Committee hears testimony on S.45 right‑to‑farm changes, including mediation requirement and new definition of generally accepted agricultural practices

The Judiciary Committee on March 25 heard detailed testimony and debate on S.45, a proposal to change the state’s right‑to‑farm protections. Staff and witnesses described a shift from a four‑part rebuttable presumption to a rule that an agricultural activity “shall not be or become a nuisance or trespass when the activity is conducted in accordance with generally accepted agricultural practices.”

Michael Grady of Legislative Council opened the committee discussion with an overview that framed the bill as a multi‑year response to farmers’ concerns about nuisance litigation. Grady compared several state approaches — including Vermont’s existing rebuttable presumption, Michigan’s statutory standard tied to agency guidance, and Oregon’s broad zoning‑based immunity — before outlining the draft’s components. He said the bill would define "generally accepted agricultural practices" to include compliance with the state’s Required Agricultural Practices (RAPs), the Agency of Agriculture’s pesticide rules, and practices consistent with customs followed by similar operators in the state.

Oliver Manning, a fourth‑generation dairy farmer from Swanton who said his operation milks about 550 cows and farms roughly 1,000 acres, testified in support. Manning described a nearby small strawberry farm that spent tens of thousands of dollars defending itself in court after a neighbor challenged whether the business qualified as a farm; Manning said the orchard and small farms that meet state documentation nevertheless face costly litigation. "We are not looking for the state to hold up bad actors unaccountable, but we are simply looking for protections that will streamline any litigation to provide a quick innocence to prove innocence and save our farms money and time," Manning said.

Claudi­ne Sippar, an attorney representing the Bartschfield Farm, outlined why she and her client view Vermont’s current rebuttable‑presumption scheme as ineffective. She walked the committee through the four prongs a farmer must satisfy under current law — conformity with federal, state and local laws; consistency with good agricultural practices; prior establishment before surrounding nonagricultural activities; and lack of significant change since commencement — and argued each prong has produced litigation uncertainty. Sippar said a trial court in a prior case ruled a lack of regulatory enforcement is not adequate proof of conformity with rules, creating an evidentiary trap for farmers who cannot practicably prove a negative.

Sippar described a case in which her client spent years in litigation and was ordered by a court to abate water flowing across neighboring land — an injunction she said required the farm to halt runoff that originated in town ditches and from hundreds of acres. She told the committee that sampling of tile‑drain discharge obtained during the litigation showed "clean" water in several tile drains, but the court nevertheless entered broad remedial language. Sippar said her client had spent between $40,000 and $50,000 on legal fees and remained at risk of further appeals.

Key provisions in the draft discussed at the hearing include: - A new affirmative standard: an agricultural activity is protected from nuisance or trespass if conducted in accordance with generally accepted agricultural practices (which the draft ties to RAPs and Agency of Agriculture pesticide rules, with a residual customary‑practice test for other items). - A negligence carve‑out: protection would not apply where nuisance or trespass results from negligent operation of the agricultural activity. - A mediation requirement: a person must attempt mediation under the Uniform Mediation Act before filing a nuisance or trespass claim arising from an agricultural activity; the court must receive a sworn statement attesting to the attempt. The draft does not specify how mediation costs are to be allocated. - Courts are directed to construe the protection liberally to effectuate the chapter’s purposes, and protection survives change in ownership, change in crop, temporary cessation of farming or adoption of new technology.

Committee members questioned how the draft would be applied in practice. Several asked who would define "generally accepted agricultural practices," whether the customary‑practice test would require expensive expert testimony, and whether the mediation requirement would merely add cost and delay. Grady and witnesses acknowledged the customary‑practice provision invites a fact‑specific court inquiry and that expert witnesses commonly appear in these disputes; they said the mediation step is intended to encourage early resolution but does not mandate outcome or set cost allocation.

Some lawmakers raised concerns about whether the draft would limit municipal or state health enforcement; witnesses said officials retain their enforcement authority but added that the bill is intended to narrow private nuisance and trespass litigation while preserving public‑health enforcement.

Claudi­ne Sippar urged lawmakers that the existing rebuttable‑presumption scheme has, in practice, failed to protect farmers and that S.45’s approach shifts the initial burden to the plaintiff and clarifies protection for routine changes in farming practices. Farmer witnesses favored the bill as a way to reduce defensive litigation and protect farm investments.

The transcript records the bill being reported out of the Judiciary Committee with a committee vote recorded in the hearing as "4‑0‑1" (voice in transcript: "it's 401") and a floor tally stated as "25 to 5." The transcript does not include the committee record or full context for those tallies beyond those statements.