, a public member, this would be appointed by the speaker, the new language would modify slightly to say with expertise and professional experience in community planning and smart growth principles as defined in 24 VSA 2791. So that would make the House appointee not so much at large anymore, but a person with specific expertise and experience in community planning and smart growth. On page seven here, subdivision seven unchanged. This is the public member from the Senate. No comparable modification there to the House member in subdivision eight, increasing from two to three public members that are jointly appointed by the speaker and the pro 10. So a just a drafting thing substance of change and be so one member from the nonprofit conservation organization whose activities are eligible under subdivision 303 of this title, who has expertise and professional experience in climate change, such as climate mitigation, climate resilience or improvements in biodiversity is not an employee or member of the board of those organizations. So adding a little more shape to one of the joint members requiring specific expertise and experience and climate change. So that's it for the board. And now in section four, the allocation system, here's where in statute we really are putting shape around how the board administers its funds, right. And you'll see existing law and a when the ACB is allocating funds, it's supposed to give priority to projects that combine the dual goals of affordable housing and land conservation. And it says you'll see on the top of page eight that the board shall also consider factors not limited to these factors, but this is the list of the things the VHCB should think about when it's considering allocating its funding. So one, this need to maintain balance between the dual goals of housing and conservation. Two, timely response unpredictable circumstances, three level of funding by private or public sources in the activity. So are there financial partners, etc. For sustainability of the project in the future. Five, not displacing lower income Vermonters. Six, long term effect of a proposal on affordable housing. Seven, the geographic distribution of funds. And then eight, this new piece would add expanding access to land and home ownership to Vermonters who have historically suffered discrimination or unequal access to benefits and services including black indigenous and people of color. So again, I'll pause here and say, this is the list of factors and it's not exhaustive, but it is seven and would be eight things the board should consider when it's looking at how it's going to allocate its resources. Adding in number eight here would be one of those things it thinks about how can we expand does this project expand access to land and home ownership for Vermonters who have suffered discrimination historically. And again, this is not a mandate. This is not VHCB allocate 25% of your funds every year based on race. It's not that construct. It's this is one of many things to think about. And I think, you know, this is the kind of thing that is along the spectrum and probably not problematic from constitutional perspective. Just to give you sort of a check there. The next piece on page nine, this is an entirely new section. Chair, could I could I ask David a question before we move on? Sure, David, okay. Yeah, yeah, please. David, in this this list of kind of principles for the allocation. Eight is underlined. Is that the new principle or do these other ones currently exist for VHCB in statute? That's right. The one through seven are all current law. They are unchanged. No strike no underlines. And then eight, the underlying language is the proposal of a new factor. Okay, terrific. Thank you. Sure. Page nine, section five, conservation easements and access. So again, a new section of law, the board shall include an easements it obtains pursuant to chapter 155 of this title for projects that are owned by a nonprofit organization municipality or the state of Vermont. And for other lands as the board finds appropriate, one or more provisions that allow for pedestrian access to the conserved land by members of Vermont recognized tribes to gather for non-commercial use medicines, natural foods and ceremony on natural materials, not including standing timber. So there's there's quite a bit to unpack there. You know, the reference to chapter 155 of title 10, that chapter deals with how the state obtains and manages easements to properties. And particularly when the state provides funding for the conservation of land. So whether that's through a partner like the land trust or the or whether the the land is funded, the acquisition or development of land, it's funded through VHCB dollars. And then the VHCB is a condition of its funding can require an easement that has various, you know, requirements attached to it often negotiated by the parties, some of it governed by statute. But here the statute would actually say that the board shall include in those easements, if they're owned by nonprofits, municipalities or the state, and possibly for other lands, which would be privately held, that shall include an access easement for these Vermont recognized tribes for these purposes. So that's mandatory, you know, it's not a may include, it's a shall include in this context. The last section, section six has the deal with VHCB annual report to the executive branch and to committees of jurisdiction in the legislature. And it adds a new component of that annual report subdivision five here. Identification and evaluation of structural barriers that are contributing to racial, ethnic and economic disparities in housing, home ownership, and access to publicly supported open spaces. Actions the board is taking to remove these barriers and increase equity and access to board supported programs and metrics to monitor progress in removing these disparities. So that's an annual that would be part of the annual report from VHCB again to the executive and legislative branches. This would all take effect on passage. Thank you, Chair Stevens. I'm just curious. I'm reading into it in that second line of this last bit that that would include any of these easements that had been determined by the prior section. That would be something that had to be reported within that? You know, presumably, I guess it might, I don't know that it's required here. I mean, this is structural barriers that are contributing to the problem. And then what are we doing about it? So if, you know, to the extent they do obtain new easements that and those easements do provide for access, I suppose that easement is a response to a structural barrier and would be included, presumably, but it's