Vermont’s Land Use Review Board (LURB) was established in 2025 to administer the state’s Act 250 land use permitting program, which works to ensure that development contributes to the vibrancy of Vermont’s communities and economy but not at the expense of the state’s landscape.
The Vermont Supreme Court (Court) issued a decision on May 30, 2025, that appears to dramatically change the landscape of municipal zoning in terms of the scope of the agricultural exemption for certain activities and structures. The decision overrules an Environmental Division of Superior Court (Environmental Court) determination that an Essex Junction man’s duck-raising and cannabis-cultivation operations were exempt from municipal regulation under 24 V.S.A. § 4413(d)(1)(A). The Environmental Court ruled that it constituted a commercial farming operation subject to the Vermont Agency of Agriculture Food and Markets (AAFM) Required Agricultural Practices (RAPs) Rule. See In re 8 Taft Street DRB & NOV Appeals.
It has been the longstanding conventional legal wisdom that certain farms subject to the RAPs were afforded a broad exemption from municipal zoning regulation under 24 V.S.A. § 4413(d)(1)(A). The Environmental Court judge followed the historical understanding of the farming exemption, ruling that the farm was exempt entirely from the municipality’s zoning regulations because it was determined to be a “farm” by AAFM and subject to RAPs. The Court, however, held that the law “does not prohibit all municipal regulation of farming if that farming is subject to the RAPs Rule.” Instead, the Court said the law only “prohibits municipal regulation of ‘required agricultural practices,’ or the agricultural land-management standards intended to protect Vermont’s waters established by the RAPs Rule and imposed on certain ‘agricultural practices.’”
The takeaway of this case is that the exemption from municipal zoning for farms regulated by the RAPs is narrower than previously understood and there is authority – albeit limited – for municipalities to regulate farms through municipal zoning. Though we now know the scope of the agricultural exemption is limited to issues addressed by the RAPs, the extent to which a municipality can use zoning to regulate farms outside that exemption is still uncertain. We await a ruling from the Environmental Court on remand (i.e., it will decide the case again with the new direction from the Supreme Court) for some clarity on the parameters of municipal authority to regulate farms through zoning. Our Advocacy team has shared that this is a potentially political hot potato as we approach the end of this legislative session and veto session. Hopefully, the legislature won’t act in haste to revise any statutes as a result before anyone has a chance to understand the impact of the upcoming Environmental Court case and its implications on the existing statutory framework. We will keep members informed as things proceed in the judicial and legislative branches. For now, we suggest not changing your approach to handling farms at the local level until the ink dries.
The answer to this question is heavily fact dependent, but generally, the principle of sovereign immunity will protect a town from tort liability (e.g., negligence, trespass, and nuisance) in cases where the town is performing governmental, rather than proprietary, functions. (For more information about governmental vs. proprietary acts, see our Sovereign Immunity fact sheet.) Governmental functions include building and maintaining town highways and their accompanying drainage systems. Vermont follows the civil law doctrine of water, which prohibits an upper landowner from increasing the drainage, and thus the burden, on a lower landowner. This means that a town cannot actively direct water onto an adjoining landowner's property. In applying this rule of the law, the Vermont Supreme Court has stated, "an upper property owner cannot artificially change the manner of flow by discharging it onto the lower land at a different place from its natural discharge. Such interference with the flow of surface water is a form of conduct that may result in a trespass or nuisance." Canton v. Graniteville Fire District No. 4, 171 Vt. 551 (2000). Artificially changing the manner of flow would include using a culvert to intentionally divert water from a natural watercourse to flow upon private property or in any way collecting and channeling surface water onto private property in quantities greater than or in a manner different from its natural flow. All these actions could potentially expose a town to tort liability as well as a takings claim (taking private property for public use without just compensation). However, a town won’t be liable for a highway that merely repels water that flows naturally onto private property. The closer a town comes to directing surface water into pre-existing natural waterways and drain ways, the less likely a town will be found liable.
While towns are immune from liability when property damage is caused by surface water drainage systems installed to protect their roads, an exception exists when a town fails to repair a culvert necessary to allow a natural stream to pass under a town highway after receiving notice that the culvert is not functioning as intended. Sovereign immunity will not bar recovery for property damage caused by a town’s failure to repair a culvert constructed for a natural stream after receiving notice that the culvert is blocked. Graham v. Town of Duxbury, 173 Vt. 498 (2001).
Testimony to the House Committee on Transportation
Attn: Chair Matt Walker
Re: VLCT Testimony on trails language in H.488 and the risk it may pose to municipalities if the Tunbridge case is resolved in favor of the landowner
May 15, 2025
Dear Chair,
First, I want to thank the committee for having me, my name is Kail Romanoff and I am an attorney with VLCT’s Municipal Assistance Center where myself and 3 other attorneys help municipal officials by answering their questions concerning general municipal law and local government management and administration and how to apply legal requirements to day-to-day governance and operations including on issues related to highways, trails, and public rights of way. You’ve heard from my colleague Josh and previous witnesses about some of the policy reasons in favor of the trails language, but I want to address the elephant in the room a little – the threat of an inverse condemnation or takings as a result of this bill if the petitioner in Tunbridge is successful. Myself and my fellow attorneys in MAC don’t think the risk of a takings claim against a municipality is very high if the trails language is included in S.123 is passed. We think that for a couple reasons.
