The right to farm: Hog-tied and nuisance-bound

New York University Law Review

Volumn 73, Issue 5, 1998, Pages 1694-1737

  Reinert, Alexander A ^a  

^a NONE

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EID: 22444454103     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (259)

1. The facts described in this paragraph are set out in detail in Bowen v. Flaherty, 601 So. 2d 860, 861 (Miss. 1992).
2. See id. at 861-62.
3. Miss. Code Ann. § 95-3-29 (1994).
4. Specifically, the court found that the Bowens had not "expanded" their agricultural operation since they began ginning cotton. See Bowen, 601 So. 2d at 863. As discussed in Part II.B infra, some RTFs provide that substantial changes in or expansion of protected agricultural activities operate to make the farm "new" for the purposes of the statute of limitations.
5. In a later case, the Mississippi Supreme Court found that one of the purposes of the right-to-farm law was to protect against nuisance claims in which the defendant's operation began before the plaintiff was in the vicinity of the operation. See Leaf River Forest Prod., Inc. v. Ferguson, 662 So. 2d 648, 661 (Miss. 1995). A literal reading of the law, however, supports the findings of the Bowen court. See Miss. Code Ann. § 95-3-29(1) (1994) (allowing agricultural operation absolute defense to nuisance action if it has existed "substantially unchanged" for one year or more).
6. See infra note 76. The Iowa Supreme Court recently eviscerated Iowa's RTF of any substantive effect by declaring unconstitutional the section of the law that immunizes farms from nuisance suits. See Borman v. Board of Supervisors, No. 96-2276, 1998 WL 650904, at *14 (Iowa Sept. 23, 1998) (holding that provision providing immunity from nuisance constitutes taking of private property without just compensation, in violation of state and federal constitutions). Thus, functionally, RTFs are currently in effect in only 49 states.
7. See Tom Daniels & Deborah Bowers, Holding Our Ground: Protecting America's Farms and Farmland 11 (1997) (comparing prevalence of state farmland protection programs).
8. See Margaret Rosso Grossman & Thomas G. Fischer, Protecting the Right to Farm: Statutory Limits on Nuisance Actions Against the Farmer, 1983 Wis. L. Rev. 95, 97-98 (reviewing justifications for RTF legislation). RTF proponents justify the laws with a simplified three-part narrative. First, as suburban and urban developments encroach upon rural areas, conflict between rural agricultural land use and nonagricultural land use is inevitable. Accordingly, new residents attempt to resolve such conflict by bringing common law nuisance actions and/or enacting new zoning ordinances, which leads some farmers to abandon their traditional activity. RTF supporters insist, finally, that insulating growers from common law nuisance liability and changes in local zoning ordinances will help to preserve farmland. See infra notes 15-17 and accompanying text.
9. See infra Part II.B.
10. For example, one article offered the following suggestion to state legislatures considering revising RTFs: A legislature should be wary of including so many exceptions that the statute offers farmers little or no protection from nuisance liability. The requirement that a farm must comply with environmental laws and regulations can be justified in terms of protecting both the environment and public health and safety; nonetheless, it will restrict the statute's protection. Environmental laws cause particular problems when they define odor and other kinds of pollution in nuisance terms. Additional exceptions - for example, that the statute does not apply when the nuisance threatens public health and safety or when the farm operation has been substantially changed - might be interpreted broadly by courts, historically accustomed to balancing interests in nuisance cases and eager to grant relief to plaintiffs. Such broad judicial interpretation may limit the law's protection to those farmers who would have prevailed in a traditional nuisance action. In this situation, no right to farm law would be better than a statute that gives farmers false hopes but contains no substance. Grossman & Fischer, supra note 8, at 162-63; see also Jacqueline P. Hand, Right-to-Farm Laws: Breaking New Ground in the Preservation of Farmland, 45 U. Pitt. L. Rev. 289, 347-48 (1984) (considering fairness of RTFs). Both articles summarize the RTFs, describe the common law of nuisance, and discuss the constitutional validity of the statutes. Neither, however, critically discusses the justifications offered by RTF supporters. One notable exception to the lack of critical academic attention paid to RTFs is discussed below. See infra notes 214-22 and accompanying text.
11. Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. Ct. App. 1987) (holding that Indiana RTF protects hog operation).
12. See infra note 79 and accompanying text.
13. See National Agricultural Lands Study, Final Report 8-10 (1981); National Agricultural Lands Study, Where Have the Farm Lands Gone? 2, 12 (1980).
14. See William Fischel, Urban Development and Agricultural Land Markets, in The Vanishing Farmland Crisis 79, 92 (John Baden ed., 1984)
15. [hereinafter Vanishing Farmland] (reviewing NALS recommendations).
16. See Timothy Aeppel, Farming: A Nuisance for Suburban Aesthete?, Christian Sci. Monitor, May 7, 1981, at 1 (stating that 1980 census shows population growth in rural and small-town communities is greater than in metropolitan areas for first time in more than 160 years, which has led to increasing nuisance suits).
17. See Richard Warchol, Law Would Block Farm Nuisance Suits, L.A. Times (Ventura County Ed.), July 12, 1997, at B4 ("As a result [of complaints], the [right to farm] ordinance says, farmers are forced to shut down or curtail their work, discouraging investment and threatening the economic viability of the county's agricultural industry."). Even unsuccessful nuisance suits are said to create a hostile environment for farmers, encouraging the abandonment of farms. Part III.A.1, infra, evaluates the legitimacy of the claims raised by supporters of RTFs. The empirical data suggest that there has not been a significant problem with nuisance suits directed against farmers on the edges of developing suburbia and that farmland in metropolitan areas was functioning successfully and efficiently prior to the adoption of right-to-farm laws. See infra notes 122-35 and accompanying text.
18. See Grossman & Fischer, supra note 8, at 97 (claiming that new rural residents pressure municipalities "to adopt ordinances that restrict agricultural activity"); Teri E. Popp, A Survey of Agricultural Zoning: State Responses to the Farmland Crisis, 24 Real Prop., Prob. & Tr. J. 371, 379 (1989) ("On the exurban fringe . . . municipalities often adopt ordinances that restrict farming practices, based upon classification of farm operations as a public nuisance."). The legislative history of New York State's RTF is a good example of the multiple reasons offered to justify extending this protection to farms, including the concern that local governments passed restrictive ordinances in response to complaints by nonfarmers.
19. See Sam Howe Verhovek, 'Right to Farm' Laws Are Tested in Exurbs, N.Y. Times, Sept. 29, 1991, § 4, at 6 (reporting justifications for New York RTF).
20. See American Farm Bureau Federation, Farm Facts - Declining U.S. Farm Population (last modified Feb. 23, 1998) 〈http://www.fb.com/today/farmfacts.ffacts8.html〉.
21. See Daniels & Bowers, supra note 7, at 10.
22. See id.
23. See id.
24. See id. at 63-64 (reporting that number of farms with annual sales of $250,000 or more increased from 86,468 in 1982 to 125,460 in 1992, and number of farms larger than 1,000 acres increased from 161,972 to 172,912 over same period).
25. See id. at 64 (reporting decrease from 1,238,162 in 1982 to 1,011,794 in 1992).
26. See id. at 11. Just four percent of all farms accounted for half of all gross sales in 1993. See Robert A. Hoppe et al., U.S. Dep't of Agric., Structural and Financial Characteristics of U.S. Farms, 1993: 18th Annual Family Farm Report to Congress iii (Agric. Info. Bull. No. 728, 1996).
27. See John Opie, The Law of the Land: Two Hundred Years of American Farmland Policy 186-88 (1987) (arguing that government policies have favored large-scale farming operations).
28. See Daniels & Bowers, supra note 7, at 10 (reporting that urban and suburban settlements consumed about one-third more land per person in 1990 than 1970).
29. See id. at 8.
30. See id. ("Because prime farmland is level to gently sloping and is well drained, it is also the cheapest land to develop for houses, offices, and factories.").
31. This connection between suburban growth and protection from nuisance suits is best exemplified by statements of purpose found in RTF statutes themselves. See, e.g., Idaho Code § 22-4501 (1995): The legislature finds that agricultural activities conducted on farmland in urbanizing areas are often subjected to nuisance lawsuits, and that such suits encourage and even force the premature removal of the lands from agricultural uses, and in some cases prohibit investments in agricultural improvements. It is the intent of the legislature to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.
