Lawmakers debate language, burden of proof in proposed agricultural nuisance bill

Conference committee members from Vermont’s Agriculture and Judiciary panels met to reconcile competing versions of a bill that would change how courts treat nuisance claims against farms, focusing on shifting the burden of proof, defining "generally accepted agricultural practices" and excising a trespass provision.

The matter matters to farmers and neighbors because the proposed changes would make it harder for plaintiffs to obtain nuisance remedies unless they can show specific regulatory noncompliance or a heightened showing beyond ordinary nuisance, lawmakers said.

Lawmakers said the version the House sent to the conference committee was a compromise intended to produce a bill that could pass both chambers. "The bill that we passed is the compromised bill that we can get through," said David Durfee, chair of the House Agriculture Committee from Shaftesbury, summarizing the House position and urging a timely conference report.

Senators from agricultural districts pressed for clarity on several retained and removed provisions. "I see where the trespass notice was was stricken from the bill," said Sen. Bob Norris of Franklin County, noting the removal of a trespass clause that had been in earlier drafts. Committee members also flagged subsections listed as "2(c)(2) and (3)" on the House amendment — language invoking agricultural activity that "is obnoxious and significant interference" and a related standard they described as subjective.

Supporters of the House text said the bill seeks three main changes: expand statutory protection so farmers who change crops or methods or start farming newly converted land receive protection; remove barriers that required the farmer to carry the presumptive burden of defense; and retain protections only where generally accepted agricultural practices (GAAP or RAPs) and applicable permits or rules are followed.

A staff member who reviewed precedent told the committee the Vermont Supreme Court has treated "noxious" as a fact-specific finding and that the courts will need to resolve many disputes with evidence and expert testimony. Committee members also noted that the bill explicitly ties some protections to compliance with permits and rules such as CAFO permits and pesticide regulations.

Several senators urged replacing or tightening the word "noxious," calling it too subjective and thus a source of litigation that would disproportionately burden smaller farmers. One senator said small operations — including a cited example of a four-acre strawberry grower — could face complaints even when they are not using pesticides or operating outside customary practices.

Committee members described mixed testimony during prior committee hearings: farm organizations, producer groups and some farmers offered input, but several statewide organizations either did not take a unified position or declined to testify. Lawmakers said the record lacked systematic testimony from neighbors of farms on nuisance claims.

No formal votes or amendments were recorded in the excerpts the committee discussed. Members asked for alternative wording suggestions and for research staff to bring draft language to the floor; a staff member said research would be produced and members said they would watch for floor action.

Lawmakers noted the bill’s language traces to statutes written in the early 1990s and that the state’s farm economy has grown substantially since then. Several members said the change aims to protect both small and large farmers from nuisance suits while preserving a path for neighbors to bring claims where regulatory noncompliance or significant harm can be shown.

The conference committee did not adopt final, binding text in the excerpt reviewed; members discussed producing a conference report and seeking floor action. Committee members emphasized that courts — not the statute alone — will ultimately interpret the new definitions and standards and that litigation to define GAAP may be necessary.

The committee planned to continue consideration and requested staff research and alternative wording options before filing a conference report or reconvening for final action.