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House Calendar

TUESDAY, APRIL 29, 2008

113th DAY OF ADJOURNED SESSION

House Convenes at 10:00 A M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

Action Postponed Until Tuesday, April 29, 2008

Favorable with Amendment

S. 261  Phthalates in Products for Young Children........................................ 2766

          Rep. Pugh for Human Services

Senate Proposal of Amendment

H. 599  Re Boating While Intoxicated and Driving While Intoxicated............. 2766                    Rep. Lippert Amendment     2773

Third Reading

S. 152  Prevention of Lead Poisoning in Consumer Products......................... 2774

          Rep. Mrowicki Amendment

S. 220  Confidentiality of Library Patron Records......................................... 2774

S. 340  Mammography Patient Cost Containment......................................... 2775

Favorable with Amendment

S. 112  Relating to Victims’ Compensation................................................... 2775

          Rep. Grad for Judiciary

          Rep. Hutchinson for Appropriations

S. 244  Relating to Self-Storage Facilities..................................................... 2775

          Rep. Consejo For Commerce

S. 246  Electronic Access to Criminal and Family Court Records.................. 2781

          Rep. Grad for Judiciary

          Rep. Sharpe for Ways and Means...................................................... 2787

S. 297  Clarifying Definition of “Stiff Hitch”................................................... 2788

          Rep. Brennan for Transportation

     Rep. Sharpe for Ways and Means

     Senate Proposals of Amendment

H. 112  Protecting Health Care and Public from Disease............................... 2788

H. 685  Enforcement of Environmental laws.................................................. 2789

H. 700  Relating to sale of Bottles of Wine at Festivals.................................. 2790

H. 783  Relating to Home Improvement Fraud............................................. 2790

          Rep. Lippert Amendment.................................................................... 2794

H. 881  Utilities Facilitating Communications Facilities................................... 2794

Report Committee of Conference

S. 241  Special Veteran and Gold Star Registration Plates............................ 2803

Proposed Amendment to the Constitution

Prop. 5   Elections; voter’s oath; self-administration...................................... 2803

          Rep. Pearson for Government Operations

NOTICE CALENDAR

Favorable with Amendment

S. 358  Re Enhanced Driver Licenses........................................................... 2805

          Rep. Potter for Transportation

          Rep. Branagan for Ways and Means................................................... 2812

Senate Proposals of Amendment

H. 545  Relating to the Agency of Human Services....................................... 2812

H. 560  Elimination of the Offender Work Programs Board.......................... 2812

S. 863  Creation and Preservation of Affordable House and Growth............. 2815

S. 873  Cleanup of Lake Champlain and other State Waters......................... 2832

 

Ordered to Lie

H. 549  Establishing Waterfront Buffer Zones............................................... 2843

 

 

 

 


 

ORDERS OF THE DAY

ACTION CALENDAR

Action Postponed Until Tuesday, April 29, 2008

Favorable with Amendment

S. 261

An act relating to phthalates in products for young children.

Rep. Pugh of South Burlington, for the Committee on Human Services, recommends that the House propose to the Senate that the bill be amended as follows:

First:  In Sec. 1, subsection (b), following “child care article”, by inserting “intended for use by a child under three years of age if”and following “that” by inserting “product”                

Second:  In Sec. 1, subsection (g), following “The attorney general”, by striking “may investigate and prosecute violations of this section pursuant to the provisions of the Consumer Fraud Act” and inserting in lieu thereof “has the same authority to make rules, conduct civil investigations, enter into assurances of discontinuance, and bring civil actions, and private parties have the same rights and remedies as provided under subchapter 1 of chapter 63 of Title 9

Third:  By adding a subsection (h) as follows:

(h)  Nothing in this section shall be construed to regulate firearms; ammunition or components thereof; pellets from air rifles; shooting ranges or circumstances resulting from shooting, handling, storing, casting, or reloading ammunition; or hunting or fishing equipment or components thereof.

(Committee vote: 9-2-0)

Senate Proposal of Amendment

H. 599

     An act relating to boating while intoxicated and driving while intoxicated.

     The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE INTENT

It is the intent of the general assembly in this act to address, among other issues, the Vermont supreme court’s decisions in State v. LaBounty, 2005 VT 124, and State v. Martin, 2007 VT 96.  In LaBounty, the court held that if more than one person was injured, an offender could be charged with only one count of grossly negligent operation of a motor vehicle with injury resulting.  Similarly, the court held in Martin that if more than one person was killed, an offender could be charged with only one count of boating while intoxicated with death resulting.  In this act, the general assembly responds to Martin and LaBounty by amending several motor vehicle statutes to permit an offender to be charged with a separate count of violating the statute for each person who was killed or injured as a result of the offense.

Sec. 2.  23 V.S.A. § 1091(b) is amended to read:

(b)  Grossly negligent operation.

(1)  A person who operates a motor vehicle on a public highway in a grossly negligent manner shall be guilty of grossly negligent operation.

(2)  The standard for a conviction for grossly negligent operation in violation of this subsection shall be gross negligence, examining whether the person engaged in conduct which involved a gross deviation from the care that a reasonable person would have exercised in that situation.

(3)  A person who violates this subsection shall be imprisoned not more than two years or fined not more than $5,000.00, or both.  If the person has previously been convicted of a violation of this section, the person shall be imprisoned not more than four years or fined not more than $10,000.00, or both.  If serious bodily injury as defined in section 1021 of Title 13 or death of any person other than the operator results, the person shall be imprisoned for not more than 15 years or fined not more than $15,000.00, or both.  If serious bodily injury or death results to more than one person other than the operator, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

Sec. 3.  23 V.S.A. § 1133 is amended to read:

§ 1133.  ATTEMPTING TO ELUDE A POLICE OFFICER

(a)  No operator of a motor vehicle shall fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer:

(1)  displaying insignia identifying him or her as such; or

(2)  operating a law enforcement vehicle sounding a siren and displaying a flashing blue or blue and white signal lamp.

(b)(1)  A person who violates subsection (a) of this section shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.

(2)(A)  In the event that death or serious bodily injury to any person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator shall be imprisoned for not more than five years or fined not more than $3,000.00, or both.

(B)  If death or serious bodily injury to more than one person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

(c)  In a prosecution under this section, the operator may raise as an affirmative defense, to be proven by a preponderance of the evidence, that the operator brought his or her vehicle to a stop in a manner, time, and distance that was reasonable under the circumstances.

* * *

Sec. 4.  23 V.S.A. § 1201 is amended to read:

§ 1201.  OPERATING VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL REFUSAL

(a)  A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:

(1)  when the person’s alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or

(2)  when the person is under the influence of intoxicating liquor; or

(3)  when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely; or

(4)  when the person’s alcohol concentration is 0.04 or more if the person is operating a commercial motor vehicle as defined in subdivision 4103(4) of this title.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

* * *

Sec. 5.  23 V.S.A. § 1210 is amended to read:

§ 1210.  PENALTIES

* * *

(e)(1)  Death resulting.  If the death of any person results from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $10,000.00 or imprisoned not less than one year nor more than 15 years, or both.  The provisions of this subsection do not limit or restrict prosecutions for manslaughter.

(2)  If the death of more than one person results from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(f)(1)  Injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $5,000.00, or imprisoned not less than one year nor more than 15 years, or both.

(2)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured.

* * *

Sec. 6.  23 V.S.A. § 3317 is amended to read:

§ 3317.  PENALTIES

* * *

(d)  Boating while intoxicated; privilege suspension.  Any person who is convicted of violating section 3323 of this title shall have his or her privilege to operate a vessel, except a nonmotorized canoe and a nonmotorized rowboat, suspended for a period of one year and until the person complies with section 1209a of this title.

(e)  Boating while intoxicated; criminal penalty.  Any person who violates a provision of section 3323 of this title shall be imprisoned for not more than one year and subject to the following fines:

(1)  for a first offense, not less than $200.00 nor more than $750.00;

(2)  for a second or subsequent offense, not less than $250.00 nor more than $1,000.00.

(f)(1)(A)  Boating while intoxicated; death resulting.  If the death of any person results from the violation of section 3323 of this title, the person convicted shall, instead of any other penalty imposed in this section, be imprisoned not less than one year nor more than five 15 years or fined not more than $2,000.00 $10,000.00,or both; but the provisions of this section shall not be construed to limit or restrict prosecutions for manslaughter.

(B)  If the death of more than one person results from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(2)(A)  Boating while intoxicated; serious bodily injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 3323 of this title, the person convicted of the violation shall be fined not more than $5,000.00 or imprisoned not more than 15 years, or both.

(B)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured. 

* * *

Sec. 7.  23 V.S.A. § 3323 is amended to read:

§ 3323.  OPERATING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; B.W.I.

(a)  A person shall not operate, attempt to operate, or be in actual physical control of a vessel on the waters of this state while:

(1)  there is 0.08 percent or more by weight of alcohol in his or her blood, as shown by analysis of his or her breath or blood; or

(2)  under the influence of intoxicating liquor; or

(3)  under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of operating safely.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

Sec. 8.  9 V.S.A. chapter 82 is added to read:

CHAPTER 82.  SCRAP METAL PROCESSORS

§ 3021.  DEFINITIONS

As used in this chapter:

(1)  “Authorized scrap seller” means a licensed plumber, electrician, HVAC contractor, building or construction contractor, demolition contractor, construction and demolition debris contractor, public utility, transportation company, licensed peddler or broker, an industrial and manufacturing company; marine, automobile, or aircraft salvage and wrecking company, or a government entity.

(2)  “Ferrous scrap” means any scrap metal consisting primarily of iron, steel, or both, including large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal processing operations of scrap metal.

(3)  “Metal article” means any manufactured item consisting of metal that is usable for its originally intended purpose without processing, repair, or alteration, including railings, copper or aluminum wire, copper pipe and tubing, bronze cemetery plaques, urns, markers, plumbing fixtures, and cast‑iron radiators.

(4)  “Nonferrous scrap” means any scrap metal consisting primarily of metal other than iron or steel, and does not include aluminum beverage cans, post-consumer household items, items removed during building renovations or demolitions, or large manufactured items containing small quantities of nonferrous metals such as automobile bodies and appliances.

(5)  “Proprietary article” means any of the following:

(A)  Any metal article stamped, engraved, stenciled, or marked as being or having been the property of a governmental entity, public utility, or a  transportation, shipbuilding, ship repair, mining, or manufacturing company.

(B)  Any hard-drawn copper electrical conductor, cable, or wire greater than 0.375 inches in diameter, stranded or solid.

(C)  Any aluminum conductor, cable, or wire greater than 0.75 inches in diameter, stranded or solid.

(D)  Metal beer kegs.

(E)  Manhole covers.

               (F)  Catalytic converters.

(6)  “Scrap metal” means any manufactured item or article that contains metal.

(7)  “Scrap metal processor” means a person authorized to conduct a business that processes and manufactures scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.

§ 3022.  PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES, AND PROPRIETARY ARTICLES

(a)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap metal seller or the seller’s authorized agent or employee.

(b)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles from a person who is not an authorized scrap metal seller or the seller’s authorized agent or employee, provided the scrap processor complies with all the following procedures:

(1)  At the time of sale, requires the seller to provide a current government-issued photographic identification that indicates the seller’s full name, current address, and date of birth, and records in a permanent ledger the identification information of the seller, the time and date of the transaction, the license number of the seller’s vehicle, and a description of the items received from the seller.  This information shall be retained for at least five years at the processor’s normal place of business or other readily accessible and secure location.  On request, this information shall be made available to any law enforcement official or authorized security agent of a governmental entity who provides official credentials at the scrap metal processor’s business location during regular business hours.

(2)  Requests documentation from the seller of the items offered for sale, such as a bill of sale, receipt, letter of authorization, or similar evidence that establishes that the seller lawfully owns the items to be sold.

(3)  After purchasing an item from a person who fails to provide documentation pursuant to subdivision (2) of this subsection, submits to the local law enforcement agency no later than the close of the following business day a report that describes the item and the seller’s identifying information required in subdivision (1) of this subsection, and holds the proprietary article for at least 15 days following purchase.

§ 3023.  PENALTIES

(a)  A scrap metal processor who violates any provision of this chapter for the first time may be assessed a civil penalty not to exceed $1,000.00 for each transaction.

(b)  A scrap metal processor who violates any provision of this chapter for a second or subsequent time shall be fined not more than $25,000.00 for each transaction.

Sec. 9.  4 V.S.A. § 1102(b) is amended to read:

(b)  The judicial bureau shall have jurisdiction of the following matters:

* * *

(14)  Violations of 9 V.S.A. § 3023(a), relating to the purchase and sale of scrap metal.

Amendment to be offered by Rep. Lippert of Hinesburg to H. 599

Moves to amend the Senate Proposal of Amendment by striking Sec. 8 and Sec. 9 and inserting in lieu thereof Sec. 8, Sec. 9 and Sec. 10 as follows:

Sec. 8.  20 V.S.A. § 2358 is amended to read:

§ 2358.  MINIMUM TRAINING STANDARDS

(a)  Unless waived by the council under standards adopted by rule, and notwithstanding any statute or charter to the contrary, no person shall exercise law enforcement authority:

(1)  as a part-time law enforcement officer without completing a basic training course within a time prescribed by rule of the council; or

(2)  as a full-time law enforcement officer without either:

(A)  completing a basic training course in the time and manner prescribed by the council; or

(B)  having received, before July 1, 1968, permanent full-time appointment as a law enforcement officer, and completing a basic training course before July 1, 1982.

(3)  as a full or part-time law enforcement officer without completing annual in-service training requirements as prescribed by the council.

(b)  All programs required by this section shall be approved by the council. Completion of a program shall be established by a certificate to that effect signed by the executive director of the council.

(c)  For the purposes of this section:

(1)  “Law enforcement officer” means a member of the department of public safety who exercises law enforcement powers, a member of the state police, a municipal police officer, a constable who exercises law enforcement powers, a motor vehicle inspector, an employee of the department of liquor control who exercises law enforcement powers, an investigator employed by the secretary of state, board of medical practice investigators employed by the department of health, attorney general or a state’s attorney, a fish and game warden, a sheriff, or deputy sheriff who exercises law enforcement powers, or a railroad police officer commissioned pursuant to 30 V.S.A. chapter 45, subchapter 8.

(2)  “Full-time law enforcement officer” means a law enforcement officer with duties of a predictable and continuing nature which require more than 32 hours per week and more than 25 weeks per year.

(3)  “Part-time law enforcement officer” means a law enforcement officer who is not employed full time.

(d)  The council may determine whether a particular position is full time or part time.  Any requirements in this section shall be optional for any elected official.

Sec. 9.  24 V.S.A. § 1936a is amended to read:

§ 1936a.  CONSTABLES; POWERS AND QUALIFICATIONS

(a)  A town may vote at a special or annual town meeting:

(1)  to prohibit constables from exercising any law enforcement authority; or

(2)  to prohibit constables from exercising any law enforcement authority without having successfully completed a course of training under chapter 151 of Title 20.

* * *

Sec. 10.  EFFECTIVE DATE

Secs. 8 and 9 of this act shall take effect July 1, 2010.

Third Reading

S. 152

An act relating to prevent ion of lead poisoning by exposure to lead in consumer products.

     Amendment to be offered by Rep. Mrowicki of Putney to Proposal of Amendment   S. 152

Moves to amend the proposal of amendment in Sec. 2, 9 V.S.A. § 2470f(3)(D) in its entirety and inserting in lieu thereof the following:

(D)  complies with the most stringent standard for lead in consumer products adopted by federal law, by states with total population of at least 25 million, or by the European Union.

S. 220

An act relating to the confidentiality of library patron records.

Amendment to be offered by Rep. Branagan of Georgia to S. 220

Moves to amend the bill in Sec. 1, 22 V.S.A. § 172(b)(4), by striking the numeral “16” and inserting in lieu thereof the numeral “18

 

S. 340

An act relating to mammography patient cost containment.

Favorable with Amendment

S. 112

An act relating to victims’ compensation.

Rep. Grad of Moretown, for the Committee on Judiciary, recommends that the House propose to the Senate that the bill be amended by adding a new Sec. 5 to read as follows:

Sec. 5.  13  V.S.A. § 5353 is amended to read:

§ 5353. APPLICATION FOR COMPENSATION

(a) A victim or a dependent of a victim shall, upon application, be eligible for compensation if:

(1) a law enforcement official has filed a report concluding that a crime was committed which resulted in the injury or death of the victim; and

(2) the crime was committed in this state; or

(3) the victim is a Vermont resident, the state in which the crime occurred does not have an eligible crime victim's compensation program and the applicant would have been eligible for compensation under this chapter if the crime had been committed in this state; or

(4)  the victim is a Vermont resident who is injured or killed by an act of terrorism outside of the United Sates, to the extent that compensation is not otherwise available under federal law.

* * *

Rep. Hutchinson of Randolph, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Judiciary.

(Committee vote: 11-0-0)

S. 244

An act relating to self-storage facilities.

Rep. Consejo of Sheldon, for the Committee on Commerce, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  SHORT TITLE

This act shall be known as the “Vermont Self-Storage Facility Act.”

