Testimony to House Agriculture Committee on Right to Farm
by Annette Smith, Vermonters for a Clean Environment
January 23, 2004
My name is Annette Smith. I would like to express my thanks to the Chair and the Committee for hearing my testimony on the right to farm today.
I am Executive Director of Vermonters for a Clean Environment, a grassroots organization.
I am also a farmer, and am one of the women featured in Peter Millers book, Vermont Farm Women. I have hand-milked Jersey cows for 16 years, raise chickens and sell their eggs, and grow all my own food. I have about 100 chickens including more than a dozen roosters. As suburbia encroaches on my neighborhood, I am as at risk of neighbors complaints about my roosters crowing as dairy farmers are due to manure odors, noise and the other usual reasons for potential lawsuits against farmers.
I am here today to tell the story of Trickett versus Ochs. You may have read the Vermont Supreme Court decision and are familiar with the issues. What happened in this case is very relevant to your on-going discussions about changing the right to farm law. You may know of the story as a neighborhood feud. This case is not about the Tricketts versus the Ochs or a flatlander attacking a farmer. It is about enforcing our laws and protecting public health and safety.
There are a lot of factual errors surrounding the situation, including an error in the Vermont Supreme Court decision which says that the Tricketts purchased their home from the Ochs, which they did not.
[Page of Photos of Crescent Orchard]
The Tricketts discovered the property on Sanford Road one mile south of the village of Orwell in April 1992. It was being sold by absentee landlord, Gary Sjierstadt. The home, which is on the State Register of Historic Places, had been divided into apartments and had fallen into disrepair. Gary stated that the orchard activity was extremely busy for three weeks of the year, at harvest time in September and October.
The Tricketts, who had worked as farmers and lived next to an orchard, spent a weekend on the property in May 1992. It was dead quiet and they never saw the Ochs. They spoke with townspeople regarding the property, and went to see the town Zoning Administrator and asked him about the place. In 1991, the town had given Peter C. Ochs a permit to expand, but that information was not disclosed to the Tricketts.
They made an offer on the property in May and lived in the house for six weeks beginning in August before closing in September, during which time they could have backed out of purchasing the property. Carla Ochs, Peter C. Ochs wife, visited frequently. At no time did she tell the Tricketts that they intended to expand and had received a permit from the town for an apple packing and cold storage facility in 1991.
George Trickett describes the first two years as rather fascinating. It was kind of fun to see them pruning and going around during the pre-season. The spraying was a bit disconcerting because of the pesticide loading across from the house and very close to our well. We started to get concerned about it because of the frequency, every night throughout the season. We had never seen anything like the extent of their spraying. But the rest of it was very innocuous. Carole and I used to go over and talk to the Jamaicans, we took photographs of them picking and gave them the photographs. We were friendly with the Ochs. Carla was visiting with us at least twice a week.
There was very little going on with the farm operation except during when they were packing and picking. What that consisted of mostly was stacking the apples up on the truck and taking them over to the Shoreham Coop. Nothing happened at night and it was relatively short-lived, from mid-September until maybe early November. They only had two trucks, International flat-bed single axle trucks, on which they would put the bins and take them over to the co-op. There were no vehicles around our property. It was kind of messy around the loading dock but it wasnt too bad.
George Trickett runs a business out of his home, Lincoln Motor Car Supply. He restores antique Lincoln automobiles made between 1930 and 1940 and sells parts. He is world-renowned and some might call him a National Treasure. Carole Trickett is a retired social worker and has worked at Vermont Childrens Aid. They have four grown daughters.
The Tricketts home, built in 1835, is the original farmhouse of Valley Stock Farm, which was established in the mid 1700s. An image of the farm has been used on the cover of the Vermont Barn Preservation Grant Manual for the past 9 years.
The orchard was established in the 1920s and by 1950, Jordan Atwoods Crescent Orchard was a showplace, gracing the cover of Vermont Life magazine in 1953. In 1965, Peter C. Ochs and his wife Carla Ochs came from New York and purchased Crescent Orchard. Peter C. Ochs at one time owned the brick farmhouse and now lives just down the road. Crescent Orchards operations are managed day to day by Peter C. Ochs son, Peter W. Ochs, who lives further down the road with his wife Andrea and their children.
