In re Ochs
Annotate this Case
In re Ochs (2005-385)
2006 VT 122
[Filed 27-Nov-2006]
ENTRY ORDER
2006 VT 122
SUPREME COURT DOCKET NO. 2005-385
SEPTEMBER TERM, 2006
In re Peter and Carla Ochs } APPEALED FROM:
}
}
} Environmental Board
}
}
} Declaratory Ruling #547
In the above-entitled cause, the Clerk will enter:
¶ 1. George and Carole Trickett appeal from a decision of the
Vermont Environmental Board that their neighbors' apple growing operation,
Crescent Orchards, was a farm and thus exempt from Act 250 review. The
Tricketts claim that the apple production company operated by their
neighbors, Peter and Carla Ochs, is a commercial enterprise, with attendant
off site production involvement, and it does not qualify for the farming
exemption. We affirm.
¶ 2. This Court has experience with the facts in this dispute. We
held in Trickett v. Ochs, that Vermont's right to farm law did not apply in
the circumstances of the case. 2003 VT 91, ¶ 1, 176 Vt. 89, 838 A.2d 66. Now, we must examine whether Act 250 applies to the Ochses' farming
activities. The matter began with a Jurisdictional Opinion (JO) which
asserted Act 250 jurisdiction over the Ochses' apple orchard and apple
packing and distribution facility on 300 acres of land in Orwell, Vermont.
George and Carole Trickett live directly across the road from the Ochses'
apple packing facility. The Tricketts complained about the operations at
Crescent Orchards: the noise, the fumes, and the interference with the
Tricketts' use of the road. The Environmental Commission Coordinator
issued a JO finding that Crescent Orchards was subject to Act 250 review
because the Ochses imported apples from lands leased from others. He found
that such activities were more like a commercial processing, distribution,
and warehouse plant than a farm. Therefore, the coordinator decided, the
facility did not meet the farming exemption. See 10 V.S.A. § 6001(22)
(exempting certain agricultural activities from Act 250 permitting
process).
¶ 3. The Ochses filed a Petition for Declaratory Ruling with the
Environmental Board appealing the JO. Id. § 6007(c)). They contended that
their apple growing operation met the farming exemption, and therefore, it
did not require an Act 250 permit. The Board admitted the Tricketts as
parties, explaining that persons directly affected by a project are proper
parties in declaratory rulings. See Env. Bd. R. 14(A)(5). The Board
reversed the JO. The Environmental Board determined that the Ochses' farm
is exempt from Act 250 jurisdiction. The Tricketts appealed.
¶ 4. The facts are not in dispute. Peter and Carla Ochs own
approximately 300 acres of land in Orwell, Vermont. Under the name
"Crescent Orchards," the Ochses operate an apple orchard on about 150 acres
of their 300 acre parcel. Over the years, there have been various changes
to the facilities at Crescent Orchards. The Ochses have built a packing
house, a loading dock, and a mechanical line upon which the apples are
moved and loaded into trucks for transport. They have partly constructed
a cold storage unit. In these facilities, Crescent Orchards' employees
store, wash, wax, wrap, and pack apples to ship, market and sell. Since
1996, all of the apples picked at Crescent Orchards have been packed at
their Crescent Orchards packing plant.
¶ 5. The Ochses and their employees do all of the orchard work and
packing at Crescent Orchards. They use tractor trailers equipped with
refrigeration units to store their apples for future shipment to market
throughout the year. Independent truckers transport many of the apples off
the Crescent Orchards site.
¶ 6. Before 1998, the Ochses harvested apples only from their
Crescent Orchards lands. Beginning in 1998, in order to obtain other
varieties of apples (Empires and Paula Reds), and to have some insurance
against the vagaries of weather and growing conditions, the Ochses started
leasing apple orchards from other landowners. Since 1998, the only apples
that the Ochses have processed, stored or packed at Crescent Orchards have
come from Crescent Orchards lands or from the orchards that they have
cultivated on lands that they have leased.