Sec. 2.  9 V.S.A. chapter 98 is added to read:

CHAPTER 98.  STORAGE UNITS

§ 3950.  DEFINITIONS

For the purposes of this chapter, the following terms shall have the following meanings:

(1)  “Last known address” means that address provided by the occupant in the rental agreement or the address provided by the occupant in a subsequent written notice of a change of address.

(2)  “Occupant” means a person, successor, assignee, agent, or representative entitled to the use of storage space in a self-storage facility under a rental agreement to the exclusion of others.

(3)  “Owner” means the owner, operator, lessor, or sublessor of a

self-storage facility, an agent, or any other person authorized by the owner to manage the facility or to receive rent from an occupant under a rental agreement.

(4)  “Personal property” means movable property not affixed to land, and includes goods, merchandise, and household items.

(5)  “Rental agreement” means any written agreement that establishes or modifies the terms, conditions, rules, or any other provision concerning the use and occupancy of a self-storage facility.

(6)  “Self-storage facility” means any real property designed and used for the purpose of renting or leasing individual storage space to occupants who are to have access to such space for the purpose of storing and removing personal property.  A self-storage facility is not a “warehouse” as used in Article 7 of the Uniform Commercial Code (U.C.C.) as codified in Title 9A.  If an owner issues any warehouse receipt, bill of lading, or other document of title for the personal property stored, the owner and the occupant are subject to the U.C.C., and this act does not apply.

§ 3951.  RESIDENTIAL PURPOSES

(a)  No occupant shall use storage space at a self-storage facility for residential purposes.

(b)  No owner shall knowingly permit a storage space at a self-storage facility to be used for residential purposes.

§ 3952.  DISCLOSURES

(a)  A rental agreement shall contain the following:

(1)  The name and address of the owner and occupant.

(2)  The actual monthly occupancy charge, rent, or lease amount for the storage space provided, expressed in dollars.

(3)  An itemization of other charges imposed or which may be imposed in connection with the occupancy, a description of the charges, whether the charges are mandatory or optional, and the amount of each charge expressed in dollars.

(4)  A statement of whether property stored in the leased space is or is not insured by the owner against loss or damage and of the requirement that the occupant must provide his or her own insurance for any property stored.

(5)  A statement advising the occupant of the existence of the lien created by this chapter, that the property stored in the leased space may be sold to satisfy the lien, and that the owner shall not be liable for damage, loss, or alienation of items of sentimental nature or value.

(b)  The disclosures required under subdivisions (a)(4) and (a)(5) of this section shall be written in bold type and of a font size equal to or greater than the general text of the agreement.

§ 3953.  LIEN

The owner of a self-storage facility has a possessory lien upon all personal property located in a storage space at a self-storage facility for rent, labor, or other charges, present or future, in relation to the personal property, and for expenses relevant to its preservation or expenses reasonably incurred in its sale pursuant to this chapter.  The lien attaches as of the date the personal property is brought to or placed in a regular storage space at a self-storage facility in accordance with the provisions of a valid rental agreement.

§ 3954.  ENFORCEMENT OF LIEN

In the event of a default under the terms of a rental agreement, the lien created under this chapter may be enforced in accordance with the provisions of this section.

(1)  First notice of default.  No sooner than seven days after a default, the occupant shall be notified of the default by regular mail sent to his or her last known address.

(2)  Second notice of default.  No sooner than 14 days after mailing of the first notice, the occupant shall be notified of the default by certified mail sent to his or her last known address.  The second notice shall contain the following:

(A)  An itemized statement of the owner’s claim showing the sum due at the time of the notice and the date when the sum became due.

(B)  A brief and general description of the personal property subject to the lien.  There shall be no requirement to describe the specific contents of a storage space in a self-storage facility beyond stating that it is the contents of a specific storage space in a specific self-storage facility rented by a specific occupant.

(C)  A notice of denial of access to the personal property, if such denial is permitted under the terms of the rental agreement.

(D)  A demand for payment within a specified time not less than fifteen days after the mailing of the second notice of default.

(E)  A conspicuous statement that unless the claim is paid in full within the time stated in the notice, the personal property will be advertised for sale and sold according to law.

(3)  Advertisement.  After the expiration of the time given in the second notice under subdivision (2) of this section, an advertisement of the sale shall be published once a week for two consecutive weeks in a newspaper of general circulation where the self-storage facility is located.  The advertisement shall contain the following:

(A)  A brief and general description of the personal property as provided in subdivision (2)(B) of this section.

(B)  The address of the self-storage facility and the number, if any, of the space where the personal property is located and the name of the occupant.

(C)  The time, place, and manner of the sale.  If there is no newspaper of general circulation where the self-storage facility is located, the advertisement shall be posted at least 15 days before the date of the sale at the town hall where the self-storage facility is located in such fashion as the auction sales of real property are posted.

(D)  A sale or other disposition of goods as provided for in this chapter shall not be defeated or deemed not in compliance with this provisions of this chapter if the owner attempted, but was not able to obtain personal service on those persons entitled to notice or if the certified mail return receipt is not signed by the person to whom notice must be sent, unless the owner fails to publish in accordance with this section.

(4)  Notice to other lienholders.  Before the expiration of the time given in the second notice under subdivision (2) of this section, the owner shall determine whether the occupant owns any personal property subject to an active lien registered with the Vermont secretary of state.  If any such lien exists, the lienholder shall be notified by certified mail not less than 21 days prior to the sale of the property.  Such notice shall include the following:

(A)  A statement describing the property to be sold.  There shall be no requirement to describe the specific contents of a storage space in a self-storage facility beyond stating that it is the contents of a specific storage space in a specific self-storage facility rented by a specific occupant.

(B)  A statement of the lienholder’s rights under this chapter.

(C)  A statement of the time, place, and manner of the sale of the property.

(5)  Sale.  Upon fulfillment of the notification and advertisement requirements of this section, sale of the personal property shall be permitted, provided the following conditions are met:

(A)  The sale of the personal property shall take place not sooner than 15 days after the first publication under subdivision (3) of this section.

(B)  Any sale of the personal property under this chapter shall conform to the terms of all notifications required under this section.  If the sale will not or does not take place as provided for in the notifications, then subsequent notifications shall be made in the same manner as the original notifications had been made.

(C)  Any sale of the personal property shall be held at the self-storage facility, or at the nearest suitable place.

(D)  Any sale of the personal property shall be performed in a commercially reasonable manner, meaning the owner sells the goods in the usual manner in any recognized market therefor, at the price current in such market at the time of the sale; or otherwise sold in conformity with commercially reasonable practices among dealers in the type of goods sold; however, the sale of more goods than apparently necessary to ensure satisfaction of the obligation is not commercially reasonable unless necessary due to the nature of the goods being sold or the manner in which they are customarily sold.  The fact that a better price could have been obtained by sale at a different time or by a different method from that selected by the owner is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.

(E)  Any sale or disposition of a motor vehicle shall be performed pursuant to chapter 21 of Title 23 and any sale or disposition of a vessel, snowmobile, or all-terrain vehicle shall be performed pursuant to chapter 36 of Title 23.

(6)  Right of satisfaction.  Before any sale of personal property pursuant to this chapter, the occupant may pay the amount necessary to satisfy the lien in full and the reasonable expenses incurred under this section, and thereby redeem the personal property.  Upon receipt of such payment, the owner shall return the personal property, and thereafter the owner shall have no liability to any person with respect to such personal property.

(7)  Proceeds in excess of lien amount.  In the event of sale under this section, the owner may satisfy the owner’s lien from the proceeds of the sale, but shall hold the balance, if any, for delivery on demand to the occupant.  If the occupant does not claim the balance of the proceeds such funds shall be paid over without interest to the treasurer of the state of Vermont in accordance with Chapter 14 of Title 27.

(8)  Rights of other lienholders.  The holder of any perfected lien or security interest on personal property stored in the storage unit and registered with the Vermont secretary of state may take possession of its liened property at any time prior to sale or other disposition.

(9)  Rights of purchasers.  A purchaser in good faith of the personal property sold to satisfy a lien, as provided elsewhere in this chapter, takes the property free of any rights of persons against whom the lien was valid, despite noncompliance by the owner with the requirements of this chapter.

§ 3955.  SUPPLEMENTAL NATURE OF ACT

Nothing in this chapter shall be construed in any manner to impair or affect the right of parties to create liens by special contract or agreement, nor shall it in any manner affect or impair other liens arising at common law or in equity, or by any statute in this state.

§ 3956.  SAVINGS CLAUSE

This chapter shall only apply to self-storage rental agreements entered into, extended, or renewed after January 1, 2009.  Rental agreements providing for monthly rental payments but providing no specific termination date shall be subject to this act on the first monthly rental payment date following January 1, 2009.

§ 3957.  SEVERABILITY

If any provision of this act or the application thereof is held invalid, such invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end, the provisions of this act are declared to be severable.

Sec. 3.  EFFECTIVE DATE

This act shall take effect January 1, 2009.

(Committee vote: 11-0-0)

S. 246

An act relating to electronic access to criminal and family court records.

Rep. Grad of Moretown, for the Committee on Judiciary, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  12 V.S.A. § 5 is amended to read:

§ 5.  DISSEMINATION OF cELECTRONIC CASE RECORDS

(a)  The court shall not permit public acess via the internet to criminal case records or family court case records.  The court may permit criminal justice agencies, as defined in 20 V.S.A. § 2056a, Internet access to criminal case records for criminal justice purposes, as defined in section 2056a.

(b)  This section shall not be construed to prohibit the court from providing electronic access to:

(1)  court schedules of the district or family court, or opinions of the district court; or

(2)  state agencies in accordance with data dissemination contracts entered into under Rule 6 of the Vermont Rules of Electronic Access to Court Records.

Sec. 2.  20 V.S.A. § 2056b is amended to read:

§ 2056b.  DISSEMINATION OF CRIMINAL HISTORY RECORDS TO PERSONS CONDUCTING RESEARCH

(a)  The Vermont criminal information center may provide Vermont criminal history records as defined in section 2056a of this title to bona fide persons conducting research related to the administration of criminal justice, subject to conditions approved by the commissioner of public safety to assure the confidentiality of the information and the privacy of individuals to whom the information relates.  Bulk criminal history data may only be provided in a format that excludes the subject’s name and any unique numbers that may reference the identity of the subject, except that the state identification number may be provided.  Researchers must sign a user agreement which specifies data security requirements and restrictions on use of identifying information.

(b)  No person shall confirm the existence or nonexistence of criminal history record information to any person who would not be eligible to receive the information pursuant to this subchapter other than the subject and properly designated employees of an organization who have a documented need to know the contents of the record.

(c)  A person who violates the provisions of this section with respect to unauthorized disclosure of confidential criminal history record information obtained from the center under the authority of this section shall be fined not more than $5,000.00.  Each unauthorized disclosure shall constitute a separate civil violation.

Sec. 3.  20 V.S.A. § 2056c is amended to read:

§ 2056c.  DISSEMINATION OF CRIMINAL HISTORY CONVICTION RECORDS TO EMPLOYERS THE PUBLIC

(a)  As used in this section:

(1)  “Applicant” means an individual seeking or being sought for employment, a volunteer position with an employer, or admission to a course of instruction offered by the Vermont criminal justice training council.

(2)  “Criminal conviction record” means the record of convictions in Vermont.

(3)  “Employer” means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company or an authorized agent.  Authorized agent shall include a person who is licensed under chapter 59 of Title 26 to provide private investigative services.

(4)  “The center” means the Vermont criminal information center.

(b)(1)  An employer may obtain from the center a criminal conviction record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center.  The user’s agreement shall require the employer to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  The user’s agreement shall be signed and kept current by the employer.

(2)  An individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c may obtain from the center an out-of-state criminal conviction record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center and complies with all other provisions of this section.

(c)(1)  The employer may obtain a criminal conviction record only:

(A)  after the applicant has been given an offer of employment conditioned on the record check;

(B)  after a volunteer has been offered a position conditioned on the record check.

(2)  The Vermont criminal justice training council may obtain a criminal conviction record only after an applicant has been accepted into a course of instruction offered by the Vermont criminal justice training council conditioned on the record check.

(3)  An organization that receives a criminal conviction record pursuant to this section shall provide a free copy of such record to the record subject within ten days of receipt of the record.

(4)  An organization entitled to receive a criminal conviction record pursuant to this section shall not require an applicant to obtain or submit personally a copy of his or her criminal conviction record for purposes of employment or acceptance into a course offered by the Vermont criminal justice training council.

(d)(1)  Employers shall be provided with informational material by the center prior to authorization to request criminal conviction records.  The materials shall address the following topics:

(A)  Requirements of the user agreement.

(B)  How to obtain criminal conviction records from the center.

(C)  How to interpret criminal conviction records.

(D)  How to obtain source documents summarized in the criminal conviction records.

(E)  Misuse of criminal conviction records.

(2)  Employers shall certify on the user agreement that they have read and understood the materials prior to receiving authorization to request records from the center.

(e)  The release form shall contain the applicant’s name, signature, date of birth, place of birth, and the signature as attested to by a notary public.  The release form shall state that the applicant has the right to appeal the findings to the center, pursuant to rules adopted by the commissioner of public safety.

(f)(1)  Except as otherwise authorized by this chapter, no person shall confirm the existence or nonexistence of criminal conviction record information or disclose the contents of a criminal conviction record without the record subject’s permission to any person other than the applicant and properly designated employees of the employer who have a documented need to know the contents of the record.

(2)  An employer who receives criminal conviction records pursuant to this section shall maintain a confidential log of all record requests as specified by the center.  The employer shall confidentially retain records relating to requests for criminal conviction records for a period of three years.  At the end of the retention period, if logs and records are to be destroyed, they shall be shredded.

(g)  A person who violates subsection (f) of this section shall be assessed a civil penalty of not more than $5,000.00.  Each unauthorized disclosure shall constitute a separate civil violation.  The office of the attorney general shall have authority to enforce this section.

(h)  The center shall provide notice of the penalty for unauthorized disclosure on a form accompanying any report of a criminal conviction record to an employer.  The notice shall include, in boldface print, the following statements:  THE REQUESTOR AGREES TO USE CRIMINAL CONVICTION RECORD INFORMATION RECEIVED FROM THE VERMONT CRIMINAL INFORMATION CENTER FOR THE PURPOSES INTENDED BY LAW.  THE REQUESTOR AGREES NOT TO DISCLOSE THE CONTENTS OF ANY CRIMINAL CONVICTION RECORD WITHOUT THE APPLICANT’S PERMISSION TO ANY PERSON OTHER THAN THE APPLICANT AND PROPERLY DESIGNATED EMPLOYEES WHO HAVE A DOCUMENTED NEED TO KNOW THE CONTENTS OF THE RECORD. A VIOLATION MAY RESULT IN A CIVIL PENALTY OF UP TO $5,000.00. EACH UNAUTHORIZED DISCLOSURE SHALL CONSTITUTE A SEPARATE CIVIL VIOLATION.

(i)  Nothing in this section shall create a statutory duty for an employer to perform a criminal conviction record check on every job applicant hired by the employer.  An employer’s failure to obtain a criminal conviction record on an employee who subsequently commits a criminal offense shall not be the sole factor in determining civil or criminal liability unless otherwise authorized by law.

(a)  As used in this section:

(1)  “The center” means the Vermont criminal information center.

(2)(A)  “Criminal conviction record” means the record of convictions in a Vermont district court.

(B)  Release of conviction records by the center pursuant to this section or pursuant to any other provision of state law which permits release of Vermont criminal records shall include only the charge for which the subject of the record was convicted, and shall not include docket numbers.

(b)  A person may obtain from the center a criminal conviction record for any purpose provided that the requestor has completed a user’s agreement with the center.  The user’s agreement shall prohibit the alteration of criminal records and shall require the requestor to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  

(c)  Criminal conviction records shall be disseminated to the public by the center under the following conditions:

(1)  Public access to criminal conviction records shall be provided by a secure Internet site or other alternatives approved by the center. 

(2)  A requestor who wishes to receive criminal conviction records from the center shall accept the terms of a user agreement with the center.  The user agreement shall specify the conditions under which record information is being released and specify guidelines for the proper interpretation and use of the information.

(3)  Prior to receiving criminal conviction records using the center’s Internet site a requestor shall establish a secure, online account with the center.  Issuance of the account is conditioned upon the requestor’s willingness to accept the terms of a user agreement with the center which specifies the conditions under which record information is being released and specifies guidelines for the proper interpretation and use of the information.

(4)  All queries shall be by name and date of birth of the subject.

(5)  Only “no record” responses and record responses which constitute an exact match to the query criteria shall be returned automatically online.  In the event that query criteria suggest a possible match, center staff will determine whether the query criteria match a record in the repository and shall return the result to the requestor.

(6)  An electronic log shall be kept of all transactions that shall indicate the name of the requestor, the date of the request, the purpose of the request, and the result of the request.  This log shall not be available to any person, other than center staff on a need-to-know basis, except pursuant to a court order.  

