This is the final article of a three-part series covering how the State of Vermont interprets the definition of “primary agricultural soils.” The interpretation has significant implications for how agricultural land is protected from housing or commercial development in VT, hence how much farmland might be available for new farmers in the future. In Part I, we covered the basics of Act 250 criterion 9(b), and the function of off-site mitigation funding and conservation easements used to protect farmland. In Part II , we examined the Vermont Supreme Court opinion, “In re: Village Associates Act 250 Land use Permit,” which thrust into question the definition of “primary agricultural soil” and whether the costs of tree removal should be considered when classifying a soil as such (thus requiring developers to pay fees if they plan to disturb prime ag. soils).
As you’ll recall, the big change from the norm in the 2010 Supreme Court ruling was that Environmental Court opinions must now consider financial costs of tree removal when deciding whether there is a limitation to agricultural use that cannot be easily overcome. The Supreme Court remanded the original Village Associates case back to the Environmental Court for a final decision that incorporated an economic assessment into the determination of “primary agricultural soil.”
Here, Part III takes a closer look at the details of the Environmental Court’s recent final opinion in the Village Associates case. It was not a complicated one. The costs of tree removal were considered, and it was found that they could be covered by a farmer’s business. This finding, coupled with the existing physical and chemical soil properties, allowed the Court to confirm that the project will result in the reduction of “primary agricultural soil.” The developer will be assessed the off-site mitigation fees in a similar manner to any other project disturbing primary agricultural soil in VT.
The interesting part about the decision was that it spoke to the fact that farm enterprises operating today can have some real potential economic firepower behind them. In this case, the court found the potential to be great enough to overcome what might ordinarily be considered a major limitation: the presence of tree cover.
Let’s go through the number crunching involved in the court’s determination. For new farmers wondering whether it is cost effective to clear forested land, this could be a case study that sheds some light on the issue.
Keep in mind, we’re talking about 10.85 acres, and if classified as a soil of statewide importance or “primary,” they are most likely relatively flat and accessible.
First, the Court made clear that, “The cost of clearing the trees from the property in preparation for agricultural use would be far less than that required for development.” A farmer could avoid paying roughly $40,000 in dumping fees and trucking costs if stumps and other logging debris was deposited elsewhere and kept on the property. Another $50,000 in erosion control and permitting could be saved if the project was not tied to commercial development. According to the Court, “An erosion control plan is not required for simply logging the land. Loggers must instead comply with certain management practices standard in the industry.”
The Court then estimated that, “the cost of tree removal to convert the land to agriculture is likely to be approximately a total of $60,000, calculated from the $20,000 allocated to logging the property plus the $40,000 of machine costs for removing the stumps and roots and placing them elsewhere on the property away from the agricultural fields, or a total of approximately $5,530 per acre for the 10.85-acre area.”
The Court made mention of other scenarios in which costs could be cut further, such as in the case of a farmer who is set up for logging and stump removal work themselves. Farmers may clear land incrementally over time to allow revenues from farm operations on the first few cleared acres to offset the costs of clearing the next few acres.
Finally, estimation was given as to the “gross income” potential of a “small, diversified specialty vegetable and soft fruit farming operation.” According to the Court, “The cleared property would be capable of earning a gross income of approximately $22,500 per acre if used for a Community Supported Agriculture (CSA) operation.” The Court concluded that this “would certainly be able to offset the $5,530 per acre one-time cost of tree removal for agriculture, particularly if amortized over a few years.”
While this case speaks to the potential economic feasibility of modern-day farm operations making use of forested lands, it is important to note that every case is unique. Farmers should consider all costs associated with tree removal before making decisions to put forested land under cultivation. For example, the Environmental Court did not mention that opportunity costs were factored into its opinion in the Village Associates case. The cost associated with NOT leaving immature trees to grow to maturity for timber or other purposes is not easily understood, but nonetheless a true cost to a landowner over time.
If the farmer has access to other agricultural land, another thing to consider is how time or money that would be spent on clearing trees could be spent on improving the productivity of existing open lands. Five thousand dollars an acre can go a long way in reviving dilapidated soils! Five thousand dollars an acre should even be enough to purchase outright good agricultural land for sale today on the open real estate market and be able to farm it tomorrow.
In any case, depending on the existing timber stand in place, it often makes much better sense to implement a sustainable forest management plan that creates long-term profit for a farmer who owns woodlands. Just think of it as farming trees instead of carrots! With the potential for maple, mushrooms, medicinal herbs and other agroforestry products, the difference between “farmer” and “forester” is not so clear these days. In VT and other predominantly forested states especially, we’re more commonly all, in fact, a bunch of “farmesters.”
One thing is certain, however: farmers, foresters (and even farmesters), and anyone who consumes their products benefit from having “prime agricultural soils” protected for agricultural and silvicultural use. Time will be the judge as to what kind of precedent the VT Environmental and Supreme Court cases discussed here will set, in terms of the burden of evidence that will have to accompany future similar Act 250 permit decisions. It seems at least for now, as long as some types of farming stay profitable in VT, currently-forested prime agricultural soils are still “primary agricultural soils.” They are not “in jeopardy” from being easily over-run by housing or commercial development.