Vermont Bar Association

Seminar Materials

2012 BASIC SKILLS IN VERMONT

PRACTICE & PROCEDURE

Agriculture Law

August 23 & 24, 2012

Windjammer Conference Center

South Burlington, VT

Faculty:

Diane Zamos, Esq.

Michael Owen Duane, Esq.

Agricultural Law Part 1 Vermont’s Accepted Agricultural

Practices What are the AAPs?

Why are they important?

Michael O. Duane, AAG and Diane E. Zamos, AAG

VBA CLE August 24, 2012

AAPs -What are they? A set of duly promulgated regulations with the

full force and effect of law (3 V.S.A. §845) Available on the web:

www.vermontagriculture.com Where did they come from? Provides context. Evolution of the term “accepted agricultural

practices” began 30 years ago First seen in 1981 Title 12 -“Nuisance” law:

presumption that a farm was not a nuisance “if consistent with good agricultural practices”

(nuisance covered in Part 2)

Why are the AAPs important?

• Serve two broad policies • Water Quality – strong public policy in

Vermont for protection of the environment and water quality

• “Farming” - strong public policy in Vermont to exempt farming activities from the reach of land use regulation

(municipal zoning and Act 250)

AAPs form the legal basis for Vermont’s agricultural non-point source water quality program 10 V.S.A. § 1259(i) (i) The secretary of natural resources, to the extent compatible with federal requirements, shall delegate to the secretary of agriculture, food and markets the state agricultural non-point source pollution control program planning, implementation and regulation. 6 V.S.A. § 4810 (a) Agricultural land use practices. In accordance with 10 V.S.A. § 1259(i), the secretary[ of Ag] shall adopt by rule, pursuant to chapter 25 of Title 3, and shall implement and enforce agricultural land use practices in order to reduce the amount of agricultural pollutants entering the waters of the state. These agricultural land use practices shall be created in two categories, pursuant to subdivisions (1) and (2) of this subsection. (1) "Accepted Agricultural Practices" (AAPs) shall be standards to be followed in conducting agricultural activities in this state. These standards shall address activities which have a potential for causing pollutants to enter the groundwater and waters of the state, including dairy and other livestock operations plus all forms of crop and nursery operations and on-farm or agricultural fairground, registered pursuant to 20 V.S.A. § 3902, livestock and poultry slaughter and processing activities. The AAPs shall include, as well as promote and encourage, practices for farmers in preventing pollutants from entering the groundwater and waters of the state when engaged in, but not limited to, animal waste management and disposal, soil amendment applications, plant fertilization, and pest and weed control. Persons engaged in farming, as defined in 10 V.S.A. § 6001,[ACT 250] who follow these practices shall be presumed to be in compliance with water quality standards. AAPs shall be practical and cost effective to implement. The AAPs for groundwater shall include a process under which the agency shall receive, investigate, and respond to a complaint that a farm has contaminated the drinking water or groundwater of a property owner.

AAPs also compliment and coordinate with ANR’s point and non-point source water quality programs - Vermont’s water pollution control law 10 V.S.A. § 1259 (a) No person shall discharge any waste, substance or material into waters of the state,… without first obtaining a permit for that discharge from the secretary. This subsection shall not prohibit the proper application of fertilizer to fields and crops,… . (c) No person shall cause a direct discharge into Class A waters of any wastes that, prior to treatment, contained organisms pathogenic to human beings. .. , no person shall cause a direct discharge into Class B waters of any wastes that prior to treatment contained organisms pathogenic to human beings. (d) No person shall cause a discharge of wastes into Class A waters, except for on-site disposal of sewage from systems with a capacity of 1,000 gallons per day (gpd), or less, that are either exempt from or comply with the environmental protection rules, or existing systems, which shall require a permit according to the provisions of subsection 1263(f) of this title. (e) Except for on-site disposal of sewage from systems of less than 6,500 gpd capacity … no person shall cause any new or increased indirect discharge of wastes into Class B waters without a permit (f) The provisions of subsections (c), (d), and (e) of this section shall not regulate accepted agricultural or silvicultural practices, as such are defined by the secretary of agriculture, food and markets and the commissioner of forests, parks and recreation, respectively, after an opportunity for a public hearing; nor shall these provisions regulate discharges from concentrated animal feeding operations that require a permit under section 1263 of this title; nor shall those provisions prohibit stormwater runoff or the discharge of nonpolluting wastes, as defined by the board. AAPs Section 4.01 Discharges (a) Agricultural operations shall not create any direct discharge of wastes into the surface waters of the State from a discrete conveyance such as, but not limited to, a pipe, ditch, or conduit without a permit from the Secretary of ANR.