¶ 7. Most of the leases that the Ochses have entered into with the
landowners of other orchards are year to year leases. (FN1) Under the
terms of these lease agreements, the Ochses do all of the work on the lands
at the orchards which they lease, including mouse baiting, pruning,
spraying and preparing the apple trees in the spring, and picking the
apples in the fall. During the lease period, neither lessors nor anyone,
other than the Ochses and their employees, work on the leased orchards
lands. The Ochses use their own machinery when working on the leased
orchard lands. They make all the day to day decisions concerning the
cultivation of the apples at the leased orchards. The lessors have no
control over the conduct of the Ochses' operations except for decisions
about which trees may be felled.
¶ 8. This Court's review of an Environmental Board ruling is
limited. "We accord deference to the Environmental Board's interpretations
of Act 250, its own rules, and to the Board's specialized knowledge in the
environmental field." In re Nehemiah Assocs., Inc., 168 Vt. 288, 292, 719 A.2d 34, 36 (1998). "The Board's decisions are presumed to be correct,
valid and reasonable," and absent compelling indications of error, the
Court should sustain the Board's interpretation. Id.; In re Eastland,
Inc., 151 Vt. 497, 499, 562 A.2d 1043, 1044 (1989). In this case, the
Environmental Board properly interpreted the definition of farming and the
exemption to Act 250 jurisdiction of farming.
¶ 9. Act 250 requires that a Land Use Permit be obtained prior to
the commencement of construction on a development or prior to commencement
of development. 10 V.S.A. § 6081(a). "Development" is defined in relevant
part as "the construction of improvements for commercial or industrial
purposes" on more than one acre if the municipality has not adopted
permanent zoning and subdivision bylaws, or on more than ten acres if the
municipality where the construction occurs has adopted permanent zoning and
subdivision bylaws. Id. § 6001(3)(A)(i), (ii).
¶ 10. There is no dispute that the relevant acreage at Crescent
Orchards is greater than ten acres, and therefore, whether the town of
Orwell has adopted zoning and subdivision bylaws makes no difference here.
The Board also found that the construction of improvements for a commercial
purpose had occurred. Because the operation meets the definition of a
"development" under both 10 V.S.A. § 6001(3)(A)(i) and (ii), it is subject
to the permitting requirements of Act 250, unless it is otherwise exempt.
Id. § 6081(a).
¶ 11. Certain developments are exempt from Act 250, including
"[t]he construction of improvements for farming . . . purposes below the
elevation of 2500 feet." 10 V.S.A. § 6001(3)(D)(i). Crescent Orchards is
located below the elevation of 2500 feet. To qualify for the farming
exemption, Crescent Orchards must meet the definition of "farming," defined
in relevant part, as follows:
(A) the cultivation or other use of land for growing food, fiber,
Christmas trees, maple sap, or horticultural and orchard crops; or
. . .
(E) the on site storage, preparation and sale of agricultural
products principally produced on the farm; . . . .
Id. § 6001(22)(A), (E).
¶ 12. The Ochses bear the burden of proving that the operation fits
within the farming exemption. See Our Lady of Ephesus House of Prayer,
Inc. v. Town of Jamaica, 2005 VT 16, ¶ 14, 178 Vt. 35, 869 A.2d 145
(stating in a property tax case that the party seeking the benefit of a
statutory exemption bears both the burdens of production and persuasion).
The farming exemption, like all exemptions, is to be read narrowly and only
applied when the facts clearly support the exemption's application. See
Vt. Alliance of Non-profit Orgs. v. City of Burlington, 2004 VT 57, ¶ 10,
177 Vt. 47, 857 A.2d 305 (stating that exemptions from taxation must be
construed narrowly).
¶ 13. The Board found that the cultivation of the apple trees at
Crescent Orchards met the definition of farming and was clearly exempt
pursuant to 10 V.S.A. § 6001(22)(A). We agree. The Board went on to
evaluate whether storing, washing, waxing, wrapping, and packing apples for
shipping, marketing and sale, changed the equation and turned the operation
into a commercial enterprise, rather than a farm, under § 6001(22)(E) ("the
on site storage, preparation and sale of agricultural products principally
produced on the farm."). The Tricketts contended that these activities
went beyond the scope of the farming exception. The Board found that "the
on site storage, preparation and sale of agricultural products" encompassed
storing, washing, waxing, wrapping, and packing apples. Id.
¶ 14. Next we turn, as did the Board, to the phrase "principally
produced on the farm." Id. Here, the Tricketts contend that, since the
Ochses lease several different orchards, the apples are not principally
produced at Crescent Orchards. The provisions of the leases make it
apparent that the Ochses control farming operations on the leased land.
