Trickett v. Ochs

• Decision Date: 10 October 2003
• Docket Number: No. 01-311.,01-311.
• Citation: 838 A.2d 66
• Court: Vermont Supreme Court
• Parties: George and Carole TRICKETT v. Peter and Carla OCHS.

838 A.2d 66

George and Carole TRICKETT v. Peter and Carla OCHS.

No. 01-311.

Supreme Court of Vermont.

October 10, 2003.

Motion for Reargument Denied November 6, 2003.

Paul S. Gillies of Tarrant, Marks & Gillies, Montpelier, for Plaintiffs-Appellants.

Peter F. Langrock and Abby C. Moskovitz of Langrock Sperry & Wool, LLP, Middlebury, for Defendants-Appellees.

William H. Sorrell, Attorney General, and Michael O. Duane, Assistant Attorney General, Montpelier, for Amicus Curiae State of Vermont.

Present: AMESTOY, C.J., JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.) and GIBSON, J. (Ret.), Specially Assigned.

SKOGLUND, J.

¶ 1. Plaintiffs George and Carole Trickett brought this nuisance and trespass action against their neighbors, Peter and Carol Ochs, alleging that defendants' operation of an apple orchard interfered with plaintiffs' use and enjoyment of their land and caused them emotional distress. Following an evidentiary hearing on plaintiffs' request for injunctive relief, the Addison Superior Court dismissed the action based upon its conclusions that defendants' activities were protected by Vermont's right-to-farm law, 12 V.S.A. § 5753, and that, in any event, previous rulings by the Town of Orwell zoning administrator and zoning board of adjustment collaterally estopped plaintiffs from bringing their claims. Plaintiffs argue on appeal that (1) the right-to-farm law does not apply under the circumstances; (2) even if it does, the law did not create an irrebuttable presumption that barred plaintiffs' nuisance action as a matter of law; (3) applying an irrebuttable presumption would effect a taking of plaintiffs' property without just compensation; (4) rulings by the zoning administrator and board of adjustment did not have any collateral estoppel effect on plaintiffs' claims; and (5) the court failed to address plaintiffs' trespass claim. Based on our conclusion that neither the right-to-farm law nor collateral estoppel applies under the circumstances of this case, we reverse the superior court's decision and remand the matter for further consideration of plaintiffs' claims.

I.

¶ 2. Plaintiffs purchased their home from defendants in 1992. At the time of the purchase, the residence was the homestead for an apple orchard and was directly across the road from the barn that served as the main collecting point for the apples. Defendants continued to operate the apple orchard after the sale of the farmhouse, though the business initially had little impact on plaintiffs because most of the apples were immediately transported following harvest to the Shoreham Food Co-op, where they were stored for sale.

¶ 3. During the mid-1990s, defendants expanded their operation in response to changes in market demands. They began waxing their apples and storing them on-site in refrigerated tractor trailer trucks. Tractor trailer trucks also came to the barn to take apples to market. During the winter months, these trucks began arriving in the predawn hours and continued throughout the day. Because the barn is very close to plaintiffs' home, additional noise and light glare entered the home and disturbed plaintiffs. ¶ 4. Before initiating this action, plaintiffs complained to various town and state officials. Because these complaints, and the ensuing actions, are related to one of the issues on appeal, we summarize them here to the extent that they are reflected in the record before us. Plaintiffs first went to the Town of Orwell selectboard, which detailed the complaints and suggested ways to resolve them in an April 1996 letter to defendants. Plaintiffs' complaints concerned (1) lack of maintenance of the road in front of the orchard; (2) blockage of the road by tractor trailer trucks; (3) location of vehicles and farm equipment too close to the road to allow snow plowing or maintenance; (4) excessive noise; (5) glare from truck headlights; and (6) diesel fumes and trespass by tractor trailer trucks on plaintiffs' lawn. Apparently, the letter did not lead to a resolution of the complaints.