AAPs also form part of the regulatory basis for the state CAFO (Concentrated Animal Feeding Operation) NPDES federal Clean Water Act permit programs 6 V.S.A. § 4810 (b) Cooperation and Coordination. The secretary of agriculture, food and markets shall coordinate with the secretary of natural resources in implementing and enforcing programs, plans, and practices developed for reducing and eliminating agricultural non-point source pollutants and discharges from concentrated animal feeding operations. .... The secretary of agriculture, food and markets and the secretary of the agency of natural resources shall also develop a memorandum of understanding according to the public notice and comment process of 10 V.S.A. § 1259(i) regarding the implementation of the federal concentrated animal feeding operation program and the relationship between the requirements of the federal program and the state agricultural water quality requirements for large, medium, and small farms under chapter 215 of this title. State of Vermont LFO (Large Farm Operation), MFO (Medium farm Operation) and SFO (Small Farm operation) Individual Permits created in 1996 (LFO) and 2004 (MFO) 6 V.S.A. §4851(b) In order to receive this permit, the person shall demonstrate to the secretary [ag] that the farm has an adequately sized manure management system to accommodate the wastes generated and a nutrient management plan to dispose of wastes in accordance with accepted agricultural practices adopted under this chapter. Fed. Reg. Vol. 68 No. 29, 7232 (Feb 12, 2003) “EPA encourages States to maximize use of voluntary and other non-NPDES programs to support efforts by medium and small (now read large)operations to implement appropriate measures and correct problems that might otherwise cause them to be defined or designated as a CAFO”

Vermont Ag Water Quality Law

• Large Farm Operations/LFO Rules/Individual Permit/include AAPs

• Medium Farm Operations/MFO Rules/General Permit/include AAPs

• Small farms = AAPs (no permit) • All farms in Vermont must comply with

AAPs

AAP Regulations Address: • Discharges • Streambank Management • Nutrient Storage • Nutrient Application • Buffer Zones • Soil Cultivation • Agricultural Waste Management (mortalities) • Construction of Farm Structures • Ground Water Quality

AAPs intersect with general land use law

• Section 2.06 “Farm Structure” means a structure or structures, as defined herein, used by a person for agricultural production that meets one or more of the following: . . . (NOTE: 24 V.S.A. §4413(d) has its own definition of “farm structure.”)

• Section 3.2: Agricultural practices [activities] that are governed by these regulations include, but are not limited to, the following:

AAPs – Practices Covered

• Confinement, feeding, fencing, and watering of livestock

AAPs

• The storage and handling of livestock wastes and by-products

AAPs

• The collection of maple sap and production of maple syrup

AAPs

• The preparation, tilling, fertilization, planting, protection, irrigation and harvesting of crops

AAPs

• The ditching and subsurface drainage of farm fields and the construction of farm ponds

AAPs

• The stabilization of farm field stream banks

AAPs

• The construction and maintenance of farm structures and farm roads

AAPs

• The on site production of fuel or power from agricultural products or wastes produced on the farm

AAPs

• The on-site storage, preparation and sale of agricultural products principally produced on the farm

AAPs

• The on-site storage of agricultural inputs including, but not limited to, lime, fertilizer and pesticides

AAPs

• The handling of livestock mortalities

AAPs Today

• Title 6 - “AAPs shall be standards to be followed in conducting agricultural activities in this state.”

AAPS are ACTIVITIES AAPs =farming

CAUTION: this concept applies in the land use context, not all contexts.

