What Are Right-to-Farm Laws?
In the last several decades, residential development has expanded outward from urban areas into the surrounding farmlands at a dangerously accelerating pace. Inevitably the traditional, expected by-products of farming operations like odor, dust, insects, noise, lights, and the spread of pesticides and fertilizers were going to clash with the residential interests of new neighbors trying to live quiet, peaceful country lives.
Fueled by the fear of losing our farmlands forever and the desire to preserve traditional farms, state legislatures began enacting right-to-farm laws mainly in an effort to protect farmers from nuisance lawsuits brought by their new neighbors. A nuisance suit can be expensive for a farmer, even putting him or her out of business; sometimes the court orders certain farming activities to cease.
The Doctrine of Nuisance
Traditionally, the law of nuisance protects a landowner’s use and enjoyment of his or her land from the harmful activities of neighbors. Private nuisances concern one or a handful of landowners; public nuisances injure the community as a whole. Historically the types of activities contemplated by nuisance lawsuits include unreasonable odors, noises, lights and the like, so it was natural for new residential neighbors to farms to sue in nuisance for interference with the enjoyment of their homes by pre-existing farming operations.
In nuisance law, sometimes a defense is allowed where the person suing came upon the scene later, voluntarily moving in proximity to the complained-of activity. In other words, the farm was in operation before the residential neighbor moved in.
Having been enacted in some form in all 50 states, and sometimes also by local governments, right-to-farm laws effectively codify the coming-to-the-nuisance defense for farmers by protecting them from nuisance lawsuits, as long as they are not farming in negligent, improper, unsafe or illegal ways. Usually, to be protected, the farm must have been in operation first for a requisite length of time, often at least one year, before the surrounding area changed to a residential nature. Some right-to-farm laws create special districts within which farms are immune from nuisance actions. Others nullify certain types of ordinances when they adversely affect farmers.
When right-to-farm laws were first passed in the 1960s, most farms were family owned. The laws did not contemplate today’s so-called factory farms, giant operations generating tons of waste and oppressive odors, also called concentrated animal feeding operations (CAFOs). Some critics argue that such enterprises should not be protected by right-to-farm laws designed to apply to traditional small-scale farming. Courts are grappling with the application of right-to-farm concepts to these mammoth and sometimes highly polluting commercial farming ventures, especially feedlots. Often such expansive operations could not have been foreseen by earlier neighbors when they moved into the area and the coming-to-the-nuisance defense does not make sense.
Right-to-farm laws have also been challenged repeatedly on various constitutional grounds. There is a split in the various courts, sometimes upholding the laws and other times finding them unconstitutional.
Right-to-farm laws, although similar, vary in some important aspects from state to state. Court interpretations also contrast widely among the jurisdictions. Farmers and their neighbors finding themselves in uncomfortably close proximity can benefit from reliable advice from knowledgeable real estate and land use attorneys about their legal rights and options.
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