The operations at Crescent Orchard changed in 1994 when the Ochs started getting in the mechanized packing equipment, and they started buying big tractor trailer trucks. The Ochs currently own at least 20 farm tractors, 5 forklifts, 4 bulldozers, 2 backhoes, an excavator, 6 registered automobiles, 6 tractor trailers and more than 20 large trailers, most of which are refrigerator trailers (known as reefers). All of the tractor trailers appeared in the last 5 years.
Throughout the 304 acre orchard property are numerous abandoned vehicles, many of which are visible from the road, including 3 Austin Healeys, 2 Pickup Trucks, 2 Chevy Vans, 1 Fire Truck, 4 Tractors, an International Two Ton Truck Frame and a Volkswagen Bus.
The first problem occurred in 1994 when young Peter began leaving his diesel truck running for an hour in front of the Tricketts home between 5 and 6 a.m. The Tricketts asked him if he could please shut it off because it was noisy and smelly. The Ochs perceived the request as a declaration of war and the once-friendly relationship between the Tricketts and the Ochs deteriorated.
The Ochs subsequently dug out a lot of area around the barn opposite the Trickett home so they could park tractor trailers.
Carole Trickett describes the activity in front of her home: The Ochs own 20 large trailers which are pulled by diesel trucks. There is an inordinate moving of these trailers, a great shuffle each day. They often park one trailer on Sanford Rd., allow it to run; another is parked on Conkey Hill Rd, usually running, another is parked on Sanford Rd. north of the barn, running and blinking trailers are backed in and out and out and in. The trucks are left running for long periods of time, emitting plumes of diesel exhaust. Large trucks come from New York and elsewhere. We see them back up to the loading dock, then pull out and wait with engines running, sometimes for hours, and then back up again. Perhaps they are dropping off apples for packing, then picking them up when they are packed. We have this on video, our only defense against the many pieces of machinery we are exposed to. The road is blocked daily; visibility at the corner is not possible. The school bus goes on this route daily. The Ochs have turned it into a trucking depot. It has changed very substantially from when we moved here.
Peter C. Ochs did not build the cold storage building for which he received a permit in 1991, and instead uses reefers to supplement on-site and Shoreham co-op storage as the volume of apples packed for other growers has increased.
In the apple packing facility, apples are floated in large quantities of water, which is discharged directly into a drainage ditch that flows into a tributary of Sanford Brook on the Tricketts property and into Lake Champlain. Migrant workers and local residents pack the apples and use an outhouse, which drains into the same drainage ditch. The packing facility has no hot running water or wastewater management system.
In 1995, George Trickett contacted the Department of Agriculture to have his water tested. Not long afterwards, he attended a business-related function where he met Jim Leland, an employee of the Plant Industries Division of DAFM. George told him about the amount of pesticides used by the Ochs and said he was concerned about the mixing area so close to their homes well. Leland said he had just been to the Ochs the day before and the department was trying to get the Ochs to move the pesticide mixing area, but that they couldnt make him move it.
As the truck traffic escalated, with trucks regularly running over their lawn, drivers harassing them, using obscenities and obscene gestures, the Tricketts took their complaints to the Orwell Selectboard, which recognized their legitimate concerns.
An April 27, 1996 letter from the Town of Orwell Select Board to Peter and Carla Ochs requests a degree of reasonableness and compromise. The letter acknowledges problems and suggests solutions.
Problems are noted as Sanford Road being partially blocked by tractor trailer trucks requiring drivers to make detours, vehicles and farm equipment parked too close to the road making maintenance difficult, excessive noise, glare from truck headlights, trucks driving on the lawn and diesel fumes.
Recommended solutions included jack knifing tractors so trucks are completely out of the traveled lane, or moving the loading dock. Take the responsible action and move the loading dock or address the problem in some way. This is a cost of doing business that you will have to make, wrote the Select Board. Please do not park by the barn just south of your house, cut the noise level down to something acceptable, require that trucks park so as to not shine their headlights in the Tricketts house. The Select Board also asked the Ochs to avoid driving on the Tricketts lawn, keep running engines as far from the Tricketts as possible, and shut off engines to prevent diesel fumes.
