Tag: Right to Farm legislation

Prestage Farms CAFO in Poweshiek County not protected from nuisance suit by Iowa Code

Gary Taylor

by Gary Taylor

Patricia McIlrath v. Prestage Farms of Iowa, LLC
Iowa Court of Appeals, November 23, 2016

The McIlraths purchased their farm in rural Poweshiek County in 1971.  Their son and his family also live on the farm, in a house about 300 feet from the original farmhouse where Patricia and her husband live.  In 2012 Prestage Farms built an animal confinement facility (CAFO) for 2,496 hogs about 2,200 feet from the McIlrath’s home.  In July 2013, the McIlraths brought suit against Prestage, claiming the odor from the CAFO constituted a nuisance.  Prestage requested summary judgment prior to trial, claiming immunity from the suit based on Iowa Code 657.11(2) (Iowa’s right-to-farm legislation), but the Poweshiek District Court granted summary judgment in favor of the McIlraths on this point, finding section 657.11 to be unconstitutional based on the Iowa Supreme Court’s ruling in Gacke v. Pork Xtra.  The Court found, even if the statute was not unconstitutional based on the facts of the case, the statute would not provide immunity to Prestage Farms if (1) the CAFO unreasonably and for substantial periods of time interfered with the person’s comfortable use and enjoyment of the person’s life and property, and (2) the CAFO failed to use existing prudent generally accepted management practices reasonable for the operation.  The jury returned a verdict affirmatively determining that both points were met by the evidence.  It awarded damages of $100,000 for loss of past enjoyment, $300,000 for loss of future enjoyment, and $125,000 for diminution of property value.  Prestage appealed.

The Court of Appeals first examined Prestage’s claim that Iowa Code 657.11 in fact confers immunity from nuisance claims in the present case.  The court focused on the following passage from Gacke:

Property owners like the Gackes bear the brunt of the undesirable impact of this statute without any corresponding benefit.  Moreover, their right to use and enjoy their property is significantly impaired by a business operated as a nuisance, yet they have no remedy.  Unlike a property owner who comes to a nuisance, these landowners lived on and invested in their property long before Pork Xtra constructed its confinement facilities.  Under these circumstances, the police power is not used for its traditional purpose of insuring that individual citizens use their property “with due regard to the personal and property rights and privileges of others.”  [citation omitted].  Instead, one property owner—the producer—is given the right to use his property without due regard for the personal and property rights of his neighbor.  We conclude that section 657.11(2) as applied to the Gackes is unduly oppressive and, therefore, not a reasonable exercise of the state’s police power.  Accordingly, the statutory immunity violates article I, section 1 of the Iowa Constitution and may not be relied upon as a defense in this case.  We express no opinion as to whether the statute might be constitutionally applied under other circumstances.

The Court of Appeals concluded that in all relevant aspects, the factual situation in the present case was substantially similar to that presented in Gacke, making 657.11 unconstitutional in the present case.  There was no evidence McIlraths received any benefit from the statute, and they lived on and made improvements to their property long before the CAFO was built.

Prestage claimed several irregularities in the trial proceedings warranted a new trial; however, the Court of Appeals rejected all Prestage’s claims. Similarly, the court rejected all claims of Prestage that the evidence submitted at trial was insufficient to support the jury’s conclusion of liability and award of damages.

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Land application of biosolids was “normal agricultural operation,” triggering right-to-farm protections

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by Hannah Dankbar and Gary Taylor

Gilbert v. Synagro Central
Pennsylvania Supreme Court, December 21, 2015

Appellees are thirty-four individuals who own or reside on properties next to a 220-acre farm in York County, Pennsylvania. The farm contracts with two companies who recycle biosolids to be used as fertilizer.

Between March 2006 and April 2009 approximately 11,635 wet tons of biosolids were applied to the farm. Appellees claimed that when the biosolids were applied there were strong, unpleasant odors that impacted their daily lives and made some residents ill.

