## Facts

- George and Carole Trickett bought a residence from Peter and Carla Ochs in 1992; the home had been associated with the Ochses’ adjacent commercial apple orchard and was located across the road from the orchard barn.
- After the sale, the Ochses continued orchard operations; initially, harvested apples were largely transported off-site soon after harvest.
- In the mid-1990s, the Ochses expanded operations to include on-site waxing and storage using refrigerated tractor-trailer trucks, and increased tractor-trailer traffic to and from the barn.
- During winter months, trucks arrived in pre-dawn hours and continued through the day, allegedly increasing noise, light, and disruption at the Tricketts’ home.
- The Tricketts complained to local zoning officials; zoning administrator and zoning board proceedings concluded against them.
- In November 2000, the Tricketts sued in superior court alleging private nuisance and trespass, claiming interference with use and enjoyment of their land and emotional distress.

## Issues

1. Whether Vermont’s right-to-farm statute, 12 V.S.A. § 5753, barred a nuisance claim based on the orchard’s expanded operations.
2. Whether the statute created an irrebuttable presumption immunizing qualifying farm operations from nuisance liability as a matter of law.
3. Whether prior municipal zoning determinations collaterally estopped the homeowners from litigating nuisance and trespass in superior court.
4. Whether dismissal without addressing the pleaded trespass claim was error.

## Decision

- The Vermont Supreme Court reversed the superior court’s dismissal and remanded for further proceedings.
- The court held the right-to-farm statute did not bar the nuisance action on these facts, given the alleged material changes in the operation’s intensity and character.
- The court rejected treating the statute as an automatic, irrebuttable bar to nuisance claims.
- The court held the prior zoning determinations did not collaterally estop the nuisance and trespass claims.
- The court directed the trial court to consider the trespass claim, which had not been separately addressed.
- The court did not reach the constitutional takings argument because the case was resolved on statutory interpretation and preclusion grounds.

## Legal Principles

- Right-to-farm protection is limited; it is not blanket immunity for any agricultural activity merely because farming predated neighboring residential use.
- A material change or expansion in the nature or intensity of an agricultural operation may place the activity outside statutory protection from nuisance claims.
- Statutory right-to-farm provisions should be read in relation to common-law nuisance standards rather than as fully displacing them.
- Zoning compliance and zoning determinations generally do not decide, and therefore do not preclude, private nuisance or trespass liability; land-use standards and tort standards address different questions and remedies.
- Issue preclusion requires identity of issues and a full and fair opportunity to litigate; those elements are not satisfied when municipal zoning proceedings are invoked to bar later common-law tort claims.

## Conclusion

The court reinstated the homeowners’ nuisance and trespass case, holding that the right-to-farm statute did not automatically shield an expanded orchard operation from nuisance scrutiny and that prior zoning proceedings did not preclude subsequent tort litigation seeking relief for alleged interference with property rights.


Trickett v. Ochs, 838 A.2d 66 (Vt. 2003)