AAP Evolution Demonstrates Importance of Farming/AAPs as a matter of Public Policy

1985 – Title 10 – references to “good agricultural practices” and “agricultural activities” in groundwater protection and wetlands statutes

1986 & 1987 – Title 10 – water quality and regulation of stream flow “shall not regulate accepted agricultural practices; shall not apply to accepted agricultural practices”

July 1986 - Committee meets to prepare report defining “accepted agricultural practices”

August 1987, FP&R promulgates “Logging Jobs” Water Quality Rules, under 10 VSA § 1259.

1988 Act 200 – Title 24, Chapter 117 – no [zoning] plan or bylaw under this chapter shall restrict accepted agricultural or silvicultural practices as defined by the commissioner of agriculture or the commissioner of forest, parks, and recreation. 24 VSA § 4494

EVOLUTION 1991 – Title 6, Chapter 215 – Secretary shall adopt by rule land use

practices in order to reduce the amount of agricultural pollutants entering the waters of the state. These shall be AAPs.

• 1994 – Title 24, Chapter 117 amended – 24 VSA §4495 No [zoning] plan or bylaw. . .shall restrict accepted agricultural or

farming practice, or accepted silvicultural practices, including the construction of farm structures, as such practices are defined by. . .under Title 10 and 6 VSA § 4810. Added definition of “farm structure” and referred to farming (Act 250) , notice of intent, and said “no permit for farm structure shall be required.”

• 1995 – AAPs promulgated (Section 4.07 - farm structures) • 2004 – Title 24, Chapter 117 – re-written 24 VSA § 4413(d) Changed

slightly • 2006 - AAPs amended – current version

Today Zoning: 24 VSA § 4413 • Limitations on municipal bylaws

• a/k/a what municipalities can’t do • §4413(d): A by-law under this chapter shall not

regulate accepted agricultural . . .practices,

including the construction of farm structures,

as those practices [activities] are defined by the secretary of agriculture, food and markets. . .

AAPs are the basis for the exemption from municipal zoning authority

• AAPs today used for Water Quality and Zoning (towns can’t restrict but can be generous than AAPs)

• AAPs have a “farm structure” definition that is tied to the number of animals or $1000 sale or plan to be a farm. 24 VSA §4413(d) also has a “farm structure” definition (towns can’t restrict but can be more inclusive)

• AAPs have a definition of “farming” that follows the Act 250 definition; the term “farming” is defined, but not used, in the AAPs.

Practice Pointers for the Zoning Exemption

• Exemption and AAPs require notice to the town in writing prior to constructing a farm structure, with a sketch and set backs.

• Exemption and the AAPs require set backs for farm structures as established by the municipality except if the Secretary of Agriculture, Food and Markets determines otherwise (variance).

• Structures for human habitation, including farm labor housing, are not farm structures and are not exempt.

• AAP Section 4.07 - No farm structures can be built in a floodway; those in a floodplain must follow National Flood Insurance Program Standards (FEMA).

• CAUTION: not every activity conducted on a bona fide farm is an AAP entitled to the exemption

AAP Zoning Determinations • ? Are they “farming” = Are they engaged in AAPs? If

yes, then • ? Are they proposing to build a “farm structure”? • Vermont Supreme Court: Exemptions narrowly construed. • AAFM renders an opinion, if asked, based on the

representations made to it – no investigation or contested case

• Municipalities determine whether the exemption applies; decision can be appealed like other zoning decisions

• Not every case is clear cut – facts are important; reasonable people can differ

“Farming” is exempt from Act 250

• ACT 250 prohibits the commencement of certain kinds of development without first obtaining a Land Use Permit. ACT 250 DOES NOT REGULATE OR CONTROL:

• The construction of improvements for farming, logging or forestry purposes below the elevation of 2,500 feet. In re Ochs, 2006 VT 122.

• The construction of improvements for agricultural fairs that are registered with the agency of agriculture, food and markets and that are open to the public for 60 days per year, or fewer, provided that, if the improvement is a building, the building was constructed prior to January 1, 2011 and is used solely for the purposes of the agricultural fair.

• The construction of improvements for the exhibition or showing of equines at events that are open to the public for 60 days per year, or fewer, provided that any improvements constructed do not include one or more buildings.

• The construction of improvements for certain composting operations located on farms, depending on the source, composition, and amount of the inputs to such compost.