Appellees complained to local officials, the biosolid companies and state officials with no response. In 2008 they filed two three-count complaints, which were consolidated. One of the complaints was that the appellants’ biosolids activities created a private nuisance.

Appellants argued that § 954(a) of the Right to Farm Act (RTFA) barred the nuisance claim. The relevant part reads:

No nuisance action shall be brought against an agricultural operation which has lawfully been in operation for one year or more prior to the date of bringing such action, where the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation and are normal agricultural operations.

The trial court determined that land application of biosolids is a “normal agricultural operation” under the RTFA. They found that land application of biosolids was not a substantial change in the farm business, and that farms have used different types of fertilizer for centuries. Also, appellees failed to identify what duty appellants owed them, which is an essential part to their claim.

On appeal the Superior Court reversed and remanded the nuisance claim. The court identified three requirements of the RTFA that must be met for a nuisance action to be barred: (1) the agricultural operation has an established date of operation at least one year prior to the filing of the action; (2) the conditions or circumstances constituting the basis of the action have been substantially unchanged since the established date of operation; and (3) the conditions are a “normal agricultural operation.” The court found that the first two requirements were met, but the third was not because there was no factual finding that application of biosolids was a “normal agricultural operation.” Regarding the second requirement, the court determined that a substantial change can reset the clock on the one-year allotment to file a claim. However, application began in 2006 and the complaint was not filed until 2008.

On appeal, the Supreme Court agreed with the Superior Court’s decision on the first two requirements. It then further addressed the question of whether the trial court correctly concluded that land application of biosolids as fertilizer is a “normal agricultural operation.” In addressing this question the court made extensive inquiry into the history of the land application of biosolids as fertilizer, related statutes and regulations, case law and executive agencies’ views.  At the conclusion of this inquiry the Court found support to determine that the application of biosolids falls under “normal agricultural operations.” Because the RTFA is meant to protect farmers from nuisance claims, the definition of normal agricultural operations must reflect accepted changes in agricultural practices, including the increased use of biosolids.  The result was that  the farm was protected from the nuisance claim.

 

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Fine for zoning violation can only be imposed “upon conviction” in court

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by Hannah Dankbar and Gary Taylor

Claybanks Township v Paul and Tana Feorene
Michigan Court of Appeals, December 8, 2015

Paul and Tana Feorene own 40 acres of land in Claybanks Township. They built a greenhouse, gazebo and hay barn on their property without obtaining zoning permits according to the Claybanks Township Zoning Ordinance (CTZO). The Township sued the Feorenes and requested that the trial court order them to remove the structures, but the Township was ordered to issue the zoning permits at the standard fee for the three structures.

The Township argued that the trial court did not follow CTZO and Michigan Zoning Enabling Act (MZEA). CTZO §§ 203 and 207 require a zoning permit to be obtained before construction begins and that any construction before a permit is obtained is a nuisance and must be abated. There is no question that the Feorenes violated CTZO by building the structures without permits; therefore the issue becomes the abatement of the nuisance.  The abatement could be accomplished either by razing the buildings or issuing the permits, and courts have broad discretion in granting relief appropriate to the circumstances. Once the Feorenes were notified that they needed zoning permits for the structures they attempted to get them; however, the Township conditioned granting the permits on the payment of a $3,100 fine it had already imposed on the Feorenes for violating CTZO. The Feorenes refused to pay the fine and built the buildings anyway.

CTZO §208 imposes a $100 fine “upon conviction” of violation of the CTZO, and each day the violation continues shall be deemed a separate offense.  Applying the rules of statutory interpretation, the court concluded that because the Township had not brought an action in court there could be no “conviction.”  As a result, the $3,100 fine was inappropriate.

