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H.392

Introduced by   Representatives Brennan of Colchester, Audette of S. Burlington, Bartlett of Dover, Clark of Vergennes, Howrigan of Fairfield, McAllister of Highgate, Niquette of Colchester, Parent of St. Albans City, Rodgers of Glover, Valliere of Barre City, Winters of Williamstown and Wright of Burlington

Referred to Committee on

Date:

Subject:  Conservation; Act 250; agricultural lands; mitigation fee

Statement of purpose:  This bill proposes to amend Act 250 by revising the definitions of primary agricultural soils and by deleting references to secondary agricultural soils.  It proposes to repeal the criterion 9B provisions that removed jurisdiction if a subdivision or development will not significantly reduce the agricultural potential of the primary agricultural soils, provisions that required the use of cluster planning, and provisions that addressed whether the applicant could realize a reasonable return only by devoting the property to uses that will significantly reduce their agricultural potential.  It proposes to amend criterion 9C so as to refer only to productive forest soils.  It proposes to add language that allows on-site or off-site mitigation for the loss of primary agricultural soils because of development or subdivision.  It proposes to establish a formula by which mitigation fees are to be established, and a formula by which soils of equal or greater value will be conserved.  It proposes to allow a lower ratio of mitigation if the project is in a downtown development district, a business or industrial park, or an area designated for intensive growth, or in certain densely populated towns that lack an approved municipal plan.

AN ACT RELATING TO MITIGATION OF THE LOSS OF PRIME AGRICULTURAL SOILS UNDER ACT 250

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  10 V.S.A. § 6001 is amended to read:

§ 6001.  DEFINITIONS

When used in this chapter:

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(8)  “Forest and secondary agricultural Productive forest soils” means  those soils which are not primary agricultural soils but which have a reasonable potential for commercial forestry or commercial agriculture, and which have not yet been developed.  In order to qualify as productive forest or secondary agricultural soils, the land containing such soils shall be characterized by of a size and location, relative to adjoining land uses, natural conditions condition, and ownership patterns so that those soils will be capable of supporting or contributing to present or potential a commercial forestry or commercial agriculture operation.  If a tract of land includes other than forest or secondary agricultural soils only the forest or secondary agricultural soils shall be impacted by criteria relating specifically to such soils.  Land use on those soils may include commercial timber harvesting and specialized forest uses, such as maple sugar or Christmas tree production.

* * *

(15)  “Primary agricultural soils” means soils which have a potential for growing food and forage crops, are sufficiently well drained to allow sowing and harvesting with mechanized equipment, are well supplied with plant nutrients or highly responsive to the use of fertilizer, and have:

(A)  soil map units with the best combination of physical and chemical characteristics that have a potential for growing food, feed, and forage crops, have sufficient moisture and drainage, plant nutrients or responsiveness to fertilizers, few limitations for cultivation or limitations which may be easily overcome.  In order to qualify as primary agricultural soils, the, and an average slope of the land containing such soils does that does not exceed 15 percent, and such land is.  Present uses may be cropland, pasture, regenerating forests, forestland, or other agricultural or silvicultural uses.  However, the soils must be of a size and location, relative to adjoining land uses, so that those soils will be capable, following removal of any identified limitations, of supporting or contributing to an economic or commercial agricultural operation.  If a tract of land includes other than primary agricultural soils, only the primary agricultural soils shall be impacted by criteria relating specifically to such soils.  Unless contradicted by the qualifications stated in this subdivision, primary agricultural soils shall include important farmland soils map units with a rating of prime, statewide, or local importance as defined by the United States Department of Agriculture (U.S.D.A.) or the Natural Resources Conservation Service (N.R.C.S.).

(B)  Farmland soil map units other than prime or statewide, as identified by the U.S.D.A. or N.R.C.S., may be included in and protected under the definition of primary agricultural soils if they are currently supporting or contributing to an economic or commercial agricultural operation and are considered an integral part of that operation. 