Act 250 “Farming” • 10 V.S.A. § 6001 (22) Farming means: (A) the cultivation or other use of land for growing food, fiber, Christmas trees, maple

sap, or horticultural and orchard crops; or (B) the raising, feeding, or management of livestock, poultry, fish, or bees; or (C) the operation of greenhouses; or (D) the production of maple syrup; or (E) the on-site storage, preparation and sale of agricultural products principally

produced on the farm; or (F) the on-site storage, preparation, production, and sale of fuel or power from

agricultural products or wastes principally produced on the farm; or (G) the raising, feeding, or management of four or more equines owned or boarded by

the farmer, including training, showing, and providing instruction and lessons in riding, training, and the management of equines.

Look somewhat familiar?

Act 250 Rules • Rule (2)(C)(18) – defines “the farm” as lands owned or leased for

“farming” as long as there is indicia of control of the day to day operations

• Rule (2)(C)(19 – defines “principally produced” as more than 50% (by volume or weight) of the agricultural

products which result from the “farming” activities (A)-(D) and which are stored, prepared or sold at the farm, are grown or produced on the farm.

AAFM borrows these definitions when interpreting the same terms

in the AAPs.

Practice Pointers: Act 250 exemption determinations

• The District Environmental Commissions issue Jurisdictional Opinions (JOs)

• Caution! Seek JO! The “farming exemption” does not cover everything in Act 250. It does not cover all activities on a farm. Commercial weddings, camps, classes, festivals, etc., held on farms or associated development activities not exempt.

• Act 250 violations/enforcement can be painful!

In re: Eustance A250 JO, 2009 VT 16 (even the statutory change to A250 amendment jurisdiction post-Eustance would not have changed the result).

Act 250 Criterion 9(B) Primary agricultural soils

• Primary agricultural soils defined - 10 V.S.A. §6001(15) - the statute incorporates the ratings of the USDA Natural Resources Conservation Service in its Farmland Classification Systems for Vermont Soils, June 2006.

http://www.nrb.state.vt.us/lup/publications/importantfarmlands.pdf

Since 2006, the definition also contains a “size and location” requirement.

Act 250 Criterion 9(B) • 10 V.S.A. §6086(a)(9)(B): • A permit will be granted only when the development

or sub-division will not result in any reduction in the agricultural potential of the primary agricultural soils or the project meets sub-criteria (i)-(iv), including suitable mitigation

• “suitable mitigation” is prescribed in 10 V.S.A. §6093 as either on-site or off-site and in ratios of at least 1:2 but no more than 1:3 acres

• Criterion 9(B) is often contested within Act 250. Case law continues to evolve.

Act 250 Criterion 9(B)– Primary Agricultural Soils

• Additional information see: • Natural Resources Board, Land Use

Panel Website

• In re Spear Street, 145 Vt 496 (1985) • In re Village Associates, 2010 VT 42A • In re Eastview at Middlebury, Inc. 2009 VT 122

Questions?

Agricultural Law Part 2 Nuisance and the Right to Farm

Michael O. Duane Assistant Attorney General VBA CLE August 24, 2012

THE EVOLVING LAW OF NUISANCE

- pre-1800s * PROPERTY USE AS A NATURAL RIGHT, THE ABSOLUTIST APPROACH - 19th Cent. industrialization * A FAULT-BASED APPROACH LOOKING TO THE “REASONABLENESS” OR “WRONGFULNESS” OF THE DEFENDANT’S CONDUCT * THE EARLIEST EXAMPLE OF ENVIRONMENTAL REGULATION TO MEDIATE LAND USE CONFLICTS * PLAINTIFF’S “MOVING TO THE NUISANCE” OR “FAULT” COULD ACT AS A COMPLETE BAR TO RELIEF

- 20TH Cent. “modern” approach * A UTILITARIAN ANALYSIS, VALUE JUDGMENTS FOR ECONOMIC EFFICIANCY, HARM v. VALUE OF LAND USE *LAW AND ECONOMICS INJUNCTION or DAMAGES - right-to-farm laws * 50 STATES * A CODIFIED RETURN TO THE FAULT-BASED DOCTRINE - zoning * THE FLIP SIDE OF COMMON LAW NUISANCE * 1920s URBAN → INDUSTRIALIZATION 1960s SUBURBAN → RACE AND CLASS 1970s RURAL → ZONING “IN” and “OUT”

Frederick M. Pendoley, et al. v.

