Legislative panel debates narrowing S.45 to nuisance protections, clarifying new-farm rules

A Vermont legislative working group considering S.45, a proposed change to state law on agricultural nuisance protections, debated whether the bill should focus strictly on nuisance claims and how to treat new or long-dormant farms.

The committee’s conversation centered on several recurring questions: whether changing crops or farming methods should disqualify a farm from statutory nuisance protections; whether a multi-year threshold (commonly discussed as five or 10 years) should be used before new or reactivated farmland receives protections; whether the bill should explicitly exclude trespass and water-diversion claims; and whether the statutory process should require mediation and offer arbitration before court action.

“We’re onboard with the certainly existing nuisance protection and clarifying that and expanding it to the extent that if you are . . . maybe within some limits, want to change the type of operation you do, that that’s okay,” a committee member said, summarizing the direction of the discussion.

Members raised concerns about granting broad new protections that could be used to override municipal land-use controls or to shield conduct that would otherwise constitute trespass. “I think we should go back to we just remove all that language and just continue to use the existing common law definition and rather to try and redefine it,” a committee member said when describing options to avoid expanding trespass protections.

The group discussed a proposed provision — present in the current draft under review — that would make explicit that temporary pauses in farming (for example, a period of nonoperation) should not automatically disqualify a parcel from protection. One speaker noted that the federal Conservation Reserve Program (CRP) typically involves 8–10 year enrollments and that a 10-year threshold had been suggested in one draft to accommodate CRP-era fields. Another committee member advocated for a shorter five‑year threshold so that new smaller-scale farms could more quickly obtain protections.

Farmers and testifiers raised practical concerns about reactivating land that has been fallow for decades. One farmer described converting woods to sugaring operations and said the change altered neighbors’ expectations: “I purchased the land as a farmer. . . . My farm supports about 7 families now.” Speakers used those examples to frame why the statute should allow some flexibility when an operation changes but also to emphasize limits and neighbor relationships.

On the scope of protections, the group agreed that the bill should be explicit about staying focused on nuisance law rather than attempting to resolve trespass or water-diversion disputes. One member asked whether the bill should include language protecting farmers from liability when extreme weather events cause run-off; committee discussion noted two alternative approaches in the draft tied to flood-event thresholds (one tied to a 25‑year event, another tied to events with annual exceedance probability of about 4 percent) and that counsel should advise on the legal consequences. The committee suggested that if the statute is limited to nuisance law, some of those flood-exemption alternatives might be unnecessary.

The draft would also shift the legal burden in nuisance claims: instead of the farmer proving entitlement to protection, plaintiffs (neighbors) would have to show the defendant farm had acted outside acceptable agricultural practices. A committee member framed the change in procedural terms: “I really like to enjoy what everyone else gets to enjoy is that you’re innocent until proven guilty, and that’s a nonrebuttable presumption,” while adding that farmers must remain in compliance with Required Agricultural Practices (RAPs) and nutrient-management plans to keep any presumption.

The panel discussed a statutory requirement that parties attempt mediation before filing suit. Members observed that courts often expect mediation already and that the U.S. Department of Agriculture historically has offered free mediation services; the draft makes mediation explicit and allows parties to agree to binding arbitration and share costs.

Members also flagged interactions with municipal zoning and other state law limits. Several speakers said the bill should not be read to allow agricultural operations that municipal zoning or other state rules currently prohibit. Committee members asked staff and counsel — repeatedly identified simply as “Mike” in the record — to advise on the interplay between a state nuisance standard and local land‑use controls.

The group did not take a final vote on any provision. Instead, the committee agreed to continue drafting and to provide a formal proposal to the House Judiciary Committee in the middle of next week. “If we can get them something where we have broad agreement on, they’re more likely to do something,” a committee member said.

The committee scheduled further legal advice and follow-up drafting before any final recommendation to change statutory language.