A report from Laura Kuhn, APLD Advocacy Chair.

There are two different bills in MA right now that landscape designers should
know about, and both of them promote the licensure of the practice of landscape
architecture. APLDNE supports HB 3266, but we oppose HB 2027. Both bills were
heard in late June, and they now are officially "in committee". 

The issue is not at all resolved, but in effect it's on
hold while committee members deal with other more pressing issues; they will
reconvene to vigorously debate this issue - and possibly soon.  This means
that committee members & all of our legislators are still eager to continue
to hear from us on both of these bills. 

APLDNE members are still encouraged to contact their legislators to voice their opinions

as landscape designers. There is no word yet on the committee's inclination on
these bills, which means they could go either way.  We have no idea as of
right now.

With input from many local industry reps, we created HB 3266 as a strategy to preserve designers' abilities to practice, along with preserving the traditional roles of many other industry professions, even as landscape
architects become licensed.  It's worth noting that MNLA has put a tremendous amount of work into the creation & promotion of HB 3266. We are very fortunate to have them working so hard on this - it takes a team!

Laura also wanted us to note on our calendars:

Mass Ag Day April 3, 2012 at the State House. 

 It's time we had representatives from APLDNE at this important event,

where they can mingle with state legislators and other industry members while tasting samples of
local cheeses, ice cream, meats, breads, honey, cranberry products, maple
sugar, and other outstanding MA agricultural products. The food is great, &
the legislators are entirely focused on our industry for the day.  This is
a great opportunity to advance our professional practice concerns about pending
or future legislation. 

 The day usually includes scheduled meetings with legislators in the morning hours, followed by
networking with them and their staff again over food in the Great Hall while
discussing legislative issues of concern.

Let's pull together a small group of members to join other industry members at MASS
Ag Day this year.

Numbers Count! 

Tues, June 21st. Back-to-back hearings start at 1pm and end at 3pm

Massachsuetts State House address:

24 Beacon Street, Boston, MA 02108. Room 1-A(Room could change at last minute).

Park at Boston Common Garage or other in area. Public transportation to Park Street. 

Sign in  Support Bill # H 3266 and Do Not Support  Bill # 2027. 

Read below to find out why! Print this out and bring with you

FAQ’s for 2011 L.A. PRACTICE BILLS in MASSACHUSETTS

or Why I need to read this now and mark my calendar!

Q: Why is this coming up in June, for heaven’s sake? I’m too busy for this right now!

A: We have no choice about the timing. The Joint Committee for Consumer Protection and Professional Licensure has rescheduled these two bills to be heard on June 21. www.malegislature.gov/Committees/187/Joint/J17

Q: What is all this about?

A: There are two bills before the MA Legislature that would regulate the practice of Landscape Architecture.Landscape Architects (LA’s) already have a title law in MA, which means you can’t represent yourself as an LA unless you have that license. APLD thinks you need to know about these practice bills, because most landscape designers & design/builders would be affected if one of these bills passes.

Q: OK, how could an LA “practice law” impact me ?

A: Unless you are a licensed landscape architect (LA), the passage of H.2027 will probably adversely affect your practice. For instance, in many other states, landscape designers (LD’s) are not expressly allowed to specify any grading or drainage improvements. We don’t want that to happen here, because grading & drainage are fundamental to everything we do as LD’s.

How could we possibly design planting beds or patios without influencing grading and

drainage? (It’s so simple, but that’s the message we need to get across to our legislators!)

Q: What is BSLA trying to achieve?

A: If a landscape architecture “practice” bill became law, it will mean that only licensed LA’s

can perform work defined as “landscape architecture”. But the current legal definition of

“landscape architecture” in MA is very broad and vague. If that entire scope of work is reserved

entirely for LA ’s, LD’s would be prevented from doing most of our typical work – or at least

doing it well! Many of us might not have enough work to stay in business. APLD doesn’t

believe that LD’s have done anything to warrant this exclusion.

Q: Why are there two different bills?

A: The Boston Society of Landscape Architects (BSLA) is endorsing H.2027, and the local landscape industry has responded by endorsing H.3266, which we feel is more favorable to LD’s, our industry, our businesses, and MA consumers. Otherwise, the bills are similar in thatboth of them regulate the practice of landscape architecture.

