2013 VT 54


In re Moore Accessory Structure
Permit and Use (Smith and Siebeck, Appellants)
(2012-305)
 
2013 VT 54
 
[Filed 19-Jul-2013]
 
NOTICE:  This opinion is subject to motions for
reargument under V.R.A.P. 40 as well as formal revision before publication in
the Vermont Reports.  Readers are
requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 

 
2013 VT 54

 

No. 2012-305

 

In re Moore Accessory Structure
  Permit and Use


Supreme Court


(Gary Smith and Betsy Siebeck,
  Appellants)


 


 


On Appeal from


 


Superior Court,


 


Environmental Division


 


 


 


March Term, 2013


 


 


Merideth Wright, J.


 

Marsha Smith Meekins
of Marsha Smith Meekins, LLC, South Burlington, for
Appellants.
 
A. Jay Kenlan of Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, for Appellee.
 
 
PRESENT:    Dooley, Skoglund,
Burgess and Robinson, JJ., and Carroll, Supr. J.,
                       Specially Assigned
 
 
¶ 1.            
BURGESS, J.  Neighbors appeal a decision of the Superior
Court, Environmental Division that certain buildings used to process timber
into lumber qualify as “farm structures” exempt from local zoning regulation
under 24 V.S.A. § 4413(d)(1).  We
affirm.  
¶ 2.            
The facts may be summarized as follows.  Appellees are three
siblings—two brothers and a sister—whose family has owned and operated a farm
in the Town of Pomfret for many generations.  In 1973, appellees’
parents deeded a ten-acre parcel of the farm property to one of the brothers to
build and operate a pipe organ construction and restoration business, which was
completed the following year.  In 1974,
the parents deeded a 135-acre parcel to their daughter and her husband to
operate an apple orchard.  In 1993, the
three siblings and their mother (since deceased) formed the Moore Family Farm
Limited Partnership to maintain and operate the farm, and all of the remaining
farm property was transferred to the partnership.  These several parcels, together with an
adjacent property deeded from an aunt, are jointly managed by the siblings and
consist of approximately 100 acres of crop land, 200 acres of managed sugarbush, 50 acres used as pasture, and 850 acres of
forest land.  
¶ 3.            
At issue here are several existing or proposed
accessory buildings located on the ten-acre parcel.  One structure, known as the sawmill building,
houses a WoodMizer Bandsaw
which is used to saw logs harvested from the farm property.  A second, known as the Lumber Drying Kiln, is
used to dry the sawn lumber.  A third,
proposed structure would house a Newman planer (currently housed elsewhere) to
finish the cut lumber and store wood shavings produced during its operation.  In 2009, neighbors, who live across Pomfret Road from the farm, appealed to the Environmental
Division from a decision by the Town’s zoning board of adjustment (ZBA)
granting a construction permit for the Newman planer building.  They also appealed a ZBA denial of their
request to enforce what they considered to be zoning violations concerning the sawmill and kiln buildings.  
¶ 4.            
In October 2010, the trial court issued a written
ruling on the parties’ cross-motions for summary judgment.  The court concluded, in relevant part, that
the wood-processing buildings at issue did not satisfy the criteria for a
permit exemption under the Pomfret zoning ordinance,
but that factual issues remained as to whether they qualified as “farm
structures” exempt from local zoning regulation under state law.  See 24 V.S.A. § 4413(d)(1)-(d)(2) (providing
that zoning bylaws “shall not regulate . . . the construction of farm
structures” and defining the latter to mean a building “for housing livestock,
raising horticultural or agronomic plants, or carrying out other practices
associated with . . . farming practices . . . as ‘farming’ is defined in 10
V.S.A. § 6001(22)”).  Accordingly, the
matter was scheduled for a hearing to take evidence on that issue.          
¶ 5.            
An evidentiary hearing was held over two days in July
2011.  After additional briefing, the
court issued a written ruling in March 2012. 
The trial court found that lumber produced from timber harvested on the
farm had been used for the construction, maintenance, and repair of buildings
and structures on the farm properties. 