Sec. 2.  10 V.S.A. § 6086(a)(9)(B) and (C) are amended to read:

(B)  Primary agricultural soils.  A permit will be granted for the development or subdivision of primary agricultural soils only when it is demonstrated by the applicant that, in addition to all other applicable criteria, either, the subdivision or development will not significantly reduce the agricultural potential of the primary agricultural soils; or,:

(i)  the applicant can realize a reasonable return on the fair market value of his land only by devoting the primary agricultural soils to uses which will significantly reduce their agricultural potential the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential; and

(ii)  there are no nonagricultural or secondary lands other than primary agricultural soils owned or controlled by the applicant which are reasonably suited to the purpose of the development or subdivision; and

(iii)  the subdivision or development has been planned to minimize the reduction of agricultural potential by providing for reasonable population densities, reasonable rates of growth, and the use of cluster planning and new community planning designed to economize on the cost of roads, utilities and land usage; and suitable mitigation will be provided for all primary agricultural soils impacted by the development or subdivision, in accordance with section 6093 of this title and rules adopted by the land use panel.

(iv)  the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential.

(C)  Forest and secondary agricultural Productive forest soils.  A permit will be granted for the development or subdivision of productive forest or secondary agricultural soils only when it is demonstrated by the applicant that, in addition to all other applicable criteria, either, the subdivision or development will not significantly reduce the potential of those soils for commercial forestry, including but not limited to specialized forest uses such as maple production or Christmas tree production, of those or adjacent primary agricultural soils for commercial agriculture; or:

(i)  the applicant can realize a reasonable return on the fair market value of his land only by devoting the forest or secondary agricultural soils to uses which will significantly reduce their forestry or agricultural potential the development or subdivision will not significantly interfere with or jeopardize the continuation of agriculture or forestry on adjoining lands or reduce their agricultural or forestry potential; and

(ii)  there are no nonforest or secondary agricultural lands other than productive forest soils owned or controlled by the applicant which are reasonably suited to the purpose of the development or subdivision; and

(iii)  the subdivision or development has been planned to minimize the reduction of forestry and agricultural potential by providing for reasonable population densities, reasonable rates of growth, and the use of cluster planning and new community planning designed to economize on the cost of roads, utilities and land usage the potential of those productive forest soils through innovative land use design resulting in compact development patterns, so that the remaining forest soils on the project tract may contribute to a commercial forestry operation


Sec. 3.  10 V.S.A. § 6093 is added to read:

§ 6093.  Agricultural lands mitigation

(a)  Mitigation pursuant to subdivision 6086(a)(9)(B)(iii) of this title shall require the applicant to:

(1)  deposit an off‑site mitigation fee into the Vermont housing and conservation trust fund established under section 312 of this title for the purpose of preserving primary agricultural soils. of equal or greater value.  The amount of this fee shall be derived by:

(A)  determining the number of acres of primary agricultural soils impacted by the proposed development or subdivision which are to be mitigated by the payment of an off‑site mitigation fee;

(B)  multiplying the number of acres determined in subdivision (a)(1)(A) of this section by a factor based on the quality of the primary agricultural soils impacted by the proposed development or subdivision, and other considerations as the secretary of agriculture, food and markets may deem relevant, including the soil’s location; accessibility; tract size; existing agricultural operations; water sources; drainage; slope; the presence of ledge or protected wetlands; and the infrastructure of the existing farm or municipality in which the soils are located.  The quality of the impacted primary agricultural soils shall be determined by the secretary of agriculture, food and markets in conformance with the U.S.D.A and N.R.C.S. rating system for Vermont soils. For soils defined in subdivision 6001(15)(A) of this title, this factor shall be no less than two, but no more than three.  For soils defined in subdivision 6001(15)(B) of this title, the factor shall be no less than one, but no more than two.  Notwithstanding this restriction, for either of these categories of soils in an area specified in subdivision (b)(1) of this section that are impacted by a development or subdivision, this factor shall be one; and

(C)  multiplying the product of subdivisions (a)(1)(A) and (B) of this section by a “price per acre” value, which shall be based on the amount that the secretary of agriculture, food and markets has determined to be the recent, per‑acre cost to acquire conservation easements for primary agricultural soils in the same geographic region as the proposed development or subdivision; or

(2)  preserve primary agricultural soils of equal or greater value on the project tract, if the district commission finds that this preservation clearly serves to maintain sufficient acreage of primary agricultural soils through innovative land use design resulting in compact development patterns capable of supporting or contributing to a current economic or commercial agricultural operation.  All soils preserved under this subsection shall be subject to permanent conservation easements (grant of development rights and conservation restrictions) or other legal interest conveyed to a qualified holder, as defined in section 821 of this title, with the ability to monitor and enforce easements in perpetuity.  The number of acres of primary agricultural soils to be preserved shall be derived by:

(A)  determining the number of acres of primary agricultural soils impacted by the proposed development or subdivision which are to be mitigated by preserving primary agricultural soils on the project tract; and

(B)  multiplying the number of acres determined in subdivision (2)(A) of this subsection by the factor established pursuant to subdivision (1)(B) of this subsection.