not specific. So if it weren't included, it wouldn't be critiqued as being an error? I don't know the answer to that. I think it's a matter of communication. And then if this easement was being created for the purposes as stated, it would be important that they be public and known. So I just am concerned that there wouldn't be a tool that ensured that. But we're going to walk through. So I'm sorry, I think I think before my chair tells me, I think I'm stepping beyond what we're trying to do here. It's hard to tamp down people's curiosity. Further questions for David right now? Representative Kalaki or for conversation doesn't have to be for David specifically. Representative Kalaki. Well, I think I'm understanding the intent of it, but I'm interested how in the framing of this, people with disabilities are completely left out of this. And so I guess we'll have to hear from the agency how they track who actually they've helped and who's been excluded or with that, because we have an economic issue, which is important. We have the BIPOC thing, which is important. And I just don't know if we look at who's been left out in our state, systemically, if it can be this narrow cast to be appropriate. And so I guess it's not a question of you, David, it's a question for 11 o'clock when they come in, we can talk about who is served by this agency and who's missing for us to then look at kind of setting this framework up. Or I don't know, David, do you have any response to that or? I don't because those are, you know, I mean, the great question, I think it's a good one for you, VACB. I'll only comment that from, you know, from my side, working for you all, wanting to make sure you get to where you want to go. I guess I would encourage everybody to whatever bills you pursue or policy language you pursue, I think it's important to be consistent in the terminology that you use. It's important to be intentional in the types of benefits or services or information you want and for what basis. And when you think about communities that you want to help or identify or target or whatever it is, that, you know, if there's a, first of all, use the same language for the same communities and then be, again, thoughtful and intentional about who it is that you want to be included or not so that, you know, if there are some places in a bill where you just want certain benefits to flow one direction or to think about one population or not, you know, from a drafting and policy perspective, it seems to me that you want to be very consistent about, you know, using the same terms and benefiting all of the same groups, unless there is a reason not to. You don't want to inadvertently have one population here and one population there and not really, not really a reason for it other than just a fault of language. That's very helpful. Thanks. Thank you, Chair Stevens. This is, I think, more appropriate for this level of what we're looking at. I would just ask if David could maybe do a little bit of a screen share and a tutorial maybe on the statute as it exists and where it would be affecting this. It was a little bit of a hiccup that we got caught on the floor with recently where we hadn't done that piece of homework and I think that it could be helpful. I tried to do the search on the one referenced with just that it was in this title and a little hard to kind of discern a clear link and I think that's something that can sometimes help us understand how we're changing what already exists. I don't think I follow what you're asking for. Well, at section five, the first sentence is pursuant to chapter 155 of this title and so chapter 155 is pretty big. It has a lot of sections and so just maybe as a committee getting a quick run through of what that chapter is so we'd see the link and maybe it's because I'm new to the committee and you all are just totally into it because you've been doing this piece of work but just looking at the actual legislative existing language link could be helpful. This one's a little more complicated than some are but you're specifically asking about 10 VSA chapter 155 and what isn't included in that? That's the example I'm using. Yes, we often in these bills as we look at them are what we pretty much always are affecting standing language and so if we could see what the standing language is rather than just what we're doing to it when we cite a piece of our statute and so this is my example of where we cite a piece of the statute and if you could just give us a real quick little link to it or look at. So, Chad, do you want me to pull that chapter up on the screen right now? So, Representative Murphy, what you're asking for is what is the existing statutory language that establishes this board for VHCB? No, I'm sorry I'm being so confusing. It's just, I'm thinking of a floor question that was asked on a totally different bill about whether we looked at the statute that was being cited and we kind of all went because as a committee, I'm not sure we could pull up meeting recording that showed us doing that. I think several of us have and did but that's different from having a committee position on it so I'm just thinking that when we reference as we do a walk through the pieces of statute whether we could have a link to it and I'm sorry that this one's so complicated that I don't know that we want to spend the time on it right now looking down through that whole piece but individually we certainly could. Yeah, let's not go down that path quite yet because I think we're going to, again, when we hear from VHCB in general, I don't know, let's just leave it a little bit higher altitude for right now and but market because, you know, you're right, it details a detail and so let's just mark it for reference. All right, anything else right now for David? No, I think David, you know, what I'm, I appreciate you the way that you open this up because this, I have a feeling that we'll have a similar conversation as I think what you're opening comments on this bill also apply to is H273 when we do a walkthrough of that bill as well because it's about crafting because the opening findings and intent in that bill are much longer there's a lot more history involved with that but it does point out the, as you mentioned, the fine line, a fine line or a line between what we're able to do without just making something unconstitutional and so the problem solving for us is how do you provide the services that the intent is, you know, where the intent is clear but does not become unconstitutional so if I heard you correctly. All right, well without any further questions for David and committee, I think what we'll do is we'll take a break now till 11 and come back for VHCB.