STATE OF VERMONT=

ENVIRONMENTAL COU= RT

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Appeal of Tricket= t = ; &= nbsp; &nb= sp; } = = Docket No. 85-5-0= 4 Vtec

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<= span style=3D'font-size:12.0pt;font-family:"Times New Roman"'>Decision and Orde= r on Town’s Motion for an Order of Summary Judgment or, in the Alternativ= e, Motion to Limit the Scope of Review

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Appellants George and Carole Trickett appeal from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Orwell (Town) denying AppellantsR= 17; request for zoning enforcement at Peter and Carla Ochses’ orchard on= Sanford Road. Appellants are represented by Pau= l S. Gillies, Esq.; the Town is represented by Mark Werle, Esq.; Appellees Pete= r and Carla Ochs are represented by Peter F. Langrock, Esq. This matter is before the Court o= n the Town’s Motion for Summary Judgment or, alternatively, to limit the s= cope of review to the issue of whether the Ochses’ use of their property = has changed so as to require a zoning permit for the new use.

Factual Background<= /b>

            The material facts relevant here are also summarized by the Vermont Supreme Co= urt in Trickett v. Ochs, 2003 VT 91, and in the decision of the Addison Superior Court after remand, Trickett v. Ochs, Docket No. 267-11-00= Ancv (Addison Sup. Ct., Sept. 2, 2005), both of which dealt with di= fferent legal issues but essentially the same facts as here. The Vermont Supreme Court decision addresses the nuisance and trespass claims that the Tricketts brought agai= nst the Ochses, alleging that the Ochses’ orchard operation (“Orch= ard operation”) substantially interfered with the Tricketts’ use and enjoyment of th= eir property. The Supreme Court remanded the ca= se to the Superior Court, where a jury found that a nuisance existed. The Addison Superior Court subseq= uently enjoined the Ochses and their Orchard operations in several ways relevant = to this appeal.

            The following facts are undisputed unless otherwise noted.
            1. Since 1965, Appellees have owned = and operated the 600-acre Crescent Orchard, now including a barn, outbuildings= , and a residence, on Sanford Road in Orwell.<= /p>
            2. The Orchard operation on <= st1:Street>Sanford Road now includes 10,000 trees and= was first planted in 1918. =

            3. Activities related to the packing, storing, and shipping of apples occur at the Ochses’ barn on Sanford Road.

            4. Appellees lease and operate other orchards on property owned by others.&nbs= p; These additional orchards do not adjoin the Ochses’ original orchard on Sanford Road.

            5. Apples from the leased orchards a= re collected, waxed, packed, stored at and shipped from the barn on Sanford Road.

            6. Appellants reside in a historical= ly significant farmhouse which they purchased in 1992 from the Ochses’ successors in title. The farmhouse is a ten bedroom brick residence built in 1835 by the <= span style=3D'font-size:12.0pt;line-height:150%'>Sanford family, one of the first sett= lers of Orwell.
            7. Appellants’ farmhouse is lo= cated directly across Sanford Road, a dirt road, from the Appell= ees’ barn.

            8. Both the farmhouse and the Sanford Road orchard are in the Town’= ;s Rural Residential and Agricultural zoning district.

            9. At the time of the sale of t= he farmhouse, apples were collected from the orchard and brought to the barn, where they were immediately transported to the Shoreham Co-op and stored f= or sale.

            10. In approximately 1996, the Shoreh= am Co-op ceased many of its operations and Appellees began conducting more activities on-site, including waxing and storing the apples in refrigerated tractor-trailer trucks (“reefers”), building and repairing shi= pping pallets, and loading the reefers with apples.

            11. Appellees’ activities are constrained by a permanent injunction issued by the Addison Superior Court= in Trickett v. Ochs, Docket No. 267-11-00 Ancv (Addison Sup. Ct., Sept. 2, 200= 5). The injunction required the Ochse= s to limit their hours of operation, relocate some noise producing activities, = and take various other steps to reduce the interference with Appellants’= use and enjoyment of their residential property.

Discussion

            Appellants are appealing the Town’s failure to require a zoning permit for Appellees’ apple processing, packing, storage, and shipping activiti= es at the barn on Sanford Road. The central issue in this appeal = is whether the Ochses’ operation falls within the agricultural exceptio= n of the former 24 V.S.A. § 4495(b) (now amended and codified at 24 V.S.A. § 4413(d) (2004)). The old section 4495(b) states:

[n]o plan or bylaw adopted under this chapter s= hall restrict accepted agricultural or farming practices, or accepted silvicult= ural practices, including the construction of farm structures, as such practice= s are defined by the secretary of agricultur[e], food and markets or the commiss= ioner of forests, parks, and recreation, respectively, under sections 1021(f) and 1259(f) of Title 10, and section 4810 of Title 6.”=

24 V.S.A. § 4495(b).[1]

The Secretary has defined “farming” to mean “(a) the cultivation or other use of l= and for growing . . . orchard crops; or . . . (e) the on-site storage, prepara= tion and sale of agricultural products principally produced on the farm.”= Accepted Agricultural Practice Ru= les, Vt. Code R. § 2.06(a), = (e) at 20 010 008 (2005). The Secretar= y has defined “accepted agricultural practices” to include the ̶= 0;(d) . . . harvesting of crops” and “(i) [t]he on-site storage, preparation and sale of agricultural products principally produced on the farm.” Accepted Agricultural Practice Ru= les, Vt. Code R. § 3.2(d), (i) at= 20 010 008 (2005) (emphasis added).

            The Ochses collect, wax, pack, store, and ship apples at their orchard on Sanford Road. Some of the apples come from orch= ards leased, but not owned, by the Ochses.&nbs= p; The specific issue to resolve in this appeal is whether the apples = are “principally produced on the farm.” If they are, then § 449= 5(b) applies and Orwell’s zoning ordinance cannot restrict this activity,= so no permit would be needed. I= f the apples are not principally produced on the farm, then § 4495 does not apply, and the Ochses’ apple-related activities may require a zoning permit for a regional apple packing center. This factual issue is disputed.[2] Summary judgment is not appropria= te at this time. The Town’s = Motion for Summary Judgment is therefore denied.

            The Town moves alternatively for an order limiting the scope of review to the question most recently pleaded and argued before the zoning administrator = and zoning board: whether the Ochses are using their land to operate a “regional apple packing center” and, if so, whether they must obtain a permit = for that use under the zoning bylaw. The Tricketts responded by stating= that they “agree that this is the question [we] presented to the Zoning Administrator, to the ZBA, and now to the Court. That is all that [we] seek.”= ; Appellants’ Reply Mem. at 4= . The Statement of Questions appears worded in such a way that it could be read both as narrowly as the Town requests and as broadly as the Town fears. Given that Appellants have confirmed that they consent to the more = narrow reading of their Questions, the Town’s alternative motion appears ap= propriate and is therefore granted.

Accordingly, based on the fore= going, it is hereby ORDERED and ADJUDGED that the Town’s Motion for Summary Judgment is DENIED. The Town’s alternative Motion to Limit the Scope of Review is GRANTED. The issues to be addressed at mer= its hearing shall be limited to whether the Ochses are operating a regional ap= ple packing center, whether such constitutes a change in use of their Sanford Road property and, if so, does suc= h a change in use require a zoning permit.

            The parties should consult with each other and their counsel on possible trial dates in December, 2005, or January, 2006. The Court will conduct a pre-trial conference (scheduled by separate Notice to be issued by the Court Manager) to set the trial date.

Done at Berlin, Vermont, this 7th day of October, 200= 5.

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        = ;   Thomas S. Durkin, Environmental Judge