The Feorenes claimed that Michigan Right to Farm Act (RTFA) also provided an alternative basis to affirm the trial court’s conclusion. RTFA was enacted to protect farmers from nuisance lawsuits.  To assert an RTFA the Feorenes had to prove: (1) the challenged activity constitutes a “farm” or “farm operation”; and (2) the farm or farm operation conforms to the relevant generally accepted agricultural and management practices (GAAMPs). The Feorenes did not cite any relevant GAAMPs; and so the court rejected the RTFA argument.

The trial court ruling was affirmed.

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Scare gun ordinance validated; it is not zoning

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by Hannah Dankbar

Town of Trempealeau v. Wendell P. Klein
Wisconsin Court of Appeals, August 18, 2015

Klein owns and operates a farm in Trempealeau, WI. He uses scare guns (a propane cannon) to prevent blackbirds from damaging his crops. In 2013 Trempealeau passed an ordinance requiring anybody wanting to use a scare gun within town limits to obtain a permit. The ordinance places three conditions on permits regarding times of day and months of the year that the guns can be used, distance from other residence of where the gun can be used, and that all guns must be pointed at least forty-five degrees away from neighboring property lines. The town board can exempt a permittee from these conditions after they receive a written explanation of why the conditions plan an undue hardship on the permittee. Klein applied for and received a permit.

On August 10, 2013 Klein was cited for operating a scare gun at less than forty-five degrees from the neighboring property line. Klein pled not guilty and moved to dismiss. He argued that the ordinance was invalid for a number of reasons.

Vested Right.  Klein argued that he had a vested right to use scare guns because he, and his father before him, had used scare guns as part of their farming operations before zoning was put into place.  The Court of Appeals noted that the scare gun ordinance did not meet the test set forth in previous court cases to qualify the ordinance as a zoning ordinance.

Taking. Klein argues that the ordinance acts as a taking of his property because his crops “will literally be taken from him”. He argues the taking is a regulatory taking which is “a restriction that deprives an owner ‘of all, or substantially all, of the beneficial use of his property.’” The Court disagreed.  The ordinance did not deprive Kline of all or substantially all of the beneficial use of his property.  Because Klein retains the ability to practice agriculture on his land, this argument fails.  Moreover, the ordinance does not prohibit the use of scare guns; it merely regulates their use.  There was no evidence that using the scare guns in a manner consistent with the ordinance would still result in a devastating loss of crops.

Trempealeau County’s comprehensive zoning ordinance.  Trempealeau County’s comprehensive zoning ordinance § 4.03 states, ““General agricultural practices shall be allowed in all agricultural districts without issuance of a land use permit[.]” Klein argued that this section unambiguously prohibits the Town from requiring him to obtain a permit; however, the scare gun permit is not a land use permit because it does not license a “use.” Trempealeau County’s comprehensive zoning ordinance §4.03(1)(c) lists “barnyards, feedlots, and uses involving agricultural structures” as examples of “general agricultural practices.” The description of structures and locations reinforces the conclusion that the use of scare guns does not constitute a general agricultural practice.

Right to Farm.  Klein argued that the statute is preempted by the state’s Right to Farm Law. This law protects agriculture enterprises from nuisance claims. Klein and the Town agreed that the Right to Farm Law protects both agricultural uses and practices. They also agree that the statute sets forth a heightened standard for determining that an agricultural use or practice is a nuisance. Nothing in the statute, however, prevents local governments from regulating agricultural uses and practices without a finding that those uses or practices meet the heightened nuisance standard.

The district court’s judgment in favor of Trempealeau was affirmed.

 

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Missouri Right-to-Farm statute upheld by Missouri Supreme Court

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by Hannah Dankbar and Gary Taylor

Labrayere v. Bohr Farms
Missouri Supreme Court, April 14, 2015

Multiple landowners filed suit against Cargill Pork LLC and Bohr Farms alleging damages for temporary nuisance, negligence and conspiracy due to odors coming from a concentrated feeding animal operation (CAFO) owned and operated by Bohr Farms. The landowners who filed the complaint claimed that they lost the use and enjoyment of their property.  Neither rental value nor medical conditions were issues raised by the landowners in this case. The circuit court found that Bohr Farms was not responsible for paying damages.