32. See E. F. Roberts, The Law and the Preservation of Agricultural Land 8 (1982) (reporting use of nuisance law in fifteenth century).
33. Bilateral monopoly and organizational inequity are free market failures of particular importance in nuisance cases. Where only two parties are bargaining together, bilateral monopoly is a likely result. Because each party has a monopoly on the good desired by the other party, both parties demand more than a competitive market would provide. Organizational inequity is caused by differential abilities of each party to organize to bargain.
34. See Jesse Dukeminier & James E. Krier, Property 956 (3d ed. 1993).
35. See Jeff L. Lewin, Boomer and the American Law of Nuisance: Past, Present, and Future, 54 Alb. L. Rev. 189, 199 (1990) (describing doctrinal evolution of American nuisance law).
36. See id. at 199, 202-03 (describing doctrinal impact of industrialization and shift in nuisance law to rule of reasonable use).
37. Id. at 211.
38. See Feldstein v. Kammauf, 121 A.2d 716, 721 (Md. 1956) (denying relief to plaintiffs who "knew or should have known" of existence of nuisance prior to moving); East St. Johns Shingle Co. v. City of Portland, 246 P.2d 554, 563 (Or. 1952) (rejecting suit against municipality by plaintiff who came to nuisance); cf. Kramer v. Sweet, 169 P.2d 892, 896 (Or. 1946) (favoring suit by established residents against defendant who had not been present for lengthy time period).
39. See Restatement of Torts §§ 822(d), 826-828 (1939) (defining elements of nuisance liability).
40. See Lewin, supra note 33, at 212 ("In short, the Restatement represented a shift from the balancing of 'interests' to the balancing of 'utility.'").
41. See generally R. H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960). Coase counsels that, instead of thinking about a nuisance as A interfering with B's use of property, courts should think of A and B having incompatible uses of their respective property. See id. at 2 ("The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A?").
42. Allocation of blame is suspect because it is not directed towards maximizing social wealth, but may reflect moral judgments about the value of certain activities. The ideal of maximizing social wealth is, of course, laden with its own value judgments, and even Coase acknowledges that there are concerns other than economic efficiency. See id. at 43 ("[P]roblems of welfare economics must ultimately dissolve into a study of aesthetics and morals.").
43. In looking at the gravity of harm, courts are to factor in the extent and character of the harm, the social value of the plaintiff's use, and the burden on the plaintiff of avoiding the harm. The utility of the actor's conduct is evaluated by considering its social value, its suitability to the locality in question, and the impracticability of the actor preventing the harm. See Restatement (Second) of Torts § 826 (1979). The Restatement both provides a summary of current law and influences judges in evolving common law concepts. Courts have long used multiple factors in evaluating the existence of a nuisance, although not all are motivated by balancing economic values of competing land uses. See, e.g., Eller v. Koehler, 67 N.E. 89, 90-91 (Ohio 1903) (factors include nature and importance of defendant's business, nature and frequency of disturbance, injuries disturbance causes, character of neighborhood, past actions by either party taken to reduce injury, and cost and feasibility of preventive measures).
44. See, e.g., Forbes v. City of Durant, 46 So. 2d 551, 552 (Miss. 1950) (en banc) (vitiating "old" rule). In some jurisdictions and treatises, the doctrine continued to receive breathing room. See East St. Johns Shingle Co. v. City of Portland, 246 P.2d 554, 563 (Or. 1952) (citing 39 Am. Jur. Nuisances § 196 for proposition that plaintiff who knowingly places himself in injurious situation will be barred from relief).
45. In later cases, damages were more often granted than injunctions. See, e.g., Leah C. Hill, Note, "A Pig in the Parlor Instead of the Barnyard?" An Examination of Iowa Agricultural Nuisance Law, 45 Drake L. Rev. 935, 944 (1997)
46. ("American courts . . . have become more willing to award money damages as a remedy rather than imposing an injunction in nuisance cases." (citing Neil D. Hamilton, A Livestock Producer's Legal Guide to: Nuisance, Land Use Control, and Environmental Law 14 (1992))).
47. Calabresi and Melamed speak of three different types of protections offered when entitlements are placed with a party. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1092 (1972). Parties must bargain around property rule protection without court interference.
48. See Guido Calabresi & Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1092 (1972) id.
49. A party may "bargain" around liability rule protection for a price set by the court. See Guido Calabresi & Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1092 (1972) id. Entitlements protected by inalienability rules cannot be transferred.
50. See Guido Calabresi & Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1092 (1972) id. Because the changes wrought by RTFs are limited to the play between property and liability rule protection, this Note will not address inalienable entitlements.
51. By enjoining the operation, the court places an entitlement in the plaintiff protected by a property rule. By denying all relief, the court places an entitlement in the defendant, protected by a property rule. In either case, if the losing party wants either to continue operating or to live free of the nuisance, he or she must buy the other party out at an agreed-upon price.
52. This result places an entitlement in the plaintiff protected by a liability rule. Theoretically, this solution forces the defendant to calculate whether her activity is more valuable than the damages incurred by the plaintiff.
53. 494 P.2d 700 (Ariz. 1972) (en banc).
54. See id. at 704.
55. See id. at 705.
56. See id.
57. See id. at 707.
58. See id. at 708.
59. See, e.g., Abdella v. Smith, 149 N.W.2d 537, 541 (Wis. 1967) ("A plaintiff, of course, is not ipso facto barred from relief in the courts merely because of 'coming to the nuisance,' . . . ." (citations omitted)).
60. See, e.g., Eller v. Koehler, 67 N.E. 89, 90-91 (Ohio 1903) (factors include nature and importance of defendant's business, nature and frequency of disturbance, injuries disturbance causes, character of neighborhood, past actions by either party taken to reduce injury, and cost and feasibility of preventive measures).
61. See, e.g., Abdella, 149 N.W.2d at 541 (finding that coming to nuisance was factor that "bears upon the question of whether the plaintiff used his land reasonably under the circumstances" (citation omitted)).
62. See infra Part II.
63. See infra Part III.B.
64. See Robert H. Nelson, Zoning Myth and Practice - From Euclid into the Future, in Zoning and the American Dream 299, 302 (Charles M. Haar & Jerold S. Kayden eds., 1989)
65. [hereinafter Zoning and the American Dream] (describing link between zoning and nuisance law).
66. See David Listokin, Introduction, in Land Use Controls: Present Problems and Future Reform 3, 3 (David Listokin ed., 1974)
67. (stating that except for building regulations enacted to prevent fire in cities, local governments were not active in regulating land use (citing William Goodman & Eric Freund, Principles and Practice of Urban Planning 15 (1968))).
68. See Joe R. Feagin, Arenas of Conflict: Zoning and Land Use Reform in Critical Political-Economic Perspective, in Zoning and the American Dream, supra note 58, at 73, 80 (describing history of adoption of zoning ordinances); see also Daniels & Bowers, supra note 7, at 42 (same). In 1916, New York City became the first city in the United States to adopt a comprehensive zoning ordinance (i.e., with restrictions based on use, area, and height).
69. See Michael Kwartler, Legislating Aesthetics: The Role of Zoning in Designing Cities, in Zoning and the American Dream, supra note 58, at 187, 190.
70. 272 U.S. 365, 392 (1926).
71. See Daniels & Bowers, supra note 7, at 42.
72. See James H. Wickersham, Note, The Quiet Revolution Continues: The Emerging New Model for State Growth Management Statutes, 18 Harv. Envtl. L. Rev. 489, 492-93 (1994) (describing evolution of local zoning laws).
73. Kwartler, supra note 60, at 195.
74. See id. (describing Euclidean zoning).
75. See Feagin, supra note 60, at 80 (arguing that zoning was direct result of negative effects of capitalist expansion). Feagin characterizes zoning as a conflict between exchange value and use value. See id. at 73. While exchange value is the dominant framework for land use decisions under unrestrained capitalism, use value, emphasizing utility rather than profitability, moderates zoning decisions. See id.
76. See Nelson, supra note 58, at 301 (describing shift away from individual control over land use regulation).
77. See Peter L. Abeles, Planning and Zoning, in Zoning and the American Dream, supra note 58, at 122, 124 (describing historical landmarks of planning and zoning). Exclusionary zoning has been well-described elsewhere.
78. See, e.g., Bernard K. Ham, Comment, Exclusionary Zoning and Racial Segregation: A Reconsideration of the Mount Laurel Doctrine, 7 Seton Hall Const. L.J. 577 (1997) (reviewing effectiveness of New Jersey Supreme Court's prohibition of exclusionary zoning).
