One good thing about blogging so long and doing thousands of posts is that, occasionally, you get something right. Back in March of 2005, I posted on Sen. Jackman’s legislation having to do with agricultural nuisance actions.
At the time, I wrote:
This amends a section of the code apparently designed to protect agricultural areas from nuisance suits when suburbia moves into the agricultural area. Under current law, an agricultural or industrial operation is not a nuisance if: 1) it has been in continuous operation for at least a year; 2) there is no significant change in the hours of operation; 3) there is no significant change in the type of operation; and 4) the operation would not have been a nuisance at the time the operation began at the locality.
Senator Jackman’s amendment to the law repeals the requirement that the hours remain substantially the same and defines the “no significant change” requirement so that a change in the size, ownership, or to a different type of agricultural use does not constitute a “significant change”. So, presumably under the new law, converting from a small, locally owned, odor-free agricultural operation in business between 8 and 5 to a huge operation owned by an out of state corporation belching out noxious odors 24 hours per day would not consitute a “significant change”
Today and yesterday, the Indiana Law Blog has been posting about a recent decision having to do with Randolph County nuisance lawsuits from neighbors challenging increased operations at a hog finishing operation. (A “finisher” is an operator who takes the pigs after they’ve been weaned and grows them until they’re ready for slaughter). The ILB has posted the court’s decision (pdf) granting summary judgment in favor of the defendants in Armstrong v. Maxwell Farms.
The farm had been in operation since the early 1900s. Prior to 2007, the farm appears to have been used in crop production. However, in 2007, Maxwell Farms contracted with the farm’s owner as an independent contractor who would finish hogs at a barn on Gary Foulke’s farm. The plaintiffs argued, among other things, that the change from crop production to a hog finishing operation, its resulting noxious odors and diminished enjoyment and value of plaintiffs property constituted a “significant change.” The court, based on the plain language of the statute disagreed:
The Indiana Legislature had to know in 2005, when it amended the Right to Farm Act, that the number of animals being confined in swine and dairy operations was growing exponentially, and yet the Legislature did not give neighbors surrounding the operations any relief. In 2005, the Legislature made the Right to Farm Act even more restrictive to potential lawsuits. The Legislature has made its intent known to protect fanning operations against nuisance actions, even if the operation grows from a few hogs to several thousand, and even if the operation changes from growing corn to raising thousands of hogs.
I think the court got it right. The legislature, however, does not seem to be treating rural landowners very fairly. The idea that an agricultural operation ought to be able to keep doing what it was doing when neighbors bought their property makes sense. Don’t like it? Don’t move in. But, the idea that one neighbor can unilaterally take action to substantially impair the other neighbor’s enjoyment and use of the neighbor’s property is tougher to defend.