See In re Eastland, Inc., 151 Vt. at 499 500, 526 A.2d at 1044-45 (defining
control as "[t]o exercise restraining or directing influence over.")
(internal quotations and citations omitted). They exercise sufficient
control over the lands which they lease to bring those lands into their
farm for purposes of 10 V.S.A. § 6001(22)(E). They make the day to day
decisions concerning the apple cultivation at the leased orchards. Using
their own machinery, they do all of the work on the lands and trees at the
leased orchards; they prune and spray, and they pick the apples. Neither
lessors nor any person other than the Ochses work on the leased orchards
lands during the lease period. The lessors exercise no control over the
Ochses' operations.
¶ 15. For purposes of an Act 250 analysis, the Board found that
ownership of the land is less important than the use to which the land is
put. See Vt. Baptist Convention v. Burlington Zoning Bd., 159 Vt. 28,
30-31, 613 A.2d 710, 711 (1992) (holding that, for zoning purposes, the use
to which real estate is put is more important than the ownership of the
property). We agree. It is reasonable to construe the legislative intent
behind the exemption to Act 250 to include lands leased by a farmer as part
of that farmer's "farm" for purposes of satisfying 10 V.S.A. § 6001(22)(E),
exemption for "the on site storage, preparation and sale of agricultural
products principally produced on the farm."
¶ 16. The Board went on to analyze whether apples processed at the
orchard were "principally produced" from the Crescent Orchards' apple
trees. Id.. The Tricketts do not dispute that section of the Board's
decision. Rather, they question "whether being partly a farm means
everything it does is exempt, even when that looks and smells and sounds
more like a commercial facility than a farm." (FN2)
¶ 17. The operations at Crescent Orchards, as established by the
uncontested facts, may resemble a commercial warehouse, processing, and
distribution center, but this is not a situation where other growers avoid
Act 250 jurisdiction by utilizing a central processing and packaging center
to prepare and sell their agricultural products. As long as the Ochses
exercise sufficient control over the leased lands, and as long as a lease
is not simply a ruse to bring lands into "the farm" which are, in
actuality, still under the control of the lessor or landowner, there is no
justifiable basis for distinguishing between owned lands and leased lands
in determining what constitutes "farming" for purposes of the exemption
found in § 6001(22)(E). Operating a farm, whether it is a dairy farm, a
beef ranch, or an apple orchard, is not and cannot be a pristine pastoral
activity. Modern machinery and practices in every type of farming can be
noisy. Farming is, by its nature, commercial. As the Board wrote: "A farm
is still a farm-and exempt from Act 250-whether it uses two or twenty
trucks or tractors, or whether it has seven or 700,000 chickens." We
agree. The project at Crescent Orchards qualifies as "farming," as defined
in 10 V.S.A. § 6001(22), and it is exempt from Act 250 review.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
_______________________________________
Geoffrey W. Crawford, Superior Judge,
Specially Assigned
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Footnotes
FN1. Many orchards and farms in Vermont lease or rent lands as part of their
operations. About 42,500 acres of a total of 193,376 acres (about 20%) of
farmland in Addison County is rented. Statewide figures are comparable;
233,596 acres of a total of 1,244,909 acres of Vermont's farmland is rented
or leased.
FN2. The Tricketts' claim that the exemption violates the common benefits
clause of the Vermont Constitution, Article 7, is inadequately briefed and
was not raised below. As such we decline to address it. In re Handy, 171
Vt. 336, 359, 764 A.2d 1226, 1245 (2000) (Johnson, J., dissenting) (citing
SBC Enterprises, Inc. v. City of S. Burlington Liquor Control Comm'n, 166
Vt. 79, 83 n.*, 689 A.2d 427, 429 n.* (1996) and Quesnel v. Quesnel, 150
Vt. 149, 150-51, 549 A.2d 644, 646 (1988) (refusing to address challenge to
constitutionality of statute where argument was raised for first time on
appeal and there was no showing of extraordinary circumstances suggesting
that issue needed to be addressed), overruled on other grounds by Theise v.
Theise, 164 Vt. 577, 674 A.2d 789 (1996)).
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