79. See Opie, supra note 25, at 169-70.
80. See Abeles, supra note 68, at 150 (describing recent "open space"" zoning philosophy). Abeles suggests that the sudden rural (and suburban) interest in promoting open space is linked to the demise of exclusionary zoning as a viable tool for race- and class-based restrictions. See id. (observing rise of open space zoning at height of civil rights movement and suggesting zoning for open space is used as "final defense against the consequences of providing socially balanced residential land use plans" where communities are pessimistic about winning exclusionary zoning battle).
81. See supra notes 13-17 and accompanying text.
82. See infra Part II.B.
83. See infra note 99.
84. See infra notes 101-04 and accompanying text.
85. See infra note 111.
86. See Ala. Code § 6-5-127 (1993); Alaska Stat. § 09.45.235 (Michie 1996); Ariz. Rev. Stat. Ann. § 3-112 (West 1995); Ark. Code Ann. §§ 2-4-101 to -107 (Michie 1996); Cal. Civ. Code §§ 3482.5-.6 (West 1997); Colo. Rev. Stat. §§ 35-3.5-101 to -103 (1997); Conn. Gen. Stat. Ann. § 19a-341 (West 1997); Del. Code Ann. tit. 3, § 1401 (1993); Fla. Stat. Ann. § 823.14 (West 1994 & Supp. 1998); Ga. Code Ann. § 41-1-7 (1997); Haw. Rev. Stat. §§ 165-1 to -6 (1993); Idaho Code §§ 22-4501 to -4504 (1995 & Supp. 1998); 740 Ill. Comp. Stat. 70/1-5 (West 1993 & Supp. 1998); Ind. Code Ann. § 34-19-1-4 (LEXIS Law 1998); Iowa Code Ann. § 352.11 (West Supp. 1998); Kan. Stat. Ann. §§ 2-3201 to -3203 (1991); Ky. Rev. Stat. Ann. § 413.072 (Michie Supp. 1996); La. Rev. Stat. Ann. §§ 3:3601-3612 (West 1987 & Supp. 1998); Me. Rev. Stat. Ann. tit. 17, § 2805 (West 1983 & Supp. 1997); Md. Code Ann., Cts. & Jud. Proc. § 5-403 (Supp. 1997); Mass. Gen. Laws Ann. ch. 243, § 6 (West Supp. 1998); Mich. Comp. Laws Ann. §§ 286.471-.474 (West 1996); Minn. Stat. § 561.19 (1996); Miss. Code Ann. § 95-3-29 (1994); Mo. Rev. Stat. § 537.295 (1986); Mont. Code Ann. § 27-30-101(3) (1997); Neb. Rev. Stat. §§ 2-4401 to -4404 (1991); Nev. Rev. Stat. § 40.140(2) (1997); N.H. Rev. Stat. Ann. §§ 432:32-35 (1991 & Supp. 1997); N.J. Stat. Ann. §§ 4:1C-1 to 1C-10 (West 1998); N.M. Stat. Ann. §§ 47-9-1 to -7 (Michie 1995); N.Y. Agric. & Mkts. Law §§ 308, 308-a (McKinney Supp. 1998); N.C. Gen. Stat. §§ 106-700 to - 701 (1995); N.D. Cent. Code §§ 42-04-01 to -05 (1983 & Supp. 1997); Ohio Rev. Code Ann. § 929.04 (West 1994); Okla. Stat. tit. 50, § 1.1 (1991); Or. Rev. Stat. §§ 30.930-.947 (1997); 3 Pa. Cons. Stat. Ann. §§ 951-957 (West 1995 & Supp. 1998); R.I. Gen. Laws §§ 2-23-1 to -7 (1987); S.C. Code Ann. §§ 46-45-10 to -60 (Law. Co-op. Supp. 1997); S.D. Codified Laws §§ 21-10-25.1-.6 (Michie Supp. 1998); Tenn. Code Ann. §§ 43-26-101 to -104 (1993); Tex. Agric. Code Ann. §§ 251.001-.005 (West 1982 & Supp. 1998); Utah Code Ann. §§ 78-38-7 to -8 (1996); Vt. Stat. Ann. tit. 12, §§ 5751-53 (Supp. 1997); Va. Code Ann. §§ 3.1-22.28-.29 (Michie 1994); Wash. Rev. Code §§ 7.48.300-.310 (West 1996); W. Va. Code §§ 19-19-1 to -5 (1997); Wis. Stat. § 823.08 (1993-1994); Wyo. Stat. Ann. §§ 11-44-101 to -103 (Michie 1997). The Iowa Supreme Court has declared the substantive provision of Iowa's RTF unconstitutional, while leaving the remainder of the statute intact. See Borman v. Board of Supervisors, No. 96-2276, 1998 WL 650904, at *14 (Iowa Sept. 23, 1998) (holding that Iowa Code Ann. § 352.11(a) (West Supp. 1998), providing farms immunity from nuisance suits, constitutes taking of private property without just compensation, in violation of state and federal constitutions). In all other states, RTFs remain in full effect.
87. See Grossman & Fischer, supra note 8, at 111-12 (comparing feedlot statutes and RTFs).
88. See, e.g., Miss. Code Ann. § 95-3-29(1) (1994) (providing absolute bar to nuisance actions provided certain conditions are met).
89. For the exceptions, see Alaska Stat. § 09.45.235 (Michie 1996) (passed in 1986); Mass. Gen. Laws Ann. ch. 243, § 6 (West Supp. 1998) (passed in 1989); Nev. Rev. Stat. § 40.140(2) (1997) (passed in 1985); N.H. Rev. Stat. Ann. §§ 432:32-35 (1991) (passed in 1985); N.Y. Agric. & Mkts. Law § 308 (McKinney Supp. 1998) (passed in 1992); Or. Rev. Stat. §§ 30.930-.947 (1997) (passed in 1993); S.D. Codified Laws §§ 21-10-25.1 to .6 (Michie Supp. 1998) (passed in 1991); Wyo. Stat. Ann. §§ 11-44-101 to -103 (Michie 1997) (passed in 1991).
90. See, e.g., Grossman & Fischer, supra note 8, at 119 ("North Carolina enacted one of the earliest and most influential right to farm laws in 1979.").
91. See N.C. Gen. Stat. § 106-700 (1995) ("When other land uses extend into agricultural . . . areas, agricultural . . . operations often become the subject of nuisance suits. As a result, agricultural . . . operations are sometimes forced to cease.").
92. See id. § 106-701(a).
93. See id. § 106-701(d).
94. See Andy Newman, Towns Putting It in Writing: Farms Are Loud and Smelly, N.Y. Times, Sept. 17, 1995, § 13, at 6 (noting advent of municipal RTFs in New Jersey).
95. See Maryland Right to Farm Plan Discussed, York Daily Rec. (Md.), Apr. 30, 1996, at 6, available in 1996 WL 7873259 (discussing county ordinance establishing mediation panel based on another county).
96. The ordinances vary with regard to the required notification. Some require simply notifying that farms are nearby and that they may generate noise, odor, etc. Others require that landowners be notified of the RTF and its ramifications. See Gene Fadness, Getting Nosy: Idaho Bill Would Give Transplanted Urbanites a Whiff of Rural Life, Chi. Trib., Feb. 2, 1997, § 16, at 4 (describing proposed bill to require deed disclosure to prospective homeowners moving into rural areas, informing them of agricultural activities that cause odor, noise, and other problems).
97. See Farm Operations Protection Gets Nod, Spokesman Rev. (Spokane, Wash.), Feb. 15, 1997, at B4, available in 1997 WL 7704097 (reporting that Senate passed proposed amendments to Idaho's RTF that would take away homebuyers' right to sue about nearby farm practices on nuisance theory);
98. Vanishing Farmland: Experts Say Indiana Lags Behind in Checking Loss, Evansville Courier (Ill.), Mar. 10, 1997, at A10, available in 1997 WL 6521925 (discussing county ordinance that requires property owners to waive objections to agricultural use of land within two miles of their subdivision).
99. I will use the term "primary agriculture" to refer to activities directed toward using the land directly to produce something useful to human beings such as crop growing and livestock raising. "Secondary agriculture" encompasses those activities that alter the product of primary agriculture in some way (meatpacking, processing, canning, cottonginning).
