The 1979 Session of General Assembly enacted farm operations from nuisance suits under certain circumstances. Representative Tom Ellis, Jr.(D-Vance) was the principal introducer of the law, along with thirty-five co-sponsors. The law, enacted by unanimous votes in both the House and Senate, is of interest to local government officials and planners because of its implications for urban-rural conflicts in land use, suburban growth patterns, and annexation of farm land by municipalities

McLoed, Davis S.

Carolina Digital Repository

David S. McLoedNuisance Suit Protection For Farms:North Carolina Law Takes A NewApproachThe 1979 Session ofGeneral Assembly enactedfarm operations from nuicircumstances. Represen(D-Vance) was the princilaw, along with thirty-flaw, enacted by unanimouHouse and Senate, is ofgovernment officials andimplications for urban-ruse, suburban growth patfarm land by municipal itthe North Carol i nalegislation to protectsance suits under certaintat i ve Tom Ellis, Jr.pal introducer of thei ve co-sponsors. Thes votes in both thenterest to localplanners because of itsural conflicts in landterns, and annexation ofies.NUISANCE COMPLAINTS AGAINSTFARM OPERATIONSAnyone who engages in activity that pro-duces odor, dust, or noise sufficient to inter-fere with someone else's use and enjoyment ofhis property is a potential party to a nuisancesuit. Mining and heavy industry have often beenthe subject of nuisance suits. Zoning ordinanceshave certainly been helpful in reducing the po-tential for nuisance-type conflicts between in-dustrial and residential land uses. Also, theresidential dweller has little incentive to lo-cate near industrial areas.Different factors define the farm nuisanceproblem. Farming is a land-based activity.Unlike industry, the farmer lives where he works.Industrial parks can be created by zoning; farmcommunities can not. Moreover, the residentialland user is attracted to the farm community forvarious aesthetic and economic reasons not pre-sent in areas dominated by industrial land use.Although almost any type of farm operationcould be the object of a nuisance suit, anexample of the type of problem that promptedthe Farm Nuisance Suit Protection Act will aidin its understanding.Suppose that Farmer Jones lives in a ruralfarm community on the outskirts of a growingcity. Among other things, he keeps a number ofhogs— some for consumption, some to sell forincome. He has done this for many years, ashave others in the community. There are odors,but there have been no complaints because houses36are a good distance from each other and from thehog confinement houses or "pig parlors." Theoccasional aroma emanating from the pig parloron a hot day does not annoy his neighbors be- _cause they are accustomed to such ordinarysmel Is.As the city grows outward, land is neededfor housing for people who work in the city.The least expensive and most convenient land isalong state roads through this rural farmcommunity, resulting in a classic case of stripdevelopment. When Farmer Jones's neighbor died,his heirs sold several highway lots for develop-ment. One of these is near Farmer Jones'spig parlor. The new residents are unfamiliarwith and intolerant of the hog odors. Due to areluctance on the part of Farmer Jones to giveup his livelihood, the newcomers file a nuisancesuit and recover $2,000 in damages plus a courtorder enjoining the operation of the pig parlor.There is little data available on the num-ber and disposition of nuisance suits involvingfarm operations. Judgements in trial cases instate courts are not published or indexed bysubject matter. Few of these cases reach theappel late courts.A survey was conducted by the AgriculturalExtension Service in 1976 to gather data onnuisance suits and complaints against farmoperations. This data showed that swineoperations received the most complaints,followed by poultry operations, with complaintsagainst both increasing steadily. Most of thecomplaints reported were resolved withoutcourt action, usually through negotiation andimproved odor management of the operations.David S. MaLoed, from Durham, North Carolina,is Special Assistant to the Commissioner ofAgriculture, James A. Graham. He has servedin that position since 1977 when he was grad-uated from the University of Miami School ofLaw, Coral Gables, Florida with a J.D. In 1974,he received his B.A. from the University ofNorth Carolina at Chapel Hill. The views ex-pressed in this article are those of the authorand do not necessarily reflect the views of theCommissioner or of the Department of Agriculture.Carolina planningComplaints against farm operations are increasingas residential development moves into rural areas.Photo courtesy of D. S. MaLoedIn some cases, however, the only alternativefor the farmer is to close down his operation.Perhaps more importantly, the uncertaintycaused by potential nuisance suits discouragesinvestment in and improvement of farm operations.One recent case that caused much concernamong pork producers involved a Pamlico County,North Carolina pig parlor, under circumstancessimilar to the example cited above. The ownerof the swine operations was using the bestavailable technology for controlling odors.Yet the jury determined that the operation wasa nuisance and awarded the plaintiffs $2,000in damages [Kropaazek v. Slade-Earrold-Larrabee,Part., 75-CvS-210 (Pamlico County, N.C. 1978)).The reason for widespread interest in this case(which received broad coverage in local news-papers) was the fact that many swine operationsproduce even more odors than did that one (WewBern Sun Journal, April 13, 1978).The decision in this case, though consistentwith existing North Carolina nuisance law,alerted pork producers