Category: Nuisance

Iowa Supreme Court interprets “satisfaction” to the satisfaction of county

Gary Taylor

by Gary Taylor

McNeal v. Wapello County

Iowa Supreme Court, February 3, 2023

The McNeals were operating a vehicle repair and salvage business on property in Wapello County zoned R-1 Residential. For our purposes it’s not necessary to go too far into the history of the dispute between the McNeals and the county over the condition of the property; it is sufficient to know that in April 2019 the parties entered into a settlement agreement that, in part, included the following provisions:

1. The McNeals have 90 days from April 1, 2019 to clean the Property including the removal of debris and derelict vehicles and begin repairs on the residence . . . .

2. Forty-five days after April 1, 2019, (May 16, 2019) the McNeals grant to the County the right to enter onto the Property and to determine what remaining debris, derelict vehicles, or repairs need to be completed. The County will then notify the McNeals of the additional work which needs to be completed within the 90 day period.

3. If the removal of debris, derelict vehicles, and maintenance of the Property has not been completed to the satisfaction of the County by the end of the 90th day (June 30, 2019), then the McNeals grant unto the County the right for the County and/or its agents to enter onto the Property and to remove all remaining debris, derelict vehicles, and unrepaired structures. The County’s cost in removing such debris, derelict vehicles, or structures will be assessed against the Property ….

4. . . . Other than the procedure set forth in this Settlement Agreement, the McNeals waive and release any other statutory or common law right to challenge the County’s right to enter the Property and to conduct clean up activities, including any rights against the County’s employees, elected officials, or agents….

6. This Agreement is the entire agreement between the Parties and supersedes all prior discussions, understandings or representations. It may not be modified or amended, nor any waiver of its provisions, except by a written instrument executed by the parties.

emphasis added in Paragraph 3

When the county zoning administrator entered the property on May 19 no cleanup work had been done. He sent a letter to the McNeals on May 21 documenting this fact. On August 5, after the ninety-day period referenced in Paragraph 3 of the settlement agreement, plus another thirty-five days, had passed, the county entered the property and removed a large number of items. This included sixteen vehicles, none of which displayed any indication of being licensed. The county sent the McNeals a letter on August 27 advising them that they could retrieve any of the vehicles by providing an indication of title and paying the towing and storage fees, but none could be returned to the same property. The letter also stated that the vehicles would be destroyed if not retrieved within 10 days.

The McNeals filed suit in district court against the county on September 6, claiming that the county’s actions constituted a breach of the settlement agreement. At a hearing on motions filed by bother parties the dispute was determined to be centered on Paragraph 3 of the settlement agreement; specifically on what the term “derelict” meant for purposes of the agreement. The county argued that the language of Paragraph 3 gave the county sole discretion to determine whether the vehicles were “derelict,” while the McNeals disagreed, and countered that there were genuine issues of fact about whether the vehicles were, in fact, derelict. After some actions at the district court and the Court of Appeals that you probably don’t care about, the Iowa Supreme Court took up the case and issued this opinion.

The court stated the issue as primarily an interpretation of Paragraph 3: “What does it mean to say that ‘the removal of debris, derelict vehicles, and maintenance of the Property has not been completed to the satisfaction of the county'”? The county argued, first, that “to the satisfaction of the county” means what it says; that is, it is within the county’s sole discretion to determine whether vehicles were “derelict.” Second, that Paragraph 2 giving the County “the right to enter onto the Property and to determine what remaining debris, derelict vehicles, or repairs need to be completed” affirms this. Third, that to decide otherwise would, in effect, render the “settlement” meaningless as it would give the McNeals the right to essentially relitigate the case over whether the county had the right to remove the items on the property. The McNeals, of course, disagreed with the county’s characterization of the agreement’s provisions.

The Court noted that, absent a phrase in the agreement such as “as determined by the County in its sole discretion,” the relevant inquiry should be “whether a reasonable person in the position of the county would be satisfied” that the McNeals had carried out its obligations under the agreement. The Court concluded that it was reasonable for the county to determine on August 5 that all the vehicles in question were derelict and should be removed. None had current licensure, most were decades old, most if not all were unable to be driven, and a few even lacked VINs. The McNeals had done nothing to clean up the property since the agreement was reached, and offered no proof, either to the county or during the court proceedings, that any of the vehicles were in good, running condition. While the McNeals argued that all the cars had “productive value” because they were salvaged for parts and therefore didn’t require removal, the Court said this was immaterial. A party’s “undisclosed, unilateral intent” in signing a settlement agreement doesn’t matter. A reasonable person could still view a vehicle as derelict even if it had salvage value.