First, it has been the generally accepted legal interpretation that towns have the right to maintain their legal trails. The petitioner in the Tunbridge case highlights that there is no explicit municipal authority for the maintenance of legal trails in Vermont Statute which has brought this bill before us today. However, Dillon’s Rule, which guides the scope of municipal authority, is not so rigid as to require the Legislature to explicitly spell out each and every possible authority, and it accounts for additional functions that may be “incident, subordinate[,] or necessary to the exercise” of those explicit authorities (Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486, 380 A.2d 64, 66 (1977)). Maintenance authority for legal trails is clearly implied or incident to multiple explicit grants of authority related to legal trails:
We think maintenance is an implied authority to each of these express grants of authority. Moreover, the legislature has expressly exempted towns from liability for maintenance of their trails. 19 V.S.A. § 310(c), “A town shall not be liable for construction, maintenance, repair, or safety of trails.” Why would the legislature need to exempt a town from liability for maintenance of its trails if they are not authorized to perform that maintenance?
VLCT’s legal opinion is that the authority to maintain exists currently and these changes will add clarity to the existing interpretation and general practice that town’s can maintain their legal trails for their intended uses and they will provide the certainty municipalities and recreation groups are seeking at this moment.
Secondly, even if the court sides with the petitioner and rules landowners who hold an interest in the underlying property (abutters) have the exclusive right to maintain legal trails despite their public status, it’s not clear that municipalities that rely on these proposed provisions would be subject to a Takings claim for their maintenance. legal trails are either a downgraded former town highway or a trail laid out by the selectboard. In either case, the town has condemnation authority and there is a damages and appeal process for impacted landowners through the process of laying out new highways. 19 V.S.A. §§ 708 et seq. If there is a legal trail running through or abutting a property, the landowner or a predecessor in interest either assented to or was compensated for the public right-of-way during the process of laying out the trail or the highway that preceded it. Any case involving a town performing maintenance in the right of way of a legal trail then will focus solely on the damages caused by the maintenance (the singular stick of rights at issue here) and not the use because the town retains that right within their public right of way.
The purpose of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). It’s unclear, if the petitioner is successful, whether a municipality improperly maintaining its legal trails is forcing the landowner who holds an underlying interest in the right-of-way to bear any burden since this is a public right-of-way to which the landowner has been compensated or otherwise assented. The determination of burden of course would depend on the level of maintenance. For general trail work this is unlikely to be significant and may be resolved with an injunction commanding the municipality to stop maintenance rather than a takings proceeding. Larger maintenance projects such as road building are more likely to represent a burden. The Vermont Supreme Court, has repeatedly ruled that speculative damages are not compensable in inverse condemnation cases. In re South Burlington/Shelburne Highway, 184 Vt. 553 (2008).
I think a bigger concern is that, if this language is not added, and the petitioner in Tunbridge is successful, Towns are likely to utilize the highway reclassification process to either upgrade trails to class 4 highways, or to discontinue them altogether, because without maintenance authority what is a public right of way? It’s just lines on a map.
Kail Romanoff, Esq.
Staff Attorney I, Municipal Assistance Center, Vermont League of Cities and Towns
Testimony to the House Committee on Transportation
Attn: Chair Matt Walker
Re: VLCT Testimony on trails language in H.488 and the risk it may pose to municipalities if the Tunbridge case is resolved in favor of the landowner.
May 9, 2025
Dear Chair,
If the trails language included in H.488 is passed, VLCT’s Municipal Assistance Center (MAC) attorneys don’t think the threat of a takings claim against a municipality is very high for a couple reasons.
First, it has been the generally accepted legal interpretation that towns have the right to maintain their legal trails. The petitioner in the Tunbridge case highlights that there is no explicit municipal authority for the maintenance of legal trails in Vermont Statute. However, Dillon’s Rule, which guides the scope of municipal authority, is not so rigid as to require the Legislature to explicitly spell out each and every possible authority, and it accounts for additional functions that may be “incident, subordinate[,] or necessary to the exercise” of those explicit authorities (Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486, 380 A.2d 64, 66 (1977)). Maintenance authority for legal trails is clearly implied or incident to multiple explicit grants of authority related to legal trails:
VLCT’s legal opinion is that these changes will add clarity to the existing interpretation and general practice rather than cause a potential liability risk for our members.
Secondly, even if the court sides with the petitioner and rules landowners who hold an interest in the underlying property (abutters) have the exclusive right to maintain legal trails despite their public status, it’s not clear that municipalities that rely on these proposed provisions would be subject to a Takings claim for their maintenence. The purpose of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). It’s unclear whether a municipality improperly maintaining their legal trails is forcing the landowner who holds an underlying interest in the right-of-way to bear any burden since this is a public right-of-way.
