Ag district protection against nuisance law suits may be in jeopardy

COLUMBUS — Ohio’s agricultural community is watching the developments of a case in Darke County Common Pleas Court that could affect the way farmers do business, and if they can do business at all.



Concern over the case is amplified in light of an Iowa Supreme Court ruling last year that, in effect, struck down the ag district protection against nuisance suits contained in that state’s right-to-farm law.



Three neighbors of Anthony and Anita Knapke filed a complaint in Darke County Common Pleas Court claiming a proposed hog facility expansion would be a nuisance to the neighborhood. They want the case to be certified as a class action and represent 400 people within a two-mile radius of the proposed facility.



Leisa Boley, Columbus-based attorney for the Knapkes, has sought dismissal of the suit on the grounds it has no merit.



“I am considering making everyone who might be involved in the Greenville suit test their water now — it might already be polluted, and that way they couldn’t come back down the road and say the hog operation caused the contamination,” she said.



Boley, who grew up on a hog farm, said the case has no merit because it is a pre-emptive strike on a facility that hasn’t yet been built.



The suit claims potential loss of property value because manure retained in the lagoon of the confinement facility would find its way into an aquifer; because of odor; because of site location; and because of knowledge of the presence of the facility.



One of the plaintiffs in the suit, Boley said, is a real estate developer. The farm was certified as an ag district two hours before the suit was filed.



Larry Gearhardt, Ohio Farm Bureau legislative counsel, noted that if the ag district must be used as a defense in the Darke County case, it would be very similar to the Iowa situation.



Neighbors in the Iowa case — Bormann v. Board of Supervisors for Kossuth County, Iowa — challenged the approval of 960 acres as an agricultural area. The state’s supreme court struck down Iowa’s right-to-farm law, finding that the statutory immunity from nuisance suits contained in the law is an easement over neighboring property and thus results in the taking of private property for public use without just compensation.



The nuisance denial is a pre-emptive denial of the right to file a lawsuit, the court ruled.



“In both cases it is a test of whether we are going to be able to have agricultural activities in agricultural areas, or whether people moving out into the country from cities will determine whether we can make a living or not,” Gearhardt said.



“We maintain that there is a protection for ag facilities. It is in an agricultural area zoned for agriculture. As long as the farmer follows best management practices on the farm, it shouldn’t become a nuisance.



“In our opinion, this suit was filed as an intimidation to keep a young farm family from expanding their operation. We would encourage the judge to dismiss the case because there is no legal justification for it.”

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