In 2011 section 537.296 went into effect. This statute supersedes common law related to actions that result in an alleged nuisance coming from a property that is used primarily for crop or animal production. This statute prohibits non-economic damage recovery for items such as loss of use and enjoyment of property, inconvenience or discomfort that the agricultural nuisance caused, and allows recovery only for a diminished market value of property and documented medical costs.  Only a few days after the statute was passed Bohr Farms began their CAFO operation that can feed 4,000 hogs. Bohr owns and operates the CAFO and Cargill owns the hogs. The CAFO includes an on-site sewage disposal system as well as a system for composting deceased hogs. The plaintiffs raised seven constitutional issues. Appellants claimed that section 537.296 is unconstitutional for seven reasons.

 

Constitutional Claims

  1. Section 537.296 impermissibly authorized an unconstitutional private taking.  Plaintiffs argued that the statute, “effectively provide[s] the right of eminent domain to private companies.” The Court stated that, “The fact that private parties benefit from a taking does not eliminate the public character of the taking so long as there is some benefit to any considerable number of the public.”  A use is public if it reasonably likely to create some advantage or benefit for the public.  The Court noted that the statute did not authorize any private party to create a nuisance.
  2. Section 537.296 authorized a taking without requiring just compensation. Under the statute all nuisance claims following the initial temporary nuisance claim are to be considered a permanent nuisance. The plaintiffs claimed that this essentially grants an easement for the respondent to interfere with the full use and enjoyment of their land. The court found this argument was not ripe because the appellants were only seeking relief for a temporary nuisance in this case. The court noted that the statute specifically allowed the recovery of damages for loss in rental value of impacted property when a temporary nuisance was present.  That satisfied the constitutionally required just compensation when a temporary nuisance amounts to a temporary taking.
  3. Section 537.296 violated the plaintiffs’ constitutional right of equal protection. The plaintiffs claimed that the statute creates a suspect class of “rural landowners and residents” and therefore the statute should have to withstand strict scrutiny. Historically, rural landowners have not been oppressed and the statute benefits rural landowners who use their land for agricultural purposes, so there is no suspect class. The argument related to the fundamental right to property conflicts with the established right of the state to confiscate property to “substantially advance a legitimate state interest.” Therefore, the statute only has to withstand the rational basis test. The Court presumes the state has a rational basis for this statute and the appellants had to demonstrate a “clear showing of arbitrariness and irrationality” before the statute can be declared unconstitutional.
  4. Section 237.296 violates due process. This argument relied on a finding that a fundamental right had been violated, but the Court already determined there was no fundamental right violated.
  5. Section 537.296 violates separation of powers. The appellants claimed that the statue requiring a person to have “ownership interest” in order to have standing is a judicial decision that the legislature did not have the power to make. Nobody in this case was denied standing because of this, and none of the plaintiffs were injured as a result of this part of the statute. The court will not rule on hypothetical questions of standing.
  6. Section 537.296 violates the open courts clause. Article I, section 14 of the Missouri Constitution guarantees “the right to pursue in the courts the causes of actions the substantive law recognizes.” The plaintiffs’ asserted that the statute denied access to the court to “lawful possessors and occupiers of land”; however, the plaintiffs did not claim that the statute restricts access to the courts, so they did not have an argument to support this claim.
  7. Section 537.296 is an unconstitutional special law. Finally, plaintiffs argued that this statute “benefits only the corporate farming industry.” Article III, section 40 of the Missouri Constitution does not allow the legislature to enact “special laws” when a general law will work. Special laws, “includes less than all who are similarly situated… but a law is not a special if it applies to all of the given class alike and the classification is make on a reasonable basis.” The court said that the landowners that can take advantage of the statute could change, as could the land uses.  The open-ended classification, the Court noted, was reasonable because it advanced the legitimate state purpose of promoting the agricultural economy.