In sum, the Court concluded that the terms of the agreement required the county to act reasonably in determining whether the vehicles were derelict, and that it had done so.

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A path is not a street

Gary Taylor

by Gary Taylor and Luke Seaberg

Cornbelt Running Club v. City of Riverdale

Iowa Court of Appeals, March 2, 2022

The City of Riverdale fenced and gated a portion of a public right of way adjacent to South Kensington Street to prevent bicyclists and runners from using a five-foot-wide asphalt-paved path within the right of way as a short cut between two recreational trails.

In the above diagram, the path is the dark strip ending in a triangle and the fence is the line bisecting the dark strip.

Cornbelt Running Club (Club) sued the city, claiming the fence amounted to an improper closure of a street, thereby creating a public nuisance under Iowa Code 657.2(5), which states:

The following are nuisances:
….
5. The obstructing or encumbering by fences, buildings, or otherwise the public roads,
private ways, streets, alleys, commons, landing places, or burying grounds

Iowa Code 657.2

The city countered that a fence is only a nuisance if, in the context of this case, it crosses a street, and the path is not a street because it is not open to vehicles. Relying on its interpretation of state statutes defining “street,” “public roads,” and others the district court concluded that the path was not, in fact, a street, and therefore no nuisance could exist. The Club appealed.

The Court of Appeals determined the following statutory definitions were relevant to the case:

“Road” or “street” means the entire width between property lines through private property or the designated width through public property of every way or place of whatever nature if any part of such way or place is open to the use of the public, as a matter of right, for purposes of vehicular traffic.

Iowa Code 306.3(8)

“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway. “Vehicle” does not include:
a. Any device moved by human power, including a low-speed electric bicycle….

Iowa Code 321.1(90)

The Court of Appeals concluded that the district court was correct. Te paved path was not a street because it was not open to the public as a matter of right for vehicular traffic; therefore, the fence across the path could not be deemed a nuisance. The Club argued that previous cases found sidewalks to be part of a street, but the Court distinguished those cases as addressing sidewalks that ran alongside streets, which was not the case here.

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Iowa’s Right-to-Farm law constitutional, but limited in its application

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This post is a summary of an article by Kristine A. Tidgren that first appeared on The Ag Docket, from the ISU Center for Agricultural Law and Taxation. See the full version here.

Honomichl v. Valley View Swine, LLC
Iowa Supreme Court, June 22, 2018

 

Iowa’s agricultural nuisance law has perhaps become a little clearer, albeit no simpler to apply. On Friday, June 22, 2018, the Iowa Supreme Court issued a key ruling analyzing the constitutionality of Iowa’s embattled right-to-farm statute, Iowa Code § 657.11(2). The immunity statute at issue, states:

An animal feeding operation, […] shall not be found to be a public or private nuisance […] However, this section shall not apply if the person bringing the action proves that an injury to the person or damage to the person’s property is proximately caused by either of the following:

a. The failure to comply with a federal statute or regulation or a state statute or rule which applies to the animal feeding operation.

b. Both of the following:

(1) The animal feeding operation unreasonably and for substantial periods of time interferes with the person’s comfortable use and enjoyment of the person’s life or property.

(2) The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation.

The defendants in this case include the owner of two animal feeding operations in Wapello County. The units were constructed in compliance with DNR permits and setback requirement. The plaintiffs are neighboring homeowners who purchased their properties before the units were built. The units began their operations in the late summer of 2013. Several months later, plaintiffs filed their initial nuisance action. The defendants sought summary judgment, arguing that Iowa Code § 657.11(2) granted them immunity from such damage suits. The plaintiffs argued that the statute was unconstitutional, as applied to their case. The district court granted the plaintiffs partial summary judgment on that issue, and the Iowa Supreme Court agreed to hear the interlocutory appeal.

