Vermont's Right-to-Farm Summary

Vermont legislators justified the state’s Right-to-Farm (RTF) law by calling agricultural lands “unique and irreplaceable resources” and dependent upon the “preservation of agriculture.”1 Since the law was enacted in 1982, the state has lost 24% of its farmland while the number of farm operations has grown by 8%.2 So what does this legislation do in practice?

Vermont’s RTF Law at a Glance

Vermont’s RTF law provides no explicit protection of farmland or farms by size (e.g. small) or organization (e.g. family). Instead, Vermont’s RTF law – similar to those in all other fifty states – protects agricultural activities from nuisance suits when they impact neighboring property, for example through noise or pollution. Since controversial amendments in 2003, Vermont’s RTF law defines protected agricultural activities broadly, including the cultivation and use of land for producing food, fiber, horticultural and orchard crops, as well as the raising, feeding and management of animals and bees.3 Tilling, planting, irrigating, and harvesting crops are also protected activities, along with the operation of greenhouses. In addition, Vermont’s RTF law protects the on-site production of fuel or power from agricultural products, as well as composting activities, ditching and subsurface drainage of farm fields, the handling of livestock wastes and by-products, and the storage and application of fertilizers and pesticides.

Vermont’s Conditions and Activities

Since its enactment, Vermont’s RTF law has protected agricultural activities by creating a rebuttable presumption that they are not nuisances.4 In practice, the law presumes agricultural activities are not nuisances unless the party claiming otherwise provides counterevidence. In its original form, Vermont’s RTF law only provided a rebuttable presumption against nuisance suits for agricultural activities that were consistent with good agricultural practices and which were established prior to any surrounding non-agricultural activities.5

However, a landmark ruling prompted the reconsideration of the law by the legislature. The 2003 case concerned owners of an orchard, which originally consisted of a farmhouse and farm buildings.6 The owners subsequently sold off the farmhouse, while maintaining their orchard. The orchard owners later began waxing and packing the apples on-site for shipment, markedly increasing truck traffic and noise. The owners of the farmhouse filed a nuisance suit against the orchard owners. The Vermont Supreme court held that the RTF law did not protect the orchard owners because the new agricultural activities did not predate the purchase of the farmhouse by the plaintiffs. Further, the court noted that the facts of this case did not involve urban encroachment into an agricultural area, one of the stated justifications for Vermont’s RTF law.

After the ruling, the then Chairwoman of Vermont’s Agriculture Committee said the ruling, “...virtually strips the law of any protections for farmers.”7 A Farm Bureau county representative said amending the law was crucial for farms “to survive into the future.”8 Initially, proposed amendments included specifically defining the “secondary effects” of farming that were protected, like odor, dust, pests, fumes, the glare of artificial light, and traffic.9 However, the bill met major opposition by constitutional scholars and small farmers.10 One legal professor warned that, “What you are about to do is change two centuries of common law.”11 An early version of the bill also included a provision advocated by the anti-Genetically Engineered seed movement that would have made seed makers liable for crop damage caused by genetically engineered seeds. However, the measure was cut from the bill.12

Most remarkably, the legislature changed the RTF law’s stated purpose from preventing urban encroachment to helping the “agricultural industry to survive” by preventing nuisance lawsuits over new technologies, diversification of products, and an increase in farm sizes.13 Vermont’s amendments also created four conditions necessary for agricultural activities to receive immunity from nuisance liability: (1) the activity must follow federal, state, and local laws and regulations; (2) the activity must be consistent with good agricultural practices; (3) the activity must have been in existence prior to surrounding nonagricultural activities; and (4) the activity must not change significantly after a surrounding nonagricultural activity begins.14 However, if those suing can show that the agricultural activity had a substantial adverse effect on health, safety or welfare, or that it creates a noxious and significant interference with the use and enjoyment of neighboring property – they can file a nuisance suit.15 None-the-less, this puts the burden of proof on the neighbor.16

Simultaneous to the proposed amendments to the state’s RTF law, the legislature also considered a “Large Farms” bill.17 Working in dialogue with the RTF law, the legislature enacted in 2003 a Non-Point Sources Pollution Reduction Program for the handling and disposal of animal wastes, stating that “meeting these standards shall not be borne by farmers only, but rather by all members of society, who are in fact the beneficiaries.”18 The law set up a permitting and grievance procedures for small, medium and large Animal Feeding Operation (AFO) – a lot or facility where animals are maintained 45 days or more during the year.

Vermont legislators continue to consider further amendments advocated by the Farm Bureau to protect larger farms from so-called “litigious neighbors.”19

RTF and Local Government

Vermont’s RTF law does not prevent state or local boards of health from stopping nuisances that impact public health.20 However, the state separately limits the power of counties and municipalities to regulate agriculture. Municipalities cannot regulate “required agricultural practices” and “accepted silvicultural practices” defined by the Secretary of Agriculture, Food and Markets and the Commissioner of Forests, Parks and Recreation.21

1. 12 V.S.A. § 5752 (2020); Trickett v. Ochs, 838 A.2d 66 (2003).
2. United States Department of Commerce. 1982. Census of Agriculture, Volume 1: Geographic Area Series, Part 45: Vermont, Chapter 1: State and County Data, Table 1: Farms, Land in Farms, and Land Use: 1982 and Earlier Years. Retrieved January 6, 2021. (http://lib-usda-05.serverfarm.cornell.edu/usda/AgCensusImages/1982/01/45/121/Table-01.pdf); Department of Agriculture. 2019. USDA/NASS 2019 State Agriculture Overview Vermont. Retrieved January 6, 2021. (https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=VERMONT).
3. 12 V.S.A. § 5752 (2020).
4. 12 V.S.A. § 5753(a)(1) (2020).
5. 12 V.S.A. § 5753 (1982) (later amended by 2003 Vt. Laws 149, § 12 (H. 778) effective June 3, 2004).
6. Trickett v. Ochs, 838 A.2d 66 (2003).
7. Rathke, Lisa. 2004. “Legislators will seek to restore farm protections.” Rutland Herald. January 1.
8. Rathke, Lisa. 2004. “Legislators will seek to restore farm protections.” Rutland Herald. January 1.
9. Jardine, James. 2004. “GE Seed Labeling, Farm Bills Given Preliminary Approval.” Caledonian-Record. April 8.
10. Times Argus. 2004. "Farm feud.” Times Argus. May 5.
11. Allen, Darren M. 2004. "State House politicians debate farm issues again," Rutland Herald (VT), May 5.
12. Rathke, Lisa. 2004. “Right-to-farm bill advances to Senate for debate.” Times Argus. May 6.
13. 2003 Vt. Laws 149 (H. 778) (amending, in relevant part, 12 V.S.A. § 5751).
14. 2003 Vt. Laws 149 (H. 778) (amending, in relevant part, 12 V.S.A. § 5753(a)(1)).
15. 12 V.S.A. § 5753(a)(2) (2020).
16. Rathke, Lisa. 2004. “Right-to-farm bill advances to Senate for debate.” Times Argus. May 6.
17. Jardine, James. 2004. “GE Seed Labeling , Farm Bills Given Preliminary Approval.” Caledonian-Record. April 8.
18. 2003 Vt. Laws 149, §§ 2, 14 (H. 778) (adding, in relevant part, 6 V.S.A. § 4801).
19. Page, Guy. 2019. “2020 Vision: Farm & forest lawmakers may protect farmers from nuisance lawsuits, livestock from inhumane conditions.” Northfield News. December 12, pp. 1.
20. 12 V.S.A. § 5753(b) (2020).
21. 24 V.S.A. § 4413(d)(1)(A)-(B) (2020).