This commentary is by Todd Heyman, a co-owner of Fat Sheep Farm & Cabins, who lives in Hartland.
A funny thing happened on the way to the House repeal of Act 181’s Tier 3 in S.325. Thanks to a surprise floor amendment by farmer and Rep. Greg Burtt, R-Cabot, the construction of improvements on farms for recreational, educational or social events will be exempt from Act 250 as long as the events feature the farms’ own agricultural products or practices.
It’s about time.
If Act 181 is going to provide Act 250 relief for urban housing, equity demands that rural communities also enjoy some Act 250 relief for an equally worthy cause: farmland preservation.
By giving farms diverse revenue streams so they can stay in business, relief from Act 250 jurisdiction is an effective method to preserve farmland, one of the act’s statutorily mandated goals. It costs the taxpayer nothing and is a far more sustainable solution than Act 250’s primary approach to preserving farmland, on-site mitigation.
At the moment, when a development goes forward on prime agricultural soils, Act 250 forces the developer to set aside some land for farming in perpetuity in the property’s deed. That sounds good on paper, but the reality is that most of these lands are not being farmed and likely never will be. It allows the bureaucrats to tally the number of acres preserved, but it usually does not help preserve existing, actively operating farmland. If we want to keep farms as part of Vermont’s working landscape, we should trust that where they are currently operating with some degree of success is a good place to start. And the Burtt amendment does just that.
The status quo is a disaster, and the Legislature knows it. It has studied the issue for years and repeatedly rejected reforms to the standard for determining when businesses are agriculturally exempt. There have been stakeholder gatherings and reports, several bills buried in unmarked graves in Montpelier, and, more recently, poignant judicial criticism of existing law. In the appeal of the jurisdictional opinion regarding Peacefield Farm’s proposed restaurant, Judge Thomas G. Walsh of the Superior Court Environmental Division called the current exemption analysis “extremely burdensome and impractical.”
Under current law, the focus is on whether over half of the agricultural products served come from the farm in question by either weight or volume. A farm can be deeply agricultural in character and still fail the exemption if it can’t weigh what’s on the plate. It is nearly impossible to determine this for multiple meals with many ingredients, as the harvest changes from week to week. When a standard is absurdly impractical, it leads bureaucrats to apply it with varying degrees of strictness depending on the applicant. Many of us who operate so-called accessory on-farm businesses brought the court’s ruling to the attention of prominent legislators last summer, but the issue was slated for yet another kick-the-can-down-the-road study until the Burtt amendment.
Critics of this approach paint nightmarish pictures of horrific developments that would scar the beautiful Vermont landscape in the absence of Act 250 jurisdiction. This argument is either misinformed or disingenuous. Act 250, as the Vermont Supreme Court itself has noted, is “a second layer of review of proposed land use decisions, imposing substantial additional administrative and financial burdens on an applicant, and possibly interfering to some extent with local control of land use decisions.”
The very sorts of nuisance concerns that drive most opposition to these projects could be handled in the first layer of review by the municipality, either by zoning regulations and site-plan review or, in no-zoning towns, by ordinances to address, for example, sound limits and hours of operation. By forcing the towns to actually set clear rules that apply equally to everyone, it would eliminate the inconsistent permitting and enforcement that prevails across Vermont right now.
Those nuisance concerns should be decided by local communities based on local preferences, not by nonresident state bureaucrats. Moreover, the state would retain all other jurisdiction and permitting authority over these projects, including, for example, public building requirements, well and wastewater and stormwater. Removing the second layer of review does not leave these projects exposed to rampant abuse.
But perhaps most importantly, it is time for a little truth-telling. The reality is that unpermitted ventures already dot Vermont’s landscape; I’ve seen legislators who have steadfastly opposed measures like the Burtt amendment enjoying themselves at them, untroubled or unaware that the venues are unpermitted. I’m sure others in Chittenden County have gone to a burger night for music, or even enjoyed a latte and some gluten-free pastries on their favorite farm.
The Burtt amendment will enhance farm viability, preserve farmland, create new markets even for farms that are not diversifying, connect people with where their food comes from, promote Vermont agriculture’s brand and help build more vibrant, sustainable rural communities. It is long
overdue. The Senate should pass the House version of S.325 with the included Burtt amendment as written, so the reality on the ground matches the rules on the books.
