B y H. W. Hannah
Between 1985 and 1995, 40 million acres of U.S. farmland were converted to non-agricultural use, raising concerns about the base for future food production. U.S. Dept. Agric., Nat'l Agric. Statistics Serv., Agric. Statistics Bd., Farms and Land in Farms (1995). This reduction in farmland is only part of the story. Environmental regulations, such as those to preserve wetlands and endangered species habitats, are curtailing the productive use of farmland even when there is no change in ownership. To protect agriculture, farmers and farm organizations have sought to redefine property rights and expand the meaning of a "taking." Livestock farmers are equally concerned over the increase in nuisance suits by residential dwellers. Farmers in Today's World Early in the history of U.S. agriculture, most of the population was rural and most farm families kept livestock and poultry. Residents did not think of objecting to livestock smells. Many urban dwellers kept some poultry or perhaps a pig or two; before the automobile age, residents had to accommodate horses.
This pristine environment began to change when more towns developed, urban areas expanded and developers pushed farther into the country seeking land for homes and businesses. As a result, residential enclaves surrounded by farmland now exist in the countryside. This growth brings an increasing number of urban dwellers in proximity to farms. Also, as fewer urban dwellers have any farm background, they are less tolerant of the smells, noise, dust and other inconveniences that result from farm operations.
This phenomenon has led to an increasing number of common law nuisance suits. Although livestock farmers have not lost all of these cases, they have not fared well in more recent decisions. The main culprits in these cases are cattle, hogs, poultry and manure.
In Spur Industries v. Del E. Webb Development Co., 494 P.2d 700 (Az. 1972), a real estate developer sued to enjoin a large cattle feeding operation. The court granted an injunction but required the plaintiff to pay the cattle company the reasonable cost of relocating. The court explained this unusual remedy by noting that the defendant was doing nothing wrong. No one was injured until the plaintiff, in its own economic interest, pushed its land acquisition so close to the feeding operation that prospective homeowners were dissuaded from buying. Nevertheless, the message to cattle feeders is clear. These oper-ations can constitute nuisances, and injured parties may get relief.
In a later case, Scott v. Jordan, 661 P.2d 59 (N.M. Ct. App. 1983), the plaintiff, who lived on 26.5 acres, sought injunctive relief and damages against the defendant, who ran cattle on 400 adjoining acres. The trial court granted the injunction but refused to award damages, and the appellate court affirmed this decision. The defendant argued, to no avail, that his operation was in an agricultural area, that the nuisance complained of was only intermittent, that it was not a "per se" nuisance and that a damage award would have been sufficient.
Although livestock producers view the hog as a basically clean animal, its manure smells worse than that of any other livestock. This fact, plus the recent concentration of hogs in large farms, has led to both nuisance actions and environmental regulations for keeping the smells within reasonable bounds.
Pendoley v. Ferreira, 187 N.E.2d 142 (Ma. 1963), involved a defendant hog producer near the town of Topsfield, Massachusetts. The plaintiffs were property owners close enough to be affected by smells. The court noted that the former rural community had become predominantly residential and that the plaintiffs lived in a "modern development of quality houses." Id. at 144. In granting injunctive relief, the court stated that "[d]ue consideration, however, must be given to the Ferreiras' economic interest in an orderly, rather than hurried, liquidation of their pigs, and to afford them opportunity to find new premises." Id. at 146. Because the plaintiffs in this case were individual property owners and not developers, the court did not require the plaintiffs to bear any of the Ferreiras' moving expenses.
Mega Hog Farms: Public Reaction
For quite a long time, confinement livestock and feeding operations with large numbers of animals have existed in the United States. Two trends, however, cause increasing concern: a decrease in the number of family farms with livestock; and an increase in the size of the operations that produce pork, beef and poultry. Most notable is the increase in hogs on a single site, with corporations owning these large swine operations. Environmental agencies have developed regulations for the waste from these operations, and several states have enacted laws of varying effectiveness to curb the spread of corporate farming. In addition, the common law nuisance theory is still alive and well.
