Committee reviews draft to tighten and clarify nuisance protections for agricultural activities

Members of the Legislature's judiciary committee and staff discussed a draft statute that would change how Vermont courts treat nuisance claims against agricultural activities, including shifting the burden of proof to neighbors and requiring a mediation step before bringing suit. The committee reviewed provisions that would remove the current rebuttable-presumption language, preserve nuisance protection for activities conducted under generally accepted agricultural practices, and require a certificate of “good standing” from state agencies to claim that protection.

Why it matters: The draft would make it harder for neighbors to prevail in nuisance suits by requiring plaintiffs to prove a farm is not following accepted practices and by directing courts to treat properly conducted agricultural activities as non-nuisance. Supporters say the changes protect agricultural viability as farms adopt new technologies and change operations; opponents warn the language could bar neighbors from remedies and could exclude farmers who are actively working with agencies to remediate violations.

The draft would do several things at once. It removes language describing a “rebuttable presumption” that a longstanding agricultural use is not a nuisance and replaces it with an express statement that an agricultural activity “shall not be or become a nuisance” when conducted in accordance with generally accepted agricultural practices (GAPs). Those GAPs are defined in the draft to include compliance with the state’s required agricultural practices (RAPs), concentrated animal feeding operation (CAFO) permits where applicable, and pesticide rules. The draft also preserves a case‑by‑case standard for issues with no numeric regulatory standard — such as noise, dust and traffic — by tying those questions to “customs and standards followed by similar operators of agricultural activities in the state.”

The bill would shift the initial burden to a plaintiff: a neighbor alleging a nuisance must prove by a preponderance of the evidence both that the farm is not entitled to the nuisance protection (by not following GAPs) and that the activity materially and adversely affects the use and enjoyment of the neighbor’s land. The draft also lists two triggers that would remove the liability protection: negligent operation that causes a nuisance, or an agricultural activity that has a substantial adverse effect on health, safety or welfare, or a noxious and significant interference with neighboring use and enjoyment. The draft does not define “noxious.”

A new procedural requirement would force would‑be plaintiffs and operators to attempt mediation at least once under the Uniform Mediation Act before filing suit. The draft requires the plaintiff to supply the court a sworn statement showing a mediation attempt before initiating litigation.

On eligibility, the draft would require a person conducting an agricultural activity to demonstrate they are in “good standing with the state” to claim nuisance protection; the statute would allow farms to provide letters from the Agency of Agriculture, Food and Markets or the Agency of Natural Resources as evidence. Committee members pressed on what “good standing” means. One committee member said the draft removes the requirement that a final enforcement order be issued before a farm is considered out of good standing; that change could exclude farms that are actively working with state agencies to remediate violations from protection during the remediation process.

Committee members and staff discussed several specific effects and examples. Mike (committee counsel) summarized the scope and purpose of the draft and said, “the short answer is not much,” when asked how much municipal authority exists to regulate farming through zoning. Committee members cited an Essex example in which a small duck operation was deemed farming and thus claimed exemptions from municipal regulation. They also discussed past litigation and legislative changes, including a stormwater assessment dispute and a miscellaneous agriculture bill enacted two years earlier that affected how utilities assess farm stormwater impacts.

Several members raised concerns about how the draft would treat new or expanding farms. The draft removes existing limits that could strip nuisance protection when a farm changes crop types or methods; under the proposed language, a farm that changes its operations would not automatically lose the statutory protection. At the same time, members asked whether small or new operators who do not meet numeric thresholds (for example, some poultry or livestock income/animal counts) could actually rely on RAPs or other regulatory compliance as evidence of GAP compliance. Staff answered that some activities — for example, maple sap collection and certain crop operations on at least four contiguous acres — can qualify under other statutory criteria even without meeting income thresholds.

Several committee members warned that the good‑standing requirement, as currently drafted, could unfairly exclude farmers who are in the process of remediation. Richard (committee member) said, “I have a problem if I resolve lose my protection because I'm working we're working through the issue,” arguing that ordinary remediation can take months and should not automatically bar a farm from claiming protection. Others asked whether the mediation requirement would lengthen dispute resolution; staff said mediation length depends on the parties but that a single attempted mediation would satisfy the pre‑suit requirement.

Members also discussed other contested topics that the draft does not address: trespass, water/withdrawal issues, composting and solid‑waste inputs, and the absence of numeric standards for odors, noise and dust. Staff noted prior legislation that carved out some composting activities from Act 250 and said the RAPs and CAFO framework remain the primary regulatory baselines in the draft. The draft also contains a “liberal construction” clause directing courts to construe the chapter in a way that furthers the statutory purpose of supporting agriculture.

No formal votes or final committee decisions were recorded during the discussion. Committee members asked staff to refine language and return with clarifications, including the scope of “good standing,” whether to define terms such as “noxious,” and the interplay between mediation and administrative remediation.

What’s next: Staff and counsel will continue to revise the draft and return it to the committee for further review. The committee paused the discussion for a short break and planned to resume later in the session.