Moreover, legal trails are either a downgraded former town highway or a recreational trail laid out by the selectboard. For each, the town has condemnation authority and there is a damages and appeal process for impacted landowners. 19 V.S.A. §§ 708 et seq. The landowners either assented to the public right-of-way or were compensated for it in the process of laying out the trail or the highway that preceded it. Any case involving a town performing maintenance in the right of way of a legal trail then will focus only on the damages caused by the maintenance and not the use because the town retains that right in their public right of way. For general trail work this is unlikely to be significant and may resolve with a simple injunction commanding the municipality to stop maintenance.
Kail Romanoff, Esq.
Staff Attorney I, VLCT Municipal Assistance Center
Vermont property owners not satisfied with the assessed value of their properties may request a grievance hearing with the board of listers and may further appeal the listers’ decision to the town’s Board of Civil Authority (BCA). This training reviews the fundamental concepts of property tax assessment as well as the legal requirements and best practices for lister grievance and BCA appeal hearings. A mock BCA hearing provides legal requirements, best practices in action and possible scenarios.
Vermont’s Open Meeting Law (1 V.S.A. §§ 310-314) provides that “[a]ll meetings of a public body are declared to be open to the public at all times, except as provided in section 313 of this title [on executive sessions].” 1 V.S.A. § 312(a). The intent of the law is to create transparency in government by requiring advance public notice and an opportunity for public participation in governmental decisions. The law applies to every “public body” of a municipality. A public body is any board, council, commission, committee, or subcommittee of a municipality, which includes the Board of Auditors. 1 V.S.A. § 310(4).
With the passage of Act 133 in 2024, the law now draws a distinction between advisory and non-advisory (decision making) public bodies by imposing stricter requirements on the latter. The law defines an “advisory body” as a “public body that does not have supervision, control, or jurisdiction over legislative, quasi-judicial, tax, or budgetary matters.” 1 V.S.A. § 310(1). Though not explicitly defined by the law, a “non-advisory body” is a decision-making body, one that does have supervision, control, or jurisdiction over legislative, quasi-judicial, tax, or budgetary matters. An advisory body, by its very name, advises, which means that it lacks final statutory decision-making authority. If a body has final decision-making authority over any legislative, quasi-judicial, tax, or budgetary matter then it is categorically not an advisory body, which makes it, in turn, a decision-making body.
The elected Board of Auditors plays an important role in preserving the democratic nature of Vermont’s local government by ensuring that local officials are accountable for their expenditures of taxpayers’ money. It is the auditors’ job to review the accounts of local officials and report their findings directly to the taxpayers for review. VLCT’s Municipal Assistance Center (MAC) considers a Board of Auditors to be a “non-advisory” body because, whether they exercise it or not, the auditors also have final statutory decision-making authority over the selectboard’s compensation. “When a town does not fix the amount of the compensation to be paid such officers and town employees, the selectboard shall fix and determine the same except as to their own pay which shall be fixed by the auditors at the time of the annual town audit…” 24 V.S.A. § 933.
In contrast to advisory bodies, non-advisory bodies, such as the Board of Auditors, must electronically record their meetings and post the recordings in a designated electronic location for a minimum of 30 days following the approval and posting of the official minutes of the meeting that was recorded. They also must hold their meetings at a staffed, physical location, with the exception of emergency meetings or meetings held during a local incident or state of emergency, all of which may be held entirely remotely. Please see our 2024 Open Meeting Law Changes Act 133 FAQs for more information about the differences between advisory and non-advisory bodies.
Not all meetings of the Board of Auditors though are open to the public. The Open Meeting Law does not apply to “[r]outine, day-to-day administrative matters that do not require action by the public body.” 1 V.S.A. § 312(g). Although not further defined in statute, “routine administrative matters” would seem to include activities such as reviewing financial statements and collecting information from other town officers. Actions and discussions that fall within 1 V.S.A. § 312(g) are not “meetings" under the Open Meeting Law, even if two or more of the elected auditors are present or participating. Therefore, if the elected auditors choose not to do their work individually, they may legally work in groups of two or three to conduct these activities and may do so outside of a publicly warned meeting.
Be aware that not all of the auditors' activities will fall under this exception to the Open Meeting Law. The exception only applies to matters that “do not require action by the public body.” 1 V.S.A. § 312(g). As such, the exception does not apply to official actions that the auditors are required to take by statute. Examples of such official actions include adoption of the audit report and the meeting to “examine and adjust the accounts of all town officers" that is required by 24 V.S.A. § 1681. These official actions may only be taken within the context of a duly warned open meeting that meets all of the requirements of the Open Meeting Law.
If the town has voted to eliminate the office of elected auditor and has hired a public accountant, the public accountant is not subject to the Open Meeting Law.