In an earlier decision Gacke v. Pork Xtra, L.L.C. (Iowa 2004), the Court found that while the law itself was a valid exercise of the state police power, it was unconstitutional as applied as it had denied the ability of the plaintiffs to sue for damages. In Gacke the court created the following three part test that courts should use to determine if plaintiffs have the right to sue. The plaintiffs must have:

  1. Received no particular benefit from the nuisance immunity granted to their neighbors other than that inuring to the public in general,
  2. Sustained significant hardship, AND
  3. Resided on their property long before any animal operation was commenced on neighboring land and had spent considerable sums of money in improvements to their property prior to construction of the defendant’s facilities.

 

Fast forward to 2018. Since Gacke, every district court that has faced the question has found Iowa Code § 657.11(2) unconstitutional “as applied.” The district court in Honomichl was no exception. The defendants in this case urged the court to reexamine and overturn the Gacke precedent. The plaintiffs asked the Court to declare the statute facially invalid or unconstitutional under all circumstances.

The Iowa Supreme Court upheld Gacke and clarified the procedure that should now be followed by courts in nuisance cases involving feeding operations. The Gacke factors, the court explained, require a fact-based analysis that will generally require a trial on the merits, or at least an evidentiary pretrial hearing. The Court stated that although it is possible that an as-applied constitutional challenge to the statute could be resolved in pretrial litigation, the proper procedure is as follows:

  • The trial court is to allow the CAFO to plead the affirmative defense, if applicable.
  • Plaintiffs asserting the unconstitutionality of the statute, as it applies to them, must then prove the existence of the three Gacke factors.
  • If the plaintiff is successful, the immunity will not apply.
  • If the plaintiff is unsuccessful in a pretrial hearing held for the specific purpose of determining the as-applied challenge, the plaintiffs may still rely on the other exceptions to the immunity found in the statute: The failure to comply with a federal  or state statute, regulation, or rule OR (1) The animal feeding operation unreasonable and for substantial periods of time interferes with the person’s comfortable use and enjoyment of life or property AND (2) The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation

 

It is now clear that district courts must engage in significant fact finding before they can declare that granting immunity from special damages to a defendant would violate a specific plaintiff’s constitutional rights. This can’t occur until after a trial or an evidentiary pretrial hearing. As such, the three-prong Gacke test essentially transforms the Iowa statute from an immunity provision into a rewrite of Iowa nuisance law for plaintiffs suing an animal feeding operation.

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Iowa Supreme Court Rules that Cities May Take Possession of Abandoned Properties

ejchr 3 Comments

Cby Eric Christianson

Eagle Grove v. Cahalan Investments
(Iowa Supreme Court, December 1, 2017)

Cahalan Investments purchased two residential properties in the City of Eagle Grove, one in 2002 and the other in 2011. Both properties have remained unoccupied and in deteriorating condition since their purchase. The properties were the subject of multiple complaints by neighbors and were found to be unfit for human occupancy.  In 2014 the city began an effort to clean up a number of nuisance properties, these properties were among those targeted. The city sent several letters to Cahalan advising them that they were in violation of the city’s nuisance ordinance. Cahalan made no effort to abate the nuisance and would later testify that they had no intention of making either property habitable in the foreseeable future

Iowa Code section 657A.10A allows cities to petition a district court to transfer ownership of abandoned properties to the city. The code details the following criteria that a court is to use when determining if a property has been abandoned.

a. Whether any property taxes or special assessments on the property were delinquent at the time the petition was filed.
b. Whether any utilities are currently being provided to the property.
c. Whether the building is unoccupied by the owner or lessees or licensees of the owner.
d. Whether the building meets the city’s housing code for being fit for human habitation, occupancy, or use.
e. Whether the building is exposed to the elements such that deterioration of the building is occurring.
f. Whether the building is boarded up.
g. Past efforts to rehabilitate the building and grounds.
h. The presence of vermin, accumulation of debris, and uncut vegetation.
i. The effort expended by the petitioning city to maintain the building and grounds.
j. Past and current compliance with orders of the local housing official.
k. Any other evidence the court deems relevant.