Q: What are the differences between these two bills?

A: There are two main differences: (1) The comprehensive “exemption language” in H.3266 is

more favorable to LD’s and design/builders than the exemption language in H.2027;

and (2) H.3266 contains a requirement for continuing education for

Q: When is the hearing?

A: June 21(Tuesday), at 1:00 pm, at the Massachusetts State House, Boston, in Room .

Q: Why should I show up?

A: The goal of a public hearing is for legislative committee members to“hear” those who believe they will be affected if a bill becomes law.It’s our legislators’ job to learn how these bills can affect us. W

speak, but the committee will have your name on record. The more concerned citizens who show up, the better our legislators will understand how much this matters to us.

Q: If I am asked to speak, what are my talking points?

A: 1) Landscape Designers (like LA’s) make massive contributions to our economy: we drive

nursery sales, sales of building and paving supplies, irrigation systems, and more. We create labor hours for construction activities. We generate jobs and sales taxes. H.2027will unnecessarily restrict many small businesses that contribute to the MA economy, whereas H.3266 will not have this negative impact on businesses and the economy.

2) LD’s do important work! There is no reason to exclude us from doing what we’vebeen doing all along. What is the public benefit of restricting our ability to work,whether it’s intentional or not?

3) H.3266 will protect consumer choice: Why restrict property owners to the higher

cost option that most LA’s represent? LA’s are overeducated to implement manycommon-sense landscape solutions. There are fewer than 800 LA’s in the entire state.Could they even take on all that work?

4) H.3266 contains a requirement for Continuing Education for LA’s, which benefits their

profession as well as public health and safety.

5) Personalize your points: Have in mind some facet of a recent project YOU have done

that might not have been do-able under a restrictive practice law.

Q: Where can I read more about these bills?

A: Go to www.malegislature.gov/Bills/Search , and type in the bill numbers as “HO3266” and

“HO2027”.

Q: Where can I find out who my legislators are?

A: Go to www.malegislature.gov/People/FindMyLegislator .

Q: Who else can I get in touch with about this?

A: Please talk to your industry contacts about this important issue! Also, go to www.apldne.org for more information and to find other interested landscape designers.

Laws that Affect Landscape Designers: Focus on MA

By Laura Kuhn, Professional Member, APLD

(Note: This article was first published in Spring Issue APLD DESIGNER April 2011)

This is the latest installment in an occasional series of articles that examines existing bills or laws that can restrict the profession of landscape design. In most cases, this occurs as a result of states’ laws that regulate the practice of landscape architecture. Limits on the scope of designers can occur as a result of unclear or nonspecific language or outright professional exclusion, and this language may also result in unnecessary regulatory burden. 

Most professional regulation is introduced and implemented on a state-by-state basis. In their campaign to regulate the practice of landscape architecture in all 50 states, the American Society of Landscape Architects (ASLA) and its affiliated chapters launched costly efforts in every state to gain the support of state legislators. Their efforts have met with overwhelming success: as of this writing, the practice of landscape architecture is now regulated in 47 states.

As discussed in previous articles in this series, landscape architects have understandable needs to pursue licensure: without it, they could be denied some opportunities to compete alongside engineers for the kinds of work they are trained to do. An accredited landscape architecture degree program provides rigorous instruction in vehicular circulation, brownfields and greyfields remediation, park design, storm water management, and much more. Landscape architecture licensure exams test for technical proficiency in all these areas. There should be no question that a person educated and able to demonstrate mastery in these subjects is eligible to compete alongside other licensed professionals for projects where this proficiency is required.

For non-licensed landscape designers, the problems begin when their state’s legal definition of “landscape architecture” disregards the important distinctions between technical and nontechnical aspects of landscape design.

