Opinion: Shoreland bill fails to deliver
These comments on some of the issues regarding the H.526 Lake Shoreland Protection Standards Bill as passed by the Vermont Senate are based on my understanding of what appears would or could be the case given what it says. The bill is proposed to go into effect July 1, 2014.
The bill lacks an exemption stating existing habitable structures and other impervious surfaces can be maintained.
The bill lacks an exemption stating all existing cleared or open areas can be maintained.
The “Maintenance of Lawns” exemption is only for the “maintenance, but not the enlargement, of lawns, gardens, landscaped areas, and beaches in existence as of July 1, 2014.” This is much more restrictive than the Maine and New Hampshire shoreland laws that respectively allowed “Legally existing nonconforming cleared openings may be maintained” and “Owners of lots … that were legally developed … may maintain but not enlarge cleared areas.”
Assume the following example: A landowner on July 1, 2014, has on a part of their land within the protected shoreland area of 250 feet from mean water level, a house and open area from it to the lake that is their only view of the lake from the house. In the open area, there is lawn, landscaping and a garden near the house and then an unmowed area down to the beach. The unmowed area consists of grasses and maybe some woody vegetation like shrubs or trees but so few that the area is still considered to be an open area. From time to time, the landowner may have entirely removed or trimmed woody vegetation, whether to maintain their view of the lake or for other reasons. The unmowed area does not come within the “Maintenance of Lawns” exemption.
At least any part of the unmowed area within the 100 feet of mean water level zone would presumably be subject to the requirement that basically says there can be “no vegetative cover removed.” Without any other relief, this means the landowner would need to let any shrub, tree or other vegetative cover grow up over the years and/or decades at least until there were certain numbers and sizes of trees (minimum tree points) for any particular 25-by-25-foot area. At that time, the landowner presumably could remove vegetative cover three or more feet in height while maintaining the minimum tree points, including a five-sapling requirement, for such an area.
The meaning of “cleared area” needs to be better explained. The first sentence of its definition says it “means an area where existing vegetative cover, soil, tree canopy, or duff is permanently removed or altered.” I’m afraid it could be interpreted fairly broadly and inclusively, such as possibly even including the removal of a tree limb, a tree or a shrub as at least a permanent alteration of the tree or shrub (both being at least a part of the existing vegetative cover) in an area.
I understand there are intended to be vegetative cover management requirements for the remaining 150-foot zone, but the bill fails to disclose them. For example, the state’s guidelines on “Best Management Practices for Lakeshore Vegetation” says “within 100 to 250 feet of shore there should not be more than 40 percent of cleared native vegetation.” If this is imposed, it appears to be in direct contradiction to the bill’s provision that basically says “no more than 40 percent of the protected shoreland area of the parcel shall consist of cleared area.” Under the bill, the more the 100-foot zone contains less than 40 percent of cleared area — the more the 150-foot zone could contain more than 40 percent of cleared area.
The bill’s “Removal of vegetation for recreational purposes” exemption that only allows for the removal of vegetation less than three feet in height, needs to be changed to also allow removal of vegetation three or more feet in height.
The ability to install a rock toe or rip rap to prevent erosion from waves is unfairly limited by the bill, particularly within 25 feet of mean water level.
The bill lacks and should at least have provisions allowing the state to issue a permit for requested modifications of vegetative cover management requirements and of restrictions otherwise against creation of cleared area or impervious surface if, and upon such conditions as, the state determines the result would be functionally equivalent to that otherwise provided for. This would at least add the potential for providing more flexibility to the presently proposed mostly one-size-fits-all approach.
The bill fails to state that its exemptions also apply to vegetative cover management requirements and its registration provisions concerning creation of cleared areas or impervious surfaces.
In my opinion, the bill fails to fulfill its stated purpose that restrictions are to be imposed “in a manner that allows for reasonable development of existing parcels” and needs to be appropriately changed if it is to pass at all.
Mark A. Nelson of Bristol
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