Vermont law requires that when agricultural soil is to be lost, as in the present case, by developing it for residential uses, there must be an off-site mitigation fee assessed. The appellant does not appeal the classification of the land, as it was once a farm, but rather the fee itself. The statute requires that the land have “few limitations for cultivation or limitations which may be easily overcome,” for the fee to be property assessed. The environmental court concluded that since the legislation included forest land in the uses of land in this classification, the trees could not be a limitation not easy to overcome. Also the environmental court construed “limitation” narrowly, that there are no physical or technical impediments or limitations.
The developer argued that the cost of removing the trees is so expensive that it is a limitation not easy to overcome. Also, the developer argued that the environmental court ignored that the purpose of the pertinent statute is to mitigate damage based on agricultural potential. The Supreme Court of Vermont agreed. The court began its analysis with the language of the statute, 10 V.S.A. § 6001(15), which considers among other criteria, the soil composition and limitations. Limitations are usually present when the soil is “excessively steep, treed, rocky, or wet.” This includes a two step process, if the limitation is present, and if it is easy to overcome. With regard to overcoming this limitation, the Supreme Court stated that in addition to the narrow interpretation, cost must be included in the analysis.
The Supreme Court ruled that the cost of removing trees is a relevant consideration, as it is consistent with the purpose of the statute, to protect farmland from irresponsible development. This purpose is not effectuated when land is protected that would not be suitable for farming due to the high cost involved in conversion for the purpose of agriculture. Furthermore, the intent of the legislature to protect farmlands from disappearing cannot be used to protect fictitious farmland (as may be the case here, for it may never be suitable for farming again).
The environmental court made no findings regarding the limitations imposed by the cost of tree removal. Therefore, the Supreme Court of Vermont reversed and remanded the prior judgment in order for this issue to be resolved.
Next the developer argued that the environmental court erred in finding there was adequate access to the 10.85 acres in question, as the environmental court based its decision on the proposed development plans. The court disagreed. The court stated that it must look to the availability of the land to contribute to the agricultural market by looking to the lands proximity to other agricultural operations. After looking through the record, the court found that if the land were to be used for farming, there would be adequate access, as there are access points and frontage on roads. As such, agricultural machinery could enter the property, and the land could contribute to the agricultural market.
In re Village Associates Act 250 Land Use Permit, 2010 WL 2015272, 2010 VT 42 (VT, 6/21/2010).
This case can be found here.
Perhaps worth mentioning here is Supreme Court Chief Justice Reiber’s dissenting opinion.
He concluded, “cost cannot possibly lead to the declassification of primary agricultural soils…Farming that is unprofitable today could be profitable tomorrow, reinforcing the fact that Vermont’s primary agricultural soils have chemical and physical properties that make them invaluable…the burden on the developer is impossible to overcome because the developer would be required to show that it could never be economically feasible to farm…when in fact, the future economic value of Vermont’s primary agricultural soils is virtually limitless…”
By: Ben Waterman on July 28, 2010
at 10:45 am