100. See Ala. Code § 6-5-127(a) (1993) (protecting agricultural, industrial, or manufacturing "plant"); Ark. Code Ann. § 2-4-102 (Michie 1996) (protecting processors of crops, livestock, poultry, swine, or fish); Cal. Civ. Code § 3482.6(e) (West 1997) (protecting nonexclusive list of processors, such as beer and wine producers and bottlers, freezers and canners of agricultural products, and fruit and grain dryers); Ga. Code Ann. § 41-1-7(b)(1) (1997) (protecting processors of crops, livestock, animals, poultry, honeybees, and products used in commercial aquaculture); Idaho Code § 22-4502 (Supp. 1998) (protecting processors of livestock or agricultural commodities); Ky. Rev. Stat. Ann. § 413.072(3) (Michie Supp. 1996) (protecting facilities for production of livestock, poultry, and horticultural products); La. Rev. Stat. Ann. § 3:3602 (West 1987 & Supp. 1998) (protecting processors of crop, livestock, poultry, and other products); Miss. Code Ann. § 95-3-29(2)(a) (1994) (protecting processors of crops, livestock, fish, wood, and poultry); Mo. Rev. Stat. § 537.295(2) (1986) (protecting processors of crops, livestock, swine, and poultry); N.M. Stat. Ann. § 47-9-5 (Michie 1995) (substantially same as Georgia); N.C. Gen. Stat. § 106-701(b) (1995) (including livestock and poultry products); S.C. Code Ann. § 46-45-20(A) (Law. Co-op. Supp. 1997) (same as Georgia); S.D. Codified Laws § 21-10-25.3 (Michie Supp. 1998) (protecting processors of crops, timber, livestock, swine, and poultry); Wis. Stat. § 823.08(2) (1993-1994) (protecting any activity "associated with an agricultural use").
101. Alaska's statute protects primary agricultural operations and "any practice conducted on the agricultural operation as an incident to or in conjunction with [primary agricultural] activities. . . ." Alaska Stat. § 09.45.235(d)(2) (Michie 1996). Thus, only agricultural processing conducted on the same site as primary agricultural activities are protected by Alaska's RTF.
102. See Ala. Code § 6-5-127 (1993); Ind. Code Ann. § 34-19-1-4 (LEXIS Law 1998). Ironically, Indiana's statement of purpose does not mention industrial users, just concern with the extension of nonagricultural uses into agricultural areas. See Ind. Code Ann. § 34-19-1-4(a) (LEXIS Law 1998) ("It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.").
103. See Erbrich Prod. Co. v. Wills, 509 N.E.2d 850, 852 (Ind. Ct. App. 1987). Erbrich is discussed in more detail infra notes 156-57 and accompanying text.
104. See Grossman & Fischer, supra note 8, at 126 (arguing that laws should protect large operations, not family farms).
105. Pennsylvania, Nebraska, West Virginia, and Minnesota are the four exceptions. Pennsylvania, West Virginia, and Nebraska extend the right to farm protection only to farms of a certain size or profitability. Pennsylvania requires farms to be greater than 10 acres in size, or to generate more than $10,000 in annual income, in order to qualify for protection. See 3 Pa. Cons. Stat. Ann. § 952 (West Supp. 1998). Nebraska has a 10 acre minimum size requirement. See Neb. Rev. Stat. § 2-4402(1) (1991). West Virginia requires a farm to be at least five acres and to sell at least $1000 in agricultural products. See W. Va Code § 19-19-2(b) (1997).
106. See Minn. Stat. § 561.19(2)(c)(4) (1996).
107. See id.
108. The rationale for Minnesota's exclusion is not clear, although the state is generally unwelcoming to corporate farmers. See Katherine R. Smith & Peter J. Kuch, What We Know About Opportunities for Intergovernmental Institutional Innovation: Policy Issues for an Industrializing Animal Agriculture Sector, 77 Am. J. Agric. Econ. 1244, 1246 (1995) (comparing Iowa and Minnesota's treatment of corporate farms). The state's focus on hog and cattle operations is particularly important given that most agricultural nuisance cases involve livestock operations (particularly hograising) and that much of the conflict surrounding RTFs involves hograising. See infra notes 178-79 and accompanying text.
109. See Ala. Code § 6-5-127 (1993) (requiring one year of operation); Alaska Stat. § 09.45.235 (Michie 1996) (requiring three years of operation); Ark. Code Ann. § 2-4-107 (Michie 1996) (one year); Cal. Civ. Code § 3482.6(a) (West 1997) (three years); Colo. Rev. Stat. § 35-3.5-102 (1997) (one year); Fla. Stat. Ann. § 823.14(4)(b) (West 1994) (same); Idaho Code § 22-4503 (1995) (same); 740 Ill. Comp. Stat. 70/3 (West 1993) (same); Ind. Code Ann. § 34-19-1-4(c) (LEXIS Law 1998) (same); Ky. Rev. Stat. Ann. § 413.072(2) (Michie Supp. 1996) (same); Mo. Rev. Stat. § 537.295 (1986) (same); N.H. Rev. Stat. Ann. § 432:33 (1991) (same); N.M. Stat. Ann. § 47-9-3 (Michie 1995) (same); N.C. Gen. Stat. § 106-701(a) (1995) (same); N.D. Cent. Code § 42-04-02 (1983) (same).
110. See Ariz. Rev. Stat. Ann. § 3-112 (West 1995) (protecting operations established "prior to surrounding nonagricultural uses"); Kan. Stat. Ann. § 2-3202 (1991) (same); La. Rev. Stat. Ann. § 3:3603(B)(2) (West Supp. 1998) (protecting operations established prior to plaintiff acquiring interest in land); Me. Rev. Stat. Ann. tit. 17, § 2805(3) (West 1983) (protecting operations established prior to change in land use or occupancy); Mich. Comp. Laws Ann. § 286.473(2) (West 1996) (same as Maine); Mont. Code Ann. § 27-30-101(3) (1997) (protecting operations established prior to plaintiff acquiring possession); Neb. Rev. Stat. § 2-4403 (1991) (same as Maine); Nev. Rev. Stat. § 40.140(2) (1997) (same as Arizona); Ohio Rev. Code Ann. § 929.04 (West 1994) (protecting operations established prior to plaintiff's activities or interest in land); Okla. Stat. tit. 50, § 1.1 (1991) (similar to Arizona); S.C. Code Ann. § 46-45-30 (Law. Co-op. Supp. 1997) (protecting operations established prior to changed conditions in vicinity); Tenn. Code Ann. § 43-26-103 (1993) (same as Maine); Vt. Stat. Ann. tit. 12, § 5753 (Supp. 1997) (same as Arizona); Wash. Rev. Code § 7.48.305 (West 1996) (same); W. Va. Code § 19-19-4 (1997) (protecting operations established prior to plaintiff's use and occupancy of land); Wis. Stat. § 823.08 (1993-1994) (protecting operations established prior to plaintiff's use of land); Wyo. Stat. Ann. § 11-44-103 (Michie 1997) (protecting operations established prior to change in land use adjacent to farm).
111. Some states require that the farm not have been a nuisance when it began operating and limit the vicinity of changed conditions to within one mile of the farm. See Me. Rev. Stat. Ann. tit. 17, § 2805(3) (West 1983); Mich. Comp. Laws Ann. § 286.473(2) (West 1996); Tenn. Code Ann. § 43-26-103 (1993). Others simply require that it was not a nuisance when it began operating. See Neb. Rev. Stat. § 2-4403 (1991); Wyo. Stat. Ann. § 11-44-103 (Michie 1997) (requiring farm to also operate according to generally accepted practices). Still others require only that the farm be operating according to generally accepted management practices. See Ariz. Rev. Stat. Ann. § 3-112 (West 1995); Nev. Rev. Stat. § 40.140(2) (1997); Ohio Rev. Code Ann. § 929.04 (West 1994); Okla. Stat. tit. 50, § 1.1 (1991); Vt. Stat. Ann. tit. 12, § 5753 (Supp. 1997); Wash. Rev. Code § 7.48.305 (West 1996).
