Old MacDonald had ... a right to farm!
Since it’s summer, farmers are busy out in the field. It's peak work and harvest season! However, non-farmers might find that agricultural activities near them are more prevalent, active, and pungent during the summer, which might lead them to complain to their local municipality or via the courts. Especially with urban sprawl turning farmland into suburbs, these protections are extremely important to protect the normal activities of farmers in zoning districts where farming is allowed.
Every state in the United States has passed some form of a Right to Farm law. These laws provide protections for farmers from nuisance claims and restrictive government ordinances and actions. So these laws can protect farmers from a neighbor suing because of heavy traffic to and from a farm, to a town banning spreading manure on fields.
But, the protections and regulations vary from state to state. For instance, Illinois and Wisconsin require people who are unsuccessful in suing a farm for a nuisance to pay the farmer’s attorney’s fees. Since the protections are state specific, we will be focusing on Pennsylvania for this blog post.
Pennsylvania’s Right to Farm Law:
Pennsylvania’s Right to Farm Act (RTFA), 3 P.S. § 954 (), is also called the “Protection of Agricultural Operations from Nuisance Suits and Ordinances.” The stated purpose of the Act is to reduce the loss of agricultural lands in the Commonwealth through conserving, protecting, and encouraging the development of agricultural lands by limiting nuisances and ordinances.
To Qualify for RTFA Protection:
A farm must be ten-connected acres, or make approximately $10,000 per year in farm income
Have been operating mostly unchanged for a year, or include changed activities in a nutrient management plan
Produce raw agricultural commodities on the farm
Under the RTFA, a farm must be a normal agricultural operation to be protected. A “Normal Agricultural Operation” is defined by the statute as activities, equipment, and procedures farmers adopt to produce and prepare crops, livestock, and commodities for market. Additionally, the Normal Agricultural Operation must be at least 10 acres or make about $10,000 annually.
Additionally, for the law to protect a farm, the farm must remain mostly-unchanged for at least a year prior to the nuisance claim being brought. While a farm may change their practices, these changed practices may not be protected under the RTFA unless the changed practices are detailed in the farm’s Nutrient Management Plan.
Therefore, if the farm has dramatically changed their operation and a neighbor tries to challenge the change before a year of operating under that change, the RTFA can protect the farmer so long as the farm’s a nutrient management plan addresses the changed practice.
Furthermore, the RTFA is known as a “statute of repose”, because it only allows an action to be brought during the first year of operation or the right to sue is lost permanently. The RTFA states that farms must be lawfully operating to receive this protection, but this does not mean that farmers must abide by every law imaginable or completely lose the RTFA’s coverage. Rather the law requires only substantial compliance with the law.
So if a farm has been cited for an action that is unlawful in their county, but has otherwise followed the law, the farm would most likely still be protected. The Superior Court case, Branton v. Nicholas Meat, LLC (https://www.leagle.com/decision/inpaco20170404514) addresses that lawful can include breaking the occasional ordinance. However, the RTFA does not protect farmers, not in lawful compliance with the law. As you can tell, this is open for a bit of interpretation, but the rule of thumb is, if the farm corrected any previously cited action, or is acting in compliance with all state agricultural laws (such as those requiring a manure management plan), they are likely considered “in compliance with the law.”
Also, if the agricultural operation is not connected to the land where the nuisance or restrictive ordinance is being brought, then the operation may not be protected. Tinicum Township (http://www.pacourts.us/assets/opinions/Commonwealth/out/2176CD12_9-9-14.pdf?cb=1), a Commonwealth Court case, determined that a mulching operation was found to be in violation of a local ordinance and was not protected under the RTFA because none of the raw commodities had originated on the land. So it is important that the actions that you wish to have protected actually fit the definition of agricultural operation, and that the products you are using, selling, or processing on your property were produced on your property.
If you are Protected, What is Protected:
So if a farm and their operations meets the requirements above, they receive the following protections:
Farms are protected against nuisance claims due to normal agricultural activities which have been in place for at least a year
Local ordinances cannot include agriculture in the definition of nuisance
Neighbors and community members will likely lose claims challenging noise, dust, odors and other common nuisances
Farmers can expand and change their agricultural activities and remain protected from nuisance claims with a nutrient management plan that details these changes
Without a nutrient management plan, farmers will be automatically protected from nuisance claims after the expansions or changes have been in place for a year
Local ordinances cannot limit an agricultural operation from expanding
Local ordinances cannot substantially limit the definition of an agricultural operation more than what is defined in the RTFA
For example, setting a set number of acres to qualify as a farm, or not including the $10,000 exception
Farms have the right to sell agricultural products directly off the farm, regardless of any zoning ordinance restrictions (as long as farming is allowed in that zoning district) so long as 50% of the products sold are produced on the farm
Farmers are exempt from the 50% rule if the farmer has suffered crop loss
Ordinances cannot regulate different types of farming differently based solely on the type of production (ex. Allowing sheep farms but not horse farms)
Limitations:
State and local governments are entitled to protect against any activity which endangers the health, safety, and welfare of its citizens. So, if a local government determines that a certain agricultural practice impeds the health of its people, and that activity is not expressly protected by the RTFA, then that activity can be regulated. So, local government can still regulate aspects of farming not expressly protected in the RTFA or in policies indicating its scope.
For example, there have been questions recently as to how the RTFA applies to agritourism. Because it is not explicitly stated and no case law has been developed, it is not clear if agritourism activities are protected as a part of a normal agricultural operation. It might even be argued that some aspects of these activities do impede the health, safety, and welfare of citizens, through parking issues and the potential for spreading farm diseases. So, even if a fall festival has been occurring annually for years, it is still a grey area if the activity will be protected under the RTFA.
Another thing to note, municipalities can restrict where agricultural activities may occur. Different areas can be zoned so that no farming activities are permitted, or that they are permitted under a conditional use, special exception, or other permits. If the municipality permits farming by right, or the farm has the proper permitting (or is a pre-existing nonconforming use), then it is protected under the RTFA.
One last general point is farmers will nevertheless be liable for other injuries or damages caused by their farm. So, while a farmer might be protected from a nuisance claim if they cause damage to anyone due to, pollution, contamination, injuries suffered by customers of the farm, the farmer could still be held liable.
For liability related to agritainment/agritourism make sure to read our blog post on Agritainment Liability.
DISCLAIMER: This blog post is meant to be informational and not legal advice. If you have questions about the RTFA, want to learn more, or are having a legal matter that the RTFA may affect, feel free to contact us, we love to help farmers understand their protections and know their rights!
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