(7)  The center’s Internet site shall provide an electronic mechanism for users to notify the center of possible record errors.

(8)  The center’s Internet site shall provide links to center training information regarding best practices for the use of record checks as part of a complete background check process.

(9)  The center shall charge a fee of $20.00 for each criminal record check query pursuant to this section.

(10)  No person entitled to receive a criminal conviction record pursuant to this section shall require an applicant to obtain, submit personally, or pay for a copy of his or her criminal conviction record.

Sec. 4.  20 V.S.A. § 2063 is amended to read:

§ 2063.  CRIMINAL HISTORY RECORD FEES; CRIMINAL HISTORY RECORD CHECK FUND

(a)  Except as otherwise provided for in this section, the cost of each check for a criminal history record as defined in section 2056a of this title or a criminal conviction record as defined in section 2056c of this title based on name and date of birth shall be $10.00 $20.00.  Out-of-state criminal history record checks shall include any additional fees charged by the state from which the record is requested.

(b)  Requests made by criminal justice agencies for criminal justice purposes or other purposes authorized by state or federal law shall be exempt from all record check fees.  The following types of requests shall be exempt from the Vermont criminal record check fee:

(1)  Requests made by any individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c.

(2)  Requests made by researchers approved by the Vermont criminal information center to conduct research related to the administration of criminal justice.  A fee, however, may be charged by the center which shall reflect the cost of generating the requested information.

(3)  Requests made by individuals to review their own record at the Vermont criminal information center; however, copies of the individual's record are not exempt from the record check fee.

(4)  Requests made by the Vermont state housing authority and other public housing authorities pursuant to 24 V.S.A § 4010(c).

(c)(1)  The criminal history record check fund is established and shall be managed by the commissioner of public safety in accordance with the provisions of subchapter 5 of chapter 7 of Title 32.  All The first $179,000.00 of fees paid under this section shall be placed in the fund and used for personnel and equipment related to the processing, maintenance, and dissemination of criminal history records.  The commissioner of finance and management may draw warrants for disbursements from this fund in anticipation of receipts.

(2)  After the first $179,000.00 of fees paid under this section shall be placed in the criminal history record check fund, all additional fees paid under this section shall go to the general fund.

(d)  The department of public safety shall have the authority, with the approval of the secretary of administration, to establish limited service positions as are necessary to provide criminal record checks in a timely manner, provided that there are sufficient funds in the criminal history record check fund to pay for the costs of these positions.

Sec. 5.  REPORT

On or before January 15, 2010, the joint fiscal office, in consultation with the judiciary and the Vermont crime information center, shall report to the senate and house committees on judiciary on the fiscal impacts of the records request fees established by this act.

Sec. 6.  REPEAL

20 V.S.A. § 2056g (dissemination of criminal history records to licensed private investigators) is repealed.

(Committee vote: 9-1-1)

Rep. Sharpe of Bristol, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Judiciary  and when further amended as follows:

First:  In Sec. 4, 20 V.S.A. § 2063(c)(1), after the word “paid” by inserting the words “each year

Second:  In Sec. 4, 20 V.S.A. § 2063(c), by striking subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as follows:

(2)  After the first $179,000.00 of fees paid each year under this section is placed in the criminal history record check fund, all additional fees paid during that year under this section shall go to the general fund.

(Committee vote: 11-0-0)


S. 297

An act relating to clarifying the definition of “Stiff Hitch” in the motor vehicle statutes.

Rep. Brennan of Colchester, for the Committee on Transportation, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  23 V.S.A. § 4(77) is amended to read:

§ 4.  DEFINITIONS

Except as may be otherwise provided herein, and unless the context otherwise requires in statutes relating to motor vehicles and enforcement of the law regulating vehicles, as provided in this title and part 5 of Title 20, the following definitions shall apply:

* * *

(77)  “Stiff hitch” shall mean a tow bar used by a self-propelled motor vehicle to tow another validly registered self-propelled motor vehicle while all the wheels of the towed vehicle remain in contact with the ground.  The towed vehicle shall not be required to be registered.

Sec. 2.  23 V.S.A. § 3306(g) is added to read:

(g)  Except for subsection (b), nothing in this section shall apply to motorboats used exclusively for racing as sanctioned by the commissioner of the department of public safety under the provisions of section 3316 of this title, nor to a member of a sanctioned racing organization.

(Committee vote: 11-0-0)

Rep. Sharpe of Bristol, for the Committee on Ways and Means, reports the same without recommendation.

(Committee vote: 11-0-0)

Senate Proposals of Amendment

H. 112

     An act relating to protection of health care and public safety personnel from communicable disease.

     The Senate proposes to the House to amend the bill as follows:

First:  In Sec. 1, 18  V.S.A. § 1141, subsection (e), before the period, by adding the following: 

, and may be considered unprofessional conduct under applicable licensing, certification, and registration laws” 

Second:  in Sec. 2, 18 V.S.A. § 1001(k) by striking out the word “limited” and, following “chapter 21 of this title”, by inserting and such other information as the department of health determines to be necessary and appropriate

H. 685

     An act relating to the enforcement of environmental laws.

     The Senate proposes to the House to amend the bill by striking out Sec. 9 in its entirety and inserting in lieu thereof the following:

Sec. 9.  10 V.S.A. § 8017 is amended to read:

§ 8017.  ANNUAL REPORT

The secretary and the attorney general shall report annually to the president pro tempore of the senate, the speaker of the house, the house committee on fish, wildlife and water resources, and the chairs of the senate and house committees on natural resources and energy.  The report shall be filed no later than January 15, on the enforcement actions taken under this chapter, and on the status of citizen complaints about environmental problems in the state.  The report shall describe, at a minimum, the number of violations, the actions taken, disposition of cases, the amount of penalties collected, and the cost of administering the enforcement program.

H. 700

     An act relating to sale of bottles of wine at festivals.

     The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  7 V.S.A. § 2(27) is amended to read:

(27)  “Special events permit”:  a permit granted by the liquor control board permitting a person holding a manufacturer’s or rectifier’s license to attend an event open to the public, which has been approved by the local licensing authority, to sell by the glass or by unopened bottle the malt or vinous beverage manufactured or rectified by the license holder.  No more than 12 special events’ permits shall be issued to a holder of a manufacturer’s or rectifier’s license during a year.  The fee for the permit is as required by subdivision 231(13) of this title, and shall be paid to the department of liquor control.  Requests for a special events’ permit shall be submitted to the department of liquor control and received by the department at least 15 days prior to the date of the event.  Each manufacturer or rectifier planning to attend a single special event under this permit may be listed on a single permit. However each attendance at a special event shall count toward the manufacturer’s or rectifier’s 12 special event permit limitation.

H. 783

     An act relating to home improvement fraud.

     The Senate proposes to the House to amend the bill striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  13 V.S.A. § 2029 is amended to read:

§ 2029. HOME IMPROVEMENT FRAUD

(a) As used in this section, "home improvement" includes the fixing, replacing, remodeling, removing, renovation, alteration, conversion, improvement, demolition, or rehabilitation of or addition to any building or land, or any portion thereof, which is used or designed to be used as a residence or dwelling unit. Home improvement shall include the construction, replacement, installation, paving, or improvement of driveways, roofs, and sidewalks, and the limbing, pruning, and removal of trees or shrubbery and other improvements to structures or upon land that is adjacent to a dwelling house.

(b) A person commits the offense of home improvement fraud when he or she knowingly enters into a contract or agreement, written or oral, for $500.00 or more, with an owner for home improvement, or into several contracts or agreements for $2,500.00 or more in the aggregate, with more than one owner for home improvement, and he or she knowingly:

(1) promises performance that he or she does not intend to perform or knows will not be performed, in whole or in part;

(2) misrepresents a material fact relating to the terms of the contract or agreement or to the condition of any portion of the property involved;

(3) uses or employs any unfair or deceptive act or practice in order to induce, encourage, or solicit such person to enter into any contract or agreement or to modify the terms of the original contract or agreement; or

(4) when there is a declared state of emergency, charges for goods or services related to the emergency a price that exceeds two times the average price for the goods or services and the increase is not attributable to the additional costs incurred in connection with providing those goods or services.

(c) It shall be a permissive inference that the person acted knowingly under subdivision (b)(1) of this section if the person fails to perform the contract or agreement and, when the owner requests performance of the contract or agreement or a refund of payments made, the person fails to:

(1) return the payments or deliver the materials or make and comply with a reasonable written repayment plan for the return of the payments; or

(2) make and comply with a reasonable written plan for completion of the contract or agreement.

(d) A person convicted of home improvement fraud shall register with the department of labor office of attorney general. The court shall notify the department of labor office of attorney general of a conviction under this section. A person who is sentenced pursuant to subdivisions (e)(2), (3), or (4) of this section shall not engage in home improvement activities for compensation unless he or she has filed a surety bond or an irrevocable letter of credit with the department of labor in an amount of not less than $50,000.00. The department shall release the letter of credit at such time when:

(1) any claims against the person relating to home improvement fraud have been paid;

(2) there are no pending actions or claims against the person for home improvement fraud; and

(3) the person has not been engaged in home improvement activities for at least six years and has signed an affidavit attesting to such.

(e)(1) A person who violates subsection (b) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both, if the loss to a single consumer is less than $1,000.00.

(2) A person who is convicted of a second or subsequent violation of subdivision (1) of this subsection shall be imprisoned not more than three years or fined not more than $5,000.00, or both.

(3) A person who violates subsection (b) of this section shall be imprisoned not more than three years or fined not more than $5,000.00, or both, if:

(A) the loss to a single consumer is $1,000.00 or more; or

(B) the loss to more than one consumer is $2,500.00 or more in the aggregate.

(4) A person who is convicted of a second or subsequent violation of subdivision (3) of this subsection shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(5) A person who violates subsection (d) or (f) of this section shall be imprisoned for not more than two years or fined not more than $1,000.00, or both.

(f)  A person who is sentenced pursuant to subdivision (e)(2), (3), or (4) of this section may engage in home improvement activities for compensation only if:

(1)  the work is for a company or individual engaged in home improvement activities, and the person first notifies the company or individual of the conviction and notifies the office of attorney general of the person’s current address and telephone number; the name, address, and telephone number of the company or individual for whom the person is going to work; and the date on which the person will start working for the company or individual; or

(2)  the person notifies the office of attorney general of the intent to engage in home improvement activities, and that the person has filed a surety bond or an irrevocable letter of credit with the office in an amount of not less than $50,000.00, and pays on a regular basis all fees associated with maintaining such bond or letter of credit.

(g)  The office of attorney general shall release the letter of credit at such time when:

(1)  any claims against the person relating to home improvement fraud have been paid;

(2)  there are no pending actions or claims against the person for home improvement fraud; and

(3)  the person has not been engaged in home improvement activities for at least six years and has signed an affidavit so attesting.

(h)  A person who is convicted of fraudulent acts related to home improvement shall be required to comply with subsections (d) and (f) of this section.

(i)  A person may be required to comply with subsections (d) and (f) of this section by an assurance of discontinuance, a consent decree, a civil judgment, or other court order.

Sec. 2.  9 V.S.A. § 4005a is added to read:

§ 4005a.  FUND HELD IN TRUST; COMMINGLING; NO EFFECT ON TITLE TO REAL PROPERTY

(a)  For the purposes of this section:

(1)  “Claim” means any valid claim for materials furnished or services rendered in the construction, repair, remodeling, improvement, or renovation of any building or structure for which the claimant has a lien or the right to claim a lien.

(2)  “Express trust” means funds that have been paid by an owner, for or in connection with services, labor, or materials used in an improvement of real property, which are to be held by a contractor or subcontractor, in express trust, for those services, labor, or materials.  Any such contractor or subcontractor who accepts money from any owner or contractor shall become the trustee of the express trust that is created pursuant to this section.  The amounts received by such contractor or subcontractor under or in connection with each building project shall be a separate trust and the contractor or subcontractor, or any successor or assign or both of such contractor or subcontractor that hold such trust funds, shall be a trustee thereof.  These funds are not required to be held in any separate account by a contractor or subcontractor.  Such trust shall be effective against and shall have priority over any unsecured interest of a party seeking payment from such contractor or subcontractor for claims other than those that are due and owing by reason of the specific building project for which the trust was created, whether such creditors are foreign attachment or other judicial lien creditors, a trustee in bankruptcy or similar creditors or representatives or creditors of the contractor or subcontractor.

(b)  Funds held in express trust are not required to be held in any separate account by a contractor or subcontractor.

(c)  No express trust shall be required for a federal, state, or municipal project.

(d)  The amount payable to any contractor or subcontractor under any contract for the construction, repair, remodeling, improvement, or renovation of any building or structure shall, upon receipt by such contractor or subcontractor, be held in express trust by such contractor or subcontractor for the payment of all claims that are due and owing, or to become due and owing, by such contractor or subcontractor by reason of such construction, repair, remodeling, improvement, or renovation.

(e)  Any amount required to be held in express trust under this section shall be applied to the payment of the corresponding claims specified in this section.

(f)  Nothing herein shall be construed to create a lien on real property.  The existence of an express trust under this section shall not prohibit the filing or enforcement of a lien against the affected real property pursuant to chapter 51 of Title 9 by any claimant.  A priority lien of a secured lender shall not be subordinate to an express trust.

(g)  In the case of an express trust which is not held by a corporation, limited liability partnership, or limited liability company, liability for sums due under this section shall only attach to the principal or head of the company which holds the funds under the express trust.

Amendment to be offered by Rep. Lippert of Hinesburg to H. 783

Moves to amend the Senate Proposal of Amendment as follows:

First:  In Sec. 1, by striking subsection (d) and inserting in lieu thereof a new subsection (d) to read:

(d) A person convicted of home improvement fraud shall register with the department of labor. The court shall notify the department of labor of a conviction under this section. A person who is sentenced pursuant to subdivisions (e)(2), (3), or (4) of this section shall not engage in home improvement activities for compensation unless he or she has filed a surety bond or an irrevocable letter of credit with the department of labor in an amount of not less than $50,000.00. The department shall release the letter of credit at such time when:

(1) any claims against the person relating to home improvement fraud have been paid;

(2) there are no pending actions or claims against the person for home improvement fraud; and

(3) the person has not been engaged in home improvement activities for at least six years and has signed an affidavit attesting to such.  Whenever a person is convicted of home improvement fraud or of fraudulent acts related to home improvement:

(1)  the person shall notify the office of attorney general;

(2)  the court shall notify the office of the attorney general; and

(3)  the office of attorney general shall place the person’s name on the home improvement fraud registry.

Second:  In Sec. 1, by striking subsection (i) in its entirety

H. 881

     An act relating to the role of electric and gas utilities in facilitating the deployment of communications facilities throughout the state.

     The Senate proposes to the House to amend the bill striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND PURPOSE

The general assembly finds that:

(1)  As found in 30 V.S.A. § 8060(a)(1): “ The availability of mobile telecommunications and broadband services is essential for promoting the economic development of the state, the education of its young people and life‑long learning, the delivery of cost-effective health care, the public safety, and the ability of citizens to participate fully in society and civic life.”

(2)  Electric and gas companies have networks that extend throughout the state.  Some of these networks can be leveraged to improve the economics of deploying mobile telecommunications and broadband service throughout the state.

(3)  Electric and gas companies hold easements that allow for specific utility use, but certain of these easements may not allow for the attachment or the installation of communications facilities.

(4)  Therefore, the goals of the general assembly in this act are to ensure that electric and gas utilities allow and enable access to their facilities and easements to communications companies as a necessary element of serving the public good in a flexible manner that is fair to both the utilities’ ratepayers and customers of communications service providers.

Sec. 2.  30 V.S.A. chapter 92 is added to read:

CHAPTER 92.  ACCESS FOR THE INSTALLATION AND MAINTENANCE OF COMMUNICATIONS FACILITIES

§ 8090.  DEFINITIONS

For the purposes of this chapter:

(1)  “Communications facilities” shall mean facilities that are used to send and receive audio, images, data, or other information via any electromagnetic media, including wires, cables, microwaves, radio waves, light waves, or any combination of these or similar media.

(2)  “Communications service provider” shall mean the Vermont telecommunications authority, a company subject to the jurisdiction of the public service board under subdivision 203(5) or section 502 of this title, or a broadband service provider who is considered to be an “attaching entity” pursuant to subsection 209(g) of this title.

(3)  “Company” or “companies” shall mean an electric or gas utility subject to the jurisdiction of the public service board.

§ 8091.  ACCESS TO FACILITIES

(a)  Any company shall allow and enable access to its plant and equipment where possible for the installation and maintenance of communications facilities by communications service providers.

(b)  When constructing or substantially reconstructing lines or structures used for electric or gas transmission or electric distribution, a company shall allow for the construction and maintenance of communications facilities thereupon if requested by a communications service provider.

(c)  Access and services required by this section shall be subject to regulation by the public service board and department of public service and shall be offered on rates, terms, and conditions, including terms of ownership of facilities, established in section 8092 of this chapter, except that services under tariffs developed pursuant to public service board rules regarding pole attachments shall be governed by those rules.

