Senate Judiciary committee straw poll favors S.45 to shift burden in farm nuisance suits

The Senate Judiciary Committee signaled support Wednesday for S.45, a bill that would change Vermont’s right-to-farm protections by placing the burden of proof in nuisance and trespass suits involving agricultural activities on the person bringing the claim. Committee members reported a 5–0 straw-poll vote in favor of moving the bill forward.

The bill’s sponsor, Senator Norris, told the committee the measure "proposes to amend the protection against nuisance suits for agricultural activities under the Vermont right to farm law by providing that an agricultural activity shall now be a nuisance or trespass when the activity complies with generally accepted agricultural practices." He said the draft before the committee was seven pages long and that any additional amendments were expected to be minimal.

The bill would require a plaintiff alleging that an agricultural activity is a nuisance or trespass to prove by a preponderance of the evidence that the activity is not conducted in accordance with generally accepted agricultural practices. Senator Norris said the proposal shifts the burden "onto the individuals who are filing the suit" rather than requiring farmers to prove they are not violating complaints. He described examples heard in committee where farmers spent "thousands of dollars" defending suits and even plugged tile drains while disputes were resolved.

S.45 also would not remove protection when ownership changes or operation stops for up to five years, according to language read in committee. The measure would exclude protection where a nuisance or trespass results from negligent operation or from a violation of state agricultural water quality requirements. The bill would also require that the person bringing a tort action and the operator of the agricultural activity first attempt to resolve the dispute through mediation before filing suit; if mediation fails, the bill contemplates binding arbitration as a subsequent step.

An unnamed committee member commended the measure as a compromise between neighbors and farmers, saying, "Kudos to the judiciary committee for this," and arguing that preexisting farms should not be penalized when neighbors move next to established agricultural operations. Committee members discussed the evidentiary standard in the bill—preponderance of the evidence—and noted it is the lowest civil standard, lower than "clear and convincing" proof.

Committee members raised hypothetical and factual concerns about edge cases, including properties that had not been used as farms for decades and then restarted agricultural operations, and about enforcement mechanisms where smells, noise or runoff are alleged. The committee discussed that the bill does not prevent lawsuits from being filed but makes plaintiffs prove the claim and requires mediation attempts to be documented when court papers are filed.

Senator Norris said the committee planned to vote on the bill that day and expected to report it out of committee with minimal changes. "We aren't trying to do anything more with the bill than I'm aware of," he said. The committee recorded a 5–0 straw poll in favor. The bill will proceed through the normal committee reporting process before any floor action.

Votes at a glance: Committee straw poll on S.45 (Right to Farm) — 5 ayes, 0 nays (committee straw poll reported by committee members).