Adverse feelings about these huge operations are so strong that, in some states, protest groups have organized and lobbied legislatures to adopt laws curbing the operations. Among the suggestions for legislation are stronger siting requirements for large scale operations, increased setback distances, stronger waste management rules to prevent water pollution and soil saturation and more local participation in the siting process. Given the extensive authority agencies already hold, though, it is questionable whether additional legislation could constitutionally grant them more powers.
If states nevertheless implement some or all of these suggestions, and even if a facility otherwise complies with applicable laws, nearby property owners might still be able to maintain a nuisance action. Proof that a nuisance exists might be more difficult, so that the physical factors contributing to the nuisance would be more important. Some of the factors that would require informed testimony include the distance from the source of the nuisance, the intensity of the odor, the slope and condition of the soil when manure is spread, the position of the properties with respect to prevailing winds and whether the offending smells are persistent or only seasonal.
In Kopecky v. National Farms, Inc., 510 N.W.2d 41 (Ne. 1994), the plaintiff lived more than a mile from the defendant's pork production facility and not in the direction of the prevailing winds. Evidence at trial showed that winds from the facility blew toward the plaintiff 11% of the time. The appellate court upheld a trial court finding that the defendant's pork production facility created a nuisance entitling the plaintiff to relief. The defendant unsuccessfully tried to distinguish this case from an earlier one in which another plaintiff succeeded with a showing that the wind blew toward his property 13% of the time.
Large confinement egg and broiler production facilities preceded the more recent growth of concentrated pork production enterprises. Although poultry farms can contain odors more successfully, there have nevertheless been nuisance actions based on odor, as well as on dust, flies, vermin and noise. In Valley Poultry Farms, Inc. v. Preece, 406 S.W.2d 413 (Ky. Ct. App. 1966), both the plaintiff and defendant were rural residents. The trial court agreed with the plaintiff's allegations of poultry odor and other adverse conditions. On appeal, however, the court refused to grant an injunction and instead awarded $5,000 in damages. Interestingly, the Kentucky Farm Bureau filed an amicus curiae brief, the gist of which was that poultry and egg production was important to the state's economy and enjoining these facilities from operating would be a blow to that economy.
In Griffith v. Newman, 123 S.E.2d 723 (Ga. 1962), the court upheld an injunction against the construction of a threatened nuisance_a proposed 12,000 bird broiler operation in a residential area. The court accepted testimony that building such a facility near residences would constitute a nuisance. Stopping construction of a facility is certainly more economical than closing down an existing operation through a nuisance action.
Manure is the source of most nuisance suits against livestock farmers. State environmental protection agencies also have developed regulations for manure handling and disposal. In developing regulations, these agencies have considered many factors. An early target of these regulations was the containment of feedlot run- off that could cross adjoining prop-erty and eventually cause stream water pollution. Storage of manure in "lagoons" until it could be spread to reduce odor and groundwater pollution gave rise to other rules. Manure in a lagoon is spread as a liquid, accentuating both the runoff and odor associated with it. State agencies have imposed requirements based on the slope of the land, the permeability of the soil (spreading can be prohibited if the ground is frozen) and the proximity of residences.
Valasek v. Baer, 401 N.W. 2d 33 (Ia. 1987), involved a nuisance action over manure spreading. The defendants owned a swine confinement operation. Several times a year, they spread manure from a slurry pit on land near the plaintiff's residence. The Valasek court was reviewing an appellate court decision that had reversed a trial court's finding for the plaintiff. Although the trial court had found there was a nuisance, it had refused to grant an injunction. The court vacated the appellate court decision, affirmed in part the trial court decision and remanded the case to the trial court. The court opened its opinion with a statement that "the Utopia of country living can be frustrated by modern farming practices." Id. at 33. The court found that the spreading "causes highly obnoxious odors. The odors last for several days to a week after each application, and permeate the homes, cars and clothing of the plaintiffs." Id. at 34.
Obviously, if livestock are produced for a meat-eating public, there will be manure and it must be disposed. The problem is serious. For example, a swine unit of 5,000 sows produces as much waste as a city of 5,000 to 7,500 people. John B. Herrick, DVM, Animal Waste_The Smell of Success or the Stench of Trouble?, 206 J. Am. Veterinary Med. Ass'n 162 (1995). Farm literature and organizations have been active, on the one hand, in opposing regulations they feel are too stringent and, on the other hand, in advising livestock farmers to clean up their act. Scientists are trying to develop ways for reducing or perhaps eliminating the odor. Although some methods have been tried, so far nothing has proved entirely successful.
