                                   STATE OF VERMONT

                                ENVIRONMENTAL COURT

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Appeal of Trickett                          }                       Docket No. 85-5-04 Vtec
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   Decision and Order on Town’s Motion for an Order of Summary Judgment or, in the
                    Alternative, Motion to Limit the Scope of Review

       Appellants George and Carole Trickett appeal from a decision of the Zoning Board of
Adjustment (ZBA) of the Town of Orwell (Town) denying Appellants’ request for zoning
enforcement at Peter and Carla Ochses’ orchard on Sanford Road. Appellants are represented by
Paul S. Gillies, Esq.; the Town is represented by Mark Werle, Esq.; Appellees Peter and Carla
Ochs are represented by Peter F. Langrock, Esq. This matter is before the Court on the Town’s
Motion for Summary Judgment or, alternatively, to limit the scope of review to the issue of
whether the Ochses’ use of their property has changed so as to require a zoning permit for the
new use.
                                     Factual Background
       The material facts relevant here are also summarized by the Vermont Supreme Court in
Trickett v. Ochs, 2003 VT 91, and in the decision of the Addison Superior Court after remand,
Trickett v. Ochs, Docket No. 267-11-00 Ancv (Addison Sup. Ct., Sept. 2, 2005), both of which
dealt with different legal issues but essentially the same facts as here. The Vermont Supreme
Court decision addresses the nuisance and trespass claims that the Tricketts brought against the
Ochses, alleging that the Ochses’ orchard operation (“Orchard operation”) substantially
interfered with the Tricketts’ use and enjoyment of their property. The Supreme Court remanded
the case to the Superior Court, where a jury found that a nuisance existed. The Addison Superior
Court subsequently enjoined the Ochses and their Orchard operations in several ways relevant to
this appeal.
       The following facts are undisputed unless otherwise noted.
       1. Since 1965, Appellees have owned and operated the 600-acre Crescent Orchard, now
including a barn, outbuildings, and a residence, on Sanford Road in Orwell.
        2. The Orchard operation on Sanford Road now includes 10,000 trees and was first
planted in 1918.
        3. Activities related to the packing, storing, and shipping of apples occur at the Ochses’
barn on Sanford Road.
        4. Appellees lease and operate other orchards on property owned by others. These
additional orchards do not adjoin the Ochses’ original orchard on Sanford Road.
        5. Apples from the leased orchards are collected, waxed, packed, stored at and shipped
from the barn on Sanford Road.
        6. Appellants reside in a historically significant farmhouse which they purchased in 1992
from the Ochses’ successors in title. The farmhouse is a ten bedroom brick residence built in
1835 by the Sanford family, one of the first settlers of Orwell.
        7. Appellants’ farmhouse is located directly across Sanford Road, a dirt road, from the
Appellees’ barn.
        8. Both the farmhouse and the Sanford Road orchard are in the Town’s Rural Residential
and Agricultural zoning district.
        9. At the time of the sale of the farmhouse, apples were collected from the orchard and
brought to the barn, where they were immediately transported to the Shoreham Co-op and stored
for sale.
        10. In approximately 1996, the Shoreham Co-op ceased many of its operations and
Appellees began conducting more activities on-site, including waxing and storing the apples in
refrigerated tractor-trailer trucks (“reefers”), building and repairing shipping pallets, and loading
the reefers with apples.
        11.   Appellees’ activities are constrained by a permanent injunction issued by the
Addison Superior Court in Trickett v. Ochs, Docket No. 267-11-00 Ancv (Addison Sup. Ct.,
Sept. 2, 2005). The injunction required the Ochses to limit their hours of operation, relocate
some noise producing activities, and take various other steps to reduce the interference with
Appellants’ use and enjoyment of their residential property.
                                            Discussion
        Appellants are appealing the Town’s failure to require a zoning permit for Appellees’
apple processing, packing, storage, and shipping activities at the barn on Sanford Road. The
central issue in this appeal is whether the Ochses’ operation falls within the agricultural
exception of the former 24 V.S.A. § 4495(b) (now amended and codified at 24 V.S.A. § 4413(d)
(2004)). The old section 4495(b) states:
        [n]o plan or bylaw adopted under this chapter shall restrict accepted agricultural
        or farming practices, or accepted silvicultural practices, including the construction
        of farm structures, as such practices are defined by the secretary of agricultur[e],
        food and markets or the commissioner of forests, parks, and recreation,
        respectively, under sections 1021(f) and 1259(f) of Title 10, and section 4810 of
        Title 6.”

