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Shoreland law hearing draws big crowd in Middlebury

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Posted on September 23, 2013 |
By John Flowers



MIDDLEBURY — The Legislature’s ongoing effort to draft a new law regulating development on shoreland lots continues to draw concern from Addison County residents, some of whom fear new regulations will emerge that will affect their property rights.

“This is a taking of property without due process… ” said one of more than 150 people who showed up at a public hearing convened in Middlebury on Thursday by the Shoreland Protection Commission.

This was the fourth such hearing the commission has held this summer as it gathers input for a potential shoreland protection bill. Such a measure — known as H.526 — passed the Vermont House during the 2013 legislative session. But the Senate tabled the bill in order to get more input before revisiting the issue next January.

The commission is comprised of legislators from throughout the state, including Rep. Willem Jewett, D-Ripton, who also serves as House Majority Leader and is a member of the Fish, Wildlife and Water Resources Committee. Accompanied by Vermont Agency of Natural Resources officials — including ANR Secretary Deb Markowitz — the commission has been trying to make a case for shoreland protection rules that they argue will be critical in protecting the water quality of the state’s 812 lakes and ponds that are greater than 10 acres. Together, they encompass more than 230,000 acres of water (not including Lake Champlain, which is 313,600 acres) lying within 300,000 acres of wetlands, according to ANR officials.

Using an ANR-produced video as part of their presentation, the commission explained that the state’s strategy to keep lakes and ponds clean has included working with farmers and municipal sewer plants to try and prevent discharges — particularly phosphorous — from entering waterways. Markowitz said the state now wants to bring shoreland properties into the regulatory fold, specifically as it relates to maintaining shoreline vegetation as a means of preventing erosion, reducing storm water runoff and providing a natural filter for runoff that makes its way into ponds and lakes.

Markowitz said it was after Tropical Storm Irene in August of 2011 that she became particularly focused on the state’s shorelines and the role they play in keeping lakes and ponds clean. She recalled seeing post-storm photos of lakes.

“In places where there was natural vegetation, there was a little damage and the water was a little murky,” she said. “But where there wasn’t any natural vegetation, it was brown. You could see the runoff, you could see the erosion and people lost property.”

Markowitz said Vermont is the only Northeastern state without standards for shoreland development. She and other commission members cited New Hampshire and Maine as states with effective shoreland protection laws. They argued that shoreland property owners in those two states have seen their property values increase as a result of the regulations that are in place.

“We are seeking to have a balanced approach,” Markowitz said. “I know that you all, who are lakeshore owners, have reasonable expectations to use your property.

“What the Legislature has done is they have worked to craft a bill that creates a balance, a balance that’s designed to give homeowners maximum flexibility while still retaining the protection that shoreline vegetation provides for water quality,” she added.

Act 110 of 2009-2010 offered towns technical assistance and grants to create their own shoreline ordinances or bylaws, according to commission member Rep. Kate Webb, D-Shelburne. There are 173 towns in Vermont with lakes and ponds that are larger than 10 acres. Thus far, 42 of those towns have moved forward to implement local shoreland protection laws, according to Webb.

“Only 10 towns have actually implemented standards that would include vegetation and (buffers) of greater than 50 feet,” Webb said. “Where we are right now is that 20 percent of the towns have actually created shoreland protection bylaws or any kind of zoning ordinance.”

The ANR will be charged with drafting rules to reflect the legislative intent of a shorelands bill that is ultimately passed by the General Assembly and signed into law.

House-passed H.526 calls for:

• The ANR to create vegetation management standards for undeveloped shoreline lots. No permit would be required for undeveloped lots for new impervious surface or clearing involving less than 500 square feet.

• In cases of improvements to existing homes (which would be grandfathered), no permit would be required for undeveloped lots for new impervious surface or clearing involving less than 500 square feet.

• Existing, non-conforming lots would be developable “provided that adequate mitigation measures are implemented.”

Commission members have been particularly receptive to the current Maine shoreland law, which among other things:

• Requires a 100-foot wide buffer between the lake/pond and future construction on an undeveloped lot.

• Calls for natural vegetation to be maintained within 100 feet of the water’s edge in cases where someone wants to redevelop an existing home. The law allows a 30-percent increase in structures without a permit and allows structure replacement within the same footprint.

• Mandates a variance if setbacks and buffer width aren’t possible on non-conforming lots.

ANR officials anticipate having to hire four or five additional staffers to process shoreland development applications. Application fees would be expected to underwrite the cost of those new positions.

Rep. David Deen, D-Putney, is chairman of the commission and also leader of the House Fish, Wildlife and Water Resources Committee. He anticipates a shoreland protection law that will be “performance-based.”

“If you can do your activity and protect both the habitat and the water quality of the lake, then you’re set; you’re good to go,” he said. “It’s a matter of performance… We are not putting anyone out of their home or off their lake lot.”

Deen noted a provision in H.526 that requires the ANR to come back to the Legislature before it begins the formal rule-making process, so the committees of jurisdiction (over the bill) can take a look to make sure the proposed regulations are performance-based.

Sen. Bob Hartwell, D-Bennington, added that the rules, when drafted, will also have to pass muster with the Legislative Committee on Administrative Rules.

“You’ll get two shots at rules review on this case, which is really good,” Hartwell said.

Still, it was clear on Thursday that many Addison County shoreland residents are nervous about what kind of law the Legislature and ANR will ultimately produce. Some folks at Thursday’s meeting were frustrated that public input was confined to written questions they could submit from the floor. While these questions will become part of the record as the commission does its work, the format did not allow people to make impassioned comments from the floor.

Some of the questions expressed opposition to H.526 and reflected skepticism about the ANR’s ability to come up with sensible rules that could be reasonably enforced. One questioner noted the state had recently built two cottages within 100 feet of the Lake Champlain shoreline at Button Bay State Park. Markowitz acknowledged the gaffe.

“This has led to an audit of what our practices are,” Markowitz said.

And there is clearly some division among committee members about shorelands legislation.

Commission member Thomas Terenzini, a Republican House representative from Rutland, was candid in his opposition to a legislative effort to regulate shoreland development.

“I’m the only person on the commission who’s against this bill,” Terenzini said. “From day one, I’ve said that this is nothing but a power grab by the ANR in the state of Vermont. I believe that if you own a camp or a house on the lake or a pond in the state of Vermont, you’re already paying enormous taxes. I just think the state of Vermont has no right to — as long as you’re not a major polluter — tell you what to do with your own property.”

He added he hopes Vermonters will “rise up” to oppose the bill and show their ultimate displeasure by voting “some of these people out of office,” he said, glancing down his row of colleagues.

Deen said such a rally could backfire.

“Some of you might want to vote against people who didn’t vote for this bill,” he responded.

Written comments must be submitted to the commission by Oct. 15. The commission will post its report by Jan. 14, 2014.

Reporter John Flowers is at johnf@addisonindependent.com.

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