The letter concludes: Others have rights to a high quality of life just as you have the right to operate your orchard and business There are state statutes that require the selectmen to maintain the road, to prevent blockage, to address the area of nuisance. There are Orwell Zoning Bylaws that address glare and noise issues We recognize that there are right to farm laws in Vermont and there is an agricultural noise exemption in the Orwell Zoning Bylaws. However, we feel that these apply to field work and that is not the issue here. Agricultural processing operations are different.
The letter was signed by the Selectboard, which included Paul Stone, a former Commissioner of Agriculture.
When the Ochs failed to comply with any of the towns April requests, the Tricketts sent a letter to the Zoning Administrator in August 1997 with a Complaint drawn up with the assistance of a paralegal.
The towns Attorney recommended the Selectmen instruct the Zoning Administrator to conduct an investigation into the issue of the light manufacturing operation and also to review the Performance Standards in light of the Ochs operation and the Tricketts stated concerns.
The August 20 Zoning Board minutes reflect the view that the Zoning Board should respond to the complaint rather than the Zoning Administrator. One item in the complaint was noted as a Select Board issue. Two items were noted to require state oversight.
This is essentially the end of the towns attempt to address the issues surrounding the change in use of the Ochs operations and enforce the laws.
In September of 1997, the Tricketts wrote to Commissioner Leon Graves. Our complaint outlined what we know to be clear violations of accepted agricultural practices These violations have been ongoing and severe We have tried in vain to get the proper authorities of the Town of Orwell to bring the Ochs into compliance with local ordinances and state law in this regard. Our written complaint of August past again has led to nothing. Copy of complaint enclosed.
Commissioner Graves replied on October 9, 1997. He wrote, To date, the Department has not found the Ochs to be in violation of the State Pesticide Regulations. However, we have investigated all the complaints associated with this operation and will continue to investigate future complaints.
In a memo on October 10, Jim Leland summarized the history to date: Responded to a complaint from the Tricketts on 8/14/95. There were no violations of law or regulation discovered as a part of this investigation. It was recommended that Mr. Ochs find a more suitable place for mixing and loading in the future due to drainage patterns in the area. Dominique visited the Ochs orchard on 8/14/96. Again, no violations but the recommendation to move the mix and load area was again made.
George Trickett responded to Commissioner Graves letter by calling him. The phone message was returned by Amy, who reported to Commissioner Graves that George Trickett found Graves response to complaints to be cursory and requested further investigation.
On Nov. 15, 1997, Peter Ochs pleaded innocent to charges of disorderly conduct and petty larceny and was released with conditions.
Carole Trickett described what happened: In the fall of 1997, George had a triple by-pass. During his recovery, when there was no consideration given, i.e. turning off unused machinery, I did go over to the packing barn in anger. When I confronted Peter Ochs Sr. he taunted me and tore the muffler off his noisy tractor and barked, wait til you hear this. Not long after, Peter Ochs Sr. assaulted George who was outside taking photos of the activities. Peter Sr. aimed his truck for him, swerved, got out, threw snow at him, grabbed the camera, pulled out the film, ran into the packing barn. Ochs came out, threw the camera into the snow. State troopers were called.
George Trickett wrote to Governor Howard Dean, and received a response dated Dec. 2, 1997: I have asked Leon Graves to review your letter and reply to you directly.
Commissioner Graves wrote to George and Carole Trickett on January 5, 1998 reiterating that the DAFM has fully investigated your complaints and found that no violation of the Accepted Agricultural Practice Regulations (AAP), the Vermont Pesticide Regulations, or agricultural structure zoning requirements has occurred My staff has thoroughly reviewed your complaints regarding possible pesticide regulation violation and has not found a single violation.
A memo dated 2/23 from Governor Howard Deans files references George Trickett, AAPs and contains a handwritten note: Leon, Phil This is not my problem. I cant fix this.
Rep. Betty Nuovo wrote to George Trickett on March 16, 1998. Leon Graves spoke to Mr. Ochs concerning the noise and lights Mr. Ochs said he would see that the lights were turned off after docking and the motors would be turned off as much as possible.