Right to Farm Laws
During the past two decades, states have adopted "Right to Farm Laws." The purpose of Right to Farm Laws is to give farmers, especially livestock farmers, some protection from nuisance suits. The Right to Farm Laws espouse the "coming to" theory for farms that have been in operation for a stated period of time, generally one year, before "changed conditions" lead to a nuisance action. The test is whether the plaintiffs have come to an existing farm operation. Some Right to Farm Laws also prohibit local laws restricting agricultural operations. See, e.g., N.Y. Pub. Health Law 1300-C. Some specify the kinds of livestock operations that are protected. See, e.g., Tenn. Code Ann. 44-18-101-104.
Right to Farm Laws generally provide that if the farm is negligently operated, it does not qualify for protection. Some states are more specific and require that the farm must have been operated in "accordance with good agricultural practices." See, e.g., Wash. Rev. Code Ann. 7.48.300, 305 & 310. For a more detailed description of Right to Farm Laws, see Linda A. Malone, Environmental Regulation of Land Use 6-23 (1991). Adopted in 1981, the Illinois statute is a good example of a Right to Farm Law. 740 Ill. Comp. Stat. Ann. 70/0.01 et seq. It begins with a policy statement:
It is the declared policy of the state to conserve and protect and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. When non-agricultural land uses extend into agricultural areas, farms often become the subject of nuisance suits. As a result, farms are sometimes forced to cease operations. Many others are discouraged from making investments in farm improvements.
It is the purpose of this Act to reduce the loss to the State of its agricultural resources by limiting the circumstances under which farming operations may be deemed to be a nuisance.
As do other Right to Farm Laws, the Illinois statute provides that a farm will not become a private or public nuisance because of changed conditions in the surrounding area occurring after the farm has been in operation for a stated period of time (in Illinois, one year). There are two qualifications to this protection. The farm must not have been a nuisance at the time it began operation, and the nuisance complained of must not result from negligent or improper operation of the farm. A 1996 amendment grants additional aid to livestock farmers. Under the amendment, a prevailing defendant in a nuisance action can "recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred in the defense of the nuisance action, together with a reasonable amount for attorney fees." 740 Ill. Comp. Stat. Ann. 70/4.5. Plaintiffs' Challenges
Although Right to Farm Laws may, for a time, stem the tide of nuisance suits, their protection will probably be eroded by the inexorable encroachment of residential construction. There are several ways in which plaintiffs in a nuisance suit can circumvent Right to Farm Laws.
- Definition of a farm. The statute may define "farm"; the plaintiff may argue that the defendant does not meet the definition.
- Test period. Under most acts, the farm must have been in operation for some specified time period. This time period should not be too difficult to establish through discovery.
- Existing nuisance. The farm may not be entitled to protection if it was a nuisance when it began operations. This question will occasion arguments of "per se" or "per accidens." In other words, if no one was around to complain when the farm began to operate, was it a nuisance? Probably not.
- Negligent operation. If the farm is negligently operated, it may not be entitled to protection. Testimony from livestock management experts can address this question.
- Statutory nuisance. Some states have created statutory causes of action in nuisance, in addition to common law nuisance claims. For example, Illinois law provides that it is a public nuisance "[t]o erect, continue, or use a building or other place for the exercise of a trade, employment, or manufacture that, by occasioning noxious exhalations, offensive smells, or otherwise, is offensive or dangerous to the health of individuals or of the public." 740 Ill. Comp. Stat. Ann. 5/47-5 (8). Thus, if a livestock operation is found to be a "trade, employment or manufacture," this statutory provision could nullify the protection of the Right to Farm Law.
- Water pollution. The farm may be subject to attack if it is creating water pollution. There is no doubt that a state, through its appropriate agency, has a right to prevent water pollution. Livestock farmers are not exempt from that control.