The code then states that if the court finds the property is abandoned, “the court shall enter judgment awarding title to the city.” In this case, the district court found that Cahalan’s properties were indeed abandoned under the definition set forth in the statute. In fact Cahalan Investments does not dispute this finding; however, Cahalan argued that awarding ownership of these properties to the city without compensation violated the takings clause of the US Constitution. In this case, the district court found Cahalan Investment’s argument convincing and did not award title to the City of Eagle Grove.

The City of Eagle Grove appealed the district court’s decision to the Iowa Supreme Court.

The Iowa Supreme Court revisited the question of whether awarding ownership to a city under Iowa Code section 657A.10 is constitutional.

Proving that a section of state code is unconstitutional is not easy. The court quotes an earlier decision stating that, “statutes are cloaked with a presumption of constitutionality. The challenger bears a heavy burden, because it must prove the unconstitutionality beyond a reasonable doubt.”

Takings jurisprudence is based primarily on the takings clause of the Fifth Amendment which states that, “private property [shall not] be taken for public use, without just compensation.” To determine if a governmental action has violated the takings clause, the court uses the following framework:

(1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?

In this case, Cahalan’s case fails on the first question. The court cites an earlier ruling which states that “the State has the power to condition the permanent retention of [those] property right[s] on the performance of reasonable conditions that indicate a present intention to retain the interest[s].” Ownership of property comes with many rights, but is not absolute. Here the court is saying that in Iowa a property owner’s rights do not include allowing properties to remain abandoned. By doing so here, Cahalan has forfeited their rights.

By allowing the properties to persist in a condition unfit for human habitation, allowing the properties to remain vacant, and failing to make timely and reasonable efforts to remedy the public nuisances created by the properties after notification of the problems, Cahalan did not comply with the section 657A.10A(3) criteria. Thus it failed to “indicate a present intention to retain the interest.” See id. at 526, 102 S. Ct. at 790. We conclude the district court erred in concluding Cahalan holds a constitutionally protected private property interest in the abandoned properties for which just compensation is owed.

Finding that Cahalan Investment’s stake in the properties was not a constitutionally protected right is enough to decide the case, but for completeness the court did examine the second question as well.

Assuming that Cahalan did have a constitutionally protected private property right the court still found that takings jurisprudence supports the city’s actions. A taking occurs when the government denies a property owner “all economically beneficial or productive use” of property. In this case there is no dispute that Cahalan Investments has been deprived of all use of these two properties. Generally when that occurs, the government is required to pay just compensation. However, there is a public nuisance exception in takings jurisprudence. The state has the “power to abate nuisances that affect the public generally, or otherwise,” and this action, “is not a constitutional taking for which compensation is required.”

The court also examined whether the fact that Cahalan Investments purchased these properties before the enactment of this particular section of 657A would prevent it from being applied in this case. Here the court found that the state’s existing legislation as well as the principles of nuisance law already in place at the time of purchase were sufficient to hold that Cahalan never possessed the right to maintain properties in an abandoned state.

The Iowa Supreme Court reversed the finding of the district court that the city’s exercise of 657A constituted an unconstitutional taking and remanded the case back to district court.

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Certification of class action appropriate in suit for nuisance, trespass and negligence against grain processor

Gary Taylor

by Gary Taylor

Freeman, et al., v. Grain Processing Corp.
Iowa Supreme Court, May 12, 2017

Residents who live near Grain Processing Corporation’s (GPC) corn wet milling plant in Muscatine brought an action for nuisance, trespass and negligence against GPC for its manner of operation of the plant and the resulting “haze, odor, and smoke” emanating from the plant.  The residents moved to treat the claim as a class action suit on behalf of all residents suffering the effects of the plant’s operation.  GPC resisted the motion to certify the case as a class action, arguing that the claims of the residents were “inherently individual, and as such, individual issues predominated over those common to the class.”  The district court granted class certification.  Noting its authority to modify or decertify the class at any time, the court divided the class into two subclasses: one for members in close proximity to GPC, and the other for those in peripheral proximity.  GPC appealed.  Certification of the class action suit was the sole issue before the Iowa Supreme Court (in an earlier case, posted here, these same parties litigated the applicability of the Clean Air Act to local claims for nuisance).