and other farm operatorsto the fact that even a wel 1 -ma i ntai ned operationusing "state of the art" technology is notimmune from being declared a nuisance due tofactors beyond the control of the farm operator.This is the critical factor in most of thesecases from the farmer's point of view, and thatis the problem which the Farm Nuisance SuitProtection Act seeks to remedy.EXISTING NUISANCE LAW INNORTH CAROLINAIn order to understand the new agriculturalnuisance law, a brief outline of existingnuisance law is necessary. In a nuisance suitagainst a farm operation, the plaintiff wouldhave to show that the defendant's use of hisproperty was unreasonable under the circum-stances, e.g., that the facility produced anunreasonable amount of odor. The plaintiffwould also have to prove that these unreason-able odors were the cause of substantial injuryand loss of value to the plaintiff's property.The key words here are "unreasonable" and"substantial." It would not suffice for theplaintiff to show that there was some degreeof odor detectable on his property that orig-inated on the defendent's property. The odormust be unreasonable under the existing circum-stances. Nor would it suffice for the plaintiffto show that the odor had simply caused him somediscomfort, inconvenience, or annoyance. Hemust show substantial injury to his propertyrights .How does the jury determine whether or notthe defendant's conduct is unreasonable? To alarge degree, this will depend upon the judge-ment of each member of the jury. However,the North Carolina Supreme Court has listedsome of the circumstances v;hich are to beconsidered by the jury in answering thisquestion. These include the surroundings andconditions under which the defendant's conductis maintained, the character of the neighbor-hood, the nature, utility, and social value ofthe defendant's operation, the nature, utility,and social value of the plaintiff's use of hisland, the suitability of the locality for theplaintiff's occupation between the parties (SeeWatts V. Pama Manufacturing Company, 256 N.C.611 (1962). In short, then, the jury is supposedto balance all the circumstances and come up witha fair resul t.The court will instruct the jury to con-sider and weigh all these factors, and thatnone alone is dispositive of the issue. Withsuch broad guidelines, though, the jury islikely to allow other factors to creep intotheir consideration. They might consider therelative wealth of the parties or the abilityof the defendant to pay damages to the plain-tiff. Other factors weighing against thedefendent would be the jury's natural sympathyfor the homeowner versus a business and theirlack of familiarity with farm operations.ANALYSIS OF THENEV^/ LAWThe law of nuisance in North Carolina, asin most states, is comprised of case law ratherthan statutes. It has evolved over the yearsin response to changing conditions and changingconceptions of property rights. The FarmNuisance Suit Protection Act does not attemptto codify or repeal existing nuisance law but,instead, it simply modifies the law as itapplies to agricultural operations.Ai noted earlier, priority of occupationis one of the circumstances to be consideredspring 1980, vol. 6 no. 1mmimimiJJiiBmg37Nuisance Liability of Agricultural Operations.N.C. Gen. Stat. § 106-107 (Supp. 1979).§ 106-700. Legislative determination anddeclaration of policy.— It is the declaredpolicy of the State to conserve and protectand encourage the development and improve-ment of its agricultural land for the produc-tion of food and other agricultural products.When nonagricultural land uses extend intoagricultural areas, agricultural operationsoften become the subject of nuisance suits.As a result, agricultural operations aresometimes forced to cease operations. Manyothers are discouraged from making investmentsin farm improvements. It is the purpose of thisArticle to reduce the loss to the State of itsagricultural resources by limiting the circum-stances under which agricultural operations maybe deemed to be a nuisance. (1979, c. 202, § 1.)§ 106-701. When agricultural operation, etc.,not constituted nuisance by changed conditionsin locality.-- (a) No agricultural operation orany of its appurtenances shall be or become anuisance, private or public, by any changedconditions in or about the locality thereofafter the same has been in operation for morethan one year, when such operation was not anuisance at the time the operation began;provided, that the provisions of this subsectionshall not apply whenever a nuisance results fromthe negligent or improper operation of anysuch agricultural operation or its appurtenances.(b) For the purposes of this Article, "agricul-tural operation" includes, without limitation.Iany facility for the production for commercialpurposes of crops, livestock, poultry, livestockproducts, or poultry products.(c) The provisions of subsection (a) shall notaffect or defeat the right of any person, firm,or corporation to recover damages for any injur ies|or damages sustained by them on account of anypollution of, or change in condition of, thewaters of any stream or on the account of anyoverflow of lands of any such person, firm, orcorporation.(d) Any and all ordinances of any unit oflocal government now in effect or hereafteradopted that would make the operation of anysuch agricultural operation or its appurten-ances a nuisance or providing for abatementthereof as a nuisance in the circumstanceset forth in this section are and shall be nulland void; provided, however, that the provisionsof this subsection shall not apply whenevera nuisance results from the negligent orimproper operation of any such agriculturaloperation or any of its appurtenances. Pro-vided further, that the provisions shall notapply whenever a nuisance results from anagricultural operation located within thecorporate limits of any city at the time ofenactment hereof.