- Changed conditions. In Herrin v. Opatut, 281 S.E.2d 575 (Ga. 1981), the plaintiff, complaining of flies, odors and pond pollution, sought an injunction against a 500,000 chicken operation. The trial court granted the defendant's motion to dismiss based on the Georgia Right to Farm Law. In reversing that judgment, the appellate court found that the law does not protect every facility that has been in operation for the prescribed period. Rather, a court must consider changes in the nature and size of the farm. In Laux v. Chopin Land Associates, Inc., 550 N.E.2d 100 (Ind. Ct. App. 1990), the appellate court reversed and remanded the trial court holding for the plaintiff in a nuisance action against a hog farmer.
A Farmer's Defenses
In response to a plaintiff's claims, a farmer has several defenses. Some are more effective than others, and a strong plaintiff's case can defeat them all.
- Right to Farm Law. The Right to Farm Law is the first line of defense to a nuisance claim. The Right to Farm Law may or may not afford an adequate defense, depending on the issues discussed above. There are also other defenses available to the farmer.
- Facts. Are the facts really as bad as the plaintiff alleges them to be? Is there really a nuisance, or is this just a "hate" suit? The plaintiff must provide evidence on this point.
- "Coming to" defense. The defendant can allege that the farming operation was "here first." The "coming to" defense has lost its punch in the face of large scale developments in urban areas. To a degree, Right to Farm Laws restore this defense, but not completely.
- Zoning. Is the area zoned for agriculture? Absence of agricultural zoning will strengthen the plaintiff's case, but an agricultural zoning classification is not a per se defense to nuisance actions.
- Non-conforming use. The farm may operate as a non-conforming use in an area not zoned for agriculture. Although, in a dispute with zoning authorities, this status might permit the farm to continue, it would not bar a nuisance action.
- Environmental laws. The farm operation must fully comply with EPA and state environmental requirements. As with zoning, however, environmental law compliance itself may not be a sufficient defense.
- Overly sensitive plaintiffs. In specific situations, it might be a defense that the plaintiffs are overly sensitive. This defense fails, however, when the number of plaintiffs increases.
- State economy. A farmer can argue that a significant investment in the farming enterprise is important to the state's economy. The amicus curiae brief by the Kentucky Farm Bureau in the Valley Poultry Farms case may have had some influence on that court.
- Appropriate remedy. In an effort to delay injunctive relief, if possible, a farm should offer testimony showing that, given time, it can abate the nuisance. Scientists are working on methods to reduce the nuisance potential of livestock waste. If a farm can convince the court that it could adopt methods to substantially reduce or eliminate the nuisance, this evidence could save a livestock operation.
Saving farms through constricting application of the nuisance theory is only one part of a larger package state legislatures have provided. Some other legislative protections are:
- "Agricultural Areas" acts that protect farms in the area from non-agricultural encroachments. See, e.g., 505 Ill. Comp. Stat. Ann. 5/1-5/20.3; 3 Pa. Cons. Stat. Ann. 901-15.
- Special use valuation laws that reduce the taxes farmers must pay by valuing the land for agriculture rather than for development. See, e.g., Mass. Gen. Laws Ann. ch. 61A, 4; Tenn. Code Ann. 67-5-1008.
- Provisions for conservation easements enabling farmers to continue the use of their land for agriculture. See, e.g., Ky. Rev. Stat. Ann. 262.904; N.C. Gen. Stat. 106-744.
- Restrictions on the corporate ownership of farm land intended to preserve the "family farm," a concept with a constantly changing meaning. See, e.g., Kan. Stat. Ann. 17-5904; Minn. Stat. 500.24.
The significance of the conflict between farming and other real estate developments is not limited to the farmer. Appropriately balancing food production against the expansion of residential and business areas should be a concern for most U.S. citizens. In particular, even though they may not specialize in agricultural law or represent farmers, real estate practitioners may find themselves confronted with these issues as they represent developers, homeowners' associations, lenders and other clients involved in real estate businesses.
H. W. Hannah is a lawyer in Texico, Illinois and is Professor Emeritus of Agricultural and Veterinary Medical Law at the University of Illinois, Urbana, Illinois and Adjunct Professor of Law Emeritus at Southern Illinois University School of Law, Carbondale, Illinois.
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