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Changes would limit lawsuits against farms

“I think as people move into the rural parts of Vermont, they’re going to bump up against our 400, 500 farmers that we’ve got left. I think some of these folks are coming from places where they never had to experience living beside a farm.”
— Sen. Bobby Starr

VERMONT — Legislators in the state’s Senate Committee on Agriculture are discussing a bill that would limit the types of nuisance suits property owners can bring against farms.

It would bring the state’s “right to farm” law, which exists in all 50 states, closer to laws in a majority of other states, including Arkansas and Michigan, Michael O’Grady, a lawyer for the Office of Legislative Council, told the committee this month.

If passed, the new law could protect farms against suits such as the one neighbors recently brought against the Vorsteveld farm in Panton. The trial played out in Addison County Superior Court in December and early January, and the judge has not yet issued a decision.

In that case, neighbors allege that a vast amount of runoff flowing from the farm, through their property and into Lake Champlain, is a nuisance and a trespass.

The Hopper family moved to their property after the Vorstevelds had started farming the adjoining land. The runoff, most parties in the case agreed, comes during rainstorms from tile drains, a technology the farmers installed while the neighbors lived there.

Currently, the nuisance clause in Vermont’s right to farm bill states that farms are entitled to “a rebuttable presumption” that the activities on the farm can’t be considered a nuisance if the farm conforms to certain conditions.

Those include: The farm complies with state laws, maintains good agricultural practices, was established prior to nearby nonagricultural activities (a neighbor moving in, for example) and hasn’t changed significantly since nearby non-farming activities came to exist.

Right to farm laws typically exist to protect farmers from people who “move into a rural area where normal farming operations exist, and who later use nuisance actions to attempt to stop those ongoing operations,” according to the National Agricultural Law Center.

The bill, S.268, strengthens protections for farmers. Instead of farmers having a “rebuttable presumption,” the new law says a farm “shall not be found to be a public or private nuisance” under certain conditions.

Those conditions include that a farm existed before a change of occupancy near the farm, the farm is “in good standing with the Secretary of Agriculture, Food and Markets” and the farm had been conducting the activity for at least two years before the nuisance action commenced.

Farms also couldn’t be considered a nuisance as a result of a change in ownership or size, a temporary halt to farming activities, enrollment in government programs, adoption of new technology or a change in the farming product, the bill says.

The bill also proposes that the court require landowners who bring nuisance suits to pay for the farmer’s legal fees if the suit fails.

A path forward on the bill is unclear. While S.268 is currently under the jurisdiction of the Senate Judiciary Committee, senators in the chamber’s Agriculture Committee started the conversation because Sen. Dick Sears, D-Bennington, who chairs the Judiciary Committee, hasn’t yet held hearings on it.

Sen. Bobby Starr, D-Essex/Orleans, who chairs the committee, has asked Sears to send the bill to Senate Agriculture, but Sears said he may begin taking testimony on the bill in his committee soon, and he could work with the Agriculture Committee to that end.

“It really is properly in the Judiciary Committee,” Sears said.

In the committee meeting early this month, Starr said farms could need more protection as people move to Vermont in greater numbers, now able to work remotely.

“I think as people move into the rural parts of Vermont, they’re going to bump up against our 400, 500 farmers that we’ve got left,” he said. “I think some of these folks are coming from places where they never had to experience living beside a farm.”

Sens. Starr, Corey Parent, R-Franklin, and Brian Collamore, R-Rutland, advocated for pushing ahead with the bill while Sen. Chris Pearson, P/D-Chittenden, and Sen. Anthony Pollina, P/D-Washington, expressed hesitation. The right to farm law was created in 1981, O’Grady said, and was updated in 2003.

“This isn’t trying to fix anything,” Starr said. “It’s just trying to keep a law that’s been around for, well, 40-odd years, trying to keep it up to date, and somewhat accurate with the situations that we face now compared to back then.”

Rob Woolmington, the attorney who represents the neighbors against the Vorsteveld farm, said he thinks the bill, if passed, would take rights away from Vermont property owners.

In the Vorsteveld case, neighbors turned to the law because enforcement actions from the state didn’t address the impacts to their property, Woolmington said.

“There was some really serious impact on the property — at least that’s what they believed, and that’s what we think the evidence showed — and agencies were not addressing it,” he said.

Woolmington said he doesn’t know of many nuisance suits related to Vermont farms. In committee, O’Grady said the law, in its current form, hasn’t been used very often.

“My sense is that those lawsuits don’t go far because, you know, when you move next to a farm, they are protected by a current law,” Pearson told the agriculture committee. “I mean, I’m open to understanding this better. I’m not clear on the problem we’re trying to solve.”

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