Right-to-Farm and Nuisance vs. As of Right Agricultural Zoning
Protection from zoning challenges is important, because it forecloses one option that residents may have for attempting to interfere with farming operations. Zoning protection, however, is quite different from protection from nuisance suits. Nuisance is a common law theory that gives a plaintiff a cause of action against a defendant when the defendant interferes with the plaintiff’s right to the use and enjoyment of their property. Essentially, when one landowner or tenant uses land in a way that interferes with the way another landowner wishes to use his or her property, the second landowner may sue the first to stop that use, and/or collect damages resulting from that use. Thus, in this context one private party will bring a nuisance claim against another private party when the party believes that his or her rights have been violated.
Zoning, on the other hand, stems from the power delegated to municipalities, by the state, to regulate and control land use. Zoning is generally controlled by a board of appointed officials, who have the power to decide what land uses are proper in designated areas. As a result, towns have the ability to establish districts that permit all types of agricultural uses and prohibit most other types of development. See 24 V.S.A. § 4414 (1)(B)(i). However, towns may not use zoning bylaws to regulate accepted agricultural practices as defined by the Secretary of Agriculture. See 24 V.S.A. § 4413(d). By allowing agricultural uses to be permitted as of right, and prohibiting restrictive local zoning provisions, Vermont law protects farmers from challenges based on zoning or other land use regulations. However, despite this protection, a farmer could still be sued for creating a nuisance. Ultimately, protection through zoning and protection from nuisance suits are complementary, which is likely why some towns in Vermont choose to protect farmland through zoning ordinances even though a state right-to-farm law already exists.