By Ashley Ellixson and Paul Goeringer
Recently, we spoke at the Community Law Center’s Urban Agricultural Law Conference, offering a joint presentation on the topic: Is there a right-to-farm in the city? What started off appearing to be a simple answer in our heads turned out to be a little more complicated than originally thought once we began to organize the presentation. The short answer is, it will all depend on your state’s right-to-farm laws language, but the other question may be: Are right-to-farm (RTF) laws the proper legal vehicle to protect urban producers?
We have posted earlier about RTF laws (What Are This Right-to-Farm Laws, Really? and Understanding Ag Liability: Maryland’s Right-to-Farm Law). The basic idea behind a RTF law is to provide an affirmative defense to a nuisance suit to a producer following certain statutory requirements. The statutory requirements vary from state to state, but many require the producer to be operating according to federal, state, and local laws, be a commercial operation, and follow generally accepted agricultural practices.
RTF laws came into being in the 1970s and 1980s to offer protections to farm producers from growing urban sprawl in many areas of the country (including Maryland). RTF laws provided producers with a defense to combat nuisance suits brought by newcomers from urban areas. For example, Farmer’s family has operated a farm continuously on a piece of property for five generations. Charlie and family have recently purchased property next door to Farmer and have no experience living in a rural area. Farmer spreads manure over his fields one day, and Charlie sues to stop Farmer from doing this. This is the kind of suit RTF laws were designed to protect farmers against.
Many RTF laws require a farm to be a commercial operation. For example, Michigan’s RTF law requires the farm to have “commercial production of farm products” (Mich. Comp. Law §286.472(a)-(b)). This may protect a traditional agricultural operation as well as those urban agricultural operations selling products. But does the law protect a family in an urban area who keeps chickens in the backyard for eggs consumed exclusively by the family? Commentators have pointed out that in many states RTF laws were designed to protect commercial agricultural operations, but not individuals looking to feed themselves (see http://america.aljazeera.com/opinions/2014/5/urban-farming-michiganoutrage.html).
Another example of a RTF law protection is in New Mexico (http://nationalaglawcenter.org/wp-content/uploads/assets/righttofarm/newmexico.pdf), which invalidates local ordinances, causing an agricultural operation either to become a nuisance or abate the nuisance. This ordinance, however, is only invoked against those operations within city limits on the date the RTF law became effective. Since many urban operations looking for protection did not start in the 1970s or 1980s, this provision may again offer limited protections.
One interesting development in RTF laws is the issue of RTF constitutional amendments in Missouri and North Dakota. In Missouri, the language of the amendment reads “the right of Missouri citizens to engage in agricultural production and ranching practices shall not be infringed.” This broad language potentially offers protections to urban producers. The language does not distinguish between commercial and non-commercial production, and potentially could invalidate local ordinances impacting urban agriculture. At the same time, these amendments potentially lead to higher litigation costs (http://bit.ly/1nfLmwQ).
So I end where I started: Do RTF laws protect urban agriculture? My thought is it will depend on the state and the language of the RTF law, but I need a court to tell me I’m right. You will notice I used a photo from the TV series Green Acres. In that series, Mr. Douglas moved to Hooterville to start a farm at a time that many other Americans started moving to rural areas to escape the city. This movement led to the development of RTF laws. The issue becomes whether laws designed to protect rural dwellers from urban sprawl pressure is the right legal scheme to protect urban producers.
Do we need to rethink how we protect urban agriculture from potential nuisance suits? Does this rethinking need to be on the city or state level? Is this issue something local areas are better suited to deciding? Or does it require local areas and states to work together? These questions will take time to truly gauge the correct answers.