George and Carole Trickett v. Peter and Carla Ochs

Real Estate - nuisance and trespass: Plaintiffs George and Carole Trickett
brought this nuisance and trespass action against their neighbors, Peter
and Carol Ochs, alleging that defendants' operation of an apple orchard
interfered with plaintiffs' use and enjoyment of their land and caused them
emotional distress. Following an evidentiary hearing on plaintiffs'
request for injunctive relief, the Addison Superior Court dismissed the
action based upon its conclusions that defendants' activities were
protected by Vermont's right-to-farm law, 12 V.S.A. § 5753, and that, in
any event, previous rulings by the Town of Orwell zoning administrator and
zoning board of adjustment collaterally estopped plaintiffs from bringing
their claims. Plaintiffs argue on appeal that (1) the right-to-farm law
does not apply under the circumstances; (2) even if it does, the law did
not create an irrebuttable presumption that barred plaintiffs' nuisance
action as a matter of law; (3) applying an irrebuttable presumption would
effect a taking of plaintiffs' property without just compensation; (4)
rulings by the zoning administrator and board of adjustment did not have
any collateral estoppel effect on plaintiffs' claims; and (5) the court
failed to address plaintiffs' trespass claim. Based on our conclusion that
neither the right-to-farm law nor collateral estoppel applies under the
circumstances of this case, we reverse the superior court's decision and
remand the matter for further consideration of plaintiffs' claims.

I.

2. Plaintiffs purchased their home from defendants in
1992. At the time of the purchase, the residence was the homestead for an
apple orchard and was directly across the road from the barn that served as
the main collecting point for the apples. Defendants continued to operate
the apple orchard after the sale of the farmhouse, though the business
initially had little impact on plaintiffs because most of the apples were
immediately transported following harvest to the Shoreham Food Co-op, where
they were stored for sale.

3. During the mid-1990s, defendants expanded their operation in
response to changes in market demands. They began waxing their apples and
storing them on-site in refrigerated tractor trailer trucks. Tractor
trailer trucks also came to the barn to take apples to market. During the
winter months, these trucks began arriving in the predawn hours and
continued throughout the day. Because the barn is very close to
plaintiffs' home, additional noise and light glare entered the home and
disturbed plaintiffs.

4. Before initiating this action, plaintiffs complained to
various town and state officials. Because these complaints, and the
ensuing actions, are related to one of the issues on appeal, we summarize
them here to the extent that they are reflected in the record before us.
Plaintiffs first went to the Town of Orwell selectboard, which detailed the
complaints and suggested ways to resolve them in an April 1996 letter to
defendants. Plaintiffs' complaints concerned (1) lack of maintenance of
the road in front of the orchard; (2) blockage of the road by tractor
trailer trucks; (3) location of vehicles and farm equipment too close to
the road to allow snow plowing or maintenance; (4) excessive noise; (5)
glare from truck headlights; and (6) diesel fumes and trespass by tractor
trailer trucks on plaintiffs' lawn. Apparently, the letter did not lead to
a resolution of the complaints.

5. In August 1997, plaintiffs complained to the Orwell zoning
administrator, claiming that defendants were violating the town's zoning
ordinance in a number of respects. Two months later, the zoning
administrator rejected the complaint, making several rulings. First, the
administrator ruled that defendants were not conducting a light
manufacturing operation by constructing pallets and bins on the orchard
site. Relying on an earlier letter by the commissioner of agriculture
indicating that construction of the pallets and bins was in support of the
orchard and thus an incidental accepted agricultural practice, the zoning
administrator concluded that the construction was incidental to the
operation of the orchard. Second, the administrator ruled that the
orchard's operations did not cause (1) glare or light that was a nuisance
to other property owners in violation of § 1120 of the Orwell zoning
ordinance, or (2) noise incompatible with the reasonable use of the
surrounding area in violation of § 1140 of the zoning ordinance. Third,
the administrator found that he was without jurisdiction to consider
plaintiffs' complaint that defendants were operating a public building
without a permit, but noted that the commissioner of agriculture had
decided this question adversely to plaintiffs in an earlier ruling.
Finally, the administrator concluded that defendants were not improperly
storing and using chemicals and pesticides in violation of § 1130 of the
zoning ordinance, and further noted that the commissioner had previously
ruled that defendants were not violating state pesticide regulations.
Plaintiffs appealed these rulings, and, in January 1998, the Orwell board
of adjustment denied the appeal without explanation.