If we look at a bill that was introduced in the 2009-2010 session of the Massachusetts Legislature, HB 4856, An Act Relative to the Licensure of Landscape Architects, we find the associated definition of landscape architecture which serves as the backbone of this bill

... the performance of professional services, such as consultations, investigation, reconnaissance, research, planning, design, or responsible supervision, in connection with the development of land and incidental water areas where and to the extent that the dominant purpose of such services is the preservation, enhancement or determination of proper land uses, natural land features, naturalistic and esthetic values, the settings and approaches to buildings, structures, facilities or other improvements, and natural drainage and the consideration, determination and solution of inherent problems of the land relating to erosion, wear and tear, blight or other hazards. The practice of landscape architecture shall include the location and arrangement of such tangible objects and features as are incidental and necessary to the purposes outlined herein....

This definition is already on the books in Massachusetts as part of the existing landscape architecture title law (MGL Title XVI, Chapter 112, Section 98). It is also similar to definitions found in numerous other states’ practice laws. But this “definition” could be more accurately called a “description” of landscape architecture, in part because its extremely broad terminology equally describes landscape design. In fact, should the practice of landscape architecture become regulated using that broad description as its foundation, it could be understood to affect several industry professions, including arboriculture, horticulture, landscape contracting, stone masonry, and even the nursery sales trade.  Each of these professions contributes to the “enhancement or determination of proper land uses, natural land features, naturalistic and esthetic values” (etc).

In January of 2011, when various Massachusetts industry members learned that the landscape architects’ team had planned to re-file their bill for the 2011-2012 legislative session, we opted for the proactive filing of a similar, competing bill in an effort to preempt any negative impact resulting from their proposed version. Throughout 2010, landscape designers and other industry partners shared feedback to HB 4856, and we combined this feedback to create the backbone of the distinguishing aspects of our new bill.

As recently filed, An Act to Enhance Sustainability of Agricultural Businesses* includes the following exemption clause 

Nothing in this chapter shall prevent a vendor of goods, services or materials, including, but not limited, to irrigation designers, irrigation auditors, horticulturists, arborists, nursery staff, gardeners, landscape gardeners, landscape preservationists, wetlands scientists, environmental consultants, stone masons, and general or landscape contractors, from providing drawings or graphic diagrams necessary for the proper layout of their goods or materials or as normally included as part of their services, and nothing in this chapter shall prevent a landscape designer from engaging in, for a fee, the design of outdoor spaces utilizing plants, grade alterations, soils, soil amendments, paving, drainage solutions, building materials, or other utilities and amenities normally included as a part of their work, or shall prevent them from arranging for installation of same.

Nothing in this chapter shall be construed as in any manner to prohibit a person from making plans, drawings, or specifications for the personal use and enjoyment of any property which they own.  Nothing in this chapter shall prevent the improvement by any person of land in agriculture.

Notwithstanding the provisions of this section, no person exempted under this section or any person engaged in activities exempted under this section shall use the title “landscape architect” unless such person complies with the provisions of this chapter.

*As of this writing, this bill has not yet been assigned to a committee or received a bill number, so it cannot yet be properly cited.

This tactic of suggesting an exemption may come as a surprise to those of you who’ve read one of my previous articles for this publication. In the spring 2010 issue of The Designer, I wrote, “Exemptions represent an end run around poorly written legislation.” So why are we relying an exemption in MA now? In short, to compensate as best we can for the broad, overreaching “definition” of landscape architecture which is already on the books in Massachusetts. By drafting comprehensive exemption language to be considered hand in hand with the regulation of the practice of landscape architecture, we hope to educate our elected officials with a few basics about our industry as we enact our safety net. 

First, there are a large number of professions and small businesses that contribute to the green industry. These professions are identified separately, but they necessarily overlap. The proper siting of a tree may be a concern for landscape architects, but it’s also an important factor for arborists and horticulturists, nursery staff and landscape designers. An arborist will recognize when a large canopy tree has been suggested for a site where it may not have enough space for proper growth and development. As a responsible business person, that arborist should offer their knowledge regarding tree placement or spacing as part of their services to any potential consumer. In fact, to do less than this misrepresents the complex set of factors that contributes to good arboricultural standards. But what if the arborist is called upon to install trees that were specified by a landscape architect to be too close together? Does the landscape architect make the final call, because the legal definition of their profession includes “services (including) naturalistic and esthetic values”? It seems reasonable to assume that landscape architects do not intend to prevent arborists from using good practices in the course of their work, but what happens when excess and costly maintenance results from improper tree spacing?  Unfortunately, the consumer will probably pay for it, and the trees may suffer. We’ve probably all seen this scenario before, but we may see more of it if the “enhancement of land” and “naturalistic and esthetic values” become the legal purview of licensed landscape architects. Would that relegate arborists to climbing, pruning and cabling, without applying judgment of the other factors that contribute to a tree’s health? This situation is unclear because the language of the definition of landscape architecture is unclear.  Again, it reads as a description of everything that a landscape architect must consider in the course of their job, but it fails to convey what makes a landscape architect a distinct contributor to our industry. No reasonable person, after all, would confuse arboriculture with landscape architecture, as a whole or in any aspect.

Second, a broad scope of practice has historically distinguished good landscape design. In our rainwater-rich region that features so much natural topography, we are accustomed to working with the constraints and challenges that characterize the Massachusetts landscape. In negotiations over HB 4856 last year, designers were offered exemptions for residential properties and “planting plans” as allowable service categories. We refused this offer because it would prevent us from creating quality, comprehensive landscape designs. Suggesting that a designer can create a good planting plan without influencing soil types or sub-soil factors, or the having the ability to redirect a downspout near a planting bed is to misunderstand the basic tenets of horticulture. In fact, a landscape designer who is prevented from influencing these factors may see their design fail to thrive. And consumers will have no assurances that they will receive good value for their money. Proper landscape design must always account for soil types or modifications, drainage considerations, grade alterations and retention where appropriate or desirable. Grading influences drainage, which influences soils, which influences horticulture, which influences plant health. We cannot practice good landscape design or deliver good value to consumers without access to the full range of services that designers have traditionally practiced. Everything we do is interconnected.

The fact is, the status quo works well for the many small businesses who work in the green industry in Massachusetts.  And it works well for the public, too: private and commercial land owners have access to a wide array of specialties, competition is healthy, and costs are competitive as a result.  There are no records indicating that the public is poorly served or at risk with the current array of professions and their traditional scopes of practice.  By offering a competing bill with the protection of this exemption, we hope to preserve the availability of this full array to consumers, and to preserve the ability of so many businesses to do what they do best: practice their trades.

For the full text of this new bill, or for more information about the progress of this bill in the MA Legislature, please see www.malegislature.gov/Bills/Search. As of this writing, this bill has not yet received a bill number or committee assignment. If you wish to be notified of progress of this bill, please join the APLD New England Chapter or contact Laura Kuhn at lkdc@onebirch.com.

If you have questions about how state laws, ordinances, or regulations could impact your right to practice as a landscape designer in the U.S., please contact Laura Kuhn, APLD Legislative Chair, at lkdc@onebirch.com.

That's right.  There are two practice bills to be very aware of: 

We support HB 3266, &  we don't support  HB 2027.

Watch for more information and talking points soon.

Massachusetts HB 2027 (HD 2844)

Session: 2011-2012 (1/5/11 thru 1/2/13 In Session)

Intro Date: 1/21/11

Progress: N/A

Sponsor: Representative Frank Israel Smizik (D)   www.malegislature.gov/People/Profile/fis1

Subject: Licensure and Professional Regulation

Summary:
An Act Relative to the Licensure of Landscape Architects By Mr. Smizik of Brookline, a petition (accompanied by bill, House, No. 2027) of Dwyer and others relative to the licensure of professional landscape architects Joint Committee on Environment, Natural Resources and Agriculture.

History:
1/21/2011 H Bill Filed.
2/25/2011 H Referred to Joint Committee on Environment, Natural Resources and Agriculture.
2/25/2011 S Senate concurred.


(EOR)
Massachusetts HB 3266

Session: 2011-2012 (1/5/11 thru 1/2/13 In Session)

Intro Date: 1/20/11

Progress: N/A

Sponsor: Representative Carolyn C. Dykema (D) email: Carolyn.Dykema@mahouse.gov

Other Links:
State Record

Subject: Licensure and Professional Regulation

Summary:
An Act relative to landscape architects By Ms. Dykema of Holliston, a petition (accompanied by bill, House, No. 3266) of Jennifer E. Benson relative to regulating landscape architects. Consumer Protection and Professional Licensure.