(d)  Owners of self-generation facilities, those not connected to the electric grid and net-metered generators, shall not be obligated to comply with this section.

(e)  If a communications service provider requests services from a company pursuant to this title, then the communications service provider shall be responsible for all of the costs the company incurs to obtain any easements or limited rights in property necessary to provide those services to the communications service provider, including compensation, legal fees, and the administrative costs of the utility.

§ 8092.  RATES; TERMS; CONDITIONS

(a)  Any company providing electric or gas service under public service board jurisdiction pursuant to this title shall prepare and file with the public service board, with a copy provided to the commissioner of the department of public service and the director for public advocacy, a statement of generally available rates, terms, and conditions for attachments and installations required under section 8091 of this chapter.  The nature and specificity of such statement may take into account the nature and size of the company, an assessment of the types of communications facilities for which requests are most likely, and such other factors as necessary to ensure that the rates, terms, and conditions set forth in the statement are sufficiently flexible to meet the capacities of the company, the interests of the company’s ratepayers, and the goal of facilitating broadband and wireless service.

(b)  The department and the board shall review the statement of generally available rates, terms, and conditions filed by each company.  In the event that the board or the department has grounds to believe that the rates, terms, or conditions are not just and reasonable, the board may open an investigation into the statement.  In the absence of an investigation, or while such an investigation is pending, the company’s filed statement of rates, terms, and conditions shall take effect or shall remain in effect without requiring the approval of the board.  Changes to any company’s filed statement of rates, terms, and conditions shall not take effect until 45 days after the statement has been filed with the board and the department.

(c)  In the event of a board investigation into a company’s statement of rates, terms, and conditions pursuant to this chapter, the board may alter or change the rates, terms, or conditions in effect for attachments and installations after notice and hearing, upon a finding that the company’s rates, terms, or conditions are not just and reasonable.  In making its determination, the board shall consider evidence that may be presented regarding the commercial reasonableness of the rates given the local market and the public interest in reasonable rates for electric or gas service and availability of communications services in the state.  Any change in rates, terms, and conditions required as a result of a board investigation shall be effective as of the date of the board’s order without any refund.

(d)  The statement shall include rates, terms, and conditions for services for which the company may reasonably expect to receive requests, including at a minimum:

(1)  For wireline communications facilities:

(A)  Attachment of communications facilities to electric transmission facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric and gas company facilities when requested by a communications service provider.

(2)  For wireless communication facilities:

(A)  Attachment of communications facilities to electric transmission and generation facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric company facilities when requested by a communications service provider.

(e)  Rates, terms, and conditions for contributions to construction and for maintenance of communications facilities installed concurrently when companies are constructing or substantially reconstructing electric transmission or distribution lines or structures or gas transmission lines shall be based on the incremental cost of adding the communications facility to the project, as long as the communications facilities will provide service in the municipality in which they are located and surrounding municipalities.

(f)  The company may negotiate rates, terms, and conditions of service that deviate from the statement of rates, terms, and conditions on file, but the company may not refuse a request to provide service in accordance with the rates, terms, and conditions on file.  Section 229 of this title does not apply to deviations from the statement of rates, terms, and conditions, unless a company provides service pursuant to this chapter to an affiliate of the company that is not an electric or gas utility. 

(g)  Companies with facilities meeting the requirements of this section shall submit their statement of rates, terms, and conditions within 150 days of the date of the enactment of this legislation.

(h)  A company may limit wireline attachments on electric transmission structures exclusively carrying voltages of 110 kV or higher to fiber-optic facilities attached and maintained by the company, if the company allows communications service providers to use fiber-optic facilities installed and maintained by the company and offers to install such fiber-optic facilities on such electric transmission structures where there are not sufficient facilities for use by communications service providers.  Rates, terms, and conditions for access to such company-attached and company-maintained facilities shall be made available consistent with the requirements of this section.

(i)  The public service board may establish rules to implement this chapter.  Such rules may include default rates, terms, and conditions to implement subsections (c) and (h) of this section.  As part of the implementation of this chapter, the board shall establish rules to require, to the extent the board is not preempted, communications providers to extend their facilities as far as the board’s authority permits.

§ 8093.  NOTIFICATION

(a)  For cases of gas transmission projects, and for projects involving electric transmission lines requiring approval pursuant to section 248 of this title, companies shall provide notice to the Vermont telecommunications authority at the same time that they provide notice pursuant to subdivision 248(a)(4)(C) of this title.

(b)  In cases of projects involving electric transmission or distribution lines which do not require approval pursuant to section 248 of this title, and which are greater than 2,500 feet, companies under the jurisdiction of the public service board shall notify the Vermont telecommunications authority of the project at least 90 days prior to planned commencement of construction for company-initiated projects, or as soon as possible for customer-initiated projects or projects required for urgent reasons of service quality or reliability.

(c)  The notice shall include:

(1)  The location of the project, including the town and a description of the route to be followed;

(2)  The nature of the project;

(3)  The date the project is planned to commence;

(4)  The contact person for the project and his or her contact information.

(d)  For good cause shown by a company, the public service board may shorten or eliminate the notice period required under this section.

(e)  In the alternative to filing notice under subsection (b) of this section, a company may file with the public service board, the department of public service, and the Vermont telecommunications authority its capital plan or construction work plan, describing the location of linear projects which do not require approval pursuant to section 248 of this title, and in the case of a

multi-year plan, the year in which a linear project is scheduled to commence.  No construction called for under the capital plan or construction work plan shall commence until the plan has been on file for at least 90 days, unless the construction is required for customer-initiated projects or for urgent reasons of service quality or reliability.

(f)  A company may specify in its statement of rates, terms, and conditions a deadline or procedure for requests to attach or add communications facilities to a project.  Unless otherwise specified by the company in its statement of rates, terms, and conditions, a company shall provide a period for responses of not less than either 45 days after notice is provided, if the company provides notice pursuant to subsection (b) of this section, or 45 days before the planned construction commences, if the company provides notice pursuant to subsection (e) of this section.  If a company does not receive a response by the deadline or according to the procedure established for responding to the notice required by this section, it may commence construction of a project prior to the end of the notice period required under subsection (b) or (e) of this section.

§ 8094.  EVALUATION OF COMMERCIAL WIRELESS NETWORKS

(a)  No company subject to public service board jurisdiction and providing electric service shall begin construction of a two-way point-to-multipoint mobile wireless communication network for the purpose of communication between its facilities for its own personnel unless:

(1)  The company has solicited proposals from commercial wireless service providers; and

(2)  For solicitations issued after July 1, 2008, the company has provided notice prior to the solicitation to the Vermont telecommunications authority and to the commissioner of the department of public service and the director for public advocacy.

(b)  Nothing in this section shall be construed to authorize or disallow the costs of such a network for the purpose of a rate proceeding for the company.

§ 8095.  LIMITATION

Nothing in this chapter limits the existing rights and obligations of entities currently authorized to attach to poles and other facilities pursuant to board rule 3.700. 

§ 8096.  LEGISLATIVE INTENT

The general assembly intends that this chapter will result in improved and increased access to mobile telecommunications and broadband services for all underserved Vermont households and businesses.

Sec. 3.  30 V.S.A. § 110a is added to read:

§ 110a. INCLUSION OF COMMUNICATIONS FACILITIES

When a gas or electric utility subject to the jurisdiction of the board files a petition to condemn an easement or limited right in property, there shall be a rebuttable presumption that access to the utility’s facilities provided pursuant to chapter 92 of this title shall be a necessary component of the utility’s rendering of adequate service to the public.

Sec. 4.  30 V.S.A. § 111a is added to read:

§ 111a.  PREEXISTING UTILITY LINES

(a)  When a corporation seeks to condemn property or an easement or other right over property where a currently existing utility line capable of operating at 100 kilovolts or less that has not been abandoned and was in place on July 1, 1993, there is a rebuttable presumption that the condemnation of the property right authorizing the existing utility line or lines is necessary in order that the petitioner may render service to the public, provided that the property right is limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, and does not (1) significantly alter the capabilities or capacity of the line or lines, (2) materially alter the degree of land use associated with the presence of the line or lines, and (3) authorize the company to perform replacements or upgrades that would have a significant impact under the criteria set forth in section 248 of this title. 

(b)  When a corporation seeks to condemn property or establish an easement or other right over property where a utility line, that has not been abandoned, was in place on July 1, 1993, the corporation shall present a petition to the public service board and to the department of public service describing the property or right, and why the action is necessary.  The property or right shall be limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, subject to the limitations set forth in subsection (a) of this section.  The board shall issue a citation upon each person whose property or right the petitioner proposes to condemn and each municipality and each planning body where the property is located, or on absent persons in such manner as the supreme court may by rule provide for service of process in civil actions, including by publication. 

(c)  Upon the filing of the petition with the board and department, any pending actions and proceedings against the petitioner affecting its right to use and enjoy the subject property are stayed for the pendency of the condemnation proceeding before the board, and the petitioner may enter upon the property to be condemned for the purposes of examination and obtaining necessary information in order to proceed with the taking and to conduct the minimum amount of maintenance and repairs necessary to provide service.

(d)  The board shall fix the time and the place for hearing.

(e)  If the utility line for which the corporation seeks to acquire easements through condemnation under this section crosses more than one property, the corporation may petition the board to hold a single hearing to determine necessity for all persons subject to condemnation under subsection (b) of this section.

(f)  A person owning or having an interest in lands or rights to be taken may stipulate as to the necessity of the taking.  The stipulation shall be filed with the board.  The board shall issue an order on necessity within 45 days upon receiving the stipulation.

(g)  A stipulation under subsection (f) of this section shall be accompanied by an affidavit sworn to before a person authorized to take acknowledgments.  The stipulation shall include the following:

(1)  a recital that the person or persons executing the stipulation have examined the proposed easement, which includes a description of the property or rights to be taken; and

(2)  an explanation of the legal and property rights affected.

(h)  If a hearing is required, the board shall hear all persons whose property or right is the subject of the condemnation petition and who wish to be heard at the time and place appointed for the hearing.  The board shall make findings of fact, and by its order, determine whether necessity requires the taking of the land and rights as set forth in the petition.

(i)  Following a determination of necessity pursuant to subsection (f) or (h) of this section, the board shall expeditiously appoint a time and place for examining the premises and provide an opportunity for a hearing on the issue of compensation, giving at least 10 days’ notice in writing to the persons that are subject to the condemnation petition.

(j)  There shall be rebuttable presumptions that compensation for the taking or use of property rights under the provision of this section shall be the diminution of value caused by the existence of such utility lines across the property at the time the petition was filed with the board and that, where a property owner acquired the property with the utility line already in place, the diminution in value was reflected in the terms of acquiring the property.  Upon rebuttal of either of these presumptions under the standard set forth in subsection (m) of this section, the board shall determine compensation pursuant to the criteria established by subdivision 112(3) of this title.

(k)(1)  When the board renders judgment, it shall send by registered mail to each of the parties in interest or their attorneys, within 30 days thereafter, a certified copy of such judgment.  If the judgment is in favor of the petitioner, the board, in the same manner, shall send to such parties a certified copy of the findings which shall include a description of the property or right to be condemned.  The petitioner shall cause a certified copy of the judgment and findings to be recorded in the clerk’s office of the town or towns in which such property is located within 30 days after the clerk receives the copies.

(2)  Upon the payment or deposit of the amounts awarded by the board, with interest, in accordance with its order, the petitioner shall be the owner of the property or right described in the findings.  However, when an appeal is taken as provided in section 12 of this title, such ownership shall be an equitable title only with right of possession until the judgment of the supreme court is complied with.

(l)  Section 112 of this title does not apply to petitions filed under this section except as provided in subsection (j) of this section.  An appeal or review relating to an action under this section shall be to the supreme court pursuant to section 12 of this title.

(m)  The presumptions arising under subsections (a) and (j) of this section shall operate in accordance with the provisions of Vermont Rule of Evidence 301(a).  These presumptions shall shift only the burden of production, and shall lose their effect as soon as any evidence to support a finding of the nonexistence of the presumed fact is introduced.

(n)  Nothing in this section shall impact any permitting or regulatory requirements that may apply to the corporation.

Sec. 5.  INVESTIGATION INTO SUBSTATION NETWORKS

The public service board shall conduct an investigation into the benefits and costs of construction of fiber-optic or other telecommunications facility networks linking electric company substations and submit a report to the committees of jurisdiction of the general assembly on or before January 15, 2009.  In addition to other information it deems appropriate, the public service board shall require from each electric company an analysis of the likely cost of connecting its substations with fiber-optic facilities and other alternative means, and the benefits to electric company operations, including benefits for system management and reliability.  If it finds good cause to do so, the board may excuse companies without more than one substation and companies which have already connected all company substations with fiber-optic facilities.  In the event that the public service board determines that the benefit of such a network exceeds its costs, it shall recommend an implementation schedule for construction of such a network and include the schedule in its report.  The board may issue an implementation schedule for individual companies prior to January 15, 2009.

Report Committee of Conference

S.241

TO THE SENATE AND HOUSE OF REPRESENTATIVES:

The Committee of Conference, to which were referred the disagreeing votes of the two Houses upon Senate Bill, entitled:

S.241.  AN ACT RELATING TO THE SPECIAL VETERAN AND GOLD STAR REGISTRATION PLATES.

Respectfully report that they have met and considered the same and recommend that Senate concur with the House.

COMMITTEE ON THE PART OF    COMMITTEE ON THE PART OF THE SENATE                                                         THE HOUSE

 Sen. Jane Kitchel                                          Rep. James Masland

Sen. Richard Mazza                                              Rep. Heidi Scheuerman

Sen. Philip Scott                                                     Rep. James Fitzgerald

 

Constitutional Amendments

Proposal 5

Rep. Pearson, for the Committee on Government Operations, recommends the Proposal ought to be adopted.

( Committee Vote: 10-0-1)

(Text of Senate Amendment  is as follows:)

SENATE CHAMBER

PROPOSED AMENDMENT TO THE CONSTITUTION

OF THE STATE OF VERMONT

Subject:          Elections; voter’s oath; self-administration

PROPOSAL 5

Sec. 1.  PURPOSE

This proposal would amend the Constitution of the State of Vermont to provide that a person who will attain the age of 18 by the date of the general election shall have the right to vote in the primary election.

Sec. 2.  Section 42 of Chapter II of the Vermont Constitution is amended to read:

§ 42.  [Voter's qualifications and oath]

Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state:

You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the State of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the Constitution, without fear or favor of any person.

Every person who will attain the full age of eighteen years by the date of the general election who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the oath or affirmation set forth in this section, shall be entitled to vote in the primary election.

Sec. 3.  EFFECTIVE DATE

This proposal of amendment shall take effect from the date of its approval by a majority vote of the voters of the state.

NOTICE CALENDAR

Favorable with Amendment

S. 358

An act relating to enhanced driver licenses.

Rep. Potter of Clarendon, for the Committee on Transportation, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  23 V.S.A. § 4(78)and (79) are added to read:

(78)  “Enhanced license” shall mean an operator’s license, commercial driver license, junior operator’s license, or nondriver identification card that denotes identity and citizenship, and includes facilitative technology identified by the Department of Homeland Security.

(79)  “Personal radio frequency identification number chip” shall mean the number assigned to the transmitting chip in an enhanced license.

Sec. 2.  23 V.S.A. § 102(d) is amended to read:

(d)  The commissioner may authorize background investigations for potential employees that may include criminal, traffic, and financial records checks; provided, however, that the potential employee is notified and has the right to withdraw his or her name from application.  Additionally, employees who are authorized to manufacture or produce operators’ licenses and identification cards, including enhanced licenses, may be subject to appropriate security clearance if required by federal law, including background investigations that may include criminal and traffic, records checks, and providing proof of United States citizenship.  The commissioner may, in connection with a formal disciplinary investigation, authorize an appropriate a criminal or traffic record background investigation of a current employee; provided, however, that the background review is necessary and relevant to the issue under disciplinary investigation.  Information acquired through a background the investigation that may be shall be provided to the commissioner or designated division director, and must be maintained in a secure manner.  If the information acquired is used as a basis for any disciplinary action, it must be given to the employee during any pre‑termination hearing or contractual grievance hearing to allow the employee an opportunity to respond to or dispute the information.  If no disciplinary action is taken against the employee, the information acquired through the background check shall be destroyed.
Sec. 3.  23 V.S.A. § 7 is added to read: 
§ 7.  ENHANCED DRIVER LICENSE; MAINTENANCE OF DATABASE 
        INFORMATION; FEE
(a)  The face of an enhanced license shall contain the individual’s name, date of birth, gender, a unique identification number, full facial photograph or imaged likeness, address, signature, issuance and expiration dates, and citizenship.  The back of the enhanced license shall have a machine-readable zone.  A Gen 2 vicinity Radio Frequency Identification chip shall be embedded in the enhanced license in compliance with the security standards of the Department of Homeland Security.  Any additional personal identity information not currently required by the Department of Homeland Security shall need the approval of either the general assembly or the legislative committee on administration rules prior to the implementation of the requirements.

