Purdue News

March 19, 1999 Indiana 'Right to Farm' law different from Iowa case WEST LAFAYETTE, Ind. -- A U.S. Supreme Court decision not to review a lower court ruling that an Iowa "Right to Farm" law is unconstitutional has raised questions about similar laws in other states. However, Mark Thornburg, an attorney and an Extension educator with the Purdue Cooperative Extension Service who specializes in land use, planning and zoning, said the court decision may not have a large effect in Indiana. All 50 states have passed "Right to Farm" laws designed to protect farmers from lawsuits by suburban neighbors who contend that the farms are a nuisance. Most of the laws are based on the common law principle that you cannot sue someone for being a nuisance if you are the one who came to the nuisance: if you build a home next door to a farm, you have no basis for suing the farmer. "The Iowa law was characterized by the court as an immunity law protecting farmers from being sued," Thornburg said. "Courts don't like to give any one group of people absolute protection from being sued for any reason." By comparison, Thornburg said, the Indiana law is a statutory defense law, which means that a farmer still can be sued, but he can use the "Right to Farm" law as a defense if the farm meets certain criteria. Iowa has passed three "Right to Farm" laws, Thornburg said, and one of these was challenged in court as unconstitutional. In that case, a group of farmers was successful in getting 960 acres established as an "agricultural area" which provided certain protections against nuisance suits. One of the farmers involved was planning to build a farrow to wean contract hog facility. A group of neighbors sued on the grounds that this lowered their property values by granting an easement to emit odors, and therefore was an unconstitutional "taking" of property. "No actual nuisance occurred, in this case. The hog farm that had been proposed by the farmers' group hadn't been built yet," Thornburg said. "Also, the two parties were long-term farmer neighbors. One of the plaintiffs was also a hog farmer. This was not a case of a new subdivision moving into the area." The Iowa Supreme Court decided that the law gave special protection from lawsuits by granting an easement and therefore was unconstitutional because it constituted a "taking" of personal property. In February, the U.S. Supreme Court refused to hear an appeal of the Iowa decision. Among the media reports was a front-page article in USA Today that said, "The Supreme Court Monday handed farmers a sharp defeat in their growing battle against 'suburban sprawl' in rural areas." Thornburg said that although Indiana's law doesn't attempt to provide immunity as the Iowa law did, the language of the statute makes clear the state legislature's intent. The Indiana law includes a statement that " it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products." The Indiana statute allows farmers to use it as a defense in nuisance suits if the farm meets these conditions: There has not been a significant change in its hours of operation. There has not been a change in the type of operation. It was not already a nuisance when it began on that location. It has been in operation continuously for at least one year. Thornburg said that even though these criteria seem clear, there may still be room for dispute. "Let's assume, for example, that a farmer raises hogs and he increases his number of hogs from 29 to 300," he said. "Is that a change in the type of operation? A previous Indiana code said that it was not. So it may not be, although the neighbors living next to the farm may not see it that way. "Clearly, if he had changed from 29 to 10,000 hogs and built several new buildings it would be, just as it would be if he had previously raised corn instead of hogs. But there are some parts of this that aren't completely clear and are only going to be settled in the courts." Thornburg said the Indiana law has been viewed as somewhat weak because it doesn't allow for a change in the type of operation. But he warned that the Iowa decision should give pause to anyone who is thinking about adding legal protections for Indiana farmers. "Any efforts to bolster Indiana's law should keep the Iowa decision in mind," he said. "The more a law looks like it tries to bar all nuisance suits, the more likely it is that the law will be challenged on constitutional grounds. The more it codifies traditional common law defenses, the more likely it is to stand. Other approaches, such as shifting of court costs and attorney fees, may also be less objectionable. "Also, the more a new law disregards the rights of presently existing neighbors, the more likely it is that the law will be challenged as an unconstitutional taking." Source: Mark Thornburg, (765) 494-8499; mark_thornburg@ces.purdue.edu Writer: Steve Tally, (765) 494-9809; tally@aes.purdue.edu Purdue News Service: (765) 494-2096; e-mail, purduenews@purdue.edu To the Purdue News and Photos Page