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Legal Ease: The Right to Farm

August 27, 2014
By: John Dillard, Farm Journal Columnist
 
 
John Dillard
Agriculture varies substantially across the country, but one common characteristic is that each state has a Right to Farm Act. In general, it provides agricultural operations some liability protection against lawsuits for nuisance. Because dust and odor is an oftentimes unavoidable consequence of agriculture, farms are a prime target for nuisance lawsuits. These laws recognize the critical and unique role agriculture plays in society and protect farming operations from otherwise crippling litigation.

The primary purpose of the Right to Farm Acts is to protect farms and ranches from the effect of encroachment by nonagricultural land uses, such as residential or commercial development. Oftentimes, farms that used to be isolated are now elbow to elbow with housing developments. These new neighbors might desire the rural aesthetic, but they might not appreciate the occasional odors, dust or noise that accompanies rural life. Without legal protection, these transplants could litigate or zone farming operations out of existence in many parts of the country.

Our firm defends many farm nuisance cases across the country. One of the strongest tools we can bring to bear in a nuisance suit is the Right to Farm Act. However, not every Right to Farm Act is created equal. 

Limiting liability. Under common law, a court hearing a nuisance suit is not allowed to consider whether the plaintiff "came to the nuisance." The "but I was here first!" argument does not apply in most cases. However, the Right to Farm Acts reverse this rule. Under these laws, a farming operation cannot become a nuisance by any changed circumstances in the farm’s vicinity. In other words, if the farm was not a nuisance to its neighbors when its neighbors were other farms, the farm cannot transform into a nuisance when a housing development moves in next door.

These acts do not provide absolute immunity to farms from nuisance litigation. For instance, they do not apply if a nuisance results from the negligent operation of a farm. Those that fail to exercise reasonable care in reducing odor, dust and pests cannot use the Right to Farm Act as a shield against nuisance liability. Some states also require farms to be in compliance with existing best management practices.

Statue of limitations. State laws can include a period of time, typically one to three years, before the Right to Farm Act’s shield against nuisance suits is effective. In states with a statute of limitations, a new farming operation is not protected by the Right to Farm Act during its initial operations. 

While this provision might sound intimidating to new farmers, state courts often interpret these provisions as applying to the farm, not the owner. In these states, a new farm owner would enjoy protection under the Right to Farm Act so long as the farm was in operation for the required period of time, regardless of who owned it.

Significant changes. Most Right to Farm Acts do not provide protection against nuisance suits if there is a "significant change" to the operation, such as transitioning from crops to livestock or significantly expanding the size of an operation. However, this is not the case in Indiana. The Right to Farm Act in Indiana explicitly states a change in the size, type or owner of an agricultural operation is not a significant change.

Restrictions on local zoning. Several state Right to Farm Acts contain provisions that prohibit local governments from zoning farming operations out of business. In general, these provisions prohibit local ordinances that would require farms to obtain special use permits or exemptions to establish farming operations in areas that are zoned "agricultural." In some states, however, localities are allowed to adopt minimum setbacks requirements for farming operations.

Educate yourself. All farmers need to know that Right to Farm Acts can vary substantially from state to state. If you’ve never reviewed your state law, take some time to do so. If you have questions about your rights, consult with your attorney.  
 

 

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FEATURED IN: Farm Journal - September 2014

 
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