112. See Conn. Gen. Stat. Ann. § 19a-341 (West 1997) (requiring farm to follow generally accepted practice and stating that substantial change in operation creates new EDO); Haw. Rev. Stat. § 165-4 (1993) (providing that physical expansion or new technology creates new EDO); Md. Code Ann., Cts. & Jud. Proc. § 5-403 (Supp. 1997) (requiring one year since EDO and providing for new EDO with change in operation); Minn. Stat. § 561.19 (1996) (requiring two years since EDO, and providing new EDO with expansion in operation); Miss. Code Ann. § 95-3-29(1) (1994) (expanding physical facilities creates new EDO); S.D. Codified Laws § 21-10-25.2 (Michie Supp. 1998) (requiring one year since EDO, and allowing reasonable expansion); Tex. Agric. Code Ann. § 251.004 (West 1982) (providing for separate EDO with each expansion).
113. See Minn. Stat. § 561.19(b)(1) (1996): [A]n expansion by at least 25 percent in the amount of a particular crop grown or the number of a particular kind of animal or livestock located on an agricultural operation [or] a distinct change in the kind of agricultural operation, as in changing from one kind of crop, livestock, animal, or product to another, but not merely a change from one generally accepted agricultural practice to another in producing the same crop or product.
114. See Bowen v. Flaherty, 601 So. 2d 860, 863 (Miss. 1992) (treating Mississippi statute as one-year statute of limitation for agricultural nuisance actions).
115. See Or. Rev. Stat. § 30.936 (1997) (limiting protection to farms outside urban growth boundary); R.I. Gen. Laws § 2-23-5 (1987) (restricting application to actions complaining of odor, noise, dust, and chemicals). Interestingly, Oregon's RTF does not apply to actions brought for damages to commercial agricultural products. See Or. Rev. Stat. § 30.036(2)(a) (1997). This would apparently be motivated by a desire to protect other agricultural operations. It is echoed by Ohio's RTF. See Ohio Rev. Code Ann. § 929.04 (West 1994) (withholding application in actions where plaintiff is involved in agriculture). In West Virginia, a farm has blanket protection when its uses interfere with nonagricultural uses, but if an adjoining property owner can complain of harm to an agricultural operation, the complainant was present prior to the agricultural operation complained of, and the conduct complained of "has caused or will cause actual physical damage," then a nuisance suit may be brought. See W. Va. Code § 19-19-4 (1997).
116. See Me. Rev. Stat. Ann. tit. 17, § 2805 (West 1983 & Supp. 1997) (requiring conformity with generally accepted agricultural practices); Mich. Comp. Laws Ann. § 286.473(1) (West 1996) (requiring conformity with "agricultural and management practices"); N.J. Stat. Ann. § 4:1C-10 (West 1998) (requiring conformity with agricultural management practices recommended by state committee); N.Y. Agric. & Mkts. Law § 308 (McKinney Supp. 1998) (requiring written commissioner's ruling declaring "sound agricultural practice"); Tenn. Code Ann. § 43-26-103 (1993) (requiring conformity with agricultural and management practices promulgated by department of agriculture); Utah Code Ann. § 78-38-7 (1996) (requiring conformity with sound agricultural practices); Va. Code Ann. § 3.1-22.29 (Michie 1994) (requiring conformity with best management practices).
117. See Mass. Gen. Laws Ann. ch. 243, § 6 (West Supp. 1998).
118. See Ark. Code Ann. § 2-4-104 (Michie 1996) (providing for new EDO with material increase in size or change in character); Colo. Rev. Stat. § 35-3.5-102 (1997) (providing for new EDO with change in operation or substantial increase in size); Fla. Stat. Ann. § 823.14 (West 1994 & Supp. 1998) (providing for new EDO with any expanded land boundary); Ind. Code Ann. § 34-19-1-4 (LEXIS Law 1998) (providing for new EDO with any significant change in hours or type of operation); 3 Pa. Cons. Stat. Ann. § 954 (West 1995) (providing for new EDO if physical facility is substantially altered or expanded).
119. See Mo. Rev. Stat. § 537.295 (1986) (allowing reasonable expansion); N.M. Stat. Ann. § 47-9-3(c) (Michie 1995) (refusing to consider expanded facility or new technology to be change in EDO).
120. For exceptions, see Alaska Stat. § 09.45.235 (Michie 1996) (barring only private nuisance); Ariz. Rev. Stat. Ann. § 3-112 (West 1995) (creating presumption that is essentially nuisance bar); Kan. Stat. Ann. § 2-3202 (1991) (same); Minn. Stat. § 561.19 (1996) (barring private or public nuisance); N.Y. Agric. & Mkts. Law § 308 (McKinney Supp. 1998); (barring only private nuisance); Tenn. Code Ann. § 43-26-103 (1993) (creating rebuttable presumption that farm is not nuisance); Vt. Stat. Ann. tit. 12, § 5753 (Supp. 1997) (same); Wash. Rev. Code § 7.48.305 (West 1996) (creating presumption that farm is not nuisance).
121. See Haw. Rev. Stat. § 165-5 (1993) (applying only if suit found to be frivolous); 740 Ill. Comp. Stat. 70/4.5 (West Supp. 1998) (awarding reasonable costs and attorneys' fees if defendant prevails); La. Rev. Stat. Ann. § 3:3605 (West 1987) (same as Hawaii); N.M. Stat. Ann. § 47-9-7 (Michie 1995) (same as Hawaii); N.Y. Agric. & Mkts. Law § 308-a (McKinney Supp. 1998) (same as Illinois); S.D. Codified Laws § 21-10-25.6 (Michie Supp. 1998) (same as Hawaii); Tex. Agric. Code Ann. § 251.004(b) (West 1982) (same as Illinois); Wis. Stat. § 823.08(4) (1993-1994) (same as Illinois).
122. See Ala. Code § 6-5-127(c) (Michie Supp. 1997): Any and all ordinances now or hereafter adopted by any municipal corporation in which such plant is located, operating to make the operation of any such plant, establishment, or any farming operation facility, or its appurtenances a nuisance or providing for an abatement thereof as a nuisance in the circumstances set forth in this section are, and shall be, null and void. See also Alaska Stat. § 09.45.235 (Michie 1996) (providing that RTF supersedes municipal ordinances, resolutions, or regulations to contrary); Ark. Code Ann. § 2-4-105 (Michie 1996) (rendering void local ordinances which make operation of agricultural facility nuisance); Colo. Rev. Stat. § 35-3.5-102(3) (1997) (substantially similar to Alabama, but excepting farms located in city at time of enactment); Conn. Gen. Stat. Ann. § 19a-341 (West 1997) (substantially similar to Alabama); Idaho Code § 22-4504 (Supp. 1998) (same); Ky. Rev. Stat. Ann. § 413.072(7) (Michie Supp. 1996) (same); La. Rev. Stat. Ann. § 3:3607 (West 1987 & Supp. 1998) (same); N.M. Stat. Ann. § 47-9-3(B) (Michie 1995) (substantially similar to Alabama, but excepting farms located in city at time of enactment); N.C. Gen. Stat. § 106-701 (1995) (same); N.D. Cent. Code § 42-04-04 (1983) (same); Or. Rev. Stat. § 30.935 (1997) (substantially similar to Alabama); 3 Pa. Cons. Stat. Ann. § 953 (West 1995) (same); S.C. Code Ann. § 46-45-60 (Law. Co-op. Supp. 1997) (substantially similar to Alabama, but excepting farms located in city at time of enactment); Va. Code Ann. § 3.1-22.28 (Michie 1994) (substantially similar to Alabama, but excepting ordinances related to health, safety, and general welfare).
123. Such a rationale does not seem satisfactory, given the historical clout that farmers have wielded in order to avoid regulations related to labor and health and safety laws. For instance, in 1996, California strawberry growers successfully convinced Governor Pete Wilson and a special session of the California legislature to postpone a pending ban of methyl bromide, an ozone-depleting fungicide. See Robert P. Gunnison, Wilson Signs Extension to Methyl Bromide Use, S.F. Chron., Mar. 13, 1996, at A18. In addition, the Labor-Management Relations Act, successor to the National Labor Relations Act, does not protect farmworkers, despite the importance of unionization in the industry. See 29 U.S.C. § 152(3) (1994) (excluding agricultural workers from those protected by Act);
124. cf. Patrick M. Anderson, The Agricultural Employee Exemption from the Fair Labor Standards Act of 1938, 12 Hamline L. Rev. 649, 655-56 (1989) (describing influence of farm lobby in gaining exemption of agricultural labor from initial federal minimum wage law).
125. Interviews with state farm bureaus support this contention. See, e.g., Telephone Interview with Glen Jones, Director of Research, Education, and Policy Development, Texas Farm Bureau (Mar. 18, 1998) (stating that there was no opposition to state RTF).
