June 18, 2018.  Last year, Session Law 2017-11  limited the compensation a property owner could recover for nuisance conditions caused by an agricultural or forestry operation. Last week, the N.C. legislature significantly rewrote North Carolina’s “Right to Farm Act” in Senate Bill 711 to all but eliminate a property owner’s ability to protect their property from being devalued because of nuisance conditions caused by large swine operations.  (Although the bill covers all types of agriculture and forestry operations, it clearly represents an additional and more extreme response to potential nuisance lawsuits against North Carolina swine farms.)

“Nuisance” means interference with the use and enjoyment of another person’s property.  Last year, a group of North Carolina residents won several million dollars in damages in nuisance cases against swine farms based on conditions such as odor, pests, and exposure to ammonia emissions that caused health problems and restricted outdoor activities on their property. See an earlier post for more background on the lawsuits. Historically, North Carolina case law has also recognized nuisance claims based on injury to a business and health problems caused by a nuisance condition.

In response to the nuisance lawsuits against swine operations, Session Law 2017-11 limited the kind of compensation that a person could receive in future nuisance cases to loss of fair market value or fair rental value of their property.  The law effectively eliminated the ability to get compensation for other types of injury such as  business loss, although the law did not bar additional damages if the plaintiff could prove negligence, trespass or personal injury.

Senate Bill 711 takes the much bigger step of making nuisance lawsuits against agricultural operations all but impossible. It also seems to  turn the concept of “Right to Farm” on its head. “Right to Farm” laws (adopted in nearly every state)  protect  farms  from nuisance claims by people who  buy property near an existing farm because they presumably  bought with knowledge of the agricultural activity.  North Carolina has had a “Right to Farm” law since 1979.  Under that law (G.S.  106-701), an agricultural  operation that has been in existence for a year cannot be considered a nuisance based on changing conditions around the farm.     In 1991, the N.C. legislature amended G.S. 106-701  to extend the same protection against nuisance lawsuits to forestry operations.

“Right to Farm” becomes “Right to Create a Nuisance”.  Senate Bill 711 reverses the entire concept of “Right to Farm” laws to protect the ability of agriculture operations to change, grow, and increase their impact on nearby property owners and residents. Under the bill,  a  property owner loses the right to sue a  farm for nuisance conditions that interfere with use of their property unless they file the lawsuit within the first year after the farm begins operation or within one year after there is a fundamental change in the farming operation. The Catch-22 in the bill is that “fundamental change” does not include:

(1) A change in ownership or size of the farm.

(2) An interruption of farming for a period of no more than three years.

(3) Participation in a government-sponsored agricultural program.

(4) Employment of new technology.

(5) A change in the type of agricultural or forestry product produced.