(b)  In addition to any other requirement of law or rule, before an enhanced license may be issued to a person, the person shall present for inspection and copying satisfactory documentary evidence to determine identity and United States citizenship.  An application shall be accompanied by:  a photo identity document, documentation showing the person’s date and place of birth, proof of the person’s Social Security number, and documentation showing the person’s principal residence address.  To be issued, an enhanced license must meet the same requirements as those for the issuance of a United States passport.  Before an application may be processed, the documents and information shall be verified as determined by the commissioner.  Any additional personal identity information not currently required by the Department of Homeland Security shall need the approval of either the general assembly or the legislative committee on administration rules prior to the implementation of the requirements.

(c)  No person shall compile or maintain a database of electronically readable information derived from an operator’s license, junior operator’s license, enhanced license, learner permit, or nondriver identification card.  This prohibition shall not apply to a person who accesses, uses, compiles, or maintains a database of the information for law enforcement or governmental 
purposes.

(d)  The fee for an enhanced license shall be $25.00 in addition to the fees otherwise established by this title.

(e)  The commissioner shall report annually to the house and senate committees on transportation by January 15 for the purpose of reporting the associated costs, the number of enhanced licenses issued, implementation problems, recommended revisions, and other relevant information.

Sec.4.  23 V.S.A. § 8 is added to read:

§ 8.  PERSONAL RADIO FREQUENCY IDENTIFICATION CHIP

        NUMBER PROTECTION

Personal radio frequency identification chip numbers shall be given protections as codified in 18 U.S.C. §2721 et. seq, (Drivers Privacy Protection Act), as of January 1, 2008, not including any subsequent amendments.

Sec. 5.  23 V.S.A. § 601(a) is amended to read:

(a)  A resident who intends to operate motor vehicles shall procure a proper license.  A resident who has moved into the state from another jurisdiction with a valid license to operate motor vehicles under section 411 of this title shall procure a license within 60 days of moving into the state.  Operators’ licenses shall not be issued to nonresidents.  All operator licenses issued under this chapter shall expire every four years at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued.  All junior operator licenses shall expire at midnight on the eve of the anniversary of the date of birth of the applicant at the end of the term for which they were issued.  A person born on February 29 shall, for the purposes of this section, be considered as born on March 1. 

Sec. 6.  REPEAL

The following in Title 23 are repealed:

(1)  § 7(e) ( commissioner reporting on costs of enhanced license) is repealed on June 30, 2011;

(2)  § 618 (anatomical gifts);

(3)  § 4111(a)(10) (commercial driver license form regarding anatomical gifts).

Sec. 7.  18 V.S.A. § 5238(3) is amended to read:

(3)  “Document of gift” means an organ donor card, a statement attached to or imprinted on the reverse side of a Vermont motor vehicle operator’s license, a will, or other writing used to make an anatomical gift.

Sec. 8.  18 V.S.A. § 5239 is amended to read:

§ 5239.  MAKING, AMENDING, REVOKING, AND REFUSING TO

       MAKE ANATOMICAL GIFTS BY AN INDIVIDUAL

(a)  An individual who is at least 18 years of age may:

(1)  Make an anatomical gift for any of the purposes stated in

section 5242 of this title.

(2)  Limit an anatomical gift to one or more of those purposes.

(3)  Refuse to make an anatomical gift.

(b)  An anatomical gift may be made only by a document of gift signed by the donor.  If the donor cannot sign, the document of gift must be signed by another individual and by two witnesses, all of whom have signed at the direction and in the presence of the donor and of each other, and state that it has been so signed.

(c)  If a document of gift is attached to or imprinted on a donor’s motor vehicle operator’s license, the document of gift must comply with subsection (b) of this section. Revocation, suspension, expiration or cancellation of the license does not invalidate the anatomical gift.

(d)  An anatomical gift by will takes effect upon death of the testator, whether or not the will is probated.  If, after death, the will is declared invalid for testamentary purposes, the validity of the anatomical gift is unaffected.

(e)(d)  A donor may amend or revoke an anatomical gift, not made by will, only by one of the following methods:

(1)  A signed statement.

(2)  An oral statement made in the presence of two individuals.

(3)  Any form of communication during a terminal illness or injury addressed to a physician.

(4)  The delivery of a signed statement to a specified donee to whom a document of gift had been delivered.

(f)(e)  The donor of an anatomical gift made by will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (e)(d) of this section.

(g)(f)  An anatomical gift that is not revoked by the donor before death is irrevocable and does not require the consent or concurrence of any person after the donor’s death.

(h)(g)  An individual may refuse to make an anatomical gift of the individual’s body or part by any one either of the following:

(1)  A writing signed in the same manner as a document of gift.

(2)  A statement attached to or imprinted on the donor’s Vermont motor vehicle operator’s license.

(3)  Any other writing used to identify the individual as refusing to make an anatomical gift.  During a terminal illness or injury, the refusal may be an oral statement or other form of communication. 

Sec. 9.  AUTHORITY FOR LIMITED SERVICE POSITIONS FOR THE

             DEPARTMENT OF MOTOR VEHICLES

Three limited service positions are created within the department of motor vehicles.  These shall be used for the administration of the enhanced license program and shall be for a period of three years. 

Sec. 10.  AUTHORIZATION

(a)  The general assembly hereby authorizes a special program consisting of $3,000,000.00 of transportation funds and, to the extent the transportation funds can be used to match available federal funds, such associated federal funds, within the agency of transportation to improve the condition of selected state, class 1, and town highways whose deteriorating condition has been exacerbated by the severe winter weather of 2007-08.

(b)  Of the total authorized amount of transportation funds, $1,000,000.00 shall be reserved for state highways and class 1 town highways and $2,000,000.00 shall be reserved for class 2 town highways.  Funds reserved for class 2 town highways shall be administered through the town highway class 2 roadway program.

(c)  The agency through its maintenance districts shall identify state highways and class 1 town highways, and in cooperation with town officials, class 2 town highways, to which simple, cost-effective repairs designed to last more than one year can be made to repair road damages.

Sec. 11.  SECRETARY OF TRANSPORTATION; TRANSFER OF
             APPROPRIATIONS

(a)  To implement the program authorized by this act:

(1)  Notwithstanding 32 V.S.A. § 706, the secretary of transportation may transfer balances of fiscal year 2008 appropriations not to exceed $388,162.00 within or between the department of motor vehicles and divisions or sections of the agency of transportation; and

(2)  Notwithstanding 19 V.S.A. § 10g(h), the secretary of transportation is authorized to add additional class 1 town highway paving projects to the extent that funds are available from savings in approved capital projects in the transportation program.

(b)  The authority granted in subsection (a) of this section is limited to accomplishing the objectives of the program authorized by this act and shall expire upon the completion of the program.

Sec. 12.  FISCAL YEAR 2008 APPROPRIATION ADJUSTMENTS

(a)  Fiscal year 2008 transportation appropriations shall be reduced by the following amounts of transportation funds:

(1)  town highway emergency fund                 $690,000.00

(2)  policy and planning                           $300,000.00

(3)  town highway bridges                              $330,969.00

(4)  department of motor vehicles                   $100,000.00

(5)  rail                                                                   $1,096,451.00

(b)  Fiscal year 2008 transportation appropriations shall be reduced by the following amount in federal funds:

town highway bridges                                       $1,323,878.00

(c)  Fiscal year 2008 transportation appropriations shall be increased by the following amounts of transportation funds:

(1)  program development                                 $27,838.00

(2)  town highway class 2 roadway program $2,000,000.00

Sec. 13.  RUTLAND-MIDDLEBURY RAIL TRACK IMPROVEMENTS

Notwithstanding the authority granted in this act and in 19 V.S.A. § 10g(h), the funds authorized in the fiscal year 2009 transportation program for the Rutland-Middlebury track improvements project MP87-96 is exclusively reserved for the project.

Sec. 14.  REVERSIONS

Notwithstanding any other provisions of law, in fiscal year 2008, the following amount shall revert to the transportation fund from the account indicated:

8100001900  Transportation - town highway Vermont local roads  $ 37,838.00

Sec. 15.  FUND TRANSFERS

Notwithstanding any other provisions of law:

(1)  in fiscal year 2008, $1,000,000.00 shall be transferred from the central garage fund to the transportation fund.

(2)  in fiscal year 2009, $500,000.00 shall be transferred from the transportation fund to the central garage fund.

Sec. 16.  FISCAL YEAR 2009 APPROPRIATION ADJUSTMENTS AND
             FUND TRANSFERS

(a)  The transportation – program development operating expenses appropriation shall be reduced by $500,000.00 in transportation fund.

(b)  In addition to the transfer pursuant to 19 V.S.A. § 13(c) but notwithstanding any other provisions of law, in fiscal year 2009, $500,000.00 shall be transferred to the central garage fund from the transportation fund.

Sec. 17.  BICYCLE AND PEDESTRIAN FACILITIES

(a)  Fiscal year 2008 authorized spending on the Swanton  STP ST MHTB(1) project is reduced from $1,500,000.00 to $0.00.  The fiscal year 2008 transportation appropriation to program development is reduced by $283,800.00 in transportation funds and $1,216,200.00 in federal funds.

(b)  Fiscal year 2009 authorized spending on the Swanton  STP ST MHTB(1) project is reduced from $600,000.00 to $0.00.  The fiscal year 2009 transportation appropriation to program development is reduced by $120,000.00 in transportation funds and $480,000.00 in federal funds.

(c)  The Swanton STP ST MHTB(1) project is removed from the state transportation program.

Sec. 18.  REALLOCATION OF FUNDS

The following capital appropriations, totaling $1,412,742.00, are reallocated to the transportation fund:

(1)  $528,190.00 of the amount appropriated in Sec. 1(14) of No. 52 of the Acts of 2007 (Bennington courthouse and state office building).

(2)  $280,514.00 of the amount appropriated in Sec. 1(7) of No. 149 of the Acts of the 2001 Adj. Sess. (2002) (planning and design for addition to the state house).

(3)  $434,540.00 of the amount appropriated in Sec. 11(a) of No. 52 of the Acts of 2007 (water pollution control).

(4)  $19,787.00 of the amount appropriated in Sec. 15(b)(2) of No. 148 of the Acts of the 1999 Adj. Sess. (2000) (Bennington sewer line).

(5)  $100,000.00 of the amount appropriated in Sec. 8(A)(3) of No. 149 of the Acts of 2001 Adj. Sess. (2002) (state-owned dams).

(6)  $ 49,711.00 of the amount appropriated in Sec. 5(e) of No. 147 of the Acts of the 2005 Adj. Sess. (2006) (Orange County courthouse).

Sec. 19.  19 V.S.A. § 10c(k) is added to read:

(k)  To the extent that federal regulations permit, signage for all state and town bridge projects spanning more than 20 feet in length shall be erected on both sides of the project for the duration of the project as follows:

(1)  The agency of transportation shall design the signs, and the contractor shall purchase and install the signs as part of the contract bid price.

(2)  The signs shall indicate the cost of the project.

(3)  Signs for state bridge projects shall include the following:  “This is an agency of transportation project paid for with your tax dollars.”

(4)  Signs for town bridge projects shall include the following:  “This is a project sponsored by (name of municipality) and the agency of transportation, and paid for with your tax dollars.”

Sec. 20.  EFFECTIVE DATE

This act shall take effect from passage except for Sec. 3 which shall not take effect until the commissioner of motor vehicles determines that the systems necessary to operate the program are available.

(Committee vote: 10-0-1)

Rep. Branagan of Georgia, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Transportation.

(Committee vote: 8-0-3)

Senate Proposals of Amendment

H. 545

     An act relating to the agency of human services.

The Senate proposes to the House to amend the bill by striking out Sec. 2 in its entirety and inserting in lieu thereof a new Sec. 2 to read as follows:

Sec. 2.  3 V.S.A. § 3087a is added to read:

§ 3087a.  Field Services Division

The division of field services is created within the agency of human services.  The division shall be headed by a director who shall be exempt from the classified service and who shall be appointed by the secretary of human services.

H. 560

     An act relating to elimination of the offender work programs board.

     The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  28 V.S.A. § 751b(d) is amended to read:

(d)  The labor, work product, or time of an offender may be sold, contracted, or hired out by the state only:

* * *

(2)  To any state or political subdivision of a state, or to any nonprofit organization which is exempt from federal or state income taxation, subject to federal law, to the laws of the recipient state and to the rules of the department. The director of work offender programs shall annually, by January 1, submit to the chairs of the senate and house committees on institutions and to the offender work programs board a list of any such nonprofit organizations receiving goods or services in the prior and current fiscal year.  Five Three members of such board at a scheduled and warned board meeting may vote to disapprove any future sales of offender produced goods or services to any nonprofit organization and such vote shall be binding on the department.

(3)  To any private person or enterprise not involving the provision of the federally-authorized federally authorized Prison Industries Enhancement Program, provided that the offender work programs board shall first determine that the offender work product in question is not otherwise produced or available within the state. Five Three members of such board at a scheduled and warned board meeting may vote to disapprove any future sales of offender produced goods or services to any person or entity not involving the provisions of the federally-authorized federally authorized Prison Industries Enhancement Program and such vote shall be binding on the department.

* * *

Sec. 2.  28 V.S.A. § 761 is amended to read:

§ 761.  OFFENDER WORK PROGRAMS BOARD

(a)  Offender work programs board established.  An offender work programs board is established for the purpose of advising the commissioner on the use of offender labor for the public good.  The board shall base its considerations and recommendations to the commissioner on a review of plans for offender work programs pursuant to subsection (b) of this section, and on other information as it deems appropriate.

(1)  The board shall consist of nine five members, each appointed by the governor for a three-year term or until a successor is appointed, as follows:

(A)  four two representatives of customers of the products and services of offender work programs, two one of whom shall represent public sector customers, and two one of whom shall represent private nonprofit organization customers;

(B)  three two representatives of private business organizations; and

(C)  one representative of labor or labor organizations; and

(D)  one at large member.

(2)  The governor shall appoint a chair and vice chair, each of whom shall serve for one year two years or until a successor is appointed.

(3)  The board shall report to the commissioner on its activities at the request of the commissioner, and at least annually to the commissioner and to the joint fiscal office.

(4)  The board may, with the commissioner's approval of funds, hire by contract such persons the board deems necessary to provide it with administrative and staff support.

(5)  All board members shall be reimbursed from the special fund established by section 752 of this title for per diem and expenses incurred in the performance of their duties pursuant to section 1010 of Title 32.

(6)  The board shall meet at the request of the commissioner, an affected business member, a member of the general public, or a member of the board.

(b)  Review of the annual report and two-year plan. In reviewing The board shall review the annual report and two-year plan submitted by the director of offender work programs as required by subsection 751b(f) of this title, and forming its recommendations concerning them to the commissioner, the board shall:

(1)  assure itself that forward its recommendations to the commissioner concerning whether the plan is informed by thorough and accurate analysis of private business activity in the specific market segments concerned, for which purpose the board may, with the commissioners' commissioner’s approval of funds, hire by contract such persons the board deems necessary to assist it in analyzing the plan.  The board shall also may conduct public hearings to hear from members of the public or from potentially affected private businesses and labor groups; and

(2)  forward annually by January 1 to the joint fiscal office a maximum level of offender work program activity in each market segment during the term of the plan; and

(3)  make publicly known and available its recommendations for offender work programs operations.

(c)  Offender work programs expansion.  The Vermont correctional industries component of the offender work programs shall not expand into an existing market until the commissioner has done all of the following:

(1)  evaluated the impact of expansion on private sector business;

(2)  notified the offender work programs board of the proposal; and

(3)  obtained the board's written suggestions, comments and recommendations concerning the proposal.  Five Three members of the such board at a scheduled and warned board meeting may vote to disapprove any proposed expansion not involving the provisions of the federally-authorized federally authorized Prison Industries Enhancement Program, and such vote shall be binding on the department.

and that upon passage, the title of the bill shall be:  “AN ACT RELATING TO THE ROLE OF THE VERMONT OFFENDER WORK PROGRAMS BOARD”

H. 863

An act relating to creation and preservation of affordable housing and smart growth development.

The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE ACKNOWLEDGMENT

The general assembly gratefully thanks and acknowledges Gregory Brown, the executive director of the Chittenden County regional planning commission, for:

(1)  his time, commitment, and tenacity in helping to make the Vermont Neighborhood program a reality. 

(2)  his earlier, equally outstanding efforts that greatly contributed to the creation of the Vermont downtown program. 

(3)  his strong and committed leadership as the executive director of the Chittenden County regional planning commission between March 2003 and July 1, 2008, when he is scheduled to retire.

Sec. 1a.  FINDINGS AND PURPOSE

     (a)  Act 250 was enacted as a land use law in 1970 by a General Assembly concerned about large scale, unregulated development in Vermont.  At that time, few towns had planning and zoning, and for the ones that did, there was limited staffing to enforce those rudimentary municipal laws.  Revisions were made to Act 250 in 1973, including the addition of 11 new subcriteria to criterion nine, relating to matters such as agricultural soils, energy conservation, earth resources and development affecting public investments, but the focus of the law remained to review large scale developments as those developments were defined.  As a result, a large number of developments around the state have been designed to avoid Act 250 jurisdiction, resulting in no or limited review of the cumulative impact of incremental development of nine or fewer lots in scattered locations.