126. See supra notes 15-17 and accompanying text.
127. See Grossman & Fischer, supra note 8, at 101, 112 (noting trends in reported cases).
128. See Gwen Ifill, Farm Bill Approved in P.G., Wash. Post Md. Wkly., Oct. 18, 1984, at Md.1 (stating that although backers claim that complaints put farms out of business, planner with Maryland's Capital Park and Planning Commission was unaware of any lawsuits that had arisen out of complaints);
129. Grant Moos, Louisiana: New 'Takings' Law Requires Compensation for Agricultural, Forest Land, West's Legal News 1188, Aug. 16, 1995, available in 1995 WL 908901 (stating that there had been few problems in Louisiana, but Farm Bureau wanted to be "out in front");
130. Lani Wiegand, Committee Approves Right-to-Farm Bill, U.P.I., May 7, 1981, available in LEXIS, News Library, UPI File (noting that supporters "could not estimate the number of nuisance lawsuits filed each year or the number of farmers put out of business by complaining neighbors, [but said] the problem was severe").
131. See Telephone Interview with Richard S. Hannah, Executive Secretary, West Virginia Farm Bureau (Mar. 18, 1998) (stating that Farm Bureau wanted law on books in advance of any particular problem); Telephone Interview with Rodney Baker, Director of Governmental Affairs, Arkansas Farm Bureau (Mar. 19, 1998) (same).
132. This observation refers only to reported cases, but a large increase in nuisance suits in general would likely be reflected in the reported cases as well.
133. See Anthony De Palma, Right-to-Farm Gains Backing, N.Y. Times, Nov. 16, 1980, § 11, at 1 (stating that "a few incidents suggested that there might be more trouble ahead"). One case reported to indicate a possibility of trouble in New Jersey involved a judge limiting days on which a hog farmer could spread out manure in a field adjacent to private homes.
134. See Anthony De Palma, Right-to-Farm Gains Backing, N.Y. Times, id. 1980, 1
135. See Anthony De Palma, Right-to-Farm Gains Backing, N.Y. Times, id. 1980, 1
136. The effectiveness of existing right-to-farm laws was discussed in Part II.B, supra. There is anecdotal evidence that some of the legislation has had the effect of decreasing lawsuits. See, e.g., Farm Law Said to Work, U.P.I., July 30, 1982, available in LEXIS, News Library, UPI File (reporting study released by Michigan Agriculture Department stating more than 20 attorneys had requested copies of law, and law had been used in eight counties). Given the lack of data available for these types of cases before the law was passed, the significance of this data is unclear. There is also no assurance that the law has been used correctly to resolve complaints.
137. See Clifton B. Luttrell, Reexamining the "Shrinking" Farmland Crisis, in Vanishing Farmland, supra note 14, at 31, 40 ("Considering that cropland acreage is not shrinking, that crop yields have increased, and that food costs as a percentage of personal income have declined, allegations of a shrinking farmland appear to be unfounded.").
138. See Fischel, supra note 14, at 80-92 (criticizing data and conclusions of NALS study); see generally Julian L. Simon, Some False Notions About Farmland Preservation, in Vanishing Farmland, supra note 14, at 59 (same).
139. See Ralph Heimlich, Agriculture Adapts to Urbanization, 14 Food Rev. 21, 21 (1991) ("The best farmland is actually more fully utilized in metro areas. That is, the percentage of prime farmland used for crop production is higher in metro areas than in nonmetro areas."). In addition, metro farmers farm more intensively, doubling the gross sales per acre compared with nonmetro farmers. See id. at 23 (citing sales of $241 versus $115 per acre).
140. See U.S. Dep't of Agric., Nat'l Agric. Statistics Serv., Agricultural Land Values and Agricultural Cash Rents (Oct. 1, 1997) 〈http://usda2.mannlib.cornell.edu/reports/nassr/ other/plrbb/agricultural_land_values_10.01.97〉 (reporting that since 1987, average value of farm real estate has increased 57%).
141. See Heimlich, supra note 124, at 22 (reporting 1982 Iowa survey showing metropolitan area residents were more concerned than farmers about land use problems).
142. See Linda R. Klein & John P. Reganold, Agricultural Changes and Farmland Protection in Western Washington, 52 J. Soil & Water Conservation, Jan.-Feb. 1997, at 6.
143. See id. at 8 (reporting overall increase of 10%).
144. See id. (noting that number of farms declined after reaching peak in 1982).
145. See id. (noting decline of about 20% in nonmetropolitan and metropolitan counties alike).
146. See id. (reporting average decrease from 77 to 59 acres in metropolitan areas, with decrease from 141 to 99 acres in nonmetro areas).
147. See id. at 9 (reporting that between 1982 and 1992, western Washington's agricultural sector earnings grew by approximately 50%, while farmland area decreased by 16%).
148. See id. (observing "locational advantages" of farms located in metropolitan areas). The Washington study provides some evidence that population growth is linked to a decrease in acreage devoted to farmland. In western Washington, population growth did not necessarily correlate with farmland loss. The greatest period of farmland loss (between 1982 and 1987) occurred before the greatest period of population growth (between 1987 and 1992). See id. (reporting 15% population growth between 1987 and 1992 and 10% farmland decline between 1982 and 1987). While residential development was primarily responsible for the conversion of farmland to urban uses, environmental regulations also had an impact. The timing of the pattern of population growth and farmland loss is consistent with residential development, necessarily preceded by farmland loss, leading to the increase in population.
149. See William Lockeretz, Secondary Effects on Midwestern Agriculture of Metropolitan Development and Decreases in Farmland, 65 Land Econ. 205, 215 (1989) (finding that results of studies fail to support proposition that metropolitan expansion has had adverse effect on remaining farmland).
150. On the other hand, some farmers may have received informal complaints, and the number of reported nuisance suits likely underestimates the number of cases litigated. If so, RTFs might play a role in the informal resolution of conflicting land uses (e.g., by convincing a potential plaintiff that a lawsuit will be unsuccessful). There is little way of confirming or denying this possibility, although conversations with state farm bureaus support it. See, e.g., Telephone Interview with Andy Ellen, Associate General Counsel, North Carolina Farm Bureau (Mar. 18, 1998) (reporting experience that state RTF is used more often in informal resolution of conflict).
151. See supra Part II.A.
152. See, e.g., Laux v. Chopin Land Assoc., 550 N.E.2d 100, 103 (Ind. Ct. App. 1992) (interpreting "changed conditions" criteria as requiring change in vicinity of agricultural operation before nuisance suit could be initiated).
153. See Ala. Code § 6-5-127 (Michie Supp. 1997); Alaska Stat. § 09.45.235 (Michie 1996); Ariz. Rev. Stat. Ann. § 3-112 (West 1995); Cal. Civ. Code §§ 3482.5-.6 (West 1997); Colo. Rev. Stat. § 35-3.5-102 (1997); Conn. Gen. Stat. Ann. § 19a-341 (West 1997); Del. Code Ann. tit. 3, § 1401 (1993); Iowa Code Ann. § 352.11 (West Supp. 1998); Me. Rev. Stat. Ann. tit. 17, § 2805 (West 1983 & Supp. 1997); Md. Code Ann., Cts. & Jud. Proc. § 5-403 (Supp. 1997); Mass. Gen. Laws ch. 243, § 6 (Law. Co-op. Supp. 1998); Mich. Comp. Laws Ann. §§ 286.471-.473 (West 1996); Minn. Stat. § 561.19 (1996); Miss. Code Ann. § 95-3-29 (1994); Mo. Rev. Stat. § 537.295 (1986); Mont. Code Ann. § 27-30-101(3) (1997); Neb. Rev. Stat. §§ 2-4401 to -4404 (1991); Nev. Rev. Stat. § 40.140(2) (1997); N.H. Rev. Stat. Ann. §§ 432:32-35 (1991 & Supp. 1997); N.Y. Agric. & Mkts. Law §§ 308, 308-a (McKinney Supp. 1998); N.D. Cent. Code §§ 42-04-01 to -05 (1983 & Supp. 1997); Ohio Rev. Code Ann. § 929.04 (West 1994); Okla. Stat. tit. 50, § 1.1 (1991); Tenn. Code Ann. §§ 43-26-101 to -104 (1993); Utah Code Ann. §§ 78-38-7 to -8 (1996); Wyo. Stat. Ann. §§ 11-44-101 to - 103 (Michie 1997).