24 V.S.A. § 4495(b).1[1]
        The Secretary has defined “farming” to mean “(a) the cultivation or other use of land for
growing . . . orchard crops; or . . . (e) the on-site storage, preparation and sale of agricultural
products principally produced on the farm.” Accepted Agricultural Practice Rules, Vt. Code R.
§ 2.06(a), (e) at 20 010 008 (2005). The Secretary has defined “accepted agricultural practices”
to include the “(d) . . . harvesting of crops” and “(i) [t]he on-site storage, preparation and sale of
agricultural products principally produced on the farm.” Accepted Agricultural Practice Rules,
Vt. Code R. § 3.2(d), (i) at 20 010 008 (2005) (emphasis added).
        The Ochses collect, wax, pack, store, and ship apples at their orchard on Sanford Road.
Some of the apples come from orchards leased, but not owned, by the Ochses. The specific issue
to resolve in this appeal is whether the apples are “principally produced on the farm.” If they
are, then § 4495(b) applies and Orwell’s zoning ordinance cannot restrict this activity, so no
permit would be needed. If the apples are not principally produced on the farm, then § 4495
does not apply, and the Ochses’ apple-related activities may require a zoning permit for a
regional apple packing center. This factual issue is disputed.2[2] Summary judgment is not
appropriate at this time. The Town’s Motion for Summary Judgment is therefore denied.

1[1]
     This statutory provision has similar purposes to, but is separate from, the “Vermont Right-to-Farm Law,”
12 V.S.A. §§ 5751—53. The Right-to-Farm Law is extensively addressed in both the Supreme Court and Superior
Court decisions cited above. The parties here do not suggest that the Right-to-Farm Law is dispositive of the issues
raised by the Town’s pending motion.
2[2]
     Subsequent to the filing of the Town’s pending motion and the Appellants’ filings in opposition thereto, the
Addison Superior Court completed its jury trial on Appellants’ nuisance suit. After the jury rendered its verdict in
Plaintiffs’ (Appellants here) favor, the Superior Court rendered its own decision on Plaintiffs’ request for a
permanent injunction. See Trickett v. Ochs, Docket No. 267-11-00 Ancv (Addison Sup. Ct., Sept. 2, 2005). In the
course of its decision, the Addison Superior Court ruled that the evidence supported a conclusion that the Ochses
         The Town moves alternatively for an order limiting the scope of review to the question
most recently pleaded and argued before the zoning administrator and zoning board: whether the
Ochses are using their land to operate a “regional apple packing center” and, if so, whether they
must obtain a permit for that use under the zoning bylaw. The Tricketts responded by stating that
they “agree that this is the question [we] presented to the Zoning Administrator, to the ZBA, and
now to the Court. That is all that [we] seek.” Appellants’ Reply Mem. at 4. The Statement of
Questions appears worded in such a way that it could be read both as narrowly as the Town
requests and as broadly as the Town fears. Given that Appellants have confirmed that they
consent to the more narrow reading of their Questions, the Town’s alternative motion appears
appropriate and is therefore granted.
         Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the
Town’s Motion for Summary Judgment is DENIED. The Town’s alternative Motion to Limit
the Scope of Review is GRANTED. The issues to be addressed at merits hearing shall be limited
to whether the Ochses are operating a regional apple packing center, whether such constitutes a
change in use of their Sanford Road property and, if so, does such a change in use require a
zoning permit.
         The parties should consult with each other and their counsel on possible trial dates in
December, 2005, or January, 2006. The Court will conduct a pre-trial conference (scheduled by
separate Notice to be issued by the Court Manager) to set the trial date.


         Done at Berlin, Vermont, this 7th day of October, 2005.


                                                           _____________________________________
                                                              Thomas S. Durkin, Environmental Judge




(Appellees here) process apples at their “packing house,” id. at ¶ 5, and that they grow the apples on the original
“home farm,” id. at ¶ 2, as well as on other lands they lease from others known as “the Small’s orchard, the Clark
Block, and the Larabee Farm orchard.” Id. The Superior Court went on to refer to all these activities (i.e.: including
the leased orchards) as the “Orchard’s operations.” Id.
         The parties here have not yet advised this Court of whether the Superior Court’s findings or conclusions of
law, particularly as to the implications to our analysis under 24 V.S.A. § 4495, have some import here, and we
therefore decline to assume that they have some implication, since the appeal period on the Superior Court Decision
has just recently passed. We invite the parties here to file supplemental memoranda, if they believe the Superior
Court decision is of import to this appeal.