(b)(1)  A proposed development or subdivision shall mitigate in accordance with subdivision (a)(1) of this section if it is located:

(A)  in an area designated for compact, concentrated areas of land development, including residential uses, economic growth, public investment, or any combination of those uses, in a municipal plan duly adopted and approved pursuant to sections 4385, 4382, and 4350 of Title 24 and consistent with the goals of section 4302 of Title 24.  These areas may include a downtown development district, village center, or new town center development district duly designated pursuant to chapter 76A of Title 24; or a business or industrial park designated in a duly adopted and approved municipal plan; or

(B)  in a town that does not have an approved municipal plan, in a densely compact area which may be characterized by a mixture of uses that may include retail, office, service and other commercial, civic, or residential uses, including affordable housing, and may include recreational activities, and industrial uses, and which results in compact, concentrated areas of land development served by existing or planned infrastructure and capital investment, viable pedestrian circulation, and alternative transportation opportunities.

(2)  A proposed development or subdivision which is not located in an area identified in subdivision (1)(A) or (B) of this subsection shall be subject to mitigation requirements in accordance with subdivision (a)(2) of this section.

(c)  Notwithstanding any other provision of this section:

(1)   if a proposed development or subdivision is located in an area identified in subdivision (b)(1)(A) or (B) of this section, the district commission, in exceptional circumstances, may approve mitigation on the project tract or on other lands owned or controlled by the applicant in the town or district where the project tract is located, in accordance with subdivision (a)(2) of this section or some combination of subdivisions (a)(1) and (2) of this section, if that action is deemed consistent with the agricultural elements of pertinent local and regional plans, and the goals of section 4302 of Title 24. 

(2)  If a proposed development or subdivision is not located in an area identified in subdivision (b)(1)(A) or (B) of this section, the district commission, in exceptional circumstances, may approve mitigation pursuant to subdivision (a)(1) of this section or some combination of subdivisions (a)(1) and (2) if that action is deemed consistent with the agricultural elements of pertinent local and regional plans, and the goals of section 4302 of Title 24. 

(d)  An applicant may enter into a conceptual mitigation agreement with the secretary of agriculture, food and markets in accordance with this section which shall create a rebuttable presumption of compliance with respect to subdivision 6086(a)(9)(B)(iii) of this title.

(e)  Notwithstanding any other language in this chapter to the contrary, subdivision 6086(a)(9)(B)(iii) of this title shall not apply to a housing development in which at least 50 percent of the units are affordable housing, as affordable housing is defined under subdivision 4303(1) of Title 24.  All affordable housing units shall be subject to covenants or restrictions that preserve their affordability for a period of 99 years or longer and that are enforceable by a qualified third party, including a municipality or a nonprofit corporation with tax exempt status under the Internal Revenue Code.

(f)  Any funds collected pursuant to this section shall be deposited into the Vermont housing and conservation trust fund established under section 312 of this title and shall be administered by the Vermont housing and conservation board in a manner consistent with this section and the Vermont housing and conservation trust fund act.  Priorities for the use of such funds shall include primary agricultural soils identified by the town where the proposed development or subdivision is located and may include primary agricultural soils that form or contribute to an effective buffer separating rural areas from more developed areas, provided that those soils are capable of contributing to an economic or commercial agricultural operation.

(g)  If within 12 months of commencement of construction of improvements, an entity eligible to apply for funds from the Vermont housing and conservation board has not obtained a signed written contract to purchase development rights and conservation restrictions on primary agricultural soils within the municipality in which the proposed development or subdivision is located, the funds collected for off-site mitigation may be used for the purchase of development rights and conservation restrictions on primary agricultural soils elsewhere in the geographic area or elsewhere in the state.

Sec. 2.  RULES OF THE NATURAL RESOURCES BOARD

In accordance with 10 V.S.A. § 6025(b), the land use panel of the natural resources board shall adopt rules to implement the regulatory purposes of this section, in order to promote the development of land in a manner that maintains the historic Vermont settlement pattern of compact village and urban centers separated by rural countryside, while preserving large agricultural tracts. 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us