154. See Ala. Code § 6-5-127 (1993); Alaska Stat. § 09.45.235 (Michie 1996); Cal. Civ. Code § 3482.5 (West 1997); Colo. Rev. Stat. § 35-3.5-102 (1997); Del. Code Ann. tit. 3, § 1401 (1993); Mo. Rev. Stat. § 537.295 (1986); Neb. Rev. Stat. § 2-4403 (1991); Nev. Rev. Stat. § 40.140(2) (1997); N.H. Rev. Stat. Ann. § 432:33 (1991); N.D. Cent. Code § 42-04-02 (1983); Okla. Stat. tit. 50, § 1.1 (1991); Tenn. Code Ann. § 43-26-103 (1993); Wyo. Stat. Ann. § 11-44-103 (Michie 1997).
155. See Idaho Code § 22-4501 (1995): The legislature finds that agricultural activities conducted on farmland in urbanizing areas are often subjected to nuisance lawsuits, and that such suits encourage and even force the premature removal of the lands from agricultural uses, and in some cases prohibit investments in agricultural improvements. It is the intent of the legislature to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance. See also Or. Rev. Stat. § 30.933 (1997) (substantially similar language); R.I. Gen. Laws § 2-23-3 (1987) (same); Vt. Stat. Ann. tit. 12, § 5751 (Supp. 1997) (same); Wash. Rev. Code § 7.48.300 (West 1996) (same); Wis. Stat. § 823.08 (1993-1994) (same).
156. See Ark. Code Ann. § 2-4-101 (Michie 1996): It is the declared policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land and other facilities for the production of food and other agricultural products. When nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations. Many others are discouraged from making investments in farm or other agricultural improvements. It is the purpose of this chapter to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance. See also Colo. Rev. Stat. § 35-3.5-101 (1997) (substantially similar language); Ga. Code Ann. § 41-1-7(a) (1997) (same); Haw. Rev. Stat. § 165-1 (1993) (same); 740 Ill. Comp. Stat. 70/1 (West 1993) (same); Ind. Code Ann. § 34-19-1-4(a) (LEXIS Law 1998) (same); Kan. Stat. Ann. § 2-3201 (1991) (same); Ky. Rev. Stat. Ann. § 413.072(1) (Michie Supp. 1996) (same); N.C. Gen. Stat. § 106-700 (1995) (same); 3 Pa. Cons. Stat. Ann. § 951 (West 1995) (same); S.C. Code Ann. § 46-45-10 (Law. Co-op. Supp. 1997) (same); S.D. Codified Laws § 21-10-25.1 (Michie Supp. 1998) (same); Va. Code Ann. § 3.1-22.28 (Michie 1994) (same); W. Va. Code § 19-19-1 (1997) (same).
157. See Fla. Stat. Ann. § 823.14(2) (West 1994) ("It is the purpose of this act to protect reasonable agricultural activities conducted on farm land from nuisance suits."); La. Rev. Stat. Ann. § 3:3601(B)(1) (West Supp. 1998) ("The legislature hereby finds and declares that agriculture is essential not only to the economy of the state but to the sustenance of life, yet acreage devoted to agriculture has steadily declined in this century."); N.J. Stat. Ann. § 4:1C-2 (West 1998) (substantially similar language); N.M. Stat. Ann. § 47-9-2 (Michie 1995) (same); Tex. Agric. Code Ann. § 251.001 (West 1982) (same).
158. This possibility is less likely in those states where the protection operates specifically against nuisance caused by changed circumstances in the vicinity of the farm. See Ark. Code Ann. § 2-4-107 (Michie 1996); Colo. Rev. Stat. § 35-3.5-102(1) (1997); Fla. Stat. Ann. § 823.14(4) (West 1994); Ga. Code Ann. § 41-1-7(c) (1997); Idaho Code § 22-4503 (1995); 740 Ill. Comp. Stat. 70/3 (West 1993); Ind. Code Ann. § 34-19-1-4(c) (LEXIS Law 1998); Ky. Rev. Stat. Ann. § 413.072(2) (Michie Supp. 1996); La. Rev. Stat. Ann. § 3:3603(B)(2)(b) (West Supp. 1998); Mont. Code Ann. § 27-30-101(3) (1997); N.M. Stat. Ann. § 47-9-3(A) (Michie 1995); N.C. Gen. Stat. § 106-701(a) (1995); S.C. Code Ann. § 46-45-30 (Law. Co-op. Supp. 1997); Wis. Stat. § 823.08(3)(a)(1) (1993-1994).
159. 503 N.W.2d 675 (Mich. Ct. App. 1993).
160. See id. at 677-78.
161. 900 P.2d 1352 (Idaho 1995).
162. See id. at 1355.
163. See id.
164. See Idaho Code § 22-4501 (1995) (stating that intent of legislature is to reduce loss of agricultural resources).
165. See Payne, 900 P.2d at 1355 (noting that neighborhood surrounding feedlot had remained substantially unchanged during feedlot's existence). The court used this analysis even though the terms of the statute were not linked solely to protecting agricultural activities from changed conditions in their vicinity.
166. See supra note 105 for a list of statutes that include a requirement that agricultural operations conform to generally accepted practices in order to receive RTF protection. Of these, two states, Utah and Virginia, do not specify who defines generally accepted practices. See Utah Code Ann. § 78-38-7 (1996); Va. Code Ann. § 3.1-22.29 (Michie 1994). The remaining statutes allocate decisionmaking power to state government. See Me. Rev. Stat. Ann. tit. 17, § 2805(2) (West Supp. 1997) (defining "best management practices" as determined by Commissioner of Agriculture, Food and Rural Resources); Mich. Comp. Laws Ann. § 286.473(1) (West 1996) (providing that generally accepted practices be determined by Michigan commission of agriculture); N.J. Stat. Ann. § 4:1C-10 (West 1998) (requiring conformity with practices recommended by State committee); N.Y. Agric. & Mkts. Law § 308(1)(a) (McKinney Supp. 1998) (providing that commissioner of agriculture shall issue opinions upon request as to whether particular practices are sound); Tenn. Code Ann. § 43-26-103(a) (1993) (providing that generally
167. In many RTFs, when an operation becomes "new," it no longer receives statutory protection. Most statutes state that if change is "reasonable," not material, or not substantial, the agricultural operation will not lose its protected status. See, e.g., Ark. Code Ann. § 2-4-104 (Michie 1996) (stating that statute will not protect agricultural facilities which change materially). Only one state actually defines with precision when a change makes an existing agricultural operation "new." See Minn. Stat. § 561.19(1)(b) (1996) (defining change in operation as expansion of production by 25% or "a distinct change in the kind of agricultural operation").
168. See supra notes 93-94.
169. For instance, if a large farm has several operations, and one is causing odors and dust, it may be possible to shift the location of this use within the farm such that neighboring landowners are no longer negatively impacted by the noxious operation.
170. See Ala. Code § 6-5-127 (1993) (listing industrial plants or establishments as qualifying for protection); Ind. Code Ann. § 34-19-1-4(c) (LEXIS Law 1998) (including industrial operations in protection). Indiana's RTF contains a statement of purpose solely addressing the extension of nonagricultural uses into agricultural areas. See Ind. Code Ann. § 34-19-1-4(a) (LEXIS Law 1998) ("[W]hen nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits.").
171. See Erbrich Prod. Co. v. Wills, 509 N.E.2d 850 (Ind. Ct. App. 1987).
172. See id. at 858-59.
173. See Leaf River Forest Prod., Inc. v. Ferguson, 662 So. 2d 648 (Miss. 1995) (finding that paper mill qualified as agricultural operation for purposes of right-to-farm laws, but that act did not apply to facts).
174. See supra note 89.
175. Alaska appears to have come up with a sensible alternative: protecting processors based on their intimate association with a primary agricultural producer. See supra note 90 and accompanying text.
176. See, e.g., R.I. Gen. Laws § 2-23-5 (1987) ("No agricultural operation . . . shall be found to be a public or private nuisance, due to alleged objectionable . . . odor . . . noise . . . dust . . . use of pesticides, rodenticides, insecticides, herbicides, or fungicides.").
177. See, e.g., Tex. Agric. Code Ann. § 251.004 (a) (West 1982): No nuisance action may be brought against an agricultural operation that has lawfully been in operation for one year or more prior to the date on which the action is brought, if the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation.
