University of Vermont AAHS

Maine Agricultural Protection Act

MAINE STATUTES
TITLE 17. CRIMES
CHAPTER 91. NUISANCES
SUBCHAPTER III. PARTICULAR NUISANCES

 

2805. Farms or farm operations not a nuisance; use of best management practices

1. Definition. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
A. "Farm" means the land, buildings and machinery used in the commercial production of farm products.
B. "Farm operation" means a condition or activity that occurs on a farm in connection with the commercial production of farm products and includes, but is not limited to, operations giving rise to noise, odors, dust, insects, fumes, operation of machinery and irrigation pumps, ground and aerial seeding, ground spraying, composting of material produced by the farm or to be used at least in part on the farm, disposal of manure, the application of chemical fertilizers, soil amendments, conditioners and pesticides and the employment and use of labor.
C. "Farm product" means those plants and animals useful to humans and includes, but is not limited to forages and sod crops, grains and food crops, dairy products, poultry and poultry products, bees, livestock and livestock products and fruits, berries, vegetables, flowers, seeds, grasses and other similar products.

2-A. Farm or farm operation not nuisance. A farm or farm operation may not be considered a public or private nuisance if the farm or farm operation alleged to be a nuisance meets one of the following conditions:
A. The farm or farm operation conforms to best management practices, as determined by the Commissioner of Agriculture, Food and Rural Resources in accordance with the Maine Administrative Procedure Act, Title 5, chapter 375; 
B. For complaints regarding the storage or use of farm nutrients as defined in Title 7, section 4201, subsection 4, the farm or farm operation has implemented a nutrient management plan developed in accordance with Title 7, section 4204 and operation of the farm is consistent with the nutrient management plan; or
C. The farm or farm operation existed before a change in the land use or occupancy of land within one mile of the boundaries of the farm as long as, before the change in land use or occupancy, the farm or farm operation would not have been considered a nuisance. This paragraph does not apply to a farm or farm operation that materially changes the conditions or nature of the farm operation after a change in the land use or occupancy of land within one mile of the boundaries of the farm. Nothing in this paragraph affects the applicability of any of the other provisions of this section.

3-A. Violation of municipal ordinances. A method of operation used by a farm or farm operation located in an area where agricultural activities are 
permitted may not be considered a violation of a municipal ordinance if the method of operation constitutes a best management practice as determined by the Department of Agriculture, Food and Rural Resources.

4. Application; municipal ordinances. This section does not affect the application of state and federal laws. After the effective date of this subsection, a municipality must provide the Commissioner of Agriculture, Food and Rural Resources with a copy of any proposed ordinance that impacts farm operations. The clerk of the municipality or a municipal official designated by the clerk shall submit a copy of the proposed ordinance to the commissioner at least 90 days prior to the meeting of the legislative body or public hearing at which adoption of the ordinance will be considered. The commissioner shall review the proposed ordinance and advise the municipality if the proposed ordinance would restrict or prohibit the use of best management practices. This subsection does not affect municipal authority to enact ordinances.

5. Complaint resolution. The commissioner shall investigate all complaints involving a farm or farm operation, including, but not limited to, complaints involving the use of waste products, ground and surface water pollution and insect infestations. In cases of insect infestations not arising from agricultural activities, when the State Entomologist believes that the infestation is a public nuisance and is able to identify the source or sources 
of the infestation, the commissioner shall refer the matter to the Department of the Attorney General. If the commissioner finds upon investigation that the person responsible for the farm or farm operation is using best management practices, the commissioner shall notify that person and the complainant of this finding in writing. Notwithstanding subsection 2-A, paragraph C, if the commissioner identifies the source or sources of the problem and finds that the problem is caused by the use of other than best management practices, the commissioner shall:
A. Determine the changes needed in the farm or farm operation to comply with best management practices and prescribe site specific best management practices for that farm operation;
B. Advise the person responsible for the farm or farm operation of the changes, as determined in paragraph A, that are necessary to conform with best management practices and determine subsequently if those changes are implemented; and
C. Give the findings of the initial investigation and subsequent investigations and any determination of compliance to the complainant and person responsible.

5-A. Good faith. The Maine Rules of Civil Procedure, Rule 11 applies in any private action filed against the owner or operator of a farm or farm operation in which it is alleged that the farm or farm operation constitutes a nuisance if it is determined that the action was not brought in good faith and was frivolous or intended for harassment only.

6. Failure to adopt best management practices. If the person responsible for the farm or farm operation does not apply best management practices as required by the Commissioner of Agriculture, Food and Rural Resources, the commissioner shall send a written report to an appropriate agency if a federal or state law has been violated and to the Attorney General. The Attorney General may institute an action to abate a nuisance or to enforce the provisions of this section or any other applicable state law, and the court may order the abatement with costs as provided under section 2702, such injunctive relief as provided in this section or by other applicable law, or that a civil violation has been committed. Failure to apply best management practices in accordance with this section constitutes a separate civil violation for which a fine of up to $1,000, together with an additional fine of up to $250 per day for every day that the violation continues, may be adjudged.

7. Agricultural Complaint Response Fund. There is established the nonlapsing Agricultural Complaint Response Fund. The commissioner may accept funds from any source designated to be placed in the fund. The commissioner may authorize expenses from the fund as necessary to investigate complaints involving a farm or farm operation and to abate conditions potentially resulting from farms or farm operations.

8. Rules. The commissioner shall adopt rules in accordance with the Maine Administrative Procedure Act [FN1] to interpret and implement this section.

9. Educational outreach. The Commissioner of Agriculture, Food and Rural Resources shall conduct an educational outreach program for the agricultural community to increase awareness of the provisions of this section and the currently adopted best management practices of the Department of Agriculture, Food and Rural Resources. The commissioner shall inform the public about the provisions of this section, the complaint resolution process adopted by the department and state policy with respect to preservation and protection of agricultural and natural resources.n.

Enacted in 1981, amended 1999, 2003..
Reviewed by AAHS in June 2001.
Reviewed and updated by AAHS in April 2003.


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