The Vermont Approach
Vermont enacted its own right-to-farm law in 1981. The statute essentially provided protection for existing farming activities in “urbanizing areas” from nuisance suits by new neighbors and that existing properly conducted agricultural activities were entitled to a presumption that they were not a nuisance unless the plaintiff could show that the activity had “a substantial effect on the public health and safety.”1
However, plaintiff residents could successfully bring nuisance claims against defendant farmers by showing that the defendants were not entitled to the protection of right-to-farm. In Trickett v. Ochs,2 the Tricketts brought a nuisance suit against an adjacent orchard owner, the Ochs, alleging that the expanded operation of the orchard interfered with the use and enjoyment of their property. The Ochs argued that they were protected by right-to-farm because the orchard existed prior to the Tricketts’ occupation of their house. The Vermont Supreme Court, however, found that the expanded operations were not included within the existing activities protected by the law and were thus not entitled to the benefit of the presumption.
Significant amendments were adopted in 2004, clarifying the statute in response to the Trickett decision. The statute now recognizes that agriculture “including the continuation of existing and the initiation of new agricultural activities” involving new technology, diversification, and increased size, is important to the state for a number of reasons, including economic, environmental, and the general “health and welfare of the people of the state.”3 Next, the statute, which is no longer limited to “urbanizing areas,” recognizes that nuisance lawsuits can potentially force farms off of land, and discourage resources from being used for agricultural purposes.4 Finally, the statute declares that its purpose is to “protect reasonable agricultural activities conducted on the farm from nuisance lawsuits.”5
The amended right-to-farm law continues to protect farms and farmers by creating a rebuttable presumption that agricultural activities are not creating a nuisance. To be entitled to the presumption under the amended statute, the farm operations must be conducted according to the following conditions:
- in conformity with federal, state, and local laws and regulations (including accepted agricultural practices, a term defined by the Secretary of Agriculture);
- consistent with good agricultural practices;
- established prior to surrounding non-agricultural activities; and
- not significantly changed since the commencement of the prior surrounding non-agricultural activity.6
Essentially, as long as a farm complies with the law, operates consistently with “good agricultural practices,” is established before surrounding residences or other non-agricultural activities are, and does not “significantly” expand or change its operations after surrounding residences or other activities are established, a court must presume that a residential neighbor’s nuisance claim is invalid.
This presumption is not, however, a complete defense against nuisance claims. Even if a farmer can otherwise show that he or she meets the requirements for right-to-farm protection, “The presumption that the agricultural activity does not constitute a nuisance may be rebutted by a showing that the activity has a substantial adverse effect on health, safety, or welfare, or has a noxious and significant interference with the use and enjoyment of the neighboring property.”7 Thus, if a plaintiff can meet the heavy burden of showing either a substantial effect on health, safety, or welfare or the “noxious and significant” effect of the agricultural activity on his or her property, the plaintiff can prevail on a nuisance claim, even when the defendant farmer is otherwise covered and protected by the statute. The Vermont courts have not yet determined what it takes to meet that burden. Although these grounds, added by the 2004 amendment, seem to give plaintiffs more opportunity to rebut the presumption, the purposes of the amended law and the strong presumption created in favor of defendant farmers make it likely that courts will find in their favor when right-to-farm is successfully invoked.
1 12 V.S.A. §§ 5751-5753, enacted by Act 68 of 1981.
2 176 Vt. 89, 838 A.2d 66 (2003).
3 12 V.S.A. § 5751, as amended by Act 149 of 2003, § 12 (Adj. Sess.), adopted June 3, 2004.
6 12 V.S.A. § 5753(a) (1), as amended.
7 12 V.S.A. § 5753 (a) (2), as amended.