Court date looms for tree-cutting farmers

I think (bill H.673) is unreasonable altogether. This whole bill will just take more landowner rights away.
— Hans Vorsteveld

FERRISBURGH — The three-year-old dispute between the town of Ferrisburgh and Vorsteveld Farm LLC sparked by the farm’s extensive tree-cutting along Arnold Bay Road could finally be moving toward an Environmental Court trial.
The trial timetable remains uncertain, especially given the current pandemic. The parties could always reach a settlement. 
But previous mediation efforts have failed to end the town’s attempts to impose fines and remediation measures after the farm removed about 2,000 trees from roughly 0.75 mile of the road’s east side.
The town insists the trees were in its road right-of-way, siding with neighbors upset that a leafy canopy over the road, not far from Lake Champlain, has been lost. 
The Vorstevelds maintain they had the right to remove trees and shrubbery from their land to improve drainage for their feed crops. 
At a recent board meeting Ferrisburgh selectboard Chairwoman Jessica James announced the court ruled against the farm in what could be the last of a series of motions. 
The farm, James said, sought to have the court define “public shade tree” as a tree planted by a town for the purpose of providing shade, but the court did not agree. 
The ruling could be important because the town originally acted based on a statute that calls for a fine of up to $500 per tree for “any person who willfully critically injures or cuts down a public shade tree without written permission of a tree warden or legislative body of the municipality.” 
Given the number of trees felled along Arnold Bay Road in the spring of 2017, the Ferrisburgh tree warden sent a May 2017 letter to the Vorsteveld Farm citing a potential $1,088,000 fine if trees were not replanted to the town’s satisfaction. The farmers have declined.
In a later interview, James said it was one of a series of denied motions from the farm’s attorneys.
“The last issue was they wanted the court to define shade tree,” James said, adding she was not aware of any more motions the Environmental Court had to deal with before it could move toward discovery, a final step before a trial.   
“I’m thinking we can have a discovery schedule,” James said. “But that was March 4, and I haven’t heard anything since. And the court schedule slowed way, way down.”
A court case remains an unknown and could set a statewide precedent that would resolve unclear, even apparently conflicting, laws. Ferrisburgh Town Attorney Jim Carroll told a crowd of residents in 2017 the statutes “had a lot of gray” in them, although he was confident in the town’s legal case. 
But another state statute on “Removal of roadside growth,” reads, “A person, other than the abutting landowner, shall not cut, trim, remove, or otherwise damage any grasses, shrubs, vines, or trees growing within the limits of a State or town highway, without first having obtained the consent of the Agency for State highways or the selectmen for town highways.”
James said she was skeptical a settlement was “feasible” at this point, but held out hope an agreement could be reached on a case that had as of January already cost Ferrisburgh $27,000, according to board minutes. 
“I would love to have a settlement and work on things with them. I don’t want to go onto more litigation,” James said.
Hans Vorsteveld, one of the brothers who owns and operates Vorsteveld Farm LLC, declined last week to discuss whether he and his partners had discussed settling the case. 
“I have no comment,” Vorsteveld said.

The conflicting statutes and their erratic enforcement around Vermont have drawn the attention of state officials and lawmakers. 
H.673, a bill that would amend and clarify Vermont’s Tree Warden Statutes, was unanimously voted out of the House Committee on Agriculture and Forestry on March 12. 
Largely due to the COVID-19 pandemic, the bill did not receive consideration by the full House. But committee member Rep. Terry Norris, I-Shoreham, said he thinks it stands a good chance of being adopted with key provisions intact during the next session, in part because Commissioner of Vermont Forests, Parks and Recreation Michael Snyder backs it strongly.
“I believe so,” Norris said. “This is something he really wants to see happen. He was pretty disappointed it was not going to make it, because they put a lot of work into it.”
Norris said the new statute did face opposition by towns that wanted to go their own way. 
“Every town is different. And therein lies the problem, because every town wants to be different,” Norris said.
Among provisions that would be relevant in the Ferrisburgh case are a reduction in the fine schedule to $10 from $100 per tree cut, the removal of the word “shade” from all definitions of public trees, and the inclusion of trees in public rights of way as public trees. 
It also states, “When making a determination concerning the removal, protection, or maintenance of a tree, the tree warden shall consider the public interest and the interest of any landowner encumbered by or abutting the public way or place where the tree is located. The tree warden shall also consider the needs of any abutting working agriculture and forestlands.”
Norris said at least one Vorsteveld partner testified before the committee calmly, but forcefully, that landowners had the right to work in road rights-of-way. 
Hans Vorsteveld last week said he was not impressed with the draft bill. 
“I think it’s unreasonable altogether. This whole bill will just take more landowner rights away. The way it stands right now the landowner owns to the middle of the road, and the town has the right of way across the owner’s land. And they can do what they need to do to maintain the road and the ditch and the utilities and whatever they need,” he said. 
“But whatever grows on the right of way is the landowner’s. Now with the new bill they’re going to take all that growth and they’re going to make it the municipality’s. And I’m sure they’re not going to pay for any of it.”
Meanwhile, more right-of-way issues have cropped up in Ferrisburgh. Another resident — one who has come to at least one selectboard meeting to support the Vorstevelds’ cause, Bernie Dam — two months ago cut down a tree in a Little Chicago Road right-of-way. 
At a March board meeting Road Foreman John Bull said a Shellhouse Mountain Road resident has been obstructing road crews in the road right of way. 
James hopes to spread the word about public rights of way to avoid these issues, including using the town website and social media. And she is hopeful for the Tree Warden Bill.  
At the same time, town officials have heard from Carroll the Vorsteveld case could also end up making law.
“Jim Carroll said that in the beginning,” James said. “If this goes to trial, it will set the precedent.” 

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