Saturday, October 12, 2013

Fibrous Threads Among the Gold

In re Moore Accessory Structure Permit and Use, 2013 VT 54.

Here is a chapter in the long-running debate about the future of Vermont.

Landowners in today’s case own almost a thousand acres of land near Woodstock that is dedicated to a variety of agriculture uses.  There is an orchard, a sugarbush, pasture, and forest land.  But at issue is a ten-acre parcel where the family owns and now operates a sawmill, a drying kiln, and a large wood planer.

Neighbors opposed this operation and appealed to the trial court when the local ZBA granted the Landowners a permit for the wood planer (it must be some planer).  Neighbors also appealed the Town’s failure to seek enforcement against Landowners for various alleged zoning violations.

The trial court upheld the Town’s position, and the Neighbors appealed to the SCOV.

On appeal, the sole issue is about agriculture.  In Vermont land use circles, the critical distinction lies between commercial operations and agriculture.  The former requires permits while the latter enjoys exemption from zoning, and in most cases, state Act 250 regulation.  The idea is that agriculture is an accepted use anywhere in Vermont, and proper regulation is not a matter of set back and use but accepted agricultural practices that come from the Agency of Agriculture. 

In practice, the distinction between commercial development and agriculture is a line fraught with several nuances and distinctions, each supported by a series of policy decisions usually intended to promote agriculture.  More and more, this area of the law seeks to strike a balance between regulation and allowing existing farms to expand into new activities that either complement or expand their agricultural products without additional permits.  Generally, this balance has been a factual one, which looks to the nature of the new activity to see whether it is an extension of the agricultural process or a production based in some way on goods principally produced on the farm.  The closer the new activity tracks or builds on the existing agriculture, the less necessary a permit is likely to be. 

The issue here is whether the sawmill, the kiln, and the planer are part of the Landowner’s agriculture.  For the SCOV, this requires only a quick review of the record.  There the SCOV finds ample evidence linking the sawmill operations to the Landowner’s agriculture.  The woodchips are used for bedding, the lumber is used to repair and build farm buildings, and the wood harvested is used for fuel in the maple syrup operation. 

At trial, Landowners had a murder’s row of experts testify that the sawmill operations were necessary to the family’s well-established farming operation and were a natural offshoot of it.  This is enough for the SCOV, which affirms that the operations are agriculture and affirms the trial court’s conclusion that no additional permits are necessary.

Two additional points are left open in the SCOV’s decision.  First, the SCOV notes that the evidence did not show the sawmill to be a commercial operation.  If it had, the SCOV indicates that it might have viewed the case somewhat differently.  This is consistent with prior cases that have ruled that commercial structures or uses on a farm are subject to zoning and Act 250. 

Second, the SCOV refuses to take up the trial court’s reasoning that Landowners were also entitled to the agricultural exemption because the sawmill was part of the farm’s “fiber” harvest.  This language comes from 10 V.S.A. § 6001(22)(A), which defines farming to include the “cultivation of land . . . for growing . . . fiber . . . .”  The trial court concluded that raising trees and harvesting them for lumber and wood was the growing of fiber and was, therefore, agriculture.  Neighbors appealed arguing that this reasoning destroyed the distinction drawn between forestry and agriculture and that the term “fiber” was not intended to cover trees. 

The SCOV seems to agree with the neighbors, but given its earlier rulings, it need not rule on the issue since the prior grounds were sufficient.  Instead, the SCOV sets it aside leaving the issue for another day and potentially a more sympathetic set of facts.  

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