Vermont's Right-to-Farm Summary

Vermont legislators justified the state’s right-to-farm 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 percent of its farmland while the number of farm operations has grown by 8 percent.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 (for example, small) or organization (for example, family). Instead, Vermont’s RTF law—similar to those in the other forty-nine states—protects agricultural activities from nuisance suits when they impact neighboring property, for example through noise or pollution. Since the passage of 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.

Conditions and Activities

Since its enactment, Vermont’s RTF law has protected agricultural activities by creating a rebuttable presumption that they are not nuisances so long as they exist prior to surrounding nonagricultural activities.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 provided a rebuttable presumption against nuisance suits only for agricultural activities that were consistent with good agricultural practices and that were established prior to any surrounding nonagricultural 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 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, “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

Notably, 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 Specific statutory protections reflecting this changed intent are not in the body of the law, however, but rather part of the legislative findings and purpose. 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 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 has 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 Nonetheless, this puts the burden of proof on the plaintiffs.16

At the same time that it 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 Nonpoint 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 permitting and grievance procedures for small, medium, and large animal feeding operations—a lot or facility where animals are maintained forty-five 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

Local Governance

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 the Agency of Agriculture, Food and Markets and by the commissioner of the Department of Forests, Parks and Recreation.21

1. Vt. Stat. tit. 12, § 5752 (2021); Trickett v. Ochs, 838 A.2d 66 (Vt. 2003).
2. U.S. Department of Commerce, “Table 4. Farms, Land in Farms, and Land Use, by Size of Farm: 1982 and 1978,” in 1982 Census of Agriculture, Volume 1: Geographic Area Series, Part 45: Vermont State and County Data, Chapter 1: State Data (Washington, D.C.: U.S. Bureau of the Census, 1984), https://agcensus.library.cornell.edu/wp-content/uploads/1982-Vermont-CHAPTER_1_State_Data-121-Table-04.pdf; “2021 State Agriculture Overview: Vermont,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022, https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=VERMONT.
3. Vt. Stat. tit. 12, § 5752 (2021).
4. Vt. Stat. tit. 12, § 5753(a)(1) (2021).
5. Vt. Stat. tit. 12, § 5753 (1982); amended by 2003 Vt. Acts & Resolves 149, § 12 (H. 778, effective June 3, 2004).
6. Trickett, 838 A.2d 66.
7. Lisa Rathke, “Legislators Will Seek to Restore Farm Protections,” Rutland (Vt.) Herald, January 1, 2004.
8. Rathke, “Legislators Will Seek to Restore Farm Protections.”
9. James Jardine, “GE Seed Labeling, Farm Bills Given Preliminary Approval,” Caledonian-Record (St. Johnsbury, Vt.), April 8, 2004.
10. “Farm Feud,” Barre (Vt.) Times Argus, May 5, 2004.
11. Darren M. Allen, “State House Politicians Debate Farm Issues Again,” Rutland Herald, May 5, 2004.
12. Lisa Rathke, “Right-to-Farm Bill Advances to Senate for Debate,” Barre Times Argus, May 6, 2004.
13. 2003 Vt. Acts & Resolves 149 (H. 778) (amending, in relevant part, Vt. Stat. tit. 12, § 5751).
14. 2003 Vt. Acts & Resolves 149 (H. 778) (amending, in relevant part, Vt. Stat. tit. 12, § 5753(a)(1)).
15. Vt. Stat. tit. 12, § 5753(a)(2) (2021).
16. Rathke, “Right-to-Farm Bill Advances to Senate for Debate.”
17. Jardine, “GE Seed Labeling, Farm Bills Given Preliminary Approval.”
18. 2003 Vt. Acts & Resolves 149, §§ 2, 14 (H. 778) (adding, in relevant part, Vt. Stat. tit. 6, § 4801).
19. Guy Page, “Daily Chronicle: Farm, Forest Lawmakers May Protect Farmers from Nuisance Lawsuits, Livestock from Inhumane Conditions,” True North Reports (Burlington, Vt.), December 3, 2019.
20. Vt. Stat. tit. 12, § 5753(b) (2021).
21. Vt. Stat. tit. 24, § 4413(d)(1)(A)–(B) (2021).