Under Iowa Rules of Civil Procedure 1.261 – 1.263 a district court may certify a class action if “the class is so numerous…that joinder of all members…is impracticable” and “there is a question of law or fact common to the class.”  In addition, a class action should be permitted for the “fair and efficient adjudication of the controversy” and “the representative parties fairly and adequately will protect the interests of the class.”  The Court of Appeals first noted that caselaw requires that “a failure of proof on any one of the prerequisites is fatal to class certification,” but also that, at this stage, “the proponent’s burden is light.”  The Court of Appeals does not review the decision to certify the class itself, but simply whether the district court abused its discretion in doing so.

GPC argued that the district court erred because the requirement of commonality was not met, and that in this case individual issues predominate over common questions of law or fact.

Commonality.  It is not sufficient that class members have all suffered a violation of the same provision of law.  Rather, claims must depend on a common contention of an issue that central to the validity of each one of the claims.  GPC argued that the named plaintiffs did not suffer the same injury of other class members; particularly in the types of harm suffered and the degree of proof needed to prove causation.  The district court initially agreed, noting that two of the plaintiffs –the one closest to GPC and the one furthest – suffered significantly different “concentration totals” of particulates tested in the air.  The Court resolved this disparity, however, by creating the two subclasses and grouping the plaintiffs accordingly.  Thus the plaintiffs within each subclass had identified common questions of extensiveness of emissions, what caused them, what precautions were taken, and economic impact.

Predominance.  A common question does not end the inquiry.  Courts consider class actions appropriate “only where class members have common complaints that can be presented by designated representatives in the unified proceeding.”  It “necessitates a close look at the difficulties likely to be encountered in the management of a class action.”  The district court spent considerable time addressing the predominance question in its ruling.  It concluded “While variations in the individual damage claims are likely to occur and other sources of emissions may pose unusual difficulties, common questions of law and fact regarding defendant’s liability predominate over questions affecting only individual class members such that the subclasses should be permitted for the fair and efficient adjudication of the controversy.”  After going through the standards of proof for negligence, trespass, and nuisance claims, the Court of Appeals agreed with the district court that common questions of law, with common evidentiary findings required of each, will predominate the action, and that therefore class action treatment is appropriate.

Class action certification was affirmed by the Court of Appeals.

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SF 447 limits nuisance damages against animal feeding operations

ejchr

Senate File 447, signed into law on March 29th by Governor Branstad, limits the damages that can be awarded to property owners impacted by agricultural operations. This legislation is likely in response to the 2016 Iowa Supreme Court decision in McIlraith v. Prestage Farms, which held that animal feeding operations are not necessarily protected from nuisance suits based on Iowa Code 657.11(2) (Iowa’s right-to-farm legislation). In that case, the jury awarded damages of more than $500,000 for loss of past enjoyment, diminution in property value, and loss future enjoyment of the McIlraiths’ property.

Under SF 447, any nuisances caused by animal operations, which includes both confined and open feed lots, are presumed to be permanent nuisances. This means that plaintiffs cannot file future suits for continued nuisance.

Plaintiffs’ damages in nuisance suits are also limited to combined the total of:

  1. Permanent loss in property value
  2. Medical costs directly caused by the nuisance
  3. Special damages (annoyance and loss of enjoyment) not to exceed one and a half times the total of 1 plus 2

For more information about SF 447 and its passage see this article from the Des Moines Register.

 

 

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Constitutional claims not preserved in defense to nuisance citation

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by Hannah Dankbar and Gary Taylor

Beaver and Sanderson v City of Davenport
Iowa Court of Appeals, April 27, 2016

Clifford Beaver and Pamela Sanderson have lived as common law husband and wife at their property in the City of Davenport for the past 14 years.  In 2014 the City sent a letter to  Beaver and Sanderson declaring their property a public nuisance under Davenport Municipal Code §8.12, after several neighbors circulated a petition seeking the property to be declared as such. The City’s letter explained that Sanderson’s “erratic behavior” prevented multiple neighbors from enjoying their property. The letter detailed nine directives regarding the activity on and around the property, including prohibitions against “criminal related activity”, harassment of neighbors and guests, calling authorities without cause, accosting people parking on the street, letting their dog run without a leash, and restrictions on using security cameras.  The letter warned Beaver that failure to abate the nuisance could result in citations and fines.