(b)  Some argued in the 1970s that Act 250 regulatory review should be based a comprehensive land use plan that would delineate all the lands of the state by use classifications, but provided for refinements based on more detailed studies at the regional and local levels. Others disagreed, arguing that the regulatory review process under Act 250 was sufficient.  In the end, no such measure was ever approved.  The requirement that there be an Act 250 state land use plan was deleted from the law in 1984. 

     (c)  Since that time, the General Assembly incrementally has enacted legislation to plan land uses and encourage municipalities to approve compact residential neighborhoods in and around traditional villages and downtowns and in planned growth centers in accordance with smart growth principles. This planning act furthers that goal.

     (d)  Among the strategies to expedite the development of housing in these locations is to exempt certain residential development from Act 250, where it is demonstrated that such proposed land state use review is redundant with municipal land use review, and, through the careful targeting of eligible locations to impacted areas served by infrastructure, the potential for unplanned impact to natural resources and environmental quality is negligible.

     (e)  Targeting limited state incentives to smart growth locations must be balanced with careful planned development in the surrounding countryside.  To this end, strategies for improving certain Act 250 criteria to better manage scattered residential development and to curb strip development along the state’s highways should be studied and recommendations brought back before the General Assembly for review and consideration.

     (f)  Through the use of higher Act 250 thresholds, coupled with strengthening criteria related to scattered development, rural growth areas, transportation and settlement patterns, Vermont can better achieve the state’s planning and development goal of maintaining Vermont’s historic settlement pattern of compact village and urban centers separated by rural countryside.

     (g)  As of May 1, 2008, there are 23 designated downtowns and 76 village centers, but not all of the designated downtown or village centers have zoning bylaws or subdivision regulations, reducing the number of Vermont Neighborhood eligible village centers to 24 and designated downtowns to 22.  There is one designated growth center.  Therefore, the regulatory relief and municipal revenue incentive provided by this act will initially apply to those 46 communities.

     (h)  The regulatory relief and the municipal revenue incentive for these 46 municipalities may encourage other municipalities to undertake the task of seeking designation as a downtown, village center or town growth center, enacting zoning bylaws and subdivision regulations, and then proceeding to obtain designation as a Vermont Neighborhood.

* * * Vermont Neighborhoods Program * * *

Sec. 2.  24 V.S.A. § 2791(15) is added to read:

(15)  “Vermont neighborhood” means an area of land that is in a municipality with an approved plan, a confirmed planning process, zoning bylaws, and subdivision regulations, and is in compliance with all the following:

(A)  is located in one of the following:

(i)  a designated downtown, village center, new town center, or growth center; or

(ii)  an area of land that is within the municipality and outside but contiguous to a designated downtown, village center, or new town center and is not more than 100 percent of the total acreage of the designated downtown, 50 percent of the village center, or 75 percent of the new town center.

(B)  contains substantially all the following characteristics:

(i)  its contiguous land, if any, complements the existing downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and is consistent with smart growth principles;

(ii)  it is served by either a municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources;

(iii)  it incorporates minimum residential densities of no fewer than four units of single-family, detached dwelling units per acre, and higher densities for duplexes and multi-family housing; and

(iv)  it incorporates neighborhood design standards that promote compact, pedestrian-oriented development patterns and networks of sidewalks or paths for both pedestrians and bicycles that connect with adjacent development areas.

Sec. 3.  24 V.S.A. § 2793d is added to read:

§ 2793d.  DESIGNATION OF VERMONT NEIGHBORHOODS

(a)  A municipality that has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title, and has a designated downtown district, a designated village center, a designated new town center, or a designated growth center served by municipal sewer infrastructure or a community or alternative wastewater system approved by the agency of natural resources, is authorized to apply for designation of a Vermont neighborhood.  A municipal decision to apply for designation shall be made by the municipal legislative body after at least one duly warned public hearing.  Designation is possible in two different situations:

(1)  Per se approval.  If a municipality submits an application in compliance with this subsection for a designated Vermont neighborhood that would have boundaries that are entirely within the boundaries of a designated downtown district, designated village center, designated new town center, or designated growth center, the downtown board shall issue the designation.

(2)  Designation by downtown board in towns without growth centers.  If an application is submitted in compliance with this subsection by a municipality that does not have a designated growth center and proposes to create a Vermont neighborhood that has boundaries that include land that is not within its designated downtown, village center, or new town center, the expanded downtown board shall consider the application.  This application may be for approval of one or more Vermont neighborhoods that are outside but contiguous to a designated downtown district, village center, or new town center.  The application for designation shall include a map of the boundaries of the proposed Vermont neighborhood, including the property outside but contiguous to a designated downtown district, village center, or new town center and verification that the municipality has notified the regional planning commission and the regional development corporation of its application for this designation. 

(b)  Designation Process.  Within 45 days of receipt of a completed application, the expanded downtown board, after opportunity for public comment, shall designate a Vermont neighborhood if the board determines the applicant has met the requirements of subsections (a) and (c) of this section.  When designating a Vermont neighborhood, the board may change the boundaries that were contained in the application by reducing the size of the area proposed to be included in the designated neighborhood, but may not include in the designation land that was not included in the application for designation.  A Vermont neighborhood decision made by the expanded board is not subject to appeal.  Any Vermont neighborhood designation shall terminate when the underlying downtown, village center, new town center, or growth center designation terminates.

(c)  Designation Standards.  The board shall determine that the applicant has demonstrated all of the following:

(1)  the municipality has a duly adopted and approved plan and a planning process that is confirmed in accordance with section 4350 of this title, and has adopted zoning bylaws and subdivision regulations in accordance with section 4442 of this title;

(2)  the cumulative total of all Vermont neighborhood land located within the municipality but outside a designated downtown district, designated village center, or designated new town center is not more than 100 percent of the total acreage of the designated downtown district, 50 percent of the village center, or 75 percent of the new town center;

(3)  the contiguous land of the Vermont neighborhood complements the existing designated downtown district, village center, or new town center by integrating new housing units with existing residential neighborhoods, commercial and civic services and facilities, and transportation networks, and the contiguous land, in combination with the designated downtown development district, village center, or new town center, is consistent with smart growth principles established under subdivision 2791(13) of this title;

(4)  the Vermont neighborhood shall be served by one of the following:

(A)  a municipal sewer infrastructure; or

(B)  a community or alternative wastewater system approved by the agency of natural resources; and

(5)  the municipal zoning bylaw requires the following for all land located within the Vermont neighborhood:

(A)  minimum residential densities shall require all the following:

(i)  no fewer than four units of single-family, detached dwelling units per acre, exclusive of accessory apartments; and

(ii)  higher density for duplexes and multi-family housing; and

(B)  neighborhood design standards that promote compact, pedestrian-oriented development patterns that include the following:

(i)  pedestrian scale and orientation of development.  Networks of sidewalks or paths, or both, are provided and available to the public to connect the Vermont neighborhood with adjacent development areas, existing and planned adjacent sidewalks, paths, and public streets and the designated downtown, village center, or new town center; and

(ii)  interconnected and pedestrian-friendly street networks.  Street networks are designed to safely accommodate both pedestrians and bicycles through the provisions of sidewalks on at least one side of the street, on-street parking, and traffic-calming features.

(6)  Residents hold a right to utilize household energy conserving devices.

(d)  Vermont Neighborhood Incentives for Municipalities and Developers.  Incentives for Vermont neighborhoods include the following:

(1)  the agency of natural resources shall charge no more than a $50.00 fee for wastewater applications under 3 V.S.A. § 2822(j)(4) where the applicant has received an allocation for sewer capacity from an approved municipal system; and 

(2)  Act 250 fees under 10 V.S.A. § 6083a for residential developments in Vermont neighborhoods shall be 50 percent of the fee otherwise applicable.  Fifty percent of the reduced fees shall be paid upon application, and 50 percent shall be paid within 30 days of the issuance or denial of the permit.

(3)  No land gains tax under chapter 236 of Title 32 shall be levied on the a transfer of undeveloped land in a Vermont neighborhood which is the first transfer of that parcel following the original designation of the Vermont neighborhood.

(4)  A municipality in which a designated Vermont neighborhood is located may retain and reallocate 75 percent of the state education tax portion of the property tax on the increased grand list value of affordable housing constructed in the Vermont neighborhood for a period of three years after the issuance of a certificate of occupancy for each housing unit.  For the purposes of this section, “affordable housing” means either or both of the following:

               (A) An owner occupied home in a Vermont neighborhood that is a homestead as defined in 32 V.S.A. §5401(7) and the price of which does not exceed the maximum affordable price as determined by the Vermont housing finance agency.

(B) Housing that is rented by the occupants whose gross annual household income does not exceed 60 percent of the county median income, or 60 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development for use with the Housing Credit Program under Section 42(g) of the Internal Revenue Code, and the total annual cost of the housing, as defined at Section 42(g)(2)(B) is not more than 30 percent of the gross annual household income as defined at Section 42(g)(2)(C), and with a duration of affordability of no less than 15 years.

 (e)  Length of Designation.  Initial designation of a Vermont neighborhood shall be for a period of five years, after which, the expanded state board shall review a Vermont neighborhood concurrently with the next periodic review conducted of the underlying designated downtown, village center, new town center or growth center, even if the underlying designated entity was originally designated by the downtown board and not by the expanded state board.  However, the expanded board, on its motion, may review compliance with the designation requirements at more frequent intervals.  If at any time the expanded state board determines that the designated Vermont neighborhood no longer meets the standards for designation established in this section, it may take any of the following actions:

(1)   require corrective action within a reasonable time frame;

(2)  remove the Vermont neighborhood designation, with that removal not retroactively affecting any of the benefits already received by the municipality or land owner in the designated Vermont neighborhood; and

(3)  prospectively limiting benefits authorized in this chapter, with the limitation not retroactively affecting any of the benefits already received by the municipality or land owner in the designated Vermont neighborhood.

* * * New Town Center Acreage * * *

Sec. 4.  24 V.S.A. §2793b(b)(2)(A) is amended to read:

(A) A map of the designated new town center. The total area of land encompassed within a designated new town center shall not exceed 125 acres.  In a municipality with a population greater than 15,000, the total area of land encompassed within a designated new town center may include land in excess of 125 acres provided that the additional area is needed to facilitate the redevelopment of predominately developed land in accordance with the smart growth principles defined under subdivision 2791(13) of this title and shall not exceed 175 acres.

* * * Codifying Agency of Natural Resources Incentives * * *

Sec. 5.  3 V.S.A. § 2822(j)(4)(D) is amended to read:

(D)  Notwithstanding the other provisions of this subdivision,:

* * *

(ii)  when a potable water supply is subject to the fee provisions of this subdivision and subdivision (j)(7)(A) of this section, only the fee required by subdivision (j)(7)(A) shall be assessed; and

(iii)  when a project is subject to the fee provision for the subdivision of land and the fee provision for potable water supplies and wastewater systems of this subdivision, only the higher of the two fees shall be assessed; and

(iv)  when a project is located in a Vermont neighborhood, as designated under 24 V.S.A. chapter 76A, the fee shall be no more than $50.00 in situations in which the application has received an allocation for sewer capacity from an approved municipal system.

* * * Codifying Higher Act 250 Thresholds * * *

Sec. 6.  10 V.S.A. § 6001(3)(B) and (C) are amended to read:  

(3)(A)  “Development” means:

* * *

(B)(i)  Smart Growth Jurisdictional Thresholds.  Notwithstanding the provisions of subdivision (3)(A) of this section, if a project consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793, “development” means:

(i)(I)  Construction of mixed income housing with 100 200 or more housing units or a mixed use project with 100 200 or more housing units, in a municipality with a population of 20,000 15,000 or more.

(ii)(II)  Construction of mixed income housing with 50 100 or more housing units or a mixed use project with 50 100 or more housing units, in a municipality with a population of 10,000 or more but less than 20,000 15,000.

(iii)(III)  Construction of mixed income housing with 30 50 or more housing units or a mixed use project with  30 50 or more housing units, in a municipality with a population of 5,000 6,000 or more and less than 10,000.

(iv)(IV)  Construction of mixed income housing with 25 30 or more housing units or a mixed use project with 25 30 or more housing units, in a municipality with a population of 3,000 or more but less than 5,000 6,000.

(v)(V)  Construction of mixed income housing with 25 or more housing units or a mixed use project with 25 or more housing units, in a municipality with a population of less than 3,000.

(VI)  Historic Buildings.  Construction of 10 or more units of mixed income housing or a mixed use project with 10 or more housing units where the construction involves the demolition of one or more buildings that are listed on or eligible to be listed on the state or national register of historic places.  However, demolition shall not be considered to create jurisdiction under this subdivision if the division for historic preservation has determined the proposed demolition will have: no adverse effect; no adverse effect provided that specified conditions are met; or, will have an adverse effect, but that adverse effect will be adequately mitigated.  Any imposed conditions shall be enforceable through a grant condition, deed covenant, or other legally binding document.

(ii)  Notwithstanding the jurisdictional provisions of subdivision (3)(A) of this section, the higher jurisdictional thresholds set forth in subdivision 3(B)(i) of this section shall apply if a project consists exclusively of mixed income housing located entirely within a Vermont neighborhood designated pursuant to 24 V.S.A. § 2793d(a)(2).  In a designated downtown and in a designated growth center, the higher jurisdictional thresholds in subdivision 3(B)(i) shall apply to a project that consists exclusively of any combination of mixed income housing or mixed use and is located entirely within a growth center designated pursuant to 24 V.S.A. § 2793c or within a downtown development district designated pursuant to 24 V.S.A. § 2793.

(C)  For the purposes of determining jurisdiction under subdivisions (3)(A) and (3)(B) of this section:

(i)  Housing units constructed by a person partially or completely outside a designated downtown development district or designated growth center shall not be counted to determine jurisdiction over housing units constructed by a person entirely within a designated downtown development district or designated growth center.

(ii)  Five Year, Five Mile Jurisdiction Threshold.  Within any continuous period of five years, housing units constructed by a person located entirely within a designated downtown district or, designated growth center, or designated Vermont neighborhood shall be counted together with housing units constructed by a that person located partially or completely outside a designated downtown development district or, designated growth center, or designated Vermont neighborhood to determine jurisdiction over the housing units constructed by a person partially or completely outside the designated downtown development district or, designated growth center, or designated Vermont neighborhood and within a five-mile radius.

(iii)  Each Project Stands Alone.  All housing units constructed by a person within a designated downtown development district or, designated growth center within any continuous period of five years, commencing on or after the effective date of this subdivision, or designated Vermont neighborhood shall be counted together, but only if the housing units are part of a discrete project located on a single tract or multiple contiguous tracts of land.

* * *

(v)  Per Project Increased Thresholds for Land Subdivision in Vermont Neighborhood; Per Project Threshold for Permanently Affordable Housing.  Notwithstanding subdivision (C)(iii) of this subdivision (3), any affordable housing units, as defined by this section, (3)(A)(iv) and subdivision (19) of this section, jurisdiction shall be determined exclusively by counting housing units, and when counting housing units to determine jurisdiction, only housing units in a discrete project on a single tract or multiple contiguous tracts of land shall be counted, regardless of whether located within an area designated under 24 V.S.A. chapter 76A, provided that the housing units are affordable housing units, as defined by this section, that are subject to housing subsidy covenants as defined in 27 V.S.A. § 610 that preserve their affordability for a period of 99 years or longer, and that are constructed by a person within a designated downtown development district, designated village center, or designated growth center, shall count toward the total number of housing units used to determine jurisdiction only if they were constructed within the previous 12-month period, commencing on or after the effective date of this subdivision.

* * *  Rules on Mixed Income Housing * * *

Sec. 7.  10 V.S.A. § 6001(27) is amended to read:

(27)  “Mixed income housing” means a housing project in which at least 15 percent of the total housing units are affordable housing units:

(A)  (Owner occupied Housing)  owner-occupied housing, the purchase price of which does not at the time of first sale exceed the new construction, targeted area purchase price limits established and published annually by the Vermont housing finance agency; or

(B)  (Affordable Rental Housing)  housing that is rented by the occupants whose gross annual household income does not exceed 60 percent of the county median income, or 60 percent of the standard metropolitan statistical area income if the municipality is located in such an area, as defined by the United States Department of Housing and Urban Development for use with the Housing Credit Program under Section 42(g) of the Internal Revenue Code, and the total annual cost of the housing, as defined at Section 42(g)(2)(B) is not more than 30 percent of the gross annual household income as defined at Section 42(g)(2)(C), and with a duration of affordability of no less than 15 years.

* * * Act 250 Fees In Vermont Neighborhood * * *

Sec. 8.  10 V.S.A. § 6083a(d) is amended to read:

(d)  Vermont Neighborhood Fees.  Fees for residential development in a Vermont neighborhood designated according to 24 V.S.A. §2793d shall be no more than 50 percent of the fee otherwise charged under this section, with 50 percent due with the application, and 50 percent due within 30 days after the permit is issued or denied.