History:
1/20/2011 H Bill Filed.
3/16/2011 H Referred to Joint Committee on Consumer Protection and Prof

This bill was withdrawn at sponsor's request.

Rhode Island SB 7 2011

StateScape Record

Bill Text

Subject(s): Licensure and Professional Regulation

Introduced: 1/11/2011 Sponsor: Senator John J. Tassoni (D)

Summary:

An act relating to businesses and professions (would require landscape gardeners to register with the rhode island state board of examiners of landscape architects and to carry a minimum of one hundred thousand dollars ($100,000) liability,bodily injury and property damaged insurance coverage). This act would require landscape gardeners to register with the Rhode Island state board of examiners of landscape architects and to carry a minimum of one hundred thousand dollars ($100,000) liability, bodily injury and property damaged insurance coverage. This act would take effect upon passage.

Hearings: 3/24/2011 Scheduled for hearing and/or consideration

History: ** 03/24/2011 Scheduled for hearing and/or consideration ** 01/11/2011 Introduced, referred to Senate

Corporations **

Check out the Legislative Updates  for MA, RI, and NH on our chapter Legislation webpage.

The Chapter needs a Legislative Advocate from each state to log-in and get updates from our new legislative tracking service which is now up & operational. Then you would email the information to the Maria von Brincken so she can post to web and send emails to update members if needed.

If interested in helping with this simple and very important job, please contact Laura Kuhn at onebirch@comcast.net. 

The Basics

If you are confused about the legislative process, you are not alone. Unless you work with it all the time, it is a system that appears Byzantine with its complexity and uncertainty as to its outcome. Media is not always a help since it reports the high points (maybe the low points) on big issues but there is not usually a lot of depth. So, maybe you hear about the outcome but not about how things happen.This feeds the myth that lobbying is only an Insider's Game where a few make things happen and the rest of us are always on the outside looking in (assuming that you can see anything or know what you are looking at). In reality, America is one of the most open societies in the world where average citizens make a real difference without giving up their day jobs.Success is a matter of conviction plus knowledge of the issue plus patience/persistence.Still, a person needs tools to start with. That is why this Web site was established…to walk a person through the how-tos of making a personal and professional difference in the legislative arena. A basic understanding of the process is important too. Having an idea as to how the system works gives the Citizen Lobbyist (You!) the advantage of knowing when to exert effort to best advantage.

The Idea

All legislation starts with an idea.This idea, if felt by enough people or advocated by a few people who are persistent, becomes a bill. A bill is a written document that changes an existing law or makes new law. Sometimes, ideas can be a powerful visionary force for a noble goal such as insuring everybody or creating an economic climate that attracts business. Usually however, these ideas are reactions to something going on that a person, business or industry doesn't like.Examples might be:

• the way property tax is calculated (tax law)
• a legal situation (tort reform)
• sprawl/farmland preservation (zoning)
• social needs (Medicaid, mental health)
• defining a profession (occupational licensing/oversight)

Assuming a legislator has interest, a bill may be introduced. Another type of legislation is a Resolution. If enacted either by one chamber or both, it expresses an opinion (Urging the U.S. Congress to do something) or is commemorative (recognizing a high school team on the state championship).

The Bill

Legislators introduce bills because of their own experience or personal vision or (more likely) they react to something that someone suggested to them. That someone could be another legislator, their political leadership, a professional lobbyist or someone at home. The someone at home could be someone at the grocery store, someone whose kid is in the swimming or soccer team, someone at church or professional club like Rotary or Lions. Or, it could be someone like you who has a special interest. When you come right down to it, everyone has a special interest. Most folks have several special interests and could represent the views of those special interests because they believe in them. A person might be a:

…and lots of other things besidesThe legislator will listen to you because you are local and besides, you get to vote. Knowing the legislator ahead of time is not a prerequisite to getting a bill introduced. Courage to ask is a prerequisite to success in the political and legislative world.Suppose a legislator wants to propose a bill, what then?He goes to a specialized office that drafts legislation usually called Legislative Reference Bureau or something similar. It produces a draft (‘blue line') which is then reviewed and put in formal language. A bill must reference the section of the Code that it wants to amend or it could be a free-standing measure. A legislator usually sends around a memo asking other legislators to sign on (only from the chamber he or she is from, a Senator does not sponsor a House bill and conversely).When the bill is formally introduced, it is given a number and a printer's number. The printer's number is as important as the bill number because it keeps track of the bill. Every time the bill is amended, it gets a new printer's number. The legislator who puts the bill in is called the prime sponsor.

The Process

The bill is referred to a committee. This decision is made by the leadership of the House or Senate with input from the prime sponsor, committee chairmen or others. There may be lobbying as legislators and lobbyists will want to get the bill in to a committee where the members know something about the issue, where there is formal jurisdiction, or simply because the chairman or members of the committee might be more receptive to the bill than another committee.Sometimes bills don't go where you think. For example, a bill dealing with insurance could go lots of places depending on what type of insurance it is. It could go to Insurance (or Banking & Insurance/Financial Services), Health, Aging, Environmental (environmental liability), Labor Relations/Commerce (workers' compensation) etc.Usually there is a committee that has formal jurisdiction over professional licensure.From there, lots of things can happen:

• Nothing: Lots of bills get introduced. Few will pass and maybe that's not a bad thing. A committee chairman can bottle up a bill or let it out to see the light of day. Lobbying tries to convince the chairman or get leadership to convince the chairman or other committee members to convince the chairman to move the bill.
• A hearing: Often, a bill may see a hearing if there is interest expressed from special interests, the public or other legislators. It gives everyone a chance to go on record in expressing their views and provides a forum where legislators may ask questions. There is usually written testimony and speakers need a reservation. Sometimes a committee will have an informational session which is kind of like a hearing and sometimes a committee will hold a meeting with stakeholders instead of a formal hearing where everything is on the record.
• Amending the bill can take place in committee or on the floor. Any legislator may introduce an amendment providing that there is advance public notice. Sometimes, amending a bill is called marking it up.
• Movement through the committee is a vote by members. A meeting such as this usually requires advance notice unless the meeting is called ‘off the floor' (during a short recess).
• Re-referral to another committee (after it goes to the House or Senate for a ‘reading,' a technical requirement necessary to refer a bill again). If there is a budgetary impact, the bill is almost always referred to the Appropriations Committee (sometimes called Ways and Means in some states). Once re-referred, lots of things can happen to it (see above list).
• A vote. Votes are based on what's on the calendar, something decided in advance by the leadership. Usually, votes are taken after consultation with the minority party but not always where it would be a party line vote where majority rules. Usually, there is a lot of lobbying as to which bills get on the calendar.
• Keep in mind that the bill can be amended. If the legislature is at a deadline such as end of session where they have to pass a particular law, the bill might be stripped clean of what was originally in there and amended to have new language.
• Assuming that there is a vote, the bill goes over to the other chamber where the process starts again with committee referrals and so forth.

Does this seem complex to you? It should because that's the beauty of our system. It gives special interests (don't forget, that's you) tremendous opportunity to provide input every step of the way. It does slow down the process, no doubt, but that's a better system than one which allows passage of legislation without transparency or public input.In a typical session of a legislature depending on the length of session, 50 to 100 or more bills may be introduced for every one that actually passes the legislature.Once passed, the Governor may sign it or veto it.If signed into law, the regulators take over so as to implement the new law. Influencing the regulatory process is another story and one that's kind of fun but for now, stick to the basics of the legislative process since the regulatory process may differ significantly from state to state. Lobbying works there too but the rules are a little different.

The Bottom Line

Of course you can't be expected to give up your day job to follow this stuff because there is so much of it. Still, from time to time, you need to check on things. Two short cuts: First, go to the Internet and type in “(name of state) state legislature.” What you should see is a list that starts with the official site of the legislature where you can check the status of a particular bill if you know the number. There should also be an index feature that allows you to search by topic ‘landscape architecture, landscape designer' etc.The second short cut is to introduce yourself to a lawmaker and/or staff to let them know about who you are and what your profession stands for. Put yourself on their radar screen and ask them to keep you posted on anything affecting your profession. Bug them or they will forget that they promised to update you.