COLUMBUS, Ohio — Fall harvest is a time of year when we hear complaints from neighbors and community residents about what we do in agriculture. Dust, grain bin dryers, equipment taking up the road, working late into the night or early in the morning … these are the inconveniences of living in an agricultural area. But when do these activities become legally problematic as a “nuisance” to neighbors and others? Not often, due to Ohio’s Right to Farm Law. Even so, the Right to Farm Law expects us to conduct our agricultural activities according to regulations and practices that may reduce the nuisance impacts of farming, and it gives us nuisance protection when we do so.
Enacted in 1982, Ohio’s Right to Farm Law offers a nuisance defense for farming activities under certain conditions. Ohio was one of many states that passed a Right to Farm Law in the 1980s after the highly publicized Arizona case of Spur Industries v. Del E. Webb. In that case, the developer of a retirement community in Arizona sought to shut down a cattle feedlot that it claimed was a nuisance to its community residents. But the Arizona Supreme Court noted that the developer “came to the nuisance,” making the previously existing feedlot activities a nuisance only because the developer chose to locate residences near the feedlot, in an agricultural area.
Ohio adopted this “coming to the nuisance” approach in its Right to Farm Law soon after the Spur Industries case. The law’s intent is to protect agricultural landowners from nuisance claims made by those who move into an existing agricultural area and later complain about the agricultural activities occurring in the area. If faced with a nuisance complaint by someone who “came to the nuisance,” an agricultural landowner can use the Right to Farm Law as a defense against the complaint.
How the Right to Farm Law works
The Right to Farm Law has three requirements a landowner must meet to use the law as a defense against a nuisance claim.
- The agricultural activities that are the source of the nuisance complaint must be on qualifying land, which includes:
- Land enrolled with the county auditor as “agricultural district land,” (which is not a zoning designation) or
- Land “devoted exclusively to agricultural use” under Ohio’s Current Agricultural Use Valuation law.
Both of these provisions establish the same criteria for the land: it must be either ten acres or more of land devoted to commercial agricultural production, or if less than ten acres and devoted to commercial agricultural production, it must generate a gross average annual income of $2500. Certain land devoted to bioenergy, biomass, methane, or electric or heat energy production also qualifies, if contiguous to other qualifying land, as can land under government conservation and land retirement programs.
Early versions of the Right to Farm Law required that the land be enrolled in the “agricultural district program” with the county auditor, not to be confused with having a zoning designation of agricultural district. But changes to the law removed the enrollment requirement, allowing nuisance protection even if the landowner has not enrolled land in that program.
- The agricultural activities were established prior to the plaintiff’s activities or interest on which the action is based.
This is the “coming to the nuisance” timing element. The agricultural activities must have been in the area first, before the person complaining of a nuisance came to the area.
- The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.
The intent of the law is to protect “good operators” who follow legal requirements or generally accepted agricultural practices for the agricultural activity that is the source of the complaint. An operator who disregards law, regulations, and acceptable practices that apply to the agricultural activity loses the nuisance protection.
What are “agricultural activities”?
We often receive questions about the kinds of activities the law covers, or whether the protection applies if a farmer changes or expands an operation. The Right to Farm Law answers these questions with the following:
“Agricultural activities” means common agricultural practices, including all of the following:
(1) The cultivation of crops or changing crop rotation;
(2) Raising of livestock or changing the species of livestock raised;
(3) Entering into and operating under a livestock contract;
(4) The storage and application of commercial fertilizer;
(5) The storage and application of manure;
(6) The storage and application of pesticides and other chemicals commonmmmcly used in agriculture;
(7) A change in corporate structure or ownership;
(8) An expansion, contraction, or change in operations;
(9) Any agricultural practice that is acceptable by local custom.
What if a farmer is threatened with a nuisance claim?
A few steps can help a farmer deal with a threatened nuisance claim.
- Document the activity or area that is the source of the complaint with pictures, videos, notes, weather conditions, etc.
- Review the situation to determine if there are additional management practices that could reduce any future nuisance impacts of the activity.
- If the person takes legal action, notify your property insurance provider. Your insurer will need to be aware of potential litigation because if the issue is one that relates to your insured activities, your insurer will defend you in a lawsuit.
- Consider educating the person about your farming practices and the Right to Farm law. Share articles like this one, or have an agricultural attorney draft a letter explaining the law. A person might not pursue a claim after understanding the activities or realizing that the Right to Farm Law would likely dismiss the claim.
Don’t forget the good neighbor part
Although Ohio farmers have the Right to Farm Law as a defense against nuisance claims, it’s still good practice to be aware of how our farming activities affect neighbors. While the law recognizes that we can’t remove all of the dust, noise, road use, and odors of farming, it does expect us to be “good operators.” Being a good operator and instituting practices that can reduce nuisance impacts is the first line of defense against the potential of a neighbor nuisance claim.
Read the Ohio Right to Farm Law’s “defense to a civil action for nuisance” at Ohio Revised Code Section 929.04.
— Peggy Kirk Hall, Associate Professor, Agricultural & Resource Law
Ohio State University CFAES