Alfred G. Ferreira, et al. 345 Mass. 309, 187 N.E.2d 142 (1963)

• Route 128 outside of Boston (Westward Ho!) • a “quality” piggery, first-in-time 1949 • a rural community that has become predominantly residential • a course of conduct that would have been “without fault” in a rural area • the piggery “presents an unreasonable deterrent to the normal growth of

the area • permanent injunctive relief to terminate the operation entirely; ?

damages

Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972)

• Sun City, Arizona • cattle feedlot v. a retirement housing development with both uses

expanding towards each other • first in time, well managed feedlot; • odor and flies annoying, if not unhealthy for the senior citizens; • “sales resistance”; no “wrongdoing” by Spur, but the “rights and

interests of the public” • injunctive relief, but as Del Webb “brought people to the nuisance to

the foreseeable detriment to Spur” Webb must plaintiff must also pay indemnification in equity ($ damages)

Victor and Mary Coty, et al. v.

Ramsey Associates, Inc., et al. 149 VT 451, 546 A.2d 196 (1988)

• the Stowe pig farm, nuisance and trespass • zoning permit granted • nuisance = “an unreasonable and substantial interference with the

use and enjoyment of another’s property” • (fault ?); “substantial” = definite offensiveness, inconvenience or

annoyance; in excess of the customary interferences a land user suffers in an organized society

• a “spite farm” case, not a “right to farm” case ( FN. 2) • “intentionally annoy”, “malice or spite” findings so that zoning

approval does not convert an unlawful act into a lawful act • Compensatory and punitive damages (joint and several liability)

Coty v. Ramsey Associates, Inc. 154 Vt. 573 (1990)

• Punitive damages

Clarence Bormann and Caroline Bormann, et al. v.

Board of Supervisors in and for Kossuth County, Iowa, et al.

No. 192 / 96-2276 (Iowa Sept. 23, 1998)

• OMG, the Iowa Supreme Court struck down the right-to-farm law as unconstitutional !

• county board granted farmers application for establishment of an “agricultural area”

• under Iowa state law an agricultural area “shall not be found to be a nuisance regardless of the established date of operation or expansion” of the farm (with certain limitations)

• the statutory immunity from a private civil cause of action in nuisance created an ‘easement’ on the neighbors’ properties, and thus constituted a “taking” of private property by the government without (compensation)

George and Carole Trickett v.

Peter and Carla Ochs 176 VT 89, 838 A.2d 66 (2003)

• nuisance and trespass action with new farmhouse owners and expanded apple orchard operation

• compliance with zoning ordinance may be a factor in determining nuisance, but it is not determinative

• trial court: right-to-farm because plaintiffs “moved to the nuisance” • appeal: 12 V.S.A. § 5753 conducted “on farmland” • -the problem of “urbanization”/”urban encroachment” • -“established prior to” surrounding non-agricultural activities” • -the house has always been there • - a balance of rights: substantial and unreasonable

Trickett v. Ochs, (Unpublished Entry Order) 2007 WL 5323745 (Vt.)

• after remand and trial • nuisance and trespass; damages and injunction • nuisance injunction factors: • - gravity of harm • - character of the harm • - the relative social value of the use of the two properties • - burden on the person harmed to avoid the harm

Right to Farm Sec. 12. 12 V.S.A. chapter 195 is amended to read: CHAPTER 195. NUISANCE SUITS AGAINST AGRICULTURAL ACTIVITIES § 5751. LEGISLATIVE FINDINGS AND PURPOSE The legislature finds that agricultural production is a major contributor to the state’s economy; that agricultural lands constitute unique and irreplaceable resources of statewide importance; that the continuation of existing and the initiation of new agricultural activities preserves preserve the landscape and environmental resources of the state, contributes contribute to the increase of tourism, and furthers further the economic welfare and self-sufficiency of the people of the state; and that the encouragement, development, improvement, and preservation of agriculture will result in a general benefit to the health and welfare of the people of the state. In order for the agricultural industry to survive in this state, farms will likely change, adopt new technologies, and diversify into new products, which for some farms will mean increasing in size. The legislature further finds that agricultural activities conducted on farmland in urbanizing areas are potentially subject to lawsuits based on the theory of nuisance, and that these suits encourage and even could force the premature removal of the farm lands and other farm resources from agricultural use. It is the purpose of this act chapter to protect reasonable agricultural activities conducted on farmland the farm from nuisance lawsuits.

