In re: North Carolina Swine Farm Nuisance Litigation: Be Careful When Betting the Farm on the Right to Farm Act

Written by: Joel McKie, Esq. and JD Howard, Esq.

A North Carolina jury just dealt a major blow to a farmer and potentially to farmers across the nation this past April. Jurors awarded ten landowners near a hog farm over $50 million in damages. The suit alleged that these landowners lived near a Concentrated Animal Feeding Operation (“CAFO”) that was licensed to hold 14,688 hogs. The Plaintiffs alleged that the odors produced by the waste that the hogs generated impaired the use and enjoyment of their properties.

That is the classic definition of a nuisance claim – an impairment to the use and enjoyment of property. However, states often will statutorily define exactly what constitutes a nuisance. For instance, Georgia law defines a “nuisance” in O.C.G.A. § 41-1-1 as “anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.” This rather broad definition could encompass any number of potential claims. Case law narrows the application slightly, but the legislature took specific steps to provide additional protection for farmers and other landowners that use their property for agricultural purposes.

That protection usually comes in the form of a “Right to Farm” statute. These statutes generally protect farmers and agricultural land-uses from nuisance claims. Georgia’s Right to Farm statute can be found at O.C.G.A. § 41-1-7, and the legislature explicitly stated that the purpose of the statute was to “reduce losses of the state’s agricultural and forest land resources by limiting the circumstances under which agricultural facilities and operations or agricultural support facilities may be deemed to be a nuisance.” North Carolina’s Right to Farm statute contains a similar policy statement.

The interaction between the North Carolina neighbor’s claim and the state’s Right to Farm statute is exactly what many farmers and landowners find so troubling about the decision in North Carolina – on the surface it appears the statute failed to provide the protection it intended. In reality, this case may be one of just poor planning on the hog farmer’s part. According to briefs filed in the case, construction of the hog farm that spawned this lawsuit occurred immediately adjacent to an existing neighborhood. Right to Farm statutes generally protect agricultural operations from changed conditions in the opposite direction – when new residences spring up next to existing livestock, poultry, and other agricultural facilities. The specific North Carolina swine farms involved in this case apparently expanded into a residential neighborhood assuming that the state’s Right to Farm Act would bar any nuisance claims.

After the case was filed, the North Carolina legislature passed legislation limiting the amount of damages that can be awarded by juries in nuisance claims against farms and other agricultural landowners. However, such action is too little too late for the hog farms sued in this case.

Currently O.C.G.A. § 41-1-7 prohibits public or private nuisance actions against any “agricultural facility, agricultural operation, any agricultural operation at an agricultural facility, agricultural support facility, or any operation at an agricultural support facility” if those specially defined land uses have been in place for a year or more.

This recent decision in North Carolina provides some important guidance that landowners across the southeast should remember when deciding how to put their property to its most productive use. First, pay attention to the area surrounding your land. For instance, it may not be a wise decision to build a major agricultural operation immediately adjacent to an existing neighborhood. Instead, consult the local zoning board to determine whether local zoning laws permit residential uses near your planned operation. Secondly, make sure to structure your operation so that it fits neatly into the definition of an agricultural facility or operation as provided by statute. Finally, it is important to create and preserve documents that help establish your operation existed for more than a year, and was a reasonable use of the land (in other words, not a nuisance) during that time. This helps establish that any claimed nuisance was a result of changed conditions in the area surrounding your operation, and therefore the language of the statute would bar such a claim.

The Right to Farm Act provides strong protection to farmers and landowners. It is important to make sure that your operation takes advantage of that statutory shield to the fullest extent possible. Make sure to consult with an attorney before you bet the farm solely on the Right to Farm Act.