¶ 5. In August 1997, plaintiffs complained to the Orwell zoning administrator, claiming that defendants were violating the town's zoning ordinance in a number of respects. Two months later, the zoning administrator rejected the complaint, making several rulings. First, the administrator ruled that defendants were not conducting a light manufacturing operation by constructing pallets and bins on the orchard site. Relying on an earlier letter by the commissioner of agriculture indicating that construction of the pallets and bins was in support of the orchard and thus an incidental accepted agricultural practice, the zoning administrator concluded that the construction was incidental to the operation of the orchard. Second, the administrator ruled that the orchard's operations did not cause (1) glare or light that was a nuisance to other property owners in violation of § 1120 of the Orwell zoning ordinance, or (2) noise incompatible with the reasonable use of the surrounding area in violation of § 1140 of the zoning ordinance. Third, the administrator found that he was without jurisdiction to consider plaintiffs' complaint that defendants were operating a public building without a permit, but noted that the commissioner of agriculture had decided this question adversely to plaintiffs in an earlier ruling. Finally, the administrator concluded that defendants were not improperly storing and using chemicals and pesticides in violation of § 1130 of the zoning ordinance, and further noted that the commissioner had previously ruled that defendants were not violating state pesticide regulations. Plaintiffs appealed these rulings, and, in January 1998, the Orwell board of adjustment denied the appeal without explanation.

¶ 6. Plaintiffs renewed and expanded their complaints in January 2000, this time by letter from their attorney to the zoning administrator. The zoning administrator ruled that nothing had changed since 1997, and that defendants continued to be in compliance with the Orwell zoning ordinance. On appeal, the board of adjustment stated that it would no longer hear complaints regarding defendants' orchard that had already been decided by any state agency. Plaintiffs appealed the board's decision to the environmental court, but later withdrew the appeal. They complained again to the zoning administrator in November 2000, but we have no record of the disposition of that complaint.

¶ 7. The zoning board's reference to state agency decisions concerning the orchard apparently was directed at two communications from the department of agriculture. The first was a letter from the commissioner in October 1997 in response to a complaint from plaintiffs that defendants' construction of pallets and storage and shipping bins, allegedly a major source of the noise, was not an accepted agricultural practice. The commissioner determined that because operation of the orchard was an accepted agricultural practice and the pallets and bins were used exclusively for defendants' apples grown on-site, those land uses were exempt from local zoning regulation. The commissioner indicated further that the department was continuing to investigate whether defendants were violating pesticide regulations. The second communication was a letter from a department attorney at the request of the zoning administrator and in regard to plaintiffs' January 2000 complaint. The attorney noted that 24 V.S.A. § 4495 prevented the town from regulating defendants' activities to the extent that the zoning bylaws were more restrictive than state law regarding agricultural and farming practices. The attorney also stated that the right-to-farm law might be implicated.

¶ 8. Plaintiffs brought this action in November 2000, alleging that (1) the noise from defendants' operations, specifically the trucks and packing equipment and machinery, interfered with the use and enjoyment of plaintiffs' property; (2) defendants had allowed pesticides and polluted surface water from their operations to flow onto plaintiffs' property; (3) the trucks and defendants' dogs had trespassed on plaintiffs' property; and (4) defendants had shouted obscenities at plaintiffs and assaulted them. Plaintiffs sought an injunction and compensatory and punitive damages. Defendants answered and moved to dismiss on the ground that the right-to-farm law immunized their activities from a nuisance action.

¶ 9. The superior court reserved the motion to dismiss, and the case went to trial. The witnesses were plaintiffs, defendant Carla Ochs, and a sound expert who took measurements of noise from defendants' property. During the trial, defendants asserted that collateral estoppel barred the action, arguing that the findings of the zoning administrator and board of adjustment had preclusive effect as to whether the apple orchard was a "protected agricultural activity." Following the hearing, the court concluded that (1) the right-to-farm law barred plaintiffs' nuisance claims because plaintiffs moved to the site of a known, pre-existing farming operation; and (2) plaintiffs' claims were also barred by the prior findings and conclusions of the department of agriculture and the Town of Orwell regarding defendants' orchard operations. On appeal, plaintiffs argue that the superior court erred by applying collateral estoppel to dismiss their claims, by ruling that the right-to-farm law barred their claims, and by failing to address their trespass claim. We address these issues in turn.

II.

¶ 10. The superior court ruled that the decisions of the zoning administrator, the zoning board of adjustment, and the commissioner of agriculture collaterally estopped plaintiffs from bringing their nuisance claims. Collateral estoppel "bars the relitigation of an issue, rather than a claim, that was actually litigated by the parties and decided in a prior case." In re Central Vermont Pub. Serv. Corp., 172 Vt. 14, 20, 769...