(e) This section shall not be construed toinvalidate any contracts heretofore made butinsofar as contracts are concerned, it isonly applicable to contracts and agreements tobe made in the future. (1979, c. 202, § 1.)by the jury in determining whether or not thedefendant's activity is unreasonabie and thusa nuisance. If the jury determines that thedefendant has operated with no adverse resultsuntil the plaintiff moved in and placed himselfwhere he would suffer from the defendant'sactivity, then the jury may decide that theplaintiff had brought about his own misery, andcould refuse to declare the defendant'soperation a nuisance. As described earlier, this"moving to the nuisance" is often the cause ofnuisance suits involving farm operations. Theproblem with existing law was that while thejury aould consider priority of occupation,it was not required to do so. Thus, the FarmNuisance Suit Protection Act seized upon thisaspect of existing law and made it the con-troll ing factor in certain cases involvingagricultural operations.The term "agricultural operation" isbroadly defined so as to include any bona fidecommercial farming activity. Obviously it isnot intended to protect someone who tries toturn a one-acre subdivision lot into a mini-farm.38The law states that no agricultural opera-tion shall be a nuisance due to changed con-ditions in the locality after it has been inoperation for more than one year, when it wasnot a nuisance at the time it began. Thiscuts off a nuisance suit by one who "moves in"on an established farm operation that hasoperated for at least a year without being suedand declared a nuisance. It would also preventa successful nuisance suit by someone who"... THIS SECTION DOES NOT APPLY WHENEVER ANUISANCE RESULTS FROM THE NEGLIGENT OR IMPROPEROPERATION OF THE FACILITY."already lived near the operation if the one-year period has elapsed. The Legislatureapparently felt that one year was sufficienttime for a potential plaintiff to determinewhether or not he wants to file a lawsuitagainst the farm operation. This law does notapply to situations where the plaintiff can showthat the defendant's facility is being operatedin a negligent or improper manner.Carolina planningAnother section of the law deals with localordiances that provide for the abatement of anagricultural operation by declaring it anuisance. The law provides that such ordinancesshall be null and void insofar as they applyto an agricultural operation located outside"the legislature foresaw that the preservationof farmland would be beneficial to the entirestate, AS WELL AS TO THE FARMER."the corporate limits of a city at the timethe law was enacted (March 26, 1979)- As withthe other provisions of the law, however, thissection does not apply whenever a nuisanceresults from the negligent or improper opera-tion of the f ac i 1 i ty.Prior nuisance law depended, in part, uponthe evaluation by the jury of the relativeutility and social value of the plaintiff'sand defendant's respective uses of their land.It is important to note that this law setsforth the policy of the State "to conserve andprotect and encourage the development and"the LEGISLATURE CHOSE INSTEAD TO USE ANAPPROACH THAT TAKES ADVANTAGE OF THE NATURALINCENTIVES OF THE PARTIES INVOLVED."improvement of its agricultural land for theproduction of food and other agriculturalproducts," and "to reduce the loss to theState of its agricultural resources by limitingthe circumstances under which agriculturaloperations may be deemed to a nuisance." Thisstatement of policy and purpose will guide thecourts in interpreting this law in light ofthe prior case law on nuisances, which remainsin effect to the extent that it is not i ncon-s i s tent with this law.The law purposely leaves unanswered manyquestions about its application in particularcircumstances. To have provided a morecomprehensive solution would have required adelegation of rulemaking authority to aregulatory agency. The Legislature choseinstead to use an approach that takes advantageof the natural incentives of the parties in-volved. This approach also utilizes theadversary legal process to obtain results thatare suited to the facts of each case. Thelegislature has simply modified the rulesunder which these conflicts are resolved.EFFECTS ON LAND USEAlthough not intended as land use legisla-tion, this law wi 1 1 undoubtedly have an effecton land use in areas where farm communitiesare under pressure from growing cities. Cer-tainly the law would discourage the prudentdeveloper from locating a subdivision near anestablished farm community, where ordinary odorsfrom livestock would bring complaints fromsubdivision residents.By encouraging the protection and improve-ment of farm land, the law may indirectlybenefit local government by reducing theamount of land available for urban sprawldevelopment. At any rate, the legislatureforesaw that the preservation of farmlandwould be beneficial to the entire State, aswell as to the farmer.North Carolina was apparently the firststate to provide this sort of protection forthe farmer. Florida adopted a similar statutein May of 1979- Virginia's legislature ispresently considering such a law, as are anumber of other states that are using theNorth Carolina law as a model.spring 1980, vol. 6 no. 1UUHlMiHBHH

Nuisance Suit Protection For Farms: North Carolina Law Takes A New Approach

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Nuisance Suit Protection For Farms: North Carolina Law Takes A New Approach

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