In March, 1998 Peter C. Ochs entered a plea of No Contest to an amended charge of Unlawful Mischief, was given a deferred sentence of one year and placed on probation. While on probation he was required to not harass the Tricketts; not go on their property; to operate his orchard within appropriate regulations and laws; use good faith effort to have trucking from farm packing house occur between 7 a.m. and 7 p.m.; try to minimize noise from trucks and tractors; and not have unattended vehicles running unless necessary.
In May of 1998, an Animal Health Inspector for the Department of Agriculture responded to a complaint from a neighbor not the Tricketts about the poor condition of the Ochs herd of cattle being kept on their farm. I found very deep muddy conditions in the yard where the cattle are kept, he wrote in his report. The animals had great difficulty getting to the feed. I was especially concerned for the smaller animals, because if knocked down they would have trouble getting back up.
In August, 1999, Vermont States Attorney John Quinn wrote to Peter Langrock, Attorney for the Ochs Farm: I would request that you ask the Ochs to move their pallet making to a place behind a building to block some of the noise that the nail guns are creating. Mr. Trickett advised me that the sound was measured by VOSHA at 80-90 decibels at his windows. It amazes me that, given the history here, your clients would not be more sensitive to the noise that their activities are creating I hope that we can avoid another disorderly conduct charge.
The Tricketts wrote back to States Attorney Quinn on Sept. 24, 1999. The activity in front of our house is like the activity of a truck depot when do even farmers have some parameters around this issue of creating noise? We were enthusiastic drivers of diesel automobiles and have now become aware of the dangers which lie therein. Frequently there are three or more diesel powered vehicles running in front of our home. The Ochs have given up turning off machines when not used which has been part of the probation agreement .It has been impossible to mediate successfully around these issues. This was tried personally, in the context of the church with the minister mediating and with probation officers.
States Attorney Quinn replied on Oct. 7, 1999. I had hoped that my letter to Peter Langrock, regarding the possibility of a disorderly conduct charge, would cause the Ochs family to make a more serious attempt to keep the noise down If the noise is causing your family a great deal of stress, I would recommend that you either seek the advice of an attorney regarding the bringing of a lawsuit for nuisance or consider selling your property and moving to a place where noise is not an issue.
On December 12, the Tricketts videotaped nighttime activity at the Ochs loading dock. Peter C. Ochs tells his son, shine the lights on their house, which he does.
The Agency of Natural Resources fined Peter C. Ochs $550 in September of 2000 after an Environmental Enforcement Officer responded to a complaint on April 27, 2000 in which he observed that a dammed pond on the Ochs property had been drained, causing silt to discharge into an unnamed tributary of Sanford Brook, which are state waters. The silting caused damage to a pond on the Tricketts property.
Having exhausted all efforts to get local and state laws enforced in order to protect public health and safety, in November, 2000, the Tricketts filed a complaint in Superior Court, alleging an intolerable level of truck traffic and parking in front of their property, tractor trailers and reefers left running day and night, driving on lawn, pesticide spray, polluted surface water, noise making it difficult to sleep, assault, dogs, and the ruin of the peaceful and quiet enjoyment of their property.
In the Spring of 2001, Addison Superior Court ruled that the right to farm law protected the Ochs from the Tricketts nuisance lawsuit.
On June 7, 2001, Dominique of the Plant Industry Division, responded to a complaint from Mr. Trickett about pesticide applied at the Ochs Orchard. Mr. Trickett told him that the day before, when he was away, a pesticide application was made by Mr. P. Ochs (son). When Mr. Trickett came back home in the afternoon, he smelled a strong odor He also told me that this morning around 10:30 he felt sick and vomited. He complained also about the loading area, which is still at the same location as previously inspected. .I talked to Mr. Ochs senior and junior When asked why they did not change the location of the mixing area, Mr. Ochs junior told me that last fall, they had to go to court against the Tricketts for reasons not related to the agriculture practices. The court had to send an injunction, which might stipulate the change on the location of the mixing zone. The Ochs already planned to move this area, they do not want to do it before the court asks them to do it.
George Trickett complained again on June 28 about possible pesticide drift and overspray from the orchard. Dominique took samples and talked to Mr. Peter W Ochs. He had sprayed a mix of Simazine, Gramoxone and 2,4D, in a part of the orchard located 150 yards from the Tricketts house.