6. Plaintiffs renewed and expanded their complaints in January
2000, this time by letter from their attorney to the zoning administrator.
The zoning administrator ruled that nothing had changed since 1997, and
that defendants continued to be in compliance with the Orwell zoning
ordinance. On appeal, the board of adjustment stated that it would no
longer hear complaints regarding defendants' orchard that had already been
decided by any state agency. Plaintiffs appealed the board's decision to
the environmental court, but later withdrew the appeal. They complained
again to the zoning administrator in November 2000, but we have no record
of the disposition of that complaint.

7. The zoning board's reference to state agency decisions
concerning the orchard apparently was directed at two communications from
the department of agriculture. The first was a letter from the
commissioner in October 1997 in response to a complaint from plaintiffs
that defendants' construction of pallets and storage and shipping bins,
allegedly a major source of the noise, was not an accepted agricultural
practice. The commissioner determined that because operation of the
orchard was an accepted agricultural practice and the pallets and bins were
used exclusively for defendants' apples grown on-site, those land uses were
exempt from local zoning regulation. The commissioner indicated further
that the department was continuing to investigate whether defendants were
violating pesticide regulations. The second communication was a letter
from a department attorney at the request of the zoning administrator and
in regard to plaintiffs' January 2000 complaint. The attorney noted that
24 V.S.A. § 4495 prevented the town from regulating defendants' activities
to the extent that the zoning bylaws were more restrictive than state law
regarding agricultural and farming practices. The attorney also stated
that the right-to-farm law might be implicated.

8. Plaintiffs brought this action in November 2000, alleging
that (1) the noise from defendants' operations, specifically the trucks and
packing equipment and machinery, interfered with the use and enjoyment of
plaintiffs' property; (2) defendants had allowed pesticides and polluted
surface water from their operations to flow onto plaintiffs' property; (3)
the trucks and defendants' dogs had trespassed on plaintiffs' property; and
(4) defendants had shouted obscenities at plaintiffs and assaulted them.
Plaintiffs sought an injunction and compensatory and punitive damages.
Defendants answered and moved to dismiss on the ground that the
right-to-farm law immunized their activities from a nuisance action.

9. The superior court reserved the motion to dismiss, and the
case went to trial. The witnesses were plaintiffs, defendant Carla Ochs,
and a sound expert who took measurements of noise from defendants'
property. During the trial, defendants asserted that collateral estoppel
barred the action, arguing that the findings of the zoning administrator
and board of adjustment had preclusive effect as to whether the apple
orchard was a "protected agricultural activity." Following the hearing,
the court concluded that (1) the right-to-farm law barred plaintiffs'
nuisance claims because plaintiffs moved to the site of a known,
pre-existing farming operation; and (2) plaintiffs' claims were also barred
by the prior findings and conclusions of the department of agriculture and
the Town of Orwell regarding defendants' orchard operations. On appeal,
plaintiffs argue that the superior court erred by applying collateral
estoppel to dismiss their claims, by ruling that the right-to-farm law
barred their claims, and by failing to address their trespass claim. We
address these issues in turn.

II.