* * * Vermont Neighborhood Chapter 117 Conditional Use Appeals * * *

Sec. 9.  24 V.S.A. § 4471(e) is added to read:

(e)  Vermont Neighborhood.  Notwithstanding subsection (a) of this section, a determination by an appropriate municipal panel shall not be subject to appeal if the determination is that a proposed residential development within a designated downtown development district, designated growth center, or designated Vermont neighborhood seeking conditional use approval will not result in an undue adverse effect on the character of the area affected, as provided in subdivision 4414(3)(A)(ii) of this title.

* * * Report * * *

Sec. 10.  REPORT ON POLLUTION CONTROL SYSTEM

By no later than January 15, 2009, the secretary of natural resources shall report to the legislative committees on natural resources and energy with regard to the agency’s implementation of and compliance with the municipal pollution control priority system rules, and as to the impact of these rules on development.

* * * VHFA Sunset Repeal * * *

Sec. 11.  10 V.S.A. § 625(1) is amended to read:

(1)  The residential housing is primarily for occupancy by persons and families of low and moderate income, or qualifies for financing with proceeds of federally tax-exempt obligations, or at least 20 percent of the units are for occupancy by persons and families of low and moderate income;

* * * Land Gains Tax * * *

Sec. 12.  32 V.S.A. § 10002(p) is added to read:

(p)  Also excluded from the definition of “land” is a transfer of undeveloped land in a Vermont neighborhood which is the first transfer of that parcel following the original designation of  the Vermont neighborhood.

* * * Housing Tax Credit * * *

Sec. 13.  32 V.S.A. § 5930u is amended to read:

§ 5930u.  TAX CREDIT FOR AFFORDABLE HOUSING

(a)  As used in this section:

(1)  “Affordable housing project” or “project” means a rental housing project identified in 26 U.S.C. § 42(g) or owner-occupied housing identified in 26 U.S.C. § 143(e) and (f) and eligible under the Vermont housing finance agency allocation plan criteria.

* * *

(9)  “Allocation plan” means the plan recommended by the committee and approved by the Vermont housing finance agency, which sets forth the eligibility requirements and process for selection of eligible housing projects to receive affordable housing tax credits under this section.  The allocation plan shall include requirements for creation and retention of affordable housing for low income persons, and requirements to ensure that eligible housing is maintained as affordable by subsidy covenant, as defined in 27 V.S.A. § 610 on a perpetual basis, and meets all other requirements of the Vermont housing finance agency related to affordable housing.

(b)(1)  Affordable housing credit allocation.  Prior to the placement of an affordable housing project in service, the owner, or a person having the right to acquire ownership of a building, may apply to the committee for an allocation of affordable housing tax credits under this section.  The committee shall advise the allocating agency on an affordable housing tax credit application based upon published priorities and criteria.  An eligible applicant may apply to the allocating agency for an allocation of affordable housing tax credits under this section related to an affordable housing project authorized by the allocating agency under the allocation plan.  In the case of a specific affordable rental housing project, the eligible applicant must also be the owner or a person having the right to acquire ownership of the building and must apply prior to placement of the affordable housing project in service.  In the case of owner-occupied housing units, the applicant must apply prior to purchase of the unit and must ensure that the allocated funds will be used to ensure that the housing qualifies as affordable for all future owners of the housing.  The allocating agency shall issue a letter of approval if it finds that the applicant meets the priorities, criteria, and other provisions of subdivision (2) of this subsection.  The burden of proof shall be on the applicant.

(2)  Upon receipt of a completed application, an allocation of affordable housing tax credits with respect to a project under this section shall be granted to an applicant, provided the applicant demonstrates to the satisfaction of the committee all of the following:

(A)  The owner of the project has received from the allocating agency a binding commitment for, a reservation or allocation of, an out-of-cap determination letter for, Section 42 credits, or meets the requirements of the allocation plan for development of units to be owner-occupied;

(B)  The project has received community support.

* * *

(g)  In any fiscal year, the allocating agency may award up to $400,000.00 in total first-year credit allocations to all applicants under this subchapter for rental housing projects; and may award up to $100,000.00 per year for owner‑occupied unit applicants.  In any fiscal year, total first-year allocations plus succeeding-year deemed allocations shall not exceed $2,000,000.00 $2,500.000.00.

* * * Property Transfer Tax * * *

Sec. 14.  32 V.S.A. § 9602(1) is amended to read:

A tax is hereby imposed upon the transfer by deed of title to property located in this state.  The amount of the tax equals one and one quarter one-quarter percent of the value of the property transferred, or $1.00, whichever is greater, except as follows:

(1)  with respect to the transfer of property to be used for the principal residence of the transferee:  the tax shall be imposed at the rate of five-tenths of one percent of the first $100,000.00 in value of the property transferred and at the rate of one and one quarter one-quarter percent of the value of the property transferred in excess of $100,000.00; except that no tax shall be imposed on the first $110,000.00 in value of the property transferred if the purchaser obtains a purchase money mortgage funded in part with a homeland grant through the Vermont housing and conservation trust fund or which the Vermont housing and finance agency or U.S. Department of Agriculture and Rural Development has committed to make or purchase and tax at the rate of one and one-quarter percent shall be imposed on the value of that property in excess of $110,000.00.

Sec. 15. 24 V.S.A. § 2792(a) is amended to read:

(a)  A "Vermont downtown development board," also referred to as the "state board," is created to administer the provisions of this chapter. The state board members shall be composed of the following permanent members, or their designees:

(1)  The the secretary of commerce and community development;

(2)  The the secretary of transportation;

(3)  The the secretary of natural resources;

(4)  The secretary of human services;

(5)  The the commissioner of public safety;

(6)  The commissioner of housing and community affairs; and

(5)  a person appointed by the governor from a list of three names submitted by the Vermont Natural Resources Council, the Preservation Trust of Vermont, and Smart Growth Vermont;

(6)  a person appointed by the governor from a list of three names submitted by the Association of Chamber Executives; and

(7)  Three three public members representative of local government, one of whom shall be designated by the Vermont league of cities and towns, and two shall be appointed by the governor.

Sec. 16.  SMART GROWTH; STUDY COMMITTEE

(a)  A smart growth study committee is created to:

(1)  Study Act 250 (10 V.S.A. § 6086) criterion 5, relating to traffic, criterion 9(H), relating to scattered development, criterion 9(L), relating to rural development, and other criteria identified by the committee, to determine the effectiveness of those criteria to promote compact settlement patterns, prevent sprawl, and protect important natural resources, and to make recommendations to improve the effectiveness of those criteria in preserving the economic vitality of Vermont’s existing settlements and preventing sprawl development.

(2)  Evaluate the development potential of existing designated downtowns, new town centers, and village centers and evaluate the community and natural resource impacts of developing surrounding lands.

(3)  Make recommendations for incentives designed to encourage municipalities to preserve Vermont’s working landscape and to develop Vermont neighborhoods and new housing.

(4) Develop recommendations for how best to conduct periodic assessments of the effectiveness of the designation programs established under chapter 76A of Title 24.

(b)  The committee shall be composed of the following 13 members:

(1)  Two members of the house, one from the committee on general, housing and military affairs and one from the committee on natural resources and energy.

(2)  Two members of the senate, one from the committee on economic development, housing and general affairs and one from the committee on natural resources and energy.    

(3)  A representative from each of the following organizations: 

(A)  Vermont homebuilders and remodelers association.

(B)  Lake Champlain regional chamber of commerce.

(C)  Vermont planners association.

(D)  Vermont association of planning and development agencies.

(E)  Smart growth Vermont.

(F)  Vermont natural resources council.

(G)  Vermont natural resources board.

(H)  Vermont association of realtors.

(I)  Vermont league of cities and towns.

(J)  the land use law center at Vermont Law School

(c)  The four legislative members shall be entitled to per diem compensation and reimbursement of necessary expenses as provided to members of standing committees under 2 V.S.A. § 406 for attendance at a meeting when the general assembly is not in session.

(d)   The chair shall be elected from any of the four legislative members by the members of the study committee from among the four legislative members.  The committee shall meet as needed, and the legislative council shall provide administrative support. 

(e)  The committee shall issue a brief report on its findings and recommendations and draft legislation to the house committees on general, housing and military affairs and on natural resources and energy and the senate committees on economic development, housing and general affairs and on natural resources and energy on or before January 15, 2009. 

* * * State Surplus Land Inventory * * *

Sec. 17.  STATE SURPLUS LAND IN CLOSE PROXIMITY TO OR WITHIN A DOWNTOWN, VILLAGE CENTER, OR NEW TOWN CENTER; INVENTORY AND PROGRAM PROPOSALS 

(a)  The secretary of commerce and community affairs, in consultation with Vermont Housing Finance Agency, the Vermont Housing and Conservation Board, and any other interested parties, shall:

(1)  compile an inventory of state lands deemed to be surplus to state needs and located in close proximity to or within a designated downtown, a designated village center, a designated new town center or a designated growth center that would be appropriate for developing housing that meets the community housing needs;

(2)  develop program recommendations for the use of suitable state surplus land that will ensure that housing development on this land includes a substantial amount of affordable housing, including permanently affordable housing; and

(3)  recommend processes and mechanisms for transfer of the land to assure its use for housing development whether by outright sale, long-term lease, or some other appropriate mechanism.

(b)  On or before January 15, 2009, the secretary of commerce and community development shall issue a report that includes an inventory of state surplus land and recommendations developed pursuant to the goals of subsection (a) of this section.  The report shall be provided to the house committees on corrections and institutions and on general, housing and military affairs and the senate committees on institutions and on economic development, housing and general.

* * * VHFA Economic Stimuli * * *

Sec. 18.  3 V.S.A. § 523(e) is amended to read:

(e)  The committee may formulate policies and procedures deemed necessary and appropriate to carry out its functions.  Notwithstanding the foregoing, the committee shall consider, consistent with chapter 147 of Title 9, subsection 472a(b) of this title, 16 V.S.A. § 1943a(b), and 24 V.S.A. § 5063a(b), investing up to $17,500,000.00 with the Vermont housing finance agency to assist in its homeownership financing programs for persons and families of low and moderate income as defined in 10 V.S.A. § 601(11).

Sec. 19.  INVESTMENT OF STATE MONEYS

The treasurer is hereby authorized to establish a short-term credit facility for the Vermont housing finance agency in an amount of up to $30,000,000.00 to be used as interim financing for its homeownership mortgage loan program as authorized under chapter 25 of Title 10.

Sec. 20.  VERMONT NEIGHBORHOOD REPORT; AGENCY OF COMMERCE AND COMMUNITY AFFAIRS

On or before January 15, 2013, the secretary of commerce and community affairs shall issue a report on the status of the Vermont neighborhood program to the senate committees on economic development, housing and general affairs, on natural resources and energy, and on finance, and the house committees on general, housing and military affairs, on natural resources and energy, and on ways and means.  The report shall include all the following:

(1)  The number of Vermont neighborhood applications and designations.

(2)  The number of housing units, including a description, size, selling price, and location of each, permitted and constructed in each Vermont neighborhood.

(3)  The number and description of rental housing properties permitted or constructed in each Vermont neighborhood and the rental charges for each unit.

(4)  Any other information useful to determining the success of the Vermont neighborhood program to stimulate housing development and encourage smart growth.

Sec. 21.  Regional Planning Commission Report on Infill Opportunities

     By no later than January 15, 2009, each regional planning commission is requested to inventory and map locations within its region that are served by municipal wastewater and water supply services and that are otherwise suitable for infill development and redevelopment, giving due regard to the location of important natural resources and primary agricultural soils.  The inventory and map shall be provided, by January 30, 2009, to the committees of the general assembly with jurisdiction over housing, natural resources, and agriculture.

Sec. 22.  EFFECTIVE DATES; SUNSET; LIMITATIONS

This act shall take effect on passage except as follows:

(1) No “Vermont Neighborhood” designations under Chapter 76A of Title 24 may be made after June 30, 2013.  This limitation shall be noted in the published annotations to Section 2793d of Title 24.

 (2)  Sec. 11 (VHFA Sunset Repeal) of this act shall take effect on July 1, 2008, at which time the prospective repeal provisions of Sec. 7a of No. 189 of the Acts of the 2005 Adj. Sess. (2006) shall have no force or effect.

(3)  Sec. 13 (VHFA Home Ownership Tax Credit) of this act, amending 32 V.S.A. § 5930u, shall take effect July 1, 2008.

(4) Sec. 14 (Low Income Home Ownership Program) of this act, amending 32 V.S.A. § 9602, shall apply to transfers on or after July 1, 2008.

(5)  Sec. 19 (Short Term Loan form State Treasury to VHFA) of this act shall sunset July 1, 2009.

And after passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO MUNICIPAL PLANNING, CREATING VERMONT NEIGHBORHOODS AND ENCOURAGING SMART GROWTH DEVELOPMENT.

 

H. 873

     An act relating to the cleanup of Lake Champlain and other state waters.

     The Senate proposes to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  Vermont’s surface waters are vital assets that provide the citizens of the state clean water, recreation, and economic opportunity.

(2)  Preserving and protecting the water quality of the surface waters of Vermont is necessary to preserve the quality of life for the citizens of Vermont.

(3)  Lake Champlain does not comply with the Vermont water quality standards and has been designated by the state as impaired due to phosphorus.

(4)  The federal Clean Water Act requires Vermont to develop a plan, known as a total maximum daily load (TMDL) plan, for the cleanup of Lake Champlain.

(5)  Through adoption of the Lake Champlain TMDL and through implementation of the Clean and Clear Action Plan, Vermont has committed to the restoration of the water quality of Lake Champlain.

(6)  Since 2004, a total of nearly $65 million in state and federal funds has been made available to support the Clean and Clear Action Plan.

(7)  Despite Vermont’s financial commitment to the cleanup of Lake Champlain, the independent performance audit of the Clean and Clear Action Plan concluded that there have been no significant reductions in phosphorus loads to Lake Champlain, and there has been an actual increase in phosphorus loads during implementation of the Clean and Clear Action Plan.

(8)  The audit of the Clean and Clear Action Plan also concluded that there is a lack of coordination between programs funded under Clean and Clear, that there are no requirements for programs funded under Clean and Clear, that few of the programs funded by Clean and Clear track or measure phosphorus reduction related to the programs, that there is a general absence of any quantification of phosphorus reduction under the programs funded by Clean and Clear, and that there is a lack of a clear objective for the Clean and Clear Program as a whole.

(9)  Implementation of the Lake Champlain TMDL also lacks an accurate measure for quantifying phosphorus reduction and has failed to date to reduce phosphorus loads in Lake Champlain as a whole.

(10)  Vermont should reassert its commitment to the preservation of the water quality of the state and to the cleanup of Lake Champlain by requiring the development of a comprehensive plan to implement aggressively the Lake Champlain TMDL and to improve coordination of the Clean and Clear Action Plan.

Sec. 2.  Sec. 5 of No. 43 of the Acts of 2007 is amended to read:

Sec. 5.  10 V.S.A. chapter 47, subchapter 6 is added to read:

Subchapter 6.  Lake Champlain Water Quality

§ 1385.  THE LAKE CHAMPLAIN TOTAL MAXIMUM DAILY LOAD PLAN

(a)(1)  The secretary of natural resources shall reopen the total maximum daily load (TMDL) plan for Lake Champlain as it pertains to the waters of Vermont in order to:

(A)  Adopt a new hydrologic base year to reflect the average phosphorus load discharged to Lake Champlain between 1993 and 2004;

(B)  Allocate point source and non-point source load reductions on a subwatershed basis; and

(C)  Ensure that the total annual phosphorus discharged by all wastewater treatment facilities in the aggregate does not exceed the total phosphorus load discharged to Lake Champlain by all wastewater treatment facilities in the aggregate in 2006 and to adjust aggregate total phosphorus load allocations to Lake Champlain accordingly; and

(D)  Amend pollutant load allocations within the TMDL so as to reduce point source and non-point source load allocations in order to reasonably assure that the TMDL meets the Vermont water quality standards.

(2)  The amended TMDL shall be submitted to the U.S. Environmental Protection Agency as required by 33 U.S.C. § 303.

(b)  In addition to the requirements of subsection (a) of this section, the secretary of natural resources shall amend the Vermont-specific implementation plan of the Lake Champlain TMDL to include a strategy for identifying and targeting critical source areas for non-point source pollution in each subwatershed.  For the purposes of this subsection, “critical source area” means an area in a watershed with high potential to release phosphorus to surface or subsurface runoff to waters of the state.

(c)  In amending the TMDL for Lake Champlain under subsection (a) of this section and in amending the Vermont-specific implementation plan of the Lake Champlain TMDL under subsection (b) of this section section 1386 of this title, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii). 

