Agency of Agriculture proposes law to restore farming exemption, expand 'right to grow food'

The Agency of Agriculture proposed statutory language Jan. 16 designed to restore and clarify when farming is exempt from municipal zoning after a recent Supreme Court ruling, Agency counsel Steve Collier told a legislative committee.

"We want everyone in the state of Vermont to be able to farm whenever they have the land," Collier said, describing the draft as a return to the prior framework while modernizing several thresholds.

Why it matters: The Supreme Court decision narrowed what activities automatically qualify as "farming" for zoning purposes, producing local disputes where small, high‑density parcels met the old tests. The agency's draft would (a) add an explicit right to grow plants irrespective of Required Agricultural Practices (RAPs), (b) create a narrowly worded backyard poultry exemption, (c) preserve the existing 4‑acre default but allow Agency discretion to treat livestock on 1–4 acre parcels as farming where the land base adequately manages nutrients and waste, and (d) raise the current $2,000 annual agricultural sales or Schedule F test to $5,000 to reduce instances where very small operations qualify as farms for zoning purposes.

Key provisions and debate

Right to grow plants and backyard poultry: The draft would recognize a statutory right to grow plants on a parcel even if the activity does not otherwise meet RAP thresholds. It also would exempt a "small backyard poultry flock" (the draft explicitly excludes roosters); Collier said the language is intentionally flexible on exact flock size to allow further discussion.

Livestock thresholds and consultation: Collier said the current RAPs treat farming as beginning at 4 contiguous acres or meeting the monetary test. To address conflicts on smaller parcels — for example, the Essex duck case that prompted the court review — the draft keeps the 4‑acre standard and permits the Agency to designate livestock as farming on parcels between 1 and 4 acres if the land can safely manage animal waste. Before doing so, the Agency would consult the municipal authority and consider mitigation, though the Agency would retain final discretion.

Monetary qualifier: "We proposed $5,000" as the sales threshold in compromise with the League of Cities and Towns, Collier said, noting the League had asked for $10,000 and farm groups opposed increasing the current $2,000 level. The agency also proposes removing Schedule F as a standalone qualifier if the new threshold is adopted.

Cannabis and hemp: Committee members asked whether hemp or cannabis would be covered. Collier said "cannabis is not farming under state law" because cannabis regulation sits with the Cannabis Control Board; treating cannabis as farming risks loss of federal agricultural funding. He contrasted hemp, which is federally legal and treated differently under federal programs. Collier cited an approximate $31.7 million in federal proceeds the state expects to distribute related to recent losses and said the agency wants to avoid jeopardizing federal dollars.

Water quality: To avoid leaving a regulatory gap, the draft permits the Agency to apply RAPs where livestock on parcels under an acre — or on 1–4 acre parcels where issues exist — are causing "significant adverse water quality impacts," enabling state action where towns have no bylaws.

Structures and accessory uses: Collier noted the Supreme Court did not change how farm structures are treated in statute; towns still receive notice and setbacks apply. Accessory on‑farm businesses can be regulated by towns through site plan review, and the draft does not resolve disputes over multi‑use buildings or commercial entertainment uses that extend beyond farming.

Next steps: Collier said the agency plans to pair statutory changes with targeted RAP amendments so the package can take effect without a yearlong rulemaking delay; any bill would still require passage by both legislative chambers. He also offered to have Agency staff brief the committee on prime soils and siting processes under Act 250 and other siting laws.

What was not decided: The draft leaves numeric limits for backyard poultry undefined pending further discussion, and the size and detailed criteria for Agency discretion on 1–4 acre livestock determinations remain subject to deliberation and municipal consultation. Collier framed the $5,000 sales threshold as a political compromise to reduce conflicts while restoring broad protection for farming.

The committee agreed to receive the draft language and to pursue follow‑up briefings and discussions.