Property Rights and Right to Farm Laws: Specifics Are Needed

May 2, 2019  

  • Blog

Every state has some form of a “right-to-farm” law. These laws prohibit nuisance lawsuits against farmers who have consistently been in operation and use known farming techniques. The goal of these laws was to protect family farms from the onslaught of urban sprawl. It seems reasonable that existing agriculture should be able to continue.

Nuisance laws, which have their origin in the common law, preceded zoning ordinances in determining what activities could be done where. In most places, making loud noises in residential areas in the middle of the night is not permitted. Likewise, releasing toxic chemicals is illegal in most places. All farms, even small family farms, produce some level of what could be called a nuisance. Agricultural equipment makes noise. Livestock are not known for being very clean. Fields are sprayed with pesticides. Trucks deliver goods and pick up harvests. Although commonplace in rural areas, these are not things that most homeowners want in their backyards.

Right-to-farm laws were designed to protect activities that had been already been taking place on private property from being enjoined by nuisance lawsuits. The idea was that it would not be acceptable for someone to build a new home next to an existing farm and then file a lawsuit to get rid of the farm. This seems good for property rights – it protects the farmer and is a warning to any prospective buyer of nearby land. Land values respond accordingly. The new homebuyer loses no property rights because conditions were known before the purchase.

Right-to-farm laws have recently been misused in a way that is detrimental to property rights. They have faced criticism that they protect large corporate farms from legitimate complaints while doing comparatively little for family farms. True as this may be, it has nothing to do with property rights. Corporate farming operations have property rights too. The real problem is when the type of farming changes to something that presents much more of a nuisance than what existed before.

This problem arose in Hendricks County, Indiana, where two couples challenged the right-to-farm law because of the pollution of a nearby hog farm. In earlier years, hogs were raised with outdoor access, but modern practices keep hogs densely packed indoors and require space for all of the waste they produce. Modern hog farms are much larger than their predecessors a generation ago. As anyone who has been near a hog farm knows, the odor and fumes are offensive and even toxic. Protecting such operations, which harm the health of nearby residents, is not the intent of these laws, however the courts have thus far ruled that no nuisance law can be brought because the agricultural use was not new, although this specific farm was.

In order to really protect property rights, right-to-farm laws need specifics. Continuing an existing practice is one thing, but starting a new practice, like an industrial-scale hog farm, is quite another. Compared to a corn field, a hog farm is a fundamentally different use and seems to amount to a new use. The nuisance it generates, and the hazards it produces, are also far greater. The law would better protect property rights for farmers and residents if it allowed nuisance challenges for a major change in use and for hazardous emissions. Adding these specifics to the law would protect family farms, allow ongoing agriculture, be consistent with the intent of the law, and protect legitimate concerns of both new and longtime residents.