Plaintiffs argued that, according to a negligence or conspiracy cause of action, they should receive “use and enjoyment” recovery. They also argued that there are not enough facts to demonstrate that Cargill was not vicariously liable for Bohr’s alleged negligence. The statute allows people to recover non-economic “use and enjoyment” damages only if their negligence and conspiracy claims are “independent of a claim of nuisance.” The court found that Appellants’ negligence, conspiracy and vicarious liability claims were not “independent of a claim of nuisance” because those claims were dependent on the nuisance claims.

The ruling of the circuit court was upheld.

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News from Missouri: MO legislature sends “right to farm” constitutional amendment to voters

Gary Taylor

What is now Constitutional Amendment 1 was first passed by Missouri lawmakers in 2013. It states in part that the right to engage in farming and ranching shall not be infringed upon and shall be “forever guaranteed.” Constitutional Amendment 1 is now set to go before voters Aug. 5, along with four other proposed constitutional amendments.  Four members of Missouri’s congressional delegation, all Republicans, are scheduled to begin stumping for the proposal around the state this week.

State Representative Bill Reiboldt, the initial sponsor of the amendment, said “We’re not in any way trying to stop the old traditional ways of farming or the new modern ways of farming.  We just are giving farmers the constitutional right to do what they do in a way that they feel like is the best for their particular operation.”  Reiboldt also says the amendment is needed to guard against over-regulation from the federal government and to protect farmers and ranchers from frivolous lawsuits. However, opponents argue that the proposal gives constitutional protection to animal abuse. A spokesperson for PETA claims “This proposed amendment is apparently the legislature’s attempt to constitutionalize a right to abuse animals on farms and destroy the environment. Animals used for food are castrated without pain relief, beaten with steel gate rods and shocked with electric prods. Cows have their horns burned from their skulls. Large-scale farms produce rivers of excrement, which contaminate groundwater, and are a leading cause of greenhouse-gas emissions. The public is demanding more accountability, not less.”

The official Joint Resolution submitting the question to Missouri voters is here.  While Missouri news outlets are labeling this as the “right to farm amendment” (see articles from Kansas City Public Media, Quincy Journal, and the Missouri Times) its language is much broader than the traditional right to farm laws that protect farmers from nuisance suits for engaging in traditional farming practices.  As this article points out, the language in this and other similar constitutional amendments being proposed in other states is so vague that the courts will likely play a major role in determining their legal reach.

A recent poll by the Missouri Liberty Project found that nearly 70 percent of voters supported the amendment.

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Horse rescue project considered “commercial production” under (MI) Right to Farm Act; case remanded to consider GAAMPs

by Rachel Greifenkamp

Township of Webber v Bruce Austin
(Michigan Court of Appeals, April 22, 2014)

In 2011 Bruce Austin began a horse rescue project in the Township of Webber, Michigan on commercially zoned property that he had purchased for this purpose. The Township filed a complaint against Austin, alleging that the project violated the regulations of the commercial zoning district.  The Township was granted a preliminary injunction forcing Austin to temporarily cease his horse rescue project. At trial, Austin utilized the Michigan Right to Farm Act (RTFA) as an affirmative defense, stating that even though he had not yet made a profit from the project, he intended to in the future. The trial court deemed the animal rescue operation to be a valid nonconforming use of the property and was not a nuisance, and that therefore the use of the property was protected by the Michigan RTFA.  Following the trial court’s judgment, Austin filed for costs and attorney fees as well as costs for the transport, care, and feeding of the horses during the trial. Austin was granted attorney fees and costs but was denied animal care costs. The Township appealed both the judgment and the attorney fee award to the Michigan Court of Appeals.

The Court of Appeals addressed three issues critical to the outcome (1) characterization of the horse rescue project as a nonconforming use, (2) the application of generally accepted agricultural management practices (GAAMPs) under the RTFA, and (3) the horse rescue project as “commercial production” under the RTFA.

