MONTPELIER — The Senate voted on Wednesday to approve an update to the state’s “right to farm” law, which would make it harder for neighbors to sue farmers over impacts the farm may have on their properties.
The idea behind the bill, S.45, is to protect farmers from neighbors who are bothered by nearby farming activity. Under current law, neighboring property owners can file lawsuits against farmers, alleging that odors coming from the farm, truck traffic and other business-as-usual farming practices prevent them from enjoying their properties.
Though uncommon, such lawsuits have the potential to tie up already-strapped farmers in court for years at their own expense, Sen. Samuel Douglass, R-Orleans, the bill’s lead sponsor, told the Senate Judiciary Committee last month.
“Right now in Vermont, we have a lot of issues with people moving in, and that’s great, but they move in and then will complain about the smell of the farm that’s next door, that they moved in next to,” he said. “A lot of those farmers are worried about getting sued.”
The general thinking, he said, is that farmers should not get sued for “just running your farm.” As long as “you’re not dumping manure into the rivers” and complying with state law, Douglass said, you shouldn’t live in fear of litigation.
Among states with robust agriculture industries, Vermont’s right to farm law is comparatively less protective for farmers, Michael O’Grady, a lawyer who crafts bills for lawmakers, told the committee last month.
Vermont’s current law protects farmers from so-called nuisance lawsuits, which can be brought when an action on one property causes impacts somewhere else — manure spreading that produces a foul odor, for example — according to Cornell University’s Legal Information Institute’s definition.
The protection holds as long as the farm meets certain criteria. It must comply with state and local laws, be consistent with “good agricultural practices,” have been established before “surrounding nonagricultural activities” and it can’t have significantly changed since the start of those activities.
In S.45, lawmakers have proposed eliminating those criteria. Instead, the bill states that farms are protected from lawsuits as long as they are “in accordance with generally accepted agricultural practices.” In addition, anyone who wants to bring a lawsuit against a farmer must be able to prove that the farm is not complying with those accepted practices.
The bill also would extend farmer’s protection beyond nuisance lawsuits to so-called trespass lawsuits. The legal definition of “trespass” includes a physical invasion of property — a stream of water running through someone’s backyard that comes from a farm, for example, according to Cornell University’s Legal Information Institute.
A farmer would lose those legal protections, however, if the farmer’s actions are found to be negligent, the bill states. Those who want to sue would also be required to first engage in mediation with the farmer, the cost of which would be split between the two parties.
Lawmakers’ decision to add protections from trespass lawsuits raised some eyebrows during testimony.
“Now, we’re expanding it to trespass, which goes right to, basically, discharge and the movement of pollution off one property to another,” Jon Groveman, policy and water program director for the Vermont Natural Resources Council, told members of the Senate Judiciary Committee.
High-profile lawsuit
Proposals to change Vermont’s right to farm law originally surfaced in 2021 following a high-profile lawsuit in which neighbors of a large dairy farm in Addison County sued the farm over damage to their property and won.
The lawsuit showed that the farm’s tile drains — underground pipes intended to help drain soil and carry water away from agricultural fields — had channeled water toward the neighbors’ property, which caused damage, especially during heavy rainstorms. The Hopper family, who lived next door, spent only part of the year in their Panton home, which helped fuel a narrative about outsiders posing a threat to Vermont farms.
Superior Court Judge Mary Miles Teachout ordered the farmers, brothers Hans and Gerard Vorsteveld, to stop runoff that flowed from their farm onto their neighbors’ property. But the farmers, who have since been held in contempt of court for failing to comply with the decision, have alleged that the ordered fixes to their farm would cost millions of dollars.
While similar bills have been raised in previous years, none moved beyond the Senate Judiciary Committee, which was chaired by late Sen. Dick Sears, D-Bennington, who died in June.
Sen. Nader Hashim, D-Windham, who chairs the Senate Judiciary Committee, said the bill moved forward this year because it was more detailed than previous proposals.
“I think it provides more clarity for future parties as to how the process can play out and what type of protections are afforded to farmers,” he said.
Attorneys representing both sides of the Vorsteveld lawsuit, along with Gerard Vorsteveld, testified before the committee. Asked whether the bill is a direct result of the case, Hashim declined to comment on the suit.
“Generally, there can be examples of how the current right to farm law doesn’t actually achieve its goal of protecting farmers,” he said.
Read the story on VTDigger here: Proposed changes to Vermont’s ‘right to farm’ law make headway in the Senate.