Beaver requested an appeal hearing. After a two-day hearing in April at which seven police officers and seven neighbors were called as witnesses, the hearing officer determined that there was sufficient evidence to support the nuisance abatement and approved the “Nuisance Abatement Plan” which included seven directives. One of the directives prohibited recording or pointing security cameras at any part of any neighboring structure.

Beaver challenged in district court the legality of the hearing officer’s order. The court ruled in favor of the City and Beaver appealed.

On appeal, Beaver argued the district court wrongly upheld the city’s abatement order that declared his property a public nuisance. He presented two claims: (1) “Davenport’s Nuisance and Residential Camera Statutes are unconstitutional on their face; and (2) unconstitutional as applied to his situation.

The court concluded that these challenges were not preserved for their review. These two claims were not presented in district court and therefore cannot be ruled on in the appeal.

The only constitutional claim that was addressed in district court was regarding the residential-camera regulations. Beaver claimed that the City’s ordinance unconstitutionally restricted his “right to maintain surveillance for the purpose of monitoring or protecting [his] property.” The ordinance limits the camera’s field of view to less than fifty-percent of a neighbor’s property. The court determined that this balances a property owner’s right to survey their property with their neighbor’s right to privacy.

On appeal, Beaver claimed that the hearing officer misapplied the camera ordinance. This specific attack on the abatement order was not ruled on in district court, so the appeals court refused to rule on it.

On appeal, the court did not reach any conclusions on the propriety, constitutionality or enforceability of the City’s order due to the issue of preservation. Because of these issues the orders from the lower court were affirmed.

 

 

 

 

 

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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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Weeds are not protected speech or expression

hdankbar

by Hannah Dankbar

Discount Inn, Inc. v. City of Chicago
Federal 7th Circuit Court of Appeals, September 28, 2015

(Note that the Court included photos of native Illinois plants in its written opinion; a very unusual practice)

Chicago’s Department of Administrative Hearings decided that Discount Inn, Inc. violated the weed and fence ordinances.  The weed ordinance reads:

Any person who owns or controls property within the city must cut or other‐ wise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

The fence ordinance reads:

It shall be the duty of the owner of any open lot located within the City of Chicago to cause the lot to be surrounded with a noncombustible screen fence …. Provided, however, that this section shall not apply to … sideyards. The owner shall maintain any such fence in a safe condition without tears, breaks, rust, splinters or dangerous protuberances and in a manner that does not endanger or threaten to endanger vehicular traffic by obstructing the view of drivers. Any fence which is not maintained in accordance with these provisions is hereby declared to be a public nuisance and shall be removed … . It shall be the duty of the owner of any lot whose fence has been so removed to replace such fence with a noncombustible screen fence meeting the requirements of this section and of this Code.” Municipal Code of Chicago § 7‐28‐750(a). Violators “shall be fined not less than $300 nor more than $600 for each offense,” and “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.

Discount Inn made two claims: (1) the ordinances violate the prohibition against “excessive fines” in the Eight Amendment; and (2) the weed ordinance is vague and forbids expressive activity protected by the First Amendment.

In regards to the first claim, the Supreme Court has not decided whether this clause applies to state action. This court assumes that it does apply, but found that the fines are not excessive. The fines for both ordinances enforce a legitimate government interest. Fencing vacant lots are important for identifying abandoned lots. The City has an interest in controlling weeds because uncontrolled weeds lead to problems such as obscuring debris, providing habitat to rodents and mosquitos, and contributing to breathing problems.

Regarding the second claim, Discount Inn argued that native plants are mistaken for weeds and their use is unnecessarily limited because of the ordinance. There is no clear definition of a weed in the city code. Discount Inn does not argue that they have native or other decorative plants, but simply rather that the ten-inch rule violates the free-speech clause of the First Amendment. It is true that the First Amendment protects some non-spoken work, such as paintings; however, the Court concluded that these weeds have no expressive value. The owner did nothing to cultivate or design the weeds.

Discount Inn also argues that the ordinances are unconstitutional because they do not specify a statute of limitations. There is no rule that there must be a statute of limitations. Prescribing a statute of limitations for a weed ordinance would require an insane use of city resources.

The decision was upheld.

Federal courts, First Amendment claims, Nuisance , , , ,
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