Ten weeks later, on September 12, 2001, George Trickett received the test results from the June 28 collection. A surface water sample taken from the unnamed stream showed 10.6 ppb of Simazine, a potent herbicide used by the Ochs to kill grass under the apple trees instead of mowing. Simazine has an estimated degradation half-life in water of more than 200 days.
On September 19, 2001, Peter Ochs was served with a Notice of Violation for mixing pesticides that resulted in either the pesticide product, dilution or rinsate entering an unnamed stream, thus violation 6 VSA section 1111(a)(6). See p. 4, which restates the history of the Department of Agricultures attempts, beginning in 1995, to get the Ochs to move the pesticide mixing area because it could result in pesticide runoff entering the ditch beside the barn. The ditch empties into an unnamed stream and onto the Trickett property. The violation was signed by Michael Duane, Assistant Attorney General.
On October 5, 2001, the Department of Agriculture filed an Amicus Curiae Brief in Support of Defendants Peter and Carla Ochs in the Vermont Supreme Court. Noting that the Commissioner of Agriculture was granted the authority to define accepted agricultural practices related to water pollution control, the Brief states that The Commissioner of Agriculture determined that the farmers were engaged in accepted agricultural practices .and that the plaintiffs did not show that the farmers agricultural activities had a substantial adverse effect on public health and safety.
The Brief was signed by Assistant Attorney General Michael Duane less than three weeks after he had signed the Notice of Violation issued because the Ochs had polluted the water with pesticides.
Rep. Mark Young wrote to Commissioner Graves on October 29, 2001. My concern is not only for the agricultural enterprise of the Ochs family but for all agriculture if neighbors can badger such enterprises to death.
On Nov. 1, 2001 Orwells Town Health Officer wrote to the Tricketts. I called the Dept. of Health for assistance We did talk about your concern about water pollution as public health I called the person who is in charge of enforcement for water pollution. He gave me the names and numbers of Jim Leland and John Stein who have authority over this area for the Dept. of Agriculture you had already talked to both of these men and you felt it is clear that they support the Ochs. I was informed that there is no concern at this time with water pollution from the Ochs Orchard .there was a discussion about the privy being used at the packing shed. I was advised by Paul Stone to report this, as he was sure it was not legal VOSHA told me that the Ochs have an agreement with the Dept. of Agriculture that the migrant workers can return to their barracks if they need to use a bathroom and that the local workers can go up to the Ochs house .Noise pollution is a town issue and the selectboard can use their own discretion about ordinances for noise pollution. I would advise you to take this issue up with the Select Board Most of the officials I spoke with told me that your only real recourse is in civil court.
It was around this time that I met the Tricketts. We went to the Department of Agriculture and reviewed the files for the Ochs Orchard. One file contained memos concerning a complaint filed by John Hallock of Orwell in 1992 concerning possible contamination of his trout ponds from the Ochs apple orchard. Mr. Hallock became upset with the Department for disclosing his complaint to the Ochs and reported someone had vandalized his trout ponds. Mr. Hallock was murdered about a year later and someone is now serving time.
In January 2002, the Tricketts received a listing of the pesticides used at Crescent Orchards during 2001 and the spray schedule. A similar large orchard in Vermont, Vermont Apple Orchards, uses about 8 different pesticides and makes about 12 applications in a season. The Ochs used 30 pesticides and made more than 40 applications in 2001.
Also in January 2002, the Animal Health Specialist followed up on an Animal Welfare Complaint from a neighbor not the Tricketts regarding poor conditions animals are being kept in at the Ochs farm. I reminded Peter Ochs of my visit during May 1998 and told him that an effort must be made to provide animals an adequate way to get to the feeder when muddy conditions exist. We talked about what would be acceptable to me. I told him mud to the bellies is unacceptable. He asked if mud to the knees would be O.K.? The memo contains an Investigators Note at the bottom: This complaint was referred to the Plant Industry Section, as the animals were being fed, housed and watered in the middle of a stream. The Plant Industry Section was to follow up on this matter.