Slab wood created as a byproduct from the sawing had been used to fuel
the sugar making operation and to heat other farm buildings; sawdust and
shavings from the sawing and planing had been used as livestock bedding.  All of these activities, the court further
found, were “customary and, indeed, economically necessary” to operate a farm
in Vermont, and constituted “practices associated” with farming consistent with
the provisions in 24 V.S.A. § 4413(d)(1) and 10 V.S.A.
§ 6001(22).  As summarized by the trial
court: “The processing of logs from a farm to be used on the farm
(including the sawing of logs into lumber, the planing and drying of that
lumber, and the production, as byproducts, of slab wood, shavings and sawdust)
are practices associated” with farming. 
Accordingly, the court concluded that the buildings at issue qualified
as “farm structures” exempt from local zoning regulation under 24 V.S.A. §
4413(d), that the Newman-planer building therefore did not require a local
zoning permit, and that the sawmill and kiln buildings could not therefore be
found in violation of the local zoning ordinance.  The court also concluded that appellees’ use of land to grow trees constituted the
growing of a “fiber” crop and therefore qualified as “farming” under 10 V.S.A.
§ 6001(22)(A).  This appeal followed. 
¶ 6.            
Neighbors contend the trial court erred in: (1)
construing the growing of “fiber” under the farming statute to include the
growing of trees; and (2) finding that appellees’
lumber processing activities represented “practices associated with” farming
that qualified the several buildings at issue as “farm structures” exempt from
local zoning regulation.  
¶ 7.            
An understanding of neighbors’ claims requires a brief
review of the operative statutory scheme. 
State law exempts certain activities from local zoning regulation,
“including the construction of farm structures.”  24 V.S.A. § 4413(d).  A “farm structure” is  defined as “a building, enclosure, or fence
for housing livestock, raising horticultural or agronomic plants, or carrying
out other practices associated with accepted agricultural or farming practices,
including a silo, as ‘farming’ is defined in § 6001(22), but excludes a
dwelling for human habitation.”  Id. §
4413(d)(1). 
“Farming” under 10 V.S.A. § 6001(22) is defined, in turn, to mean a
number of activities, including “(A) the cultivation or other use of land for
growing food, fiber, Christmas trees, maple sap, or horticultural and orchard
crops,” “(B) the raising, feeding, or management of livestock, poultry, fish,
or bees,” or “(D) the production of maple syrup.”
¶ 8.            
There is no dispute here that appellees
engage in a variety of activities which  meet the definition of “farming” under
§ 6001(22), including the cultivation of food crops; the raising, feeding, and
management of livestock; and the production of maple syrup.  Furthermore, appellees
adduced substantial expert testimony that their wood-processing activities are  supportive of,
and closely interrelated with, their farming operation as a whole.  For example, Robert Harrington, an
experienced farmer and civil engineer, testified that the sawing, planing, and
drying of lumber from timber harvested by Vermont farmers and used to maintain
and repair farm buildings and create byproducts for fuel and livestock bedding
form “an integral part of sustaining their agricultural operation.”    
¶ 9.            
Thomas McElvoy, a professor
in the School of Natural Resources at the University of Vermont with thirty
years of experience providing extension services to Vermont farmers, testified
to the growing use of “silvicultural activities . . . to make the farm more
sustainable” in Vermont.  He  testified that appellees’
sawing of logs harvested on the farm, planing and drying of the resulting
lumber for repair of farm buildings, and use of the byproducts to heat the
sugar-producing operation and provide bedding for the  livestock represent “the epitome” of
sustainable agriculture, and constitute “practices associated with agricultural
farming.”  Roger Allbee,
an expert in international agricultural trade, experienced farmer, and former
Vermont Commissioner of Agriculture described appellees’
wood processing activities as “common” in Vermont, and also testified that they
represented practices long associated with farming.  