Nonconforming use.  A nonconforming use is “a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because the use lawful existed before the zoning regulation’s effective date.”…When a property is transferred to a new owner, the nonconforming use may continue but cannot be expanded…To be a valid continuation of a nonconforming use, the new owner’s use must be “substantially of the same size and the same essential nature as the use existing at the time of passage of a valid zoning ordinance.” The court concluded that because the commercial zoning designation was in effect prior to Austin beginning his project, and the project was significantly different than the previous use of the property (no livestock was raised or sold), the horse rescue project was not a nonconforming use.

GAAMPs.  The township argued that the precedent set in the recently decided case of  Lima Township v. Bateson requires that a person asserting the RTFA as a defense has the burden of proving that the activity at issue is a protected operation, and that it complies with the generally accepted agricultural management practices (GAAMPs). Because the trial court’s refusal to consider the GAAMPs is directly contrary to the Bateson holding, the court determined that remand for further proceedings was necessary.

Commercial production. Finally, the township contended that the trial court’s determination that Austin’s horse rescue project was a commercial production protected by the RTFA was incorrect. The RTFA only protects activities associated with the commercial production of farm products.  While the RTFA itself does not define “commercial production,” previous cases have stated that commercial production means “the act of producing or manufacturing an item intended to be marketed and sold at a profit….There is no minimum level of sales that must be reached before the RTFA is applicable.  The trial court concluded that Austin successfully proved that he intended to operate the horse rescue project as a commercial production, and that absent clear error, the Court of Appeals could not overturn that assessment. This portion of the judgment was held by the Court of Appeals.

The judgment was reversed by the Court of Appeals and the case was remanded for rehearing the trial court level.

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Michigan Right-to-Farm Act does not protect horses kept for personal use

by Kaitlin Heinen

Peggy Sue Brown v. Summerfield Township
(Michigan Court of Appeals,  August 23, 2012)

Peggy Sure Brown claimed that the Right to Farm Act (MCL 286.471) “preempts a township ordinance that prohibits her from keeping her horses on property less than one and a half acres.” The trial court, disagreed, finding that Brown was not engaged in a commercial farming operation.  She appealed.

The Right to Farm Act “states that a farm or farm operation must not be found to be a public or private nuisance if it conforms to ‘generally accepted agricultural and management practices’ (GAAMPs), according to policy determined by the state commission on agriculture. Local government may not enact or enforce an ordinance that conflicts with the Right to Farm Act or the GAAMPs.” (MCL 286.474(6)) So “any township ordinance, including a zoning ordinance, is unenforceable to the extent that it would prohibit conduct protected by the [Right to Farm Act],” which includes ordinances requiring minimum lot sizes.

The Right to Farm Act “preempts ordinances only to the extent that they impose restrictions on commercial farming operations,” which means that the Act does not apply to property owners who are not engaged in commercial operations for profit. A farm operation is defined “as activity conducted ‘in connection with the commercial production, harvesting, and storage of farm products.'” Brown referenced the subsection (MCL 286.472(b)) that mentions “the care of farm animals.” However, this subsection is listed in connection with possible farm activities conducted in a commercial operation. It is not an exception to the commercial requirement.

Brown offered no evidence that she kept her horses for profit (breeding, boarding, horse rides for fee, etc.). The Michigan Court of Appeals did not have to address  whether the farm operation provision creates a cause of action or provides a defense because the Right to Farm Act does not apply to Brown. The court  also did not have to address whether the farm operation provision applies to a new farming operation in property zoned as residential. The trial court rightly found it unnecessary to address the issues.

The Michigan Court of Appeals also held that the trial court rightly granted summary disposition on Brown’s substantive due process claim because the ordinance was not unreasonable.  The Court of Appeals affirmed the trial court on Brown’s equal protection claim as well, since she offered no evidence that she had been treated differently than any other person. The trial court’s decision was thus affirmed.

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