by Todd Heyman With the conclusion of Vermont’s first ever agritourism month and the second International Workshop on Agritourism held in Burlington, it’s time to chart a path to grow Vermont agritourism. Unfortunately, the Legislature is already off-course. Rather than pass Rep. Charlie Kimbell’s bill that would have limited Act 250 jurisdiction over small agritourism projects this past session, it assigned the Natural Resources Board authority to develop a report to “support” the industry by recommending appropriate Act 250 regulation.
The NRB seems an odd choice. Neither the agency nor its staff seem to have any experience running businesses, let alone agriculturally based businesses. And in the past, the Legislature has repeatedly passed laws to keep the NRB off of farms as much as possible.
Albeit skeptical, I attended the NRB’s “stakeholder” meetings to develop its report for the Legislature. There was a lot of talk of simplification, clarity, and helping farmers. And there were plenty of nodding heads with smiling faces on the video calls, but who wouldn’t nod your head to that? The problem is that the theoretical discussion with the stakeholders bears no resemblance to the actual workings of the NRB when the laptop cameras turn off.
The truth is that the NRB celebrated agritourism month trying to eliminate long-standing rights given to farms diversifying into agritourism. In 2004, Bobby Starr, now Chair of the Senate Ag Committee, successfully guided an Act 250 amendment through the Legislature to limit NRB jurisdiction on farms proposing to diversify with new development to only those portions of the farm that “support the development.”
By physically limiting jurisdiction to only the commercial operations, the rest of the farm can be used to build a new home to preserve the Vermont tradition of multi-generational families on the farm, or subdivide off a portion of the farm to raise funds for paying off debt, upgrading equipment, or possibly even keeping the farm afloat.
Unlike a gas station or a Dollar General, a farm is not a purely commercial property. It is someone’s home and it also supports the NRB mission of preserving farmland. Treating the entire parcel as commercial makes no sense, and the law was changed to acknowledge that.
Unpleased with this limitation on its jurisdiction, the NRB fought this provision in court back in 2015 when it sought to submit all 467 acres of a farm to its jurisdiction even though the development at issue, the WhistlePig whiskey distillery, occupied only about 8 acres of that farm.
The NRB failed spectacularly and only got control of those 8 acres, but the message wasn’t clear enough. In the final week of agritourism month, the NRB issued a formal opinion asserting jurisdiction over my entire farm, and now my recently widowed mother cannot build a house near her grandchildren without the NRB’s costly blessing.
I have an Act 250 permit to rent five cabins on my farm, which are nowhere near my mom’s proposed house, but the NRB still claims jurisdiction over that acre or so of land by re-asserting the exact legal argument it made in the WhistlePig case that was rejected by the Court.
It gets worse. The NRB omitted the “entire farm” jurisdictional language in my permit that it used in the WhistlePig permit, and my “failure” to appeal the omitted language means, according to the NRB, that I waived all my rights.
This flies in the face of the permit’s actual language. My permit only required amendments for changes to the commercial project and stated that other lands on the farm were “exempt from amendment jurisdiction.” Now, the NRB claims that the whole farm is subject to amendment jurisdiction.
And it actually gets much worse. The NRB’s concern for jurisdiction over farms depends significantly on whose farm it is. I had the unpleasant experience of discovering that the NRB has voluntarily limited jurisdiction to just the commercial operations on several well-known large farms in Vermont that developed a brewery, distillery, cheese creamery, a commercial trucking operation, and a winery.
In the case of the winery, the NRB voluntarily relinquished jurisdiction over 296 acres of agricultural soil largely based on a hand-written note from the farmer without a hearing and without any concern for the original permit language. He got 296 acres free of Act 250 jurisdiction scribbling on a note pad, and I’ll need a long court battle to get 1 acre for my mom’s house.
This should tell you why Governor Scott has proposed re-organizing the NRB to run appeals and reconsideration motions through Montpelier-based officials. It would ensure someone besides a regional coordinator can change the decision before going to court, and that the rules are applied consistently across the state. Unfortunately, inconsistent treatment of applicants based on personal connections and other unprofessional antics are regularly on full display to the people who are actually knee-deep in the undesirable weeds of Act 250 permitting.
So if the Legislature wants to help agritourism prosper, it must recognize that the NRB is part of the problem – not the solution. A first step would be to exempt small agritourism businesses from Act 250 jurisdiction altogether, but I doubt we’ll see the NRB propose limits on its own jurisdiction in its report to the Legislature. It’s too soon to tell, and, right now, the NRB is too busy spending taxpayer money and staff resources to ensure grandma’s house poses no threat to the environmental future of Vermont.
As for Governor Scott’s administration, will it step forward to defend the law in Court? Or was agritourism month just another photo opp?
Todd Heyman owns and operates Fat Sheep Farm & Cabins with his wife and two daughters in Hartland, Vermont. He now writes for VT Digger on agritourism issues.