§ 5752. DEFINITIONS

(a) For the purpose of this chapter: “Agricultural activity” includes means, but is not limited to, the

growing, raising and production of horticultural and silvicultural crops, grapes, berries, trees, fruit,

poultry, livestock, grain, hay, and dairy products:

(1) the cultivation or other use of land for producing food, fiber, Christmas trees, maple sap, or

horticultural and orchard crops; the raising, feeding, or management of domestic animals as defined in

section 1151 of Title 6 or bees; the operation of greenhouses; the production of maple syrup; the on-

site storage, preparation, and sale of agricultural products principally produced on the farm; and the

on-site production of fuel or power from agricultural products or wastes principally produced on the

farm;

(2) the preparation, tilling, fertilization, planting, protection, irrigation, and harvesting of crops; the

composting of material principally produced by the farm or to be used at least in part on the farm; the

ditching and subsurface drainage of farm fields and the construction of farm ponds; the handling of

livestock wastes and byproducts; and the on-site storage and application of agricultural inputs,

including but not limited to lime, fertilizer, and pesticides.

(b) “Farmland” means land devoted primarily to commercial agricultural activities.

§ 5753. AGRICULTURAL ACTIVITIES; PROTECTION FROM

NUISANCE LAWSUITS

(a)(1) Agricultural activities conducted on farmland, if consistent with good agricultural practices and

established prior to surrounding non-agricultural activities, shall be entitled to a rebuttable presumption

that the activity does not constitute a nuisance. If an if the agricultural activity meets all of the

following conditions:

(A) it is conducted in conformity with federal, state, and local laws and regulations, it is presumed to

be good agricultural practice not adversely affecting the public health and safety (including accepted

agricultural practices);

(B) it is consistent with good agricultural practices;

(C) it is established prior to surrounding nonagricultural activities; and

(D) it has not significantly changed since the commencement of the prior surrounding nonagricultural

activity.

(2) 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 the public health, safety, or welfare, or has

a noxious and significant interference with the use and enjoyment of the neighboring property.

(b) Nothing in this section shall be construed to limit the authority of state or local boards of health to

abate nuisances affecting the public health.

§ 5754. SEVERABILITY

If any provision of this chapter is held invalid, the invalidity does not affect other provisions of this

chapter that can be given effect without the invalid provision, and for this purpose, the provisions of

this chapter are severable.

John Larkin, Inc. and Larkin Family Partnership v.

J. Edward Marceau, Jr., D.D.S. 184 VT 207, 959 A.2d 551 (2008)

• another apple orchard – a new housing development • pesticide spraying (buffer zone) • trespass or nuisance? (or both?) • trespass claim to “circumvent” the right-to-farm law? • trespass = an invasion of the plaintiff’s possession • nuisance = an interference with the plaintiff’s use and enjoyment • pesticide spray more like a nuisance than a trespass • no trespass case made out; nuisance dismissed • so left for “another day”

RIGHT-TO-FARM and NUISANCE CASES Pendoley v. Ferreira, 187 N.E. 2d 142 (Mass. 1963) Spur Industries, Inc. v. Del E. Webb Development Co., 494 P.2d 700 (Ariz. 1972) Coty v. Ramsey Associates, Inc. 149 Vt. 451 (1988) Coty v. Ramsey Associates, Inc. 154 Vt. 573 (1990) Borman v. Board of Supervisors, 584 N.W. 2d 309 (Iowa 1998) Trickett v. Ochs, 176 Vt. 89 (2003) Trickett v. Ochs, (Unpublished Entry Order) 2007 WL 5323745 (Vt.) John Larkin, Inc. v. Marceau, 184 Vt. 207 (2008)