Prime Ag Soils In Jeopardy? (Part II)

In last month’s blog I provided an intro to Act 250 off-site mitigation and what it means for new farmers.  To recap, conservation easements funded through various programs, such as Vermont Housing and Conservation Board’s (VHCB’s) Farmland Preservation Program, are some of Vermont’s only legal mechanisms for ensuring long-term affordability and accessibility of farmland for future generations of farmers.  According to VHCB, “The purchase of development rights has contributed to renewed vitality in agriculture by enabling young farmers to purchase farms at an affordable price and by helping established farmers to reduce long-term debt, to invest in infrastructure, and to make operations more profitable and efficient.” (2003 VHCB Report, “Act 250…How Mitigation Funds are Used To Protect Vermont Farmland Forever”)

Without farmland conservation through legally binding easements, it is questionable whether or not Vermont will have any farmland left at all 100 years from now.  Below are data depicting USDA census trends.  The graph on the left shows the rate at which the state has lost farmland in the last 30 years, and the graph on the right shows a computer-generated trend line predicting how much is yet to be lost if current trends continue.  The message is clear: farmland might end up on the endangered species list.

Theoretically, the total loss of farmland won’t happen as long as conservation easements remain in place.  The Vermont Land Trust, in fact, just conserved their 500,000th acre.  About 200,000 of those are farmland.  Is 200,000 acres enough land to support Vermont’s agricultural economy and ensure its population stays food-secure?  Perhaps we’ll tackle that question in another blog!

For now, let’s continue with the fact that Act 250 mitigation funding for conservation easements has played a critical role in enabling farmland to be preserved.  Mitigation funding will continue to play a critical role, assuming development pressures linger.  Mitigation funds have an impact far greater than their original dollar value because they are often matched with other farmland protection funds.  For example, to date VHCB has used approximately $3,000,000 in mitigation funds, matched with at least $9,000,000 in state, federal and private funds, to purchase conservation easements on farms containing a total of 13,800 acres of land (personal communication with VHCB officials).

Recently, the Vermont Supreme Court issued a decision that could have significant implications for Act 250 mitigation funding of farmland conservation.  The Court heard an appeal of a housing developer who wished to avoid paying off-site mitigation fees.  The developer argued that because the soil in question was covered by trees, it presented a limitation too great for any farmer to overcome, and thus did not constitute “primary agricultural soil” that required a developer to pay fees to mitigate.

The Court did not agree directly with this argument; that is, it didn’t decide whether or not the developer must pay the mitigation fee.  But in a departure from the Environmental Court’s previous interpretation of Act 250, the Supreme Court did agree with the developer that the Environmental Court should consider costs of tree removal when determining whether or not land is deemed to have “primary agricultural soils.”  The case has been remanded back to the Environmental Court, who will ultimately decide whether the cost of tree removal is a limitation too great to overcome and whether or not the developer must pay mitigation fees.

What do you think?  Should current economic considerations be taken into account when we classify soils as suitable for agricultural use?

The four Associate Justices of the Supreme Court explained, “nothing in the statute precludes the Environmental Court from considering [costs].”  The four Associate Justices concluded later that, “indeed, though the cost of overcoming a limitation, such as the presence of trees, will rarely be a trump card that precludes the finding of primary agricultural soils, cost is still one of the many factors to be considered, along with physical and practical difficulties of overcoming a limitation, such as tiling land to overcome wetness, removing stones…”

Chief Justice Paul Reiber dissented with the majority opinion of the Court.  Reiber explained, “Contrary to the majority’s conclusion, plain meaning and legislative intent make it clear that financial costs are not among those factors that may be considered in determining whether a parcel meets the definition of primary agricultural soils.”  The Chief Justice determined that physical and chemical properties of soils are the only conditions that the statute authorizes to take into account when assessing limitations, and “thus, the economic feasibility and financial costs of preparing land for cultivation are not limitations that may be considered when determining whether soils of statewide importance are primary agricultural soils. “

Reiber made frequent references to the legislative intention for initially creating Act 250’s criterion 9(b), dealing with primary agricultural soil.  He stated the intent was to “protect agricultural potential…”  He explained that Act 250 was designed to preserve the future value of soils to farmers if the land were to be left alone.  Reiber concluded, “farming that is unprofitable today could be profitable tomorrow, reinforcing the fact that Vermont’s primary agricultural soils have chemical and physical properties that make them invaluable…  Therefore, the burden on the developer is impossible to overcome because the developer would be required to show that it could never be economically feasible to farm the area, when, in fact, the future economic value of Vermont’s primary agricultural soils is virtually limitless.”

The majority, however, stuck with their interpretation of the statute, noting that costs should be considered in whether or not, “soils will be capable, following removal of any identified limitations, of supporting or contributing to an economic or commercial agricultural operation.” (For the Act 250 definition of “primary agricultural soil,” see 10 V.S.A. § 6001(15))

The full Supreme Court opinion, in re: Village Associates Act 250 Land Use Permit, can be viewed online.  I’ll be eagerly awaiting the Environmental Court’s final decision, and will be sure to provide updates in future blog articles.  The decision could set a precedent that has significant implications for how much farmland conservation funding is generated through off-site mitigation.  This one is well worth keeping an eye on.


About Ben Waterman

Ben writes about land access, tenure, and stewardship issues that are relevant to new farmers in Vermont. He coordinates the Land Access Program at UVM Center for Sustainable Agriculture:
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2 Responses to Prime Ag Soils In Jeopardy? (Part II)

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  2. Pingback: Prime Ag Soils in Jeopardy? (Part III) | UVM Extension New Farmer Project

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