Nuisance lawsuits may threaten livestock farmers

By Attys. Tom Fusonie, Dan Shuey and Andrew Guran

Across the United States, neighbors are filing nuisance lawsuits against farmers for damages from perceived excessive noise, odors, and insects that allegedly impact their health, comfort, or property value.

In August 2018, a jury awarded $473.5 million to six neighbors of a hog farm in North Carolina based on claims that the farm produced noise, odors, and other nuisances. This verdict was the third recent one in North Carolina reached against pork producer Murphy-Brown, a subsidiary of Smithfield Foods, with over 20 lawsuits brought by over 500 plaintiffs still pending.

Large jury verdicts raise concerns that nuisance lawsuits against pork producers and farms could increase across the country — especially in key pork-producing states.

Agricultural-related nuisance lawsuits often arise when urban and suburban areas encroach upon traditionally agricultural communities. In other words, a neighbor moves into an area knowing of nearby agricultural uses, and then brings a lawsuit complaining of them.

In some instances, nuisance lawsuits are brought after a property has been farmed the same way for generations.

‘Right to farm’

Many states, including Ohio and Pennsylvania, have “right-to-farm” laws that can offer certain protections against nuisance lawsuits. The “right-to-farm” laws vary and have different requirements to qualify.

Ohio’s law

Ohio offers two statutory defenses when the asserted nuisance relates to agricultural activity: 1) an agricultural exemption and 2) an Ag District exemption.

Agricultural exemption. The first defense protects a farmer who farms outside a municipal corporation if the farming is conducted in accordance with generally accepted agricultural practices and will not have substantial adverse effects on the public health, safety or welfare.

Ag district exemption. The second defense broadly protects farmers who farm within “agricultural districts.” Under this defense, a farmer may be able to defeat some types of nuisance claims if:

• the activity took place within an agricultural district;
• the activity in question began before the complaining neighbor arrived;
• the complaining neighbor is not involved in agricultural production; and
• the farmer conducted the activity according to law and generally accepted practices.

About ag districts. The question then is, how do you create an ag district? The answer is by application to the county auditor where the land is located.

The ag district application requires that the farmer devoted the land exclusively to agricultural production during the prior three years, the land is more than 10 acres, and the farm has an average gross income of at least $2,500 during the past three years.

An agricultural district designation lasts for five years from the date of the application.

Beyond offering a potential defense against nuisance lawsuits, ag districts also provide protections from certain assessments and eminent domain actions.

Be aware, however, that an ag district application must be approved by the county auditor before the filing of any nuisance action in order to offer any defenses.

Pennsylvania

Pennsylvania’s Right to Farm Act provides farmers with two primary protections against nuisance lawsuits. Both protect only “normal agricultural operations,” so an understanding of that term is crucial.

Generally, “normal agricultural operations” are those consistent with industry technological developments, provided they are part of an enterprise that is more than 10 contiguous acres, or has an anticipated yearly gross income of at least $10,000.

1. Restrictions on municipal nuisance ordinances. If a municipality defines a public nuisance through an ordinance, it must exclude “normal agricultural operations” from that definition.
2. Restrictions against nuisance lawsuits. Pennsylvania law bars nuisance lawsuits against agricultural operations if:

• the operations lawfully operated for at least one year prior to the lawsuit;
• the relevant conditions existed substantially unchanged since operations began; and
• the relevant conditions are “normal agricultural operations.”

The Act also protects against a nuisance lawsuit after an operation expands or alters the physical facilities, provided that the change either existed for at least one year prior to the lawsuit, or the farmer previously addressed the change in a nutrient management plan.

The Act will not provide protection, however, if the operation has a direct adverse effect on the public health and safety, pollutes water or causes flooding, or violates any applicable law.

Whether in Ohio or Pennsylvania, the potential defenses to agricultural-related nuisance lawsuits are technical and require attention and preparation. For many of the defenses to apply, a farmer must take certain actions or establish operations before a lawsuit is filed.

And, if a lawsuit is filed and a defense is available, a farmer must understand and assert his defenses at the beginning of the lawsuit.

(About the authors: Tom Fusonie is a partner with Vorys and practices in both Ohio and Pennsylvania. Dan Shuey is a partner with Vorys. Andrew Guran is an associate with Vorys. All three lawyers are members of the firm’s ag law practice. To learn more, visit: https://practices.vorys.com/agriculture/.)

**This article was revised Dec. 3, 2018, to correct the names of one of the attorneys.