University of Vermont AAHS

Hey, Mister, Is This Your Manure Pile?

by
Robert O. Dawson
Professor of Law
University of Texas
School of Law
AAHS Secretary/Treasurer
[reprinted from Vol. 3, No. 2 Summer 1998 Caution: Horses]
 
 

 The story of America has been in part the story of the urbanization of our land.  Lands that were yesterday devoted to agricultural uses are today the sites of homes and commercial activities.  In a brief time, large agricultural acreage can be subdivided into tracts of suburban housing.  Unfortunately, the proximity of such new urban uses to older agricultural uses sometimes creates conflicts among land occupiers.  The site that was last year an isolated horse farm may today be next to a large residential development.  The sights, sounds and smells that are taken for granted in an agricultural setting may become extremely annoying and offensive to suburban neighbors.

Nuisance Lawsuits.  In some such circumstances, suburban neighbors have brought lawsuits (called nuisance lawsuits) against those people responsible for agricultural activities that offend their senses.  This may seem unfair to the farmer or rancher who, after all, was there first.  So long as the farmer or rancher does not change his or her operations to become more intrusive and so long as he or she farms or ranches according to accepted standards in the industry, should he or she not have the right to continue to operate as before?

 Perhaps the most famous of these nuisance lawsuits occurred in Arizona in the early 1970s.  Spur Feeding Company ran a cattle feedlot.  The Del Webb Company founded a new development--called Sun City--in the vicinity of the feed lot.  When it became apparent that the odors from the feedlot were interfering with selling lots in that part of Sun City, Dell sued the feedlot for an injunction requiring it to either shut down or move its operations elsewhere.  The trial court granted the injunction but ordered Dell to pay the expenses the feedlot would incur in complying with the injunction.  That order was upheld by the Arizona Supreme Court.

 Then, over 400 residents of Sun City sued Spur Feeding to collect money for the injuries to the use and enjoyment of their property that the feedlot had caused.  Spur successfully claimed in the Arizona Supreme Court that Del Webb should be a party to this lawsuit so that if the feedlot were required to pay damages to the residents, it would be able to seek reimbursement from Del Webb.

 While the Sun City case was unusual in the way it distributed the economic burdens of correcting the nuisance, the important lesson of the case and similar cases for state legislatures was that the feedlot, which was operating lawfully and had been there first, was required to shut down or relocate because it acquired through no effort of its own many new neighbors.

 In other cases, courts have refused to enjoin the agricultural operation but have ordered the operation to function in a restricted manner.  For example, one Florida judge limited the number of hogs that could be kept on a farm and restricted certain agricultural operations to nighttime.  In Massachusetts, on the other hand, the Supreme Judicial Court ordered a hog farm that was shown to be well run to cease operations within a 15 month period because of the nuisance it was creating for its new neighbors.  It also ordered the payment of damages to the homeowners.

 Right to Farm Laws.  Such cases led to the enactment in the early 1980s of statutes proclaiming a “Right to Farm.”  Every state has a law designed to protect agricultural operations (farms, ranches, forests) from the encroachments of urban development.  While there can be some dispute as to what activity qualifies as agricultural, certainly most commercial horse operations--such as boarding, lesson, training or breeding facilities--would qualify.

 Most of these laws provide that if the agricultural operation was in existence for a specified period of time prior to the conflicting urban use, and so long as the agricultural use has not materially changed and the agricultural operation is not conducted in a substandard fashion, it is protected from nuisance lawsuits.  The qualifying period varies from state to state but is usually  at least one year of prior agricultural use.

 There are two types of nuisance lawsuits: those brought by a private landowner against a neighbor and those brought by a public entity, such as a city, township or county, against a nuisance, declared by law to be a "public nuisance" that offends a locality.  Both types are prohibited by agricultural protection acts.
 Sometimes, a nuisance lawsuit seeks to recover money to compensate for past intrusions and sometimes the person or government entity bringing the lawsuit is seeking a court order (called an injunction) to shut down the offending land use.  Agricultural protection acts deal with both of these kinds of nuisance lawsuits.

 In addition to nuisance lawsuits, local governmental units, such as cities and counties, sometimes attempt to impose zoning or other land use restrictions on neighboring agricultural operations.  If permitted, these can effectively shut down a horse farm by zoning it into non-compliance with local laws or by making continuing operation uneconomical.  Most agricultural protection acts also speak to this circumstance and prohibit local governments from adversely zoning  agricultural operations that satisfy the requirements of the statute.

 Many Right to Farm statutes specifically do not provide protection for agricultural activities that cause water pollution.  Such polluting farm activities are fully subject to nuisance lawsuits without the benefits of defenses provided by agricultural protection acts.

 What You Can Do to Protect Yourself.  If your horse farm has acquired some new residential neighbors, you might first want to look at the world from your new neighbors point of view.  While horse farms are not nearly as offensive to suburban sensibilities as feedlots or hog farms, they do have their problems, such as odors and flies.  Can you take any reasonable steps to avoid unnecessarily offending the neighbors.  Perhaps you can move your manure pile to a different location or dispose of the manure more frequently, particularly in summer, so the pile doesn’t accumulate into the critical mass that causes odor or insect problems.  Perhaps re-examining your fly control program will be of assistance in dealing with the neighbors.  While it is true you may not be legally required to take these or similar actions, if doing so will avoid or ameliorate a neighborhood controversy, they should be given serious consideration.

 You should get a copy of your state’s Right to Farm law.  More on where you can get that later.  Getting the statute, reading it, and understanding it are important first steps.  You don’t need to be a lawyer to understand it--they really aren’t that complicated.  If a neighborhood dispute continues to the point at which a neighbor is threatening a lawsuit, you might give him or her a copy of the law--that may have a sobering effect.

 For More Information.  AAHS has collected Right to Farm laws from all fifty states.  They are available without charge on our web site.  The address is www.law.utexas.edu/dawson/.  Look for Agricultural Protection Acts under Statutes for Horsemen and there you will find what you are looking for.  Or, just jump to  Agricultural Protection Acts.



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