§ 1386.  IMPLEMENTATION PLAN FOR THE LAKE CHAMPLAIN TOTAL MAXIMUM DAILY LOAD PLAN

(a)  On or before January 15, 2010, the secretary of natural resources shall issue a revised Vermont-specific implementation plan for the Lake Champlain TMDL.  Beginning January 15, 2013, and every four years thereafter, the secretary of natural resources shall amend and update the Vermont-specific implementation plan for the Lake Champlain TMDL.  Prior to issuing, amending, or updating the implementation plan, the secretary shall consult with the agency of agriculture, food and markets, all statewide environmental organizations that express an interest in the plan, the Vermont League of Cities and Towns, all business organizations that express an interest in the plan, the University of Vermont Rubenstein ecosystem science laboratory, and other interested parties.  The implementation plan shall include a comprehensive strategy for implementing the Lake Champlain total maximum daily load (TMDL) plan and for the remediation of Lake Champlain.  The implementation plan shall be issued as a document separate from the Lake Champlain TMDL.  The implementation plan shall:

(1)  Include or reference the elements set forth in 40 C.F.R. § 130.6(c) for water quality management plans;

(2)  Comply with the requirements of section 1258 of this title and administer a permit program to manage discharges to Lake Champlain consistent with the federal Clean Water Act;

(3)  Develop a process for identifying critical source areas for non-point source pollution in each subwatershed.  As used in this subdivision, “critical source area” means an area in a watershed with high potential for the release, discharge, or runoff of phosphorus to the waters of the state;

(4)  Develop site-specific plans to reduce point source and non-point source load discharges in critical source areas identified under subdivision (3) of this subsection;

(5)  Develop a method for identifying and prioritizing on public and private land pollution control projects with the potential to provide the greatest water quality benefits to Lake Champlain;

(6)  Develop a method of accounting for changes in phosphorus loading to Lake Champlain due to implementation of the TMDL and other factors;

(7)  Develop phosphorus reduction targets related to phosphorus reduction for each water quality program and for each segment of Lake Champlain, including benchmarks for phosphorus reduction that shall be achieved.  The implementation plan shall explain the methodology used to develop phosphorus reduction targets under this subdivision;

(8)  Establish a method for the coordination and collaboration of water quality programs within the state;

(9)  Develop a method for offering incentives or disincentives to wastewater treatment plants for maintaining the 2006 levels of phosphorus discharge to Lake Champlain;

(10)  Develop a method of offering incentives or disincentives for reducing the phosphorus contribution of stormwater discharges within the Lake Champlain basin.

(b)  In amending the Vermont-specific implementation plan of the Lake Champlain TMDL under this section, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii). 

(c)  On or before January 15, 2010, the secretary of natural resources shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with a summary of the contents of and the process leading to the adoption under subsection (a) of this section of the implementation plan for the Lake Champlain TMDL.  On or before January 15, 2013, and every four years thereafter, the secretary shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with the amendments or revisions to the implementation plan for the Lake Champlain TMDL required by subsection (a) of this section.  Prior to issuing a report required by this subsection, the secretary shall hold at least three public hearings in the Lake Champlain watershed to describe the amendments and revisions to the implementation plan for the Lake Champlain TMDL.  The secretary shall prepare a responsiveness summary for each public hearing.  Beginning January 15, 2013, a report required by this subsection shall include:

(1)  An assessment of the implementation plan for the Lake Champlain TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic base period used to determine the phosphorus-loading capacities for the Lake Champlain TMDL based on available data, including an evaluation of the adequacy of the hydrologic base period for the TMDL;

(3)  Recommendations, if any, for amending the implementation plan or reopening the Lake Champlain TMDL.

 (d)  Beginning February 1, 2009 and annually thereafter, the secretary shall submit to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture a clean and clear program summary reporting on activities and measures of progress for each program supported by funding under the Clean and Clear Action Plan. 

Sec. 3.  Sec. 4 of No. 43 of the Acts of 2007 is amended to read:

Sec. 4.  AGENCY OF NATURAL RESOURCES REPORT ON IMPLEMENTATION OF STORMWATER TMDLS

(a)  Beginning January 15, 2008, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture regarding agency progress in establishing and implementing the total maximum daily load (TMDL) plan for Lake Champlain.  Beginning January 15, 2009, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy regarding agency progress in establishing and implementing the TMDLs for the stormwater-impaired waters of the state.  Prior to issuing the reports required under this section, the agency of natural resources shall hold a public hearing in the Lake Champlain watershed and each watershed of a stormwater-impaired water for which a permit has been issued implementing a total maximum daily load.  The reports required by this section shall include:

(1)  An assessment of the implementation plan for the TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic targets of the TMDL based on available data, including an evaluation of the adequacy of the hydrologic targets of the TMDL;

(3)  Recommendations, if any, for amending an implementation plan or reopening a TMDL.

* * *

Sec. 4.  AGENCY OF NATURAL RESOURCES STORMWATER TMDL SCHEDULE

(a)  On or before October 1, 2008, the secretary of natural resources shall submit to each municipality in which a stormwater impaired water is located and to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture a schedule for the issuance of the implementation plans for the total maximum daily load (TMDL) plans that the U.S. Environmental Protection Agency (EPA) has approved for the stormwater-impaired waters of the state.  The schedule shall include the proposed dates on which the implementation plan for each EPA‑approved stormwater TMDL will be issued and a summary of the potential alternatives for each implementation plan, including the funding options for each alternative.

(b)  The report required under subsection (a) of this section shall also include a schedule for the submission of the remaining stormwater TMDLs to EPA for approval.

Sec. 5.  10 V.S.A. § 1264 is amended to read:

§ 1264.  STORMWATER MANAGEMENT

* * *

(e)(1)  Except as otherwise may be provided in subsection (f) of this section, the secretary shall, for new stormwater discharges, require a permit for discharge of, regulated stormwater runoff consistent with, at a minimum, the 2002 stormwater management manual.  The secretary may issue, condition, modify, revoke, or deny discharge permits for regulated stormwater runoff, as necessary to assure achievement of the goals of the program and compliance with state law and the federal Clean Water Act.  The permit shall specify the use of best management practices to control regulated stormwater runoff.  The permit shall require as a condition of approval, proper operation, and maintenance of any stormwater management facility and submittal by the permittee of an annual inspection report on the operation, maintenance and condition of the stormwater management system.  The permit shall contain additional conditions, requirements, and restrictions as the secretary deems necessary to achieve and maintain compliance with the water quality standards, including but not limited to requirements concerning recording, reporting, and monitoring the effects on receiving waters due to operation and maintenance of stormwater management facilities.

* * *

(i)  A residential subdivision may transfer a pretransition stormwater discharge permit or a stormwater discharge permit implementing a total maximum daily load plan to a municipality, provided that the municipality assumes responsibility for the permitting of the stormwater system that serves the residential subdivision.  For the purposes of this section:

(1)  “Pretransition stormwater discharge permit” means any permit issued by the secretary of natural resources pursuant to this section on or before June 30, 2004 for a discharge of stormwater.

(2)  “Residential subdivision” means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

Sec. 6.  27 V.S.A. § 614 is added to read:

§ 614.  TRANSFER OF STORMWATER DISCHARGE PERMITS TO A MUNICIPALITY

(a)  The failure of the residential subdivision to obtain, renew, or comply with the terms of a pretransition stormwater discharge permit shall not create an encumbrance on record title to real property within the residential subdivision or affect marketability of title of real property within the residential subdivision, provided that:

(1)  The residential subdivision transfers a pretransition stormwater permit to a municipality according to the requirements of subsection 1264(i) of Title 10;

(2)  Property owners within the residential subdivision record in the land records:

(A)  The deed or other legal document of conveyance of the stormwater system to the utility; and

(B)  A notice indicating that the stormwater utility has assumed responsibility for the permitting of the stormwater system located in the residential subdivision.

(b)  The definitions found in section 1264 of Title 10 and subsection 613(a) of this title apply to this section unless otherwise indicated.  For the purposes of this section, “residential subdivision” means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

Sec. 7.  24 V.S.A. § 4753 is amended to read:

§ 4753.  REVOLVING LOAN FUNDS; AUTHORITY TO SPEND; REPORT

(a)  There is hereby established a series of special funds to be known as:

(1)  The Vermont environmental protection agency (EPA) pollution control revolving fund which shall be used to provide loans to municipalities, state agencies, and the Vermont housing finance agency, for planning sewage systems and sewage treatment or disposal plants as defined in subdivisions 3501(6) and 3601(3) of this title, for constructing publicly-owned publicly owned sewage systems and sewage treatment or disposal plants as defined in subdivisions 3501(6) and 3601(3) of this title, for planning or construction of certain privately-owned privately owned wastewater systems, and for implementing related management programs.

(2)  The Vermont pollution control revolving fund which shall be used to provide loans to municipalities, state agencies, and the Vermont housing finance agency, for planning pollution control facilities, for constructing publicly-owned publicly owned pollution control facilities, and for constructing certain privately-owned privately owned wastewater systems and potable water supply systems.

* * *

(8)  The Vermont stormwater management fund which shall be used to provide grants and loans to municipalities, pursuant to rules proposed by the agency of natural resources and enacted by the general assembly, for planning, designing, engineering, constructing, repairing, or improving infrastructure necessary to protect the waters of the state from the adverse impacts of untreated stormwater runoff.  Funds may also be used to plan and establish a process for managing stormwater within or among municipalities.

* * *

(d)  Funds from the Vermont environmental protection agency pollution control fund and the Vermont pollution control revolving fund, established by subdivisions (a)(1) and (2) of this section, may be awarded for:

(1)  the refurbishment or construction of a new or an enlarged wastewater treatment plant with a resulting total capacity of 250,000 gallons or more per day in accordance with the provisions of this chapter and section 1626a of Title 10; or

(2)  the construction of stormwater management facilities as specifically or generally described in Vermont’s nonpoint source management plan, and which are necessary to remedy or prevent pollution of waters of the state, provided, in any year in which the federal grant for the fund established in subdivision (a)(1) of this section does not exceed the amount available to the state in the 2002 federal appropriation, no more than 10 30 percent of that year’s federal and state appropriations to that fund shall be used for the purpose outlined in this subdivision.

* * *

Sec. 8.  10 V.S.A. § 1278 is amended to read:

§ 1278.  OPERATION, MANAGEMENT, AND EMERGENCY RESPONSE PLANS FOR POLLUTION ABATEMENT FACILITIES

(a)  Findings.  The general assembly finds that the state shall protect Vermont’s lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur.

(b)  Planning requirement.  Effective July 1, 2007, the secretary of natural resources shall, upon renewal as part of a permit issued under section 1263 of this title, require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for those portions of each pollution abatement facility that include the treatment facility, the sewage pumping stations, and the sewer line stream crossing. 

(c)  As of July 1, 2010, the secretary of natural resources, as part of a permit issued under section 1263 of this title, shall require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for each permitted facility that portion of each pollution abatement facility that includes the sewage collection systems.  The requirement to develop a plan under this subsection shall be included in a permit issued under section 1263 of this title, and a plan developed under this subsection shall be subject to public review and inspection.

(d)  An operation, management, and emergency response plan shall include the following:

(1)  Identification of those elements of the facility, including collection systems that are determined to be prone to failure based on installation, age, design, or other relevant factors.

(2)  Identification of those elements of the facility identified under subdivision (1) of this subsection which, if one or more failed, would result in a significant release of untreated or partially treated sewage to surface waters of the state.

(3)  A requirement that the elements identified in subdivision (2) of this subsection shall be inspected in accordance with a schedule approved by the secretary of natural resources.

(4)  An emergency contingency plan to reduce the volume of a detected spill and to mitigate the effect of such a spill on public health and the environment.

(c)(e)  The secretary of natural resources shall post publicly notice of an illegal discharge that may pose a threat to human health or the environment on its website within 24 hours of the agency’s receipt of notification of the discharge.

Sec. 9.  10 V.S.A. § 6602(2) is amended to read:

(2)  “Solid waste” means any discarded garbage, refuse, septage, sludge from a waste treatment plant, water supply plant, or pollution control facility and other discarded material including solid, liquid, semi-solid, or contained gaseous materials resulting from industrial, commercial, mining, or agricultural operations and from community activities but does not include animal manure and absorbent bedding used for soil enrichment; high carbon bulking agents used in composting; or solid or dissolved materials in industrial discharges which are point sources subject to permits under the Water Pollution Control Act, chapter 47 of this title.

Sec. 10.  COMPOSTING FACILITY REGULATORY REVIEW

(a)  The general assembly finds that composting is an important management technique necessary for the existing and future management of solid waste in Vermont and for the management of manure and agricultural wastes on farms.  The agency of natural resources, the natural resources board, and the agency of agriculture, food, and markets should work together to protect the environment, assure the continued viability of composting facilities in the state, assure continued composting on farms, and assure that the goals of this section are accomplished.

(b)  Notwithstanding 1 V.S.A. §§ 213 and 214, until July 1, 2010, no composting facility holding a permit under 10 V.S.A. chapter 159 issued after January 1, 2001 shall be required to obtain a permit or a permit amendment under 10 V.S.A. chapter 151, except that a composting facility shall be required to obtain a permit under 10 V.S.A. chapter 151 if:

(1)  development at the composting facility exceeds the scope of the composting facility’s certification under 10 V.S.A. chapter 159, and the development is not authorized by the secretary of natural resources under 10 V.S.A. chapter 159; or

(2)  there is a substantial change at the composting facility, as it exists on the effective date of this act, that would require a permit under 10 V.S.A. chapter 151, and the change is not otherwise authorized by the secretary of natural resources under chapter 10 V.S.A. chapter 159.

(c)  A composting facility that holds a certification by the agency of natural resources under 10 V.S.A. chapter 159 issued after January 1, 2001 shall be allowed to continue operations until July 1, 2010 under the terms of the composting facility’s existing certification, an amendment to the composting facility’s certification, or an interim certification.  Until July 1, 2010, such a composting facility shall not be subject to any requirement of an order under 10 V.S.A. chapter 159, 201, or 211 issued before the effective date of this act that requires the composting facility to obtain a permit under 10 V.S.A. chapter 151 or that is contrary to an authorization, certification, or requirement of the secretary under 10 V.S.A. chapter 159.

(d)  For the purposes of this section, “composting facility” shall mean a facility engaged in the controlled biological decomposition of organic matter through active management to produce, use, or sell a stable humus-rich material but shall not mean sewage or septage or materials derived from sewage or septage.

(e)  On or before July 1, 2008, the agency of natural resources shall convene a study committee to review the existing regulatory requirements for composting in the state and to recommend amendments or improvements to the existing rules governing the construction, alteration, or operation of a composting facility.  The committee shall consist of:

(1)  the secretary of natural resources or his or her designee;

(2)  the secretary of agriculture, food and markets or his or her designee;

(3)  two representatives of the composting association of Vermont, appointed by the association;

(4)  a representative of the Vermont League of Cities and Towns, appointed by the league;

(5)  a representative of an interested environmental group, appointed by the senate committee on committees;

(6)  a representative from the Vermont association of solid waste managers, appointed by the association;

(7)  the state historic preservation officer or his or her designee; and

(8)  a representative of the natural resources board, appointed by the chair of the board.

(f)  The committee shall issue a final report of its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2009.  The report shall include:

(1)  Recommended rules for the construction, alteration, or operation of a composting facility;

(2)  Recommendations for increasing public awareness of the benefits of composting;

(3)  Recommendations for increasing awareness within the composting community and those interested in initiating a composting operation of the existing regulations governing composting; and

(4)  The contact information of an individual or department at the agency of natural resources that can assist interested persons in understanding and complying with the agency’s regulations for composting.

Sec. 11.  ANR REPORT ON PHOSPHORUS REDUCTION INCENTIVES

On or before February 1, 2009, the agency of natural resources, as part of the report required under 10 V.S.A. § 1386(d), shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on appropriations with a status report on the development of incentives or disincentives for wastewater treatment plants to maintain the 2006 levels of phosphorus discharge to Lake Champlain.

Sec. 12.  SUNSET

Sec. 10 (composting facility regulatory review) of this act shall be repealed on July 1, 2010.  A composting facility that has been operated at any time between June 1, 1970 and July 1, 2010 and which constitutes a development pursuant to 10 V.S.A. § 6001(3)(A), including a composting facility where Act 250 jurisdiction has been formally determined, shall be subject to jurisdiction under 10 V.S.A. chapter 151 as of July 1, 2010.

Sec. 13.  EFFECTIVE DATE

(a)  This section and Secs. 1 (finding), 3 (ANR report on TMDLs), 4 (ANR stormwater TMDL schedule), 5 (transfer of pretransition stormwater permits to a municipality), 6 (transfer of pretransition stormwater permits), 7 (pollution control revolving loan fund), 8 (operation, management, and emergency response plans), 9 (definition of solid waste), 11 (ANR report on phosphorus incentives and disincentives), and 13 (sunset of composting facility review) of this act and 10 V.S.A. § 1386 (Lake Champlain TMDL implementation plan) shall take effect upon passage.

Ordered to Lie

H. 549

     An act relating to establishing buffer zones along waterways of the state.

Pending question: Shall the bill be amended as recommended by the Fish Wildlife & Water Resources committee and the committee on Appropriations?



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us