The Department of Agriculture found the Ochs in violation of AAPs on May 24, 2002 due to manure run off posing a significant threat to water quality.
Again in June, 2002, George Trickett complained about pesticides. After two samplings, the first of which was contaminated in the laboratory, Simazine was found in the water of the unnamed brook north of the Trickett home at 0.08 and 0.09 ppb.
After waiting more than 2 years for a decision, the Vermont Supreme Court found in the Tricketts favor in Sept. 2003. It is the purpose of this act to protect reasonable agricultural activities conducted on farmland from nuisance lawsuits .if consistent with good agricultural practice in conformity with federal, state, and local laws and regulations...not adversely affecting the public health and safety may be rebutted by showing that the activity has a substantial adverse effect on the public health and safety. The decision cited unique circumstances in the case accepted agricultural practices...in order to reduce the amount of agricultural pollutants entering waters of the state. Even when engaged in a lawful business use, the owner of the business must act in a reasonable manner so as not to unreasonably interfere with the rights of adjoining property owners. Defendants must also be required to tailor their operation to eliminate any substantial and unreasonable interference with plaintiffs property.
Despite the Vermont Supreme Courts ruling, nothing has changed. Apparently emboldened by the support of two different administrations, held up as the poster child for the right to farm by the Governor, the Secretary of Agriculture and the Vermont Farm Bureau, and having proven that laws do not apply to him, Peter C. Ochs continues to operate in an unreasonable manner that interferes with the rights of adjoining property owners, fails to reduce agricultural pollutants entering waters of the state, does not comply with animal welfare requirements, and has a substantial adverse effect on public health and safety.
In the last two weeks, 21 trucks were running after midnight. The Orwell Select Board Meeting Minutes of January 12, 2004 reflect the Ochs viewpoint. Peter C. Ochs asked if there are more Trickett concerns noting the agenda item 7a and stating that he assumes it is about him. He wondered if there is an end to this and wondered if the Town is doing a disservice to him and to the rest of the citizens.
In telling this story chronologically, I have left out a lot of details, including Andrea Ochs allegation that George Trickett, driving a 1939 Lincoln, tried to run her off the road; the criminal trespass charge, supported by an affidavit signed by a Department of Agriculture employee, that George Trickett trespassed on the Ochs property during a visit by department officials, which cost the Tricketts $12,000 in legal fees and a survey to prove that George was standing in the town right-of-way; the death threat George received after the Burlington Free Press ran a story that said Meet George Trickett, though he was not interviewed for the story while Peter Ochs was. I am going to put you in a cellar and not feed you till you starve to death, said the anonymous note.
In the only newspaper article that tells both sides of the story, the *Addison Eagle, Feb. 2002, William Blodgett, co-owner of Sentinel Pine Orchard and a board member for the Vermont Apple Marketing Board, was quoted as being sympathetic to the Tricketts point of view. Crescent Orchard is one of the biggest messes in Addison Countys apple business. Trees go unpruned. Its a shame, Blodgett said. In my opinion, the whole operation is in danger of being shut down if supermarkets start requiring inspections of packing and shipping facilities, Blodgett told the reporter.
Reading through the files, there are few notes of concern for the Tricketts. They live every day in a circumstance that everyone in this room would find intolerable. They have been deprived of the value of their home. I am one of many people who has advised them to leave, but in reality nobody would purchase their property. George is facing serious health problems. Because of his numerous exposures to pesticides, he is being evaluated by a toxicologist.
In his budget address on Tuesday, Governor Douglas said, Included in this funding are resources to help our farmers further their long commitment to environmental stewardship We are at a critical juncture and we must act decisively to combat pollution that is contributing to the degradation of our waters.
The Ochs operation in Orwell would be an excellent place to start.
Protecting public health and safety and enforcing our laws should be an even higher priority. If our laws had been enforced, this whole tragic situation could have been avoided.
Vermonters for a Clean Environment, Inc.
789 Baker Brook Rd.
Danby, Vermont 05739
*Addison Eagle article, Feb. 2002 and page of photos:
Burlington Free Press article about above testimony: Right to Farm plans run into opposition, January 24, 2004
Special Report on Agriculture in Vermont by Vermonters for a Clean Environment, March 2002: