Monday, September 11, 2017
Every state has enacted a right-to-farm law that is designed to protect existing agricultural operations by giving farmers and ranchers who meet the legal requirements a defense in nuisance suits that are brought against them.
These laws have become more important in recent years because of increasing rural/urban land use conflicts. Today’s post takes a look at right-to-farm laws – the type of farming operations they are designed to protect and how they work
What Is “Farming”?
The general idea of a particular state's right-to-farm law is that it is unfair for a person to move to an agricultural area knowing the conditions which might be present and then ask a court to declare a neighboring farm a nuisance. Thus, the basic purpose of a right-to-farm law is to create a legal and economic climate in which farm operations can be continued. Right-to-farm laws can be an important protection for agricultural operations, but, to be protected, an agricultural operation must satisfy the law's requirements.
To be granted the protection of a statute, the activity at issue must be a farming activity. While the laws commonly apply to traditional farming activities, sometimes state provisions take a more expansive definition of “farming” to cover more than just row crop and livestock operations. For example, the Washington statute applies to “forest practices” which has been held to not be limited to logging activity, but include the growing of trees. Alpental Community Club, Inc. v. Seattle Gymnastics Society, 86 P.3d 784 (Wash Ct. App. 2004). Similarly, in Hood River County v. Mazzara, 89 P.3d 1195 (Or. Ct. App. 2004), the court held that state statutes protecting farms against nuisance actions barred a lawsuit against a farmer for noise from barking dogs because the court determined that the use of dogs to protect livestock constituted a farming practice. Also, in Vicwood Meridian Partnership, et al. v. Skagit Sand and Gravel, 98 P. 3d 1277 (Wash. Ct. App. 2004), the court held that an indoor composting facility for a mushroom farm qualified as a “farm” under state right-to-farm law. The compost was produced for use in growing mushrooms and the composting activity was held to be an agricultural activity.
Types of Statutes
Right-to-farm laws are of three basic types: (1) nuisance related; (2) restrictions on local regulations of agricultural operations; and (3) zoning related. While these categories provide a method for identifying and discussing the major features of right-to-farm laws, any particular state's right-to-farm law may contain elements of each category.
The most common type of right-to-farm law is nuisance related. This type of statute requires that an agricultural operation will be protected only if it has been in existence for a specified period of time (usually at least one year) before the change in the surrounding area that gives rise to a nuisance claim. These types of statute essentially codify the “coming to the nuisance defense,” but do not protect agricultural operations which were a nuisance from the beginning or which are negligently or improperly run. For example, if any state or federal permits are required to properly conduct the agricultural operation, they must be acquired as a prerequisite for protection under the statute.
A second type of right-to-farm statute is designed to prevent local and county governments from enacting regulations or ordinances that impose restrictions on normal agricultural practices. This type of statute is usually contained in the state's agricultural districting law. Under this type of a statute, agricultural operations are required to be located within a designated agricultural district in order to be protected from nuisance suits. However, agricultural activities, even though they may be located in an agricultural district, must be conducted in accordance with federal, state and local law or rules in order to take advantage of the statute's protections. Some courts have held that state law pre-empts local governments from making siting decision for confined animal feeding operations. See, e.g. Worth County Friends of Agriculture v. Worth County, 688 N.W.2d 257 (Iowa 2004); Adams v. State of Wisconsin Livestock Facilities String Review Bd., No. 2009AP608, 2012 Wisc. LEXIS 381 (Wisc. Sup. Ct. Jul. 11, 2012).
A third type of right-to-farm statute exempts (at least in part) agricultural uses from county zoning ordinances. The major legal issue involving this type of statute is whether a particular activity is an agricultural use or a commercial activity. In general, “agricultural use” is defined broadly. For example, the Illinois Court of Appeals has interpreted the Illinois statute such that the use of seven acres to board 19 show horses constitutes an agricultural use, Tuftee v. Kane Co., 76 Ill. App. 3d 128, 394 N.E.2d 896 (1979). The same conclusion was reached with respect to a poultry hatchery on a three-acre tract, Lake County v. Cushman, 40 Ill. App. 3d 1045, 353 N.E.2d 399 (1976). and a 60-acre tract used for the temporary storage of sewage sludge for spreading on land as fertilizer. Soil Enrichment Materials Corp. v. Zoning Board of Appeals of Grundy County, 15 Ill. App. 3d 432, 305 N.E.2d 521 (1973). The court has also held that the “rearing and raising of hogs, in any quantity, constitutes an agricultural purpose” under the statute. Knox County v. The Highlands, L.L.C., 302 Ill. App. 3d 342, 705 N.E.2d 128 (1998), aff’d, 723 N.E.2d 256 (Ill. 1999). However, the same court has held that the right-to-farm statute does not prevent the application of county zoning laws to a mobile home placed on agricultural land. People v. Husler, 34 Ill. App. 3d 977, 342 N.E.2d 401 (1975). The Iowa statute, even though essentially identical to the Illinois statute, has not been interpreted as broadly.
In some states, agricultural activities receive nuisance-type protection through zoning laws wholly separate from the protections of a right-to-farm statute. For instance, the Iowa Supreme Court, in a case predating the Iowa right-to-farm statute, held that the use of a four-acre tract as the site for two 40,000 capacity chick-growing houses was not “agricultural” but was “commercial” and not exempt from county zoning. Farmegg Products, Inc. v. Humboldt County, 190 N.W.2d 454 (Iowa 1971). In 1995, the Iowa Supreme Court followed its earlier analysis, but held that the proposed construction of a hog confinement facility was associated with an existing farming operation and was exempt from county zoning. Thompson v. Hancock County, 539 N.W.2d 181 (Iowa 1995). However, in 1996, the court overturned its previous decisions concerning the agricultural use exemption from county zoning. Kuehl v. Cass County, 555 N.W.2d 686 (Iowa 1996). The 1996 case, involved a hog confinement facility in contract production with a Pennsylvania company. The court determined that the facility was exempt from county zoning even though the proposed facility was separate from any traditional farming operation carried on by the hog farmers. As such, the case reflects an acknowledgement of the changes in present-day agricultural business structures.
What’s Not Protected
Subsequent changes. While right-to-farm laws try to assure the continuation of farming operations, they do not protect subsequent changes in a farming operation that constitute a nuisance after local development occurs nearby. For example, in Davis, et al. v. Taylor, et al., 132 P.3d 783 (Wash. Ct. App. 2006), the state’s right-to-farm law was held to be inapplicable where the increased noise caused by a farmer’s use of propane cannons and cherry guns to scare birds from a cherry orchard began after homeowners built their house and an adjoining residential neighborhood was well-established. The orchard had previously been quiet and pastoral, and the farmer’s use of cherry guns and propane cannons was held to be a nuisance. Similarly, in Trickett v. Ochs, 838 A.2d 66 (Vt. 2003), the Vermont right-to-farm statute was inapplicable where the nature of an apple farming operation changed after the plaintiffs moved into a nearby home. However, some states may allow increased agricultural activity on property that is used for agricultural use without substantial interruption if the agricultural use began before the plaintiff began using the neighboring land. See, e.g., Wis. Stat. §823.08.
Nuisances. Right-to-farm laws don’t protect nuisances. In other words, a farmer has the right to continue farming without being sued for being a nuisance (if the statutory requirements are satisfied), but if the farming operation constitutes a nuisance after conditions have changed around the operation, the statute may not protect the farming operation. For instance, in Flansburgh v. Coffey, 370 N.W.2d 127 (Neb. 1985), the plaintiffs purchased a 1.67-acre home site from the defendant in 1980. After the plaintiffs moved to the location, the defendant allowed his tenant to construct a 400-head hog facility within 100 feet of the plaintiff's land. The plaintiffs filed a nuisance action, and the defendants raised the Nebraska right-to-farm law as a defense. The court held that the right-to-farm law did not bar an action for a change in operations when a nuisance is present. If a nuisance cannot be established, a right-to-farm law can operate to bar an action when the agricultural activity on land changes in nature. For instance, in Dalzell, et al. v. Country View Family Farms, LLC, No. 1:09-cv-1567-WTL-MJD, 2012 U.S. Dist. LEXIS 130773 (S.D. Ind. Sept. 13, 2012), the land near the plaintiffs changed hands. The prior owner had conducted a row-crop operation on the property. The new owner continued to raise row crops, but then got approval for a 2800-head sow confinement facility. The defendant claimed the state (IN) right-to-farm law as a defense and sought summary judgment. The court held that state law only allows nuisance claims when “significant change” occurs and that transition from row crops to a hog confinement facility did not meet the test because both are agricultural uses. The court noted that an exception existed if the plaintiffs could prove that the hog confinement operation was being operated in a negligent manner which causes a nuisance, but the plaintiffs failed to prove that the alleged negligence was the proximate cause of the claimed nuisance. Thus, the exception did not apply and the defendant’s motion for summary judgment was granted. The court’s decision was affirmed on appeal. Dalzell, et al. v. Country View Family Farms, LLC, et al., No. 12-3339, 2013 U.S. App. LEXIS 13621 (7th Cir. Jul. 3, 2013). Similarly, in Parker v. Obert’s Legacy Dairy, LLC, No. 26A05-1209-PL-450, 2013 Ind. App. LEXIS 203 (Ind. Ct. App. Apr. 30, 2013), the defendant had expanded an existing dairy operation from 100 cows to 760 cows by building a new milking parlor and free-stall barn on a tract adjacent to the farmstead where the plaintiff’s family had farmed since the early 1800s. The plaintiff sued for nuisance and the defendant asserted the state (IN) right-to-farm statute as a defense. The court determined that the statute barred the suit. Importantly, the court determined that the expansion of the farm did not necessarily result in the loss of the statute’s protection. The expanded farm remained covered under the same Confined Animal Feeding Operation permit as the original farm. In addition, the conversion of a crop field to a dairy facility was protected by the statute because both uses simply involved different forms of agriculture. The court noted that the statute protected one farmer from suit by another farmer for nuisance if the claim involves odor and loss of property value. But, it is important to note that not all state statutes will protect a farmer from nuisance suits brought by other farmers.
The increasing interactions between non-farmers farmers in rural areas makes understanding the importance and operation of right-to-farm laws important. Do you know how your state provisions operate?