10. The superior court ruled that the decisions of the zoning
administrator, the zoning board of adjustment, and the commissioner of
agriculture collaterally estopped plaintiffs from bringing their nuisance
claims. Collateral estoppel "bars the relitigation of an issue, rather
than a claim, that was actually litigated by the parties and decided in a
prior case." In re Central Vermont Pub. Serv. Corp., 172 Vt. 14, 20, 769
A.2d 668, 673 (2001). Collateral estoppel applies when (1) preclusion is
asserted against one who was a party in the prior action; (2) the same
issue was raised in the prior action; (3) the issue was resolved by a final
judgment on the merits; (4) there was a full and fair opportunity to
litigate the issue in the prior action; and (5) applying preclusion is
fair. Id.

11. At the outset, we acknowledge that an administrative
judgment can have preclusive effect in a judicial proceeding. See Lamb v.
Geovjian, 165 Vt. 375, 381, 683 A.2d 731, 735 (1996); United States v. Utah
Constr. & Mining Co., 384 U.S. 394, 422 (1966); Restatement (Second) of
Judgments § 83 (1982). Although our precedents deal directly with res
judicata, we conclude that on this point they apply equally with respect to
collateral estoppel. See Lamb, 165 Vt. at 381-82, 683 A.2d at 736.
Nevertheless, for an administrative ruling to have preclusive effect, the
agency must have acted "in a judicial capacity" and must have resolved
"disputed issues of fact properly before it which the parties . . . had an
adequate opportunity to litigate." Utah Constr. & Mining Co., 384 U.S. at
422.

12. We conclude that at least two of the three decisions that
the trial court referred to - those of the zoning administrator and the
commissioner of agriculture - do not have preclusive effect because no
adjudicative ruling was made in either case. A zoning administrator must
investigate complaints and enforce the town's zoning ordinance upon the
finding of a violation, see In re Fairchild, 159 Vt. 125, 130, 616 A.2d
228, 231 (1992), but does not hold hearings or conduct adjudications.
Thus, with respect to the zoning administrator's determination, the present
situation is analogous to that in Delozier v. State, 160 Vt. 426, 430-31,
631 A.2d 228, 230-31 (1993), where we held that the decision of the
investigatory committee of the board of medical practice to forego a
disciplinary proceeding was not an adjudicatory decision and thus had no
res judicata effect to preclude a later disciplinary proceeding. See 18B
C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4475, at
503 (2d ed. 2002) ("A simple administrative decision not to initiate an
adjudicatory proceeding . . . has no close parallel in judicial procedure;
it is clear that it should not support preclusion.").

13. As for the commissioner of agriculture, he appears to have
made only one relevant decision in this case - that the construction of
pallets and shipping and storage bins is not a manufacturing operation, but
rather an accepted agricultural practice that is part of the larger
accepted agricultural practice of operating an orchard. Like that of the
zoning administrator, this was an enforcement decision based on the
commissioner's independent investigation without any form of adjudication.
Therefore, it does not have preclusive effect. Hence, the only judgments
that could have collateral estoppel effect are the two decisions of the
zoning board of adjustment. We conclude, however, that these decisions
fail to satisfy all of the elements of collateral estoppel.

14. First, the issues adjudicated in the two actions were not
the same. The issue before the zoning board was whether defendants fully
complied with the zoning ordinance. In contrast, the issue in the superior
court was whether defendants' conduct, particularly the noise generation,
was a private nuisance causing damage to plaintiffs. Compliance with the
zoning ordinance may be a factor in determining whether defendants' conduct
was a nuisance, but it is not determinative. See Allison v. Smith, 695
P.2d 791, 794 (Colo. Ct. App. 1984); Lunda v. Matthews, 613 P.2d 63, 67
(Or. Ct. App. 1980); Klein v. Shadyside Health, Educ. & Research Corp., 643
A.2d 1120, 1125 (Pa. Commw. Ct. 1994); Bowers v. Westvaco Corp., 419 S.E.2d
661, 666 (Va. 1992).

15. In this case in particular, compliance with the zoning
ordinance is of little consequence to the main nuisance issue - whether
defendants generated excessive noise. The Orwell zoning ordinance contains
a noise standard, but it is inapplicable to agricultural and forestry uses.
Orwell Zoning Bylaws § 1140. Thus, zoning imposes no restriction on the
noise generated by defendants' orchard operation. Because the issues in
the two actions were not the same, defendants have failed to satisfy the
second element of collateral estoppel.

16. Second, defendants have failed to show that the issue for
which the superior court gave the zoning board's decisions preclusive
effect was resolved by a final judgment on the merits, the third element of
collateral estoppel. In his October 1997 letter, the commissioner
indicated that because defendants' activities fell within the definition of
"accepted agricultural practices" the Town could not restrict those
activities at the orchard. The assistant attorney general for the
department of agriculture wrote the zoning administrator that, under 24
V.S.A. § 4495, farming practices cannot be restricted by local zoning
bylaws. The zoning board appears to have grounded its March 2000 decision
on this interpretation of the law, without reaching the merits of
plaintiffs' complaints. The January 1998 decision gave no reason for the
board's denial of plaintiffs' appeal, and so could also have been based on
a perceived limitation of the board's power. In any event, defendants have
failed to meet their burden of showing that the issue to be precluded was "
'necessarily and essentially determined in a prior action.' " State v.
Pollander, 167 Vt. 301, 305, 706 A.2d 1359, 1361 (1997) (quoting Berisha v.
Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984)); see also Ianelli v.
Standish, 156 Vt. 386, 388, 592 A.2d 901, 902 (1991) (party seeking
preclusion must produce record of prior proceeding to enable court "to
pinpoint the exact issues previously litigated").

17. Because we conclude that neither the second nor third
elements of collateral estoppel have been met, we need not consider whether
plaintiffs had a "full and fair opportunity" to litigate issues in the
zoning appeals related to the issues raised in their nuisance complaint.
Cf. Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469-71, 661 A.2d 89,
91-92 (1995) (adverse judgment in small claims action for return of deposit
given by purchaser of business did not preclude purchaser from defending
against seller's breach of contract action in superior court, given
differences in quality and extensiveness of procedures followed in two
courts). In any event, defendants have failed to meet their burden of
demonstrating that all of the elements of collateral estoppel have been
met.

III.

18. We now turn to the right-to-farm law. In its amicus curiae
brief, the department of agriculture concedes that the collateral estoppel
ruling was erroneous, but contends that the decision still must be affirmed
because, as a matter of law, defendants' activities are protected by
Vermont's right-to-farm law, 12 V.S.A. §§ 5751-53. Plaintiffs counter that
the right-to-farm law does not apply because (1) defendants' agricultural
activities were not established before the residential use of plaintiffs'
property, and (2) defendants expanded their farming activities beyond those
protected by the law. Plaintiffs also argue that even if the law applies,
it creates only a rebuttable presumption that defendants' activities are
not a nuisance, and that they presented sufficient evidence to rebut that
presumption.

19. The superior court concluded that the right-to-farm law
applies because plaintiffs moved to a known area for farm activity.
Relying on the findings of the agriculture commissioner and the zoning
administrator, the court found that defendants' agricultural activities
conform to state and local requirements and are reasonable agricultural
activities. Finally, the court found that plaintiffs had not raised an
issue of public safety or health.

20. We agree with plaintiffs that the court erred in dismissing
plaintiffs' suit based on the right-to-farm law. The stated purpose of the
law is as follows:

The legislature finds that agricultural production is a major
contributor to the state's economy; agricultural lands constitute
unique and irreplaceable resources of statewide importance; that
the continuation of agricultural activities preserves the
landscape and environmental resources of the state, contributes to
the increase of tourism, and furthers the economic
self-sufficiency of the people of the state; and that the
encouragement, development, improvement and preservation of
agriculture will result in a general benefit to the health and
welfare of the people of the state. The legislature further finds
that agricultural activities conducted on farmland in urbanizing
areas are potentially subject to lawsuits based on the theory of
nuisance, and that these suits encourage or even force the
premature removal of the lands from agricultural use. It is the
purpose of this act to protect reasonable agricultural activities
conducted on farmland from nuisance lawsuits.

12 V.S.A. § 5751 (emphasis added).

21. The substance of the law is in § 5753(a), which provides:

(a) Agricultural activities conducted on farmland, if consistent
with good agricultural practices and established prior to
surrounding non-agricultural activities, shall be entitled to a
rebuttable presumption that the activity does not constitute a
nuisance. If an agricultural activity is conducted in conformity
with federal, state, and local laws and regulations, it is
presumed to be a good agricultural practice not adversely
affecting the public health and safety. The presumption may be
rebutted by a showing that the activity has a substantial adverse
effect on the public health and safety.

(Emphasis added.) Under § 5752, farmland means "land devoted primarily to
commercial agricultural activities," and agricultural activities includes
the growing, raising and production of fruit.

22. Our primary responsibility in construing a statute is to
determine and implement the intent of the Legislature. See State v.
Lussier, 171 Vt. 19, 23, 757 A.2d 1017, 1020 (2000). To do so, we must
look to the language of the entire statute, "along with its purpose,
effects and consequences." Id. In this instance, we are aided by an
express statement of legislative intent.

23. There is little doubt as to the purpose behind Vermont's
right-to-farm law. Indeed, virtually all states have enacted right-to-farm
laws to deal with the conflict that develops "[a]s the population of the
nation grows and is dispersed into traditionally rural areas." 13 N. Harl,
Agricultural Law § 124.01, at 2 (1993). The increased encroachment of
nonagricultural uses upon traditional agricultural uses "has created an
atmosphere in which farmers throughout the nation have been subjected to
nuisance suits." Id. Like similar statutes across the nation, Vermont's
right-to-farm law seeks to protect farmers from nuisance suits resulting
from such circumstances.

24. While the present case might fit within a broad reading of
the Legislature's rationale, it arises from unique circumstances that have
little to do with the problem of urbanization. All of the structures that
are involved in this lawsuit were once part of the same farm and were
constructed in close physical proximity so that the farmer could reside
near the work. In a traditional New England pattern, the farmhouse lies
directly across a rural dirt road from the barn and other farm buildings.
The evidence indicates that the house is roughly fifty feet from the
nearest farm building. As a result, although defendants own many acres of
land, their intense land-use activities occur so close to plaintiffs' house
that any adverse effect on plaintiffs is maximized.

25. The origin of this conflict was the act of selling the
farmhouse to persons who have no involvement in farm activities. Buildings
built to function together for one economic and social unit must now
function separately. As a result, land use conflicts once worked out over
the dinner table now end up in court. The conflict sown by the sale of the
house took root and grew when business conditions in the apple industry
required a significant change in defendants' methods of operation. As
defendants' evidence disclosed, they could no longer rely upon the local
co-op to store and market their apples. Rather, they had to wax the apples
at the farm. They also had to store, pack and ship the apples from the
farm. They purchased and used refrigerated tractor-trailer trucks to
extend the life of the apples so they could ship them year-round.
According to plaintiffs' evidence, although the new methods of operation
did not increase the number of apples sold, they increased the truck
traffic and noise at the farm and extended both the hours of operation and
the season in which those operations occurred.

26. Because the circumstances present here are not within the
core concern of the Legislature, the statutory language does not readily
fit. For instance, the statute requires that the protected agricultural
activities must be "established prior to surrounding non-agricultural
activities." § 5753(a). Here, the evidence shows that the farmhouse was
built in the early nineteenth century and was always used as a residence.
Even if we view the "surrounding non-agricultural activities" as commencing
with plaintiffs' purchase of the house, a view not clearly consistent with
the statutory language, we must still establish what were the protected
"agricultural activities" that existed "prior to" the commencement of the
nonagricultural activities. Unless we define the prior protected
activities to include the expanded orchard operations engaged in by
defendants after plaintiffs bought their home, the statute does not apply.
We decline to do so.

27. Our review of the case law in other jurisdictions supports
our decision here. Four states - Arizona, Ariz. Rev. Stat. Ann. §§
3-111-112 (2002), Kansas, Kan. Stat. Ann. § 2-3202 (2001), Okla. Stat. Ann.
tit. 50, § 1.1 (2002), and Washington, Wash. Rev. Code Ann. §§
7.48.300-.310 (supp. 2003) - have right-to-farm laws that are virtually
identical to ours. In two of those states - Washington and Kansas - there
are court decisions that address statutory application issues similar to
those in this case.

28. In the Washington case, Buchanan v. Simplot Feeders Limited
Partnership, 952 P.2d 610 (Wash. 1998), the plaintiffs owned and operated a
farm that adjoined land used primarily as rangeland. Thereafter, a small
cattle-feeding operation began on the adjoining land. When the defendant
took over the operation, it increased the number of cattle significantly
and began operating a small meat-processing plant on the property. The
result was a significant increase in flies and foul and noxious odors,
which led to the plaintiffs' nuisance action. As here, the defendant
invoked the state's right-to-farm act.

29. The Washington Supreme Court confronted the difficulty of
applying the statute to a situation where the nonagricultural activity
preceded the agricultural activities giving rise to the tort claim:

The third condition [of the statute] requires the challenged
agricultural activity to have been established prior to
surrounding nonagricultural activities before the nuisance
exemption applies. This condition also suggests an established
farm may not be able to institute a new or radically expanded
"activity" and maintain nuisance immunity, because the language of
the statute focuses on agricultural activity that has been
established prior to the urban encroachment. This third condition
presents an ambiguity within the structure of [the statute]: One
would assume the statute's nuisance exemption is limited to
situations where the nuisance suit arises because of the
subsequent surrounding nonagricultural activities, since the
Legislature expressly states the statute is designed to protect
farms "in urbanizing areas" from nuisance suits. The language of
the statute, however, does not explicitly make this connection
between the nuisance suit and the urbanization.

Id. at 614 (emphasis in original; citations omitted). Because of the
ambiguity, the court looked more closely at the statement of legislative
intent. In the end, it construed the statute to allow nuisance immunity
only "where the nuisance suit arises because of urban encroachment into an
established agricultural area." Id. According to the court, the
right-to-farm statute could not immunize defendants against "nuisance
actions brought by an agricultural or other rural plaintiff, especially if
the plaintiff occupied the land before the nuisance activity was
established." Id. at 616.

30. In the Kansas case, Finlay v. Finlay, 856 P.2d 183 (Kan. Ct.
App. 1993), the plaintiffs lived across a rural road from a cattle farm.
The farm had a feeding pen near plaintiffs' house, but the cattle were
generally allowed to graze over pasture land. When the defendant purchased
the farm, however, he kept the cattle in the feeding pen area from November
through May, apparently causing odors to enter the plaintiffs' house. The
plaintiffs brought a nuisance action, and the defendant invoked the
right-to-farm act. The Kansas Court of Appeals found the statute
inapplicable based on a rationale similar to that of the Washington Court
in Buchanan:

The facts in this case show that defendant, to an extent,
changed the use of the property. Although the previous owners had
raised cattle on the property, defendant made improvements to the
pen and began conducting a feedlot type operation. The previous
owner had allowed his cattle access to additional pasture;
defendant confined his cattle to the 1.8 acre pen for substantial
periods of time. Therefore, . . . the record shows that any
change in use occurred only on defendant's property and not on the
surrounding property, thereby negating the element in [the
statute] that the agricultural activity be established prior to
the surrounding nonagricultural activity.

The record also shows that both defendant's and plaintiffs'
lands have always been used for agricultural purposes.
Plaintiffs' residence is a farm home, located in an agricultural
area, not a nonagricultural use which has moved into an
agricultural area.

From these facts, it is apparent that the [statute's] stated
purpose of protecting agricultural land from the encroachment of
nonagricultural activities has no application here. Further, the
evidence does not establish that defendant's land was used for the
feeding and raising of cattle prior to the plaintiffs' property
being used as a farm home.

Id. at 188.

31. As noted, Buchanan and Finlay were decided under statutes
virtually identical to Vermont's right-to-farm law. Other courts have also
reached similar conclusions construing statutes with different language but
the same purpose. See Crea v. Crea, 16 P.3d 922, 925 (Idaho 2000) (Idaho
right-to-farm act does not apply where nuisance arises because of expansion
of agricultural activity rather than because of changes in surrounding
nonagricultural uses); Flansburgh v. Coffey, 370 N.W.2d 127, 131 (Neb.
1985) (same under Nebraska right-to-farm act); Durham v. Britt, 451 S.E.2d
1, 3 (N.C. Ct. App. 1994) (Legislature did not intend to apply North
Carolina right-to-farm act to "situations in which a party fundamentally
changes the nature of the agricultural activity which had theretofore been
covered under the statute. For example, a fundamental change could consist
of a significant change in the type of agricultural operation, or a
significant change in the hours of the agricultural operation.").

32. Based on the reasoning in the above cases, with which we
concur, we conclude that Vermont's right-to-farm law does not apply under
the circumstances of this case. The activities of defendants giving rise
to plaintiffs' nuisance claim commenced after plaintiffs had purchased
their home. Although plaintiffs are not farmers, they used their home in
the same way it had been used for nearly two centuries - as a residence -
and the conflict between the parties concerned that use. And finally, the
case does not involve urban encroachment.

33. Defendants argue that the right-to-farm law protects them
because (1) plaintiffs have made no showing that defendants' activities
have had a substantial adverse effect on public health and safety, and (2)
defendants have shown that their agricultural activities complied with all
federal, state, and local laws and regulations. Defendants' reliance on
plaintiffs' failure to demonstrate a threat to public health or safety is
grounded on the applicability of the right-to-farm law to the facts of this
case, and thus is unavailing in light of our decision today. The principal
problem with defendants' reliance on their compliance with federal, state
and local regulations is that there is no applicable regulation of the
activities that form the basis of plaintiffs' complaint. As described
above, the main basis for plaintiffs' complaint is the excessive noise
created by defendants' operations, particularly the noise emanating from
various vehicles, and the frequency and hours of that noise. Nothing in
the record indicates any applicable federal, state or local laws regulating
the activities of defendants alleged to constitute a nuisance.

34. As referenced by the department's attorney in a 1997 letter
to plaintiffs, the commissioner of agriculture has the power to define
accepted agricultural practices:

In accordance with 10 V.S.A. § 1259(i) and to implement and
enforce accepted agricultural practices as defined under 10 V.S.A.
§ 1259(f), the commissioner of agriculture, food and markets shall
develop by rule and shall implement and enforce agricultural land
use practices in order to reduce the amount of agricultural
pollutants entering waters of the state. These agricultural land
use practices shall be created in two categories. One category
shall consist of accepted agricultural practices as defined under
subsection 1259(f) of Title 10. These practices shall be
standards to be followed in the conducting of farming activities.
Persons engaged in farming, as defined in 10 V.S.A. § 6001, who
follow these practices shall be presumed to be in compliance with
water quality standards. . . .

6 V.S.A. § 4810(a); see also id. § 4811(1) (commissioner has power to make
rules "which define practices described in section 4810" as well as any
other rules deemed necessary to carry out provisions of chapter). Section
1259 of Title 10 is a water pollution control statute that defines
prohibitions on unlawful discharge. But some of its provisions "shall not
regulate accepted agricultural . . . practices, as such are defined by the
commissioner of agriculture." 10 V.S.A.§ 1259(f). Subsection (i) of §
1259 requires the secretary of the agency of natural resources to delegate
to the commissioner of agriculture "the state agricultural non-point source
pollution control program planning, implementation and regulation."

35. Thus, consistent with the relevant statutes, the accepted
agricultural practices adopted by the commissioner are almost entirely
concerned with water pollution. They contain no regulation of noise and no
description of when the emission of noise is an accepted agricultural
practice. Nor is there any specific local regulation of noise from
agricultural operations. Although the Orwell zoning regulations specify a
decibel noise limit at property lines, that noise limit is inapplicable to
agricultural operations. In any event, as noted, a land use may comply
with the local zoning ordinance and other relevant regulations but still
constitute a nuisance because of the conditions or manner of operation of
the use. See Desruisseau v. Isley, 553 P.2d 1242, 1246 (Ariz. Ct. App.
1976) (compliance with zoning ordinance is factor in determining
reasonableness of activity, but is not conclusive as to whether activity
constitutes nuisance); Allison, 695 P.2d at 794 (even if particular use
complies with zoning regulations, it may still constitute private
nuisance); Herbert v. Smyth, 230 A.2d 235, 238 (Conn. 1967) ("There can be
no doubt that a use which does not violate zoning restrictions may
nonetheless create a common-law nuisance."); Lunda, 613 P.2d at 67 (zoning
permits general classifications of uses of property, but does not approve
manner of conducting business that constitutes nuisance); Klein, 643 A.2d
at 1125 (land use can obtain proper zoning approval under valid zoning
ordinance, and yet, by reason of manner of its operation or its particular
nature, still constitute nuisance); Bowers, 419 S.E.2d at 665 (zoning
classification of property cannot immunize business from nuisance action).

IV.

36. Even when engaged in a lawful business use, the owner of the
business must act in a reasonable manner so as not to unreasonably
interfere with the rights of adjoining property owners. Winget v.
Winn-Dixie Stores, Inc., 130 S.E.2d 363, 367 (S.C. 1963) ("The right of one
to make such lawful use of his property as he may desire must be applied
with due regard to the correlative right of the other to be protected in
the reasonable enjoyment of his property."). "The problem is striking a
balance as nearly as possible between their respective rights." Id.

37. In determining whether a land use of a lawful business
constitutes a nuisance, courts must consider both the extent of the
interference, see Coty v. Ramsey Assocs., 149 Vt. 451, 457, 546 A.2d 196,
201 (1988) (to be considered nuisance, interference with use and enjoyment
of another's property must be both objectively unreasonable and
substantial), and the reasonableness of the challenged activities in light
of the particular circumstances of the case. See Schlotfelt v. Vinton
Farmers' Supply Co., 109 N.W.2d 695, 698 (Iowa 1961) (fair test as to
whether operation of lawful business constitutes nuisance is reasonableness
of conducting business in manner, at place, and under circumstances in
question); Winget, 130 S.E.2d at 367 (whether particular use of property is
reasonable or constitutes nuisance depends on facts of each case and
numerous factors); see also 2 D. Dobbs, The Law of Torts § 465, at 1327
(2001) ("The defendant's use of his land may be broadly consistent with the
uses to which the neighborhood is dedicated, yet because of the magnitude,
frequency, or duration, the use may constitute a nuisance."). Irrespective
of the utility of the land use, the question may come down to whether the
activities causing the harm are reasonably avoidable. Id. at 1328-29.

38. Applying these principles to the instant case, we
acknowledge that defendants should be give every opportunity to operate
their lawful business as necessitated by modern marketing demands. But
they must also be required to tailor their operation to eliminate any
substantial and unreasonable interference with plaintiffs' property.

V.

39. In summary, we conclude that plaintiffs are not collaterally
estopped from bringing their nuisance action, and that Vermont's
right-to-farm law, 12 V.S.A. §§ 5751-5753, does not apply in the
circumstances of this case. Because of our resolution of these issues, we
need not consider plaintiffs' takings claim. The case is remanded for the
superior court to give further consideration to plaintiffs' nuisance and
trespass claims in light of this opinion.

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