Food & Agriculture Quarterly January 2019 | Page 10

agricultural practices, and in such a manner so as not
to have a substantial, adverse effect on public health,
safety, or welfare” are typically exempt from claims of
nuisance due to farm noise, smells, etc.
North Carolina’s Right-to-Farm law
Much like Ohio, North Carolina farm land can be
part of an “agricultural district.” North Carolina’s
preservation of farmland law is meant to protect
agricultural land—land that is part of an agricultural
district is must be used for agriculture for at least 10
years. However, unlike Ohio’s law, North Carolina
does not specifically spell out that land in agricultural
districts will be protected from nuisance suits when
the landowner follows the rules of the agricultural
district. North Carolina’s law does state that one of
the purposes of agricultural districts is to “increase
protection from nuisance suits and other negative
impacts on properly managed farms,” but unlike
Ohio, it does not explicitly state that being part of an
agricultural district is a defense to a nuisance lawsuit.
North Carolina also has a statute which specifically
spells out the right-to-farm. In response to the recent
jury decisions, however, North Carolina has changed
its right-to-farm law. The original law read:
(a) No agricultural or forestry operation or any of
its appurtenances shall be or become a nuisance,
private or public, by any changed conditions in or
about the locality outside of the operation after
the operation has been in operation for more
than one year, when such an operation was not a
nuisance at the time the operation began.
(a1) The provisions of subsection (a) of this section
shall not apply when the plaintiff demonstrates
that the agricultural or forestry operation
has undergone a fundamental change. A
fundamental change does not include any of the
following:
• A change in ownership or size.
• An interruption of farming for a period of no
more than three years.
• Participation in a government-sponsored
agricultural program.
• Employment of new technology.
• A change in the type of agricultural or
forestry product produced.
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The original law did not protect agricultural
operations if their actions were negligent or
improper.
Following the first decision against Smithfield, the
North Carolina legislature overrode the Governor’s
veto to implement amendments to the state’s right-
to-farm law. In the amendments (sections 106-701
and 106-702), the legislature substantially changed
the language of the law, making what constitutes
a nuisance much more explicit and dependent on
certain factors. What is more, the new version of
the law places limits on when plaintiffs can recover
punitive damages for a private nuisance action.
A comparison of the Ohio and North Carolina’s
sections of legislation promoting the “right-to-farm”
shows how different the two states are. Ohio’s
legislative language makes it obvious that the
meaning of the law is to protect agriculture from
nuisance suits—by specifically stating that being
in an agricultural district is a complete defense to
nuisance, and that otherwise, agriculture is generally
exempt from nuisance suits. North Carolina’s law
concerning agricultural districts does not specifically
state that being in such a district is a defense to
nuisance, instead, it simply expresses the hope that
districts will “increase protection from nuisance
suits.” Furthermore, while North Carolina’s original
right-to-farm law stated that agricultural operations
do not “become a nuisance” due to changed
conditions in the community, that language is not
very specific. Ohio’s agricultural district language lays
out exactly what must be done to have a complete
defense against a nuisance lawsuit; North Carolina’s
language in multiple parts of the General Statutes
does not have the same degree of specificity.
Permit as a defense to nuisance
In addition to the right-to-farm law, under ORC
903.13, those owning, operating, or responsible for
concentrated animal feeding facilities in Ohio have
an affirmative defense to a private civil action for
nuisance against them if the CAFO is “in compliance
with best management practices” established in their
installation of a disposal system or operation permits.
North Carolina does not appear to have similar
language protecting permitted farms in its General
Statutes.