Dillon’s Rule and Right-to-Farm

In addition to state right-to-farm statutes, many communities across the country have enacted local ordinances intended to protect farmers and their lands from urban encroachment. The methods municipalities may employ to grant this protection, however, are limited in Vermont and many other states by the amount of power to regulate granted to localities by the state. New Jersey, for example, is a “Home Rule” state. In a Home Rule state, the state constitution or a state statute grants essentially unlimited power to municipalities to legislate and regulate.14 As a result, New Jersey’s municipalities have broad authority to enact their own right-to-farm legislation. Many municipalities there have taken advantage of this to extend protection to farmers beyond that granted by the New Jersey state right-to-farm laws. Municipalities in “Dillon’s Rule” states such as Vermont, on the other hand, only have the powers that they are explicitly granted by the state.15 Thus, cities and towns in Vermont are restricted from creating ordinances that grant additional protection against nuisance suits to farmers.  For more information on Dillon’s Rule view the box.

This has not stopped towns from using other means to protect farms and farmland that are similar in spirit, if not substance, to right-to-farm. Vermont towns are able to regulate land use through zoning, and Waitsfield is one town that has used this power to protect agricultural lands. Waitsfield’s zoning ordinance permits “agricultural uses” as of right.16 Further, the ordinance defines agricultural uses broadly, as “The growing or harvesting of crops; raising of livestock; operation of orchards, including maple sugar orchards; the sale of farm produce on the premises where raised; processing or storage of products raised on the property.”17Essentially, this means that any of these uses are immune from challenges based on zoning. Though this does not protect farmers from nuisance suits, it does protect them from a different course of legal action that unhappy neighbors may take.

DILLON’S RULE: A HISTORICAL PERSPECTIVE

Image copyright: Brookings/Puentes presentation. See Resources section.

The name of John Forest Dillon (1831-1914) has been forever linked to a basic principle of municipal law followed in Vermont and the majority of states – that municipalities can only legislate within the limits permitted by the state legislature. Dillon was admitted to the Iowa bar in 1852. Before his time, the issue of corruption in municipal government was very real and it was often expected that officials would help themselves to the “spoils” of office. America was a young country and still figuring out the rules. He was elected to judgeship in 1858 and was progressively elevated to various judicial levels until President Grant appointed him to the Eighth Circuit Federal level in 1869. Throughout his long career, he held a broad outlook and saw the law developed day-by-day in the organic framework of municipal actions of young states. He saw a strong need for some kind of manual of practice – a how-to guide of government practice and civil procedure that could be trusted, due process, and financial instruments to pay for public improvements such as schools. He wrote a book, “Municipal Corporations,” in 1872 which remains highly influential today.

Dillon’s Rule is from a railroad case John Dillon decided in 1868 in Iowa. To quote: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist.  As it creates, so may it destroy. If it may destroy, it may abridge and control.” While others argued successfully to create a home rule-based state/municipal framework, Dillon’s Rule has prevailed in most states, and hundreds of U.S. court decisions have employed that line of thinking to determine the scope of municipal powers and rights.

How many states are Dillon’s Law states? Several states have created variations that should more accurately be termed a shade of gray, like California and Florida, but the majority has a form of Dillon’s Rule. Massachusetts is the only home rule state in New England.


14 See Daniel R. Mandelker, Land Use Law §§ 4.24-4.25 (5th edn. 2003).
15 See, for example, Valcour v. Village of  Morrisville, 104 Vt. 119, 158 A.2d 83, 85-86 (1932).
16 Town of Waitsfield Zoning Ordinance, art. III, § 3 B.
17 Id. at art. II, § 4.