¶ 10.        
The expert testimony adduced by appellees’
reflects in many respects a larger movement toward a more sustainable
agricultural economy.  Many states have
enacted statutes comparable to the limitation on local zoning set forth in 24
V.S.A. § 4413 to facilitate efforts by farmers—similar to those undertaken by appellees—to diversify and become more
self-sufficient.  See, e.g., R. Branan, Zoning Limitations and Opportunities for Farm
Enterprise Diversification: Searching for New Meaning in Old Definitions,
Nat’l Agric. L. Ctr. 1, 8-9 (May 2004), http://nationalaglawcenter.org (discussing state laws
designed to facilitate farm “diversification efforts” and “[m]ore intensive
vertical integration” by pre-empting restrictive local regulation and
encouraging creative uses of farmland for more profitability); N. Carter,
Comment, Agriculture, Communities and Rural Environment Initiative: Can
Small Family Farms and Large Agribusiness Live Peacefully in Pennsylvania?,
16 Widener L. J. 1023, 1037 n.77 (2007) (discussing Pennsylvania statute
prohibiting local zoning regulations from interfering with “normal agricultural
operation” defined, in part, to include use of “machinery designed and used for
agricultural operations, including . . . saw mills”); T. Daloz, Farm
Preservation: A Vermont Land-Use Perspective, 12 Vt. J. Envtl.
L. 427, 451 (2011) (noting that § 4413(d)’s preemption of local regulation over
“farm structures” is focused “on supporting and enhancing agriculture”).  This broad movement is also reflected in
Vermont’s “right-to-farm” law, enacted by the Legislature out of a recognition that, in order to survive, Vermont farms must
enjoy the freedom to “diversify” and engage in “reasonable agricultural
activities.”  12 V.S.A. § 5751.  
¶ 11.        
The record evidence, therefore, fully supports the
trial court’s conclusion that appellees’
wood-processing activities constitute “practices associated with” farming, and
that the structures used for carrying out these activities are exempt from
local zoning regulation under 24 V.S.A. § 4413(d)(1).
¶ 12.        
Neighbors’ arguments to the contrary are
unpersuasive.  They maintain that cutting
and planing wood is a “manufacturing,” not a “farming,”
activity.  The argument ignores the
operative language of the statute, however, which exempts buildings used for
carrying out “practices associated with” farming.  Id. (emphasis added).  As discussed, ample evidence supports the
trial court’s finding that processing lumber from timber harvested on site and
using it for farm related purposes are practices long and intimately associated
with farming in Vermont.*
¶ 13.        
Neighbors also object that this conclusion conflates
farming with forestry, and renders superfluous statutes dealing with logging
and forest products.  See, e.g., 10
V.S.A. § 2601 (declaring conservation and economic management of forest land
and its products to be in public interest); 10 V.S.A. § 2701 (declaring sustainable
management and use of forest and woodlands and promotion of markets for
value-added forest products to be public policy of state).  On the contrary, our holding is entirely
divorced from any issue as to whether farming or agriculture includes the
raising and harvesting of trees. 
Although, as noted, the trial court found that growing trees for lumber
was raising a “fiber” crop  within the meaning of “farming”   under

10
V.S.A. § 6001(22)(A), this was not essential to its
ruling or to our holding, and we therefore do not address it.  It is sufficient to hold that the evidence
supported the trial court’s finding that the buildings here were used for
“practices associated with” farming under 24 V.S.A. § 4413(d)(1), and we discern no inconsistency between this
conclusion and other laws governing the management and marketing of forest
products.  Accordingly, we find no basis
to disturb the judgment.  Our holding
renders it unnecessary to address neighbors’ additional claims concerning
appellants’ compliance with the local zoning ordinance. 
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 


*  There is no evidence here that appellees were conducting a commercial sawmill operation,
processing timber¾theirs
or others¾for
sale off-site, and we therefore need not determine whether the farm-structure
exemption would apply in those circumstances.


