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Legislative counsel: TapStreet decision narrows farm exemptions and leaves municipalities alternative regulatory tools
Summary
Office of Legislative Counsel briefed the committee on the TapStreet decision, saying municipalities may still regulate noise, hours and similar matters through ordinances or zoning even as some farm activities remain statutorily exempt; the briefing covered nuisance suits, cottage food rules, REDI and other statutory reporting deadlines.
Bradley Shelman of the Office of Legislative Counsel told the committee that the recent TapStreet decision changes what municipalities can and cannot regulate about farming activity. Shelman said that under the prior RAPS-rule framing municipalities could not regulate activities listed in section 3.1, but the court's ruling has left the scope of exemption narrower and shifted attention to alternative municipal tools.
"Farms have been able to regulate anything that was not considered a farm under the RAPS rule section 3.1," Shelman said, adding that "municipalities can't tell you how to deal with your wastewater, but they could potentially tell you how to deal with noise, smell, hours of operation, roads."
Shelman told the committee that public nuisance lawsuits remain an available remedy but may face more legal barriers after TapStreet; municipalities often have other enforcement tools and may choose to enforce ordinances or zoning instead because those approaches can be easier to litigate. He used the Taft Street matter as an example: the farmer who was the subject of the dispute "gave up his ducks" and is pursuing a variance to continue cannabis cultivation while appeals proceed.
The counsel also answered operational questions raised by members: he read the statutory definition for cottage food operators (sales from a private home kitchen of non-time-and-temperature-controlled items) and advised that non-cottage food establishments must buy from licensed manufacturers. He described REDI as the Rural Economic Development Initiative, a program of the Vermont Housing and Conservation Board that helps rural communities access federal grants and development support.
Members asked whether the TapStreet decision imperils Act 250 exemptions for agriculture or silviculture; Shelman said the forestry provisions in statute are clearer and appear less at risk, but he cautioned that final outcomes depend on future court action. He recommended the committee consider narrowly tailored statutory language if the goal is to restore a prior baseline of authority.
Next steps: Shelman said he would follow up on narrower questions (for example, whether accessory farm businesses would be treated differently after the decision) and return with more detailed analysis. The committee scheduled additional agency appearances and planned to continue these questions at the next meeting.
