Conversion from Crop Production to CAFO is not a “Significant Change”

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”

(emphasis added)

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.

Comments

  1. Stuart says

    I have always thought that it takes chutzpah to move across from a farm and tell the farmer he has to change his operation to fit one’s life style preferences. The court did the right thing.

    • says

      That’s not what happened here. The farmer changed his operation, prompting the existing neighbor to complain. Living next to a farm raising crops is quite a bit different from living next to a confined feeding operation.

      That said, the judge did the correct thing because the law adopted by the General Assembly is clear and required that result. Whether the General Assembly did the right thing, giving agricultural operations a special set of rules for nuisance claims is a different question.

      • says

        Had he filed suit within a year of the change, he’d have been heard. Silly guy…how could he not know corporate farmers bought their share of the Legislature years ago?

  2. Steve says

    The law is wrong. It’s one thing to have the farmer next door growing a couple hundred acres of crops but another to put up a CAFO. It takes chutzpah to say with a straight face that that isn’t a significant change. Ugh, yesterday you just grew crops, and today you have a couple hundred head of livestock and everything that goes along with that. I think the court needed to look into what kind of things could justify significant change (i.e. did you have to hire more staff?, are you a subcontractor now?, what happened with your required insurance, etc…). I grew up on a farm, know a bunch of farmers, and there is no way changing from crops to a CAFO isn’t a significant change, except in the mind of this court.

    Stuart, it doesn’t have to be new residents going after existing farmers. Could be exactly the opposite. New farmer buys farm and then wants to put a CAFO in where it’s only been crops before.

  3. Mary says

    I doubt there will be much brouhaha about this because most people do not have to live with a circumstance like this, so they don’t have the ability to imagine what it could be like. Transfer this as an analogy to an urban or suburban setting where a neighborhood becomoes subject to unresolved nuisances, falls into blight, and property values fall, stranding those who would like to get out of a “bad” neighborhood. Maybe then there would be legislative relief. But probably not.

    • Rick Westerman says

      Here is an urban scenario that I believe would be similar to the farm issue.

      I move into a neighborhood full of single-family residences. A couple years later the home next to me is purchased and is sub-divided into multiple rental apartments with the consequent higher noise, trash issues, car parking, etc. Do I have the right to a nuisance claim?

      These days many places have zoning restrictions to keep the above from occurring. In Tippecanoe county the R1 designations keep houses ‘single family’ (grandfather exception for houses converted before zoning was enacted) while ‘R2′ is single or two family. I believe that West Lafayette has further restrictions on rental units that define occupancy limits. It certainly has a rather extensive list of rental rules designed to keep nuisances from occurring.

      So one reason that many people may not identify with the Ag issue is that the issue has already been solved in the urban setting — mostly in favor of all of the homeowners in a neighborhood instead of a select few.

      Going back to the Ag issue. In Tippecanoe there are 4 ‘rural zones’ — Ag, Select Ag, Ag and wooded, and Rural Estate. Some of those have restrictions — e.g., Ag & Wooded must remain 75% vegetative cover — but in general a person can do whatever they feel like. For the last five years I have lived on A&W land. [side note, until a minute ago when I looked it up I thought I was on Ag land which is a lot more permissive ... got to be careful what I do, I suppose]. On Ag land a person can put up a two-family dwelling or a frat house. On Ag and A&W land a person can raise livestock, have a dog farm or kennels, provide Ag services, mine for minerals, create a concrete plant … gee, what freedom! The ‘right to farm’ act enshrines these freedoms.

      However I am not sure if the ‘right to farm’ law is a good one. It doesn’t seem to provide much recourse and doesn’t seem to take neighbors into account. While I *could* have a kennel on my property I don’t think that my neighbor Stan — whose house abuts my property line — would like it very much. I don’t think he likes the goats we do have across the field from him nor the free-ranging turkeys and chickens. But given the ‘right to farm’ law … well, up yours Stan. :-)

  4. Rick Westerman says

    In case Stan (or related) is reading this blog I want to make sure that everyone realizes that my last sentence had a smiley face in order to signify a statement said in jest or sarcastically in order to emphasize a point. My wife and I try to keep on the good side of all of our neighbors and we would never give Stan nor his wife the metaphorical finger. Never-the-less it is true that we did not consult with Stan as we converted the previous corn & soybean field to land that holds chickens (noisy roosters), guinea fowl (noisy in general) and goats (extra flies). He could have complained but with the right-to-farm law in force he would not have a leg to stand on. Of course what is fit for the goose is fit for the gander … Stan, or more likely the person who owns the corn/soybean fields next to us, could change the use of the adjoining property without us being able to do anything about it. A CAFO would not be pleasant (although I am not sure if one could be created in Tippecanoe county) nor some of the other usage changes that are possible.

  5. Tom says

    I just chanced across this blog…
    At this moment my neighbors and I are facing the same issue here on Maryland’s Eastern Shore… There is a twenty five acre parcel surrounded by homes which has been planted in crops for many years and is going to be sold contingent upon being able to build a manure shed and four poultry houses each of which will be 660′ X 67″ with a total capacity of almost 236000 birds which are not owned by the grower but are raised under contract. The man who wants to build this has several of these operations in our area. although he actually lives in another county, plants no crops, and has a history of building these, operating them for five years, and then selling out or declaring bankruptcy so that he does not have to pay any taxes on them. Some of those opposed to this own small farms that have been in their families for generations and see this kind of operation not as ‘farming’ but rather as an industry which in any other situation would be subject to stringent zoning controls that do not apply here because it’s ‘agriculture’.
    To my mind the question is are ‘Right to Farm’ laws being used for a purpose that they were never intended for and being manipulated by the big meat producing companies to steamroll their way into poorer and often poorly regulated rural counties such as ours…

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