178. See, e.g., N.M. Stat. Ann. § 47-9-3(c) (Michie 1995) (not considering expanded facility or use of new technology change in EDO).
179. See, e.g., Aeppel, supra note 15, at 9 ("'The [right to farm] laws will either be ineffective or unconstitutionally restrict the rights of neighbors,' says Edward Thompson, Jr., director of an agricultural lands project for the National Association of Counties.").
180. See Jamie C. Ruff, Proposed Hog Farm Irks Neighbors, Richmond (Va.) Times-Dispatch, July 27, 1997, at C3 (stating that RTF "has opened the floodgate for the agribusiness industry instead of protecting the family farm," according to Pittsylvania County Administrator George E. Supensky).
181. 550 N.E.2d 100 (Ind. Ct. App. 1990).
182. See id. at 101.
183. See id. At the time of the sale closing, the Lauxes were feeding between 85 and 90 hogs. See id.
184. See id.
185. See id.
186. See Ind. Code Ann. § 34-19-1-4 (LEXIS Law 1998).
187. See Laux, 550 N.E.2d at 103.
188. See id. Steffens v. Keeler, 503 N.W.2d 675, 675-76 (Mich. Ct. App. 1993), discussed above, demonstrates similar interpretation of language from Michigan's RTF. See supra notes 144-45 and accompanying text.
189. See Laux, 550 N.E.2d at 101; Shatto v. McNulty, 509 N.E.2d 897, 897 (Ind. Ct. App. 1987); see also Steffens, 503 N.W.2d at 675-76.
190. See Bowen v. Flaherty, 601 So. 2d 860, 861 (Miss. 1992).
191. See Erbrich Prod. Co. v. Wills, 509 N.E.2d 850, 852 (Ind. Ct. App. 1987).
192. See Mary Gail Hare, Panel Rules in Favor of Fowl Farmer, Bait. Sun, July 23, 1996, at 3B, available in 1996 WL 6628983.
193. Of the reported cases interpreting RTFs, most address hog or cattle operations. See Herrin v. Opatut, 281 S.E.2d 575, 576 (Ga. 1981) (egg farm); Payne v. Skaar, 900 P.2d 1352, 1353 (Idaho 1995) (cattle); Wendt v. Kerkhof, 594 N.E.2d 795, 796 (Ind. Ct. App. 1992) (hog farm); Laux v. Chopin Land Assoc., 550 N.E.2d 100, 101 (Ind. Ct. App. 1990) (same); Shatto v. McNulty, 509 N.E.2d 897, 898 (Ind. Ct. App. 1987) (same); Weinhold v. Wolff, 555 N.W.2d 454, 457 (Iowa 1996) (same); Finlay v. Finlay, 856 P.2d 183, 186 (Kan. Ct. App. 1993) (cattle); Cline v. Franklin Pork, Inc., 361 N.W.2d 566, 569 (Neb. 1985) (same); Flansburgh v. Coffey, 370 N.W.2d 127, 129 (Neb. 1985) (same); Villari v. Zoning Bd. of Adjustment, 649 A.2d 98, 99 (N.J. Super. Ct. App. Div. 1994) (same); Durham v. Britt, 451 S.E.2d 1, 2 (N.C. Ct. App. 1994) (hog farm). For a newspaper account, see Scott Gold, Hog Farms May Face Increased Lawsuits, Wilmington (N.C.) Morning Star, Dec. 10, 1994, at 1A (reporting at least four court battles being fought by neighbors of factory-like hog farms in southeastern N.C.). Mark Tollison, a staff attorney for the South Carolina Association of Counties, has argued that North Carolina's law has enabled factory farms to push out small hog farms while increasing their own production.
194. See Mark W. Tollison, Commentary, State's 'Right to Farm' Bill Would Exempt Factory Farms from Local Laws, Post and Courier (Charleston, S.C.), Aug. 20, 1995, at 23-A ("In the 10 years since the rules were changed to open North Carolina up to corporate farming, hog production in that state has grown; however, the number of hog farmers dropped from 23,400 to 7,000 farmers, roughly a two-thirds reduction.").
195. The Attorney General's office in Kentucky was asked by several counties to state whether their RTF applied to large scale hog farming, and the answer was, "no." See Large Hog Farms Considered 'Industry,' Evansville (Ill.) Courier, Aug. 22, 1997, at A11, available in 1997 WL 6528189 (reporting that opinion was requested by officials of eight counties where hog farms were considering locating). In Virginia, the Pittsylvania County Board of Supervisors worried that it would not be able to prevent the construction of a 10,000 capacity hog farm because of the limitations imposed by the RTF. See Ruff, supra note 165, at C3 (stating that RTF prohibits localities from restricting livestock, dairy, and poultry operations in areas zoned for agriculture). In South Carolina, hog farmers were alleged to be backing a change in the RTF bill that would ease restrictions on factory farms. See Tollison, supra note 178, at 23-A. In these situations, the farms are often characterized as "industries," not farms. See Ruff, supra note 165, at C3 ("'It's not a hog farm, it's a hog industry,' [Pittsylvania Supervisor William H.] Pritchett said. 'A family-owned farm, that can be controlled. . . . Big industry, that's tons and tons of waste.'").
196. In several cases involving mostly hog farms, the RTF was found to be inapplicable because there had been no change in the vicinity of the farming operation; the plaintiff had not "come to the nuisance." See Herrin v. Opatut, 281 S.E.2d 575, 578 (Ga. 1981) (limiting explicitly application of RTF to instances where there have been changed conditions surrounding farm); Wendt v. Kerkhof, 594 N.E.2d 795, 798 (Ind. Ct. App. 1992) (refusing to apply RTF where defendant had not started hog operation until after plaintiff had moved nearby); Finlay v. Finlay, 856 P.2d 183, 188 (Kan. Ct. App. 1993) (holding that purpose of RTF of protecting agricultural land from encroachment of nonagricultural activities does not apply); Cline v. Franklin Pork, Inc., 361 N.W.2d 566, 572 (Neb. 1985) (holding act inapplicable because there was no change in surrounding land use); Flansburgh v. Coffey, 370 N.W.2d 127, 131 (Neb. 1985) (holding there was no evidence of any change in use or occupancy of land in and about locality of farm).
197. See Stacy Jones, Neighbors Raise a Stink Over Compost, Hous. Chron., June 1, 1996, at 5D.
198. Diane Michele Yap, Clam-Waste Stench at Hog Farm Prompts Town to Take Action, Providence J. Bull. (East Bay Ed.), Aug. 28, 1996, at C1.
199. See Paul Rogers, Right to Farm vs. Right to Quiet Life: Neighbor Finds Law Is Not on His Side, Rec., N. N.J., Oct. 29, 1996, at A1, available in 1996 WL 6115243.
200. See Paul Rogers, Right to Farm vs. Right to Quiet Life: Neighbor Finds Law Is Not on His Side, Rec., N. N.J., id. 1996, at A1,
201. See Pasco County v. Tampa Farm Serv., Inc., 573 So. 2d 909, 912 (Fla. Dist. Ct. App. 1990) (holding that court or local government can regulate changes that involve significant or substantial degradation in locale without violating RTF); City of Troy v. Papadelis, 572 N.W.2d 246, 250 (Mich. Ct. App. 1997) (finding RTF does not bar application of zoning ordinance to residential parcel that had not established prior nonconforming use); Jerome Township v. Melchi, 457 N.W.2d 52, 55 (Mich. Ct. App. 1990) (finding that apiary was not protected from 1965 zoning ordinance where it was established after 1965); Village of Peck v. Hoist, 396 N.W.2d 536, 538 (Mich. Ct. App. 1986) (rejecting argument that right to farm is defense against ordinance requiring use of public sewer system); Villari v. Zoning Bd. of Adjustment, 649 A.2d 98, 102 (N.J. Super. Ct. App. Div. 1994) (holding that right-to-farm act does not express legislative intent to deprive municipalities of authority to zone); L & Z Realty Co. v. Borough of Ringwood, 6 N.J. Tax 450, 453-54 (N.J. Tax Ct. 1984) (holding that RTF cannot be used to overcome local zoning prohibition on commercial logging in order to get farmland assessment); Wellington Farms, Inc. v. Township of Silver Spring, 679 A.2d 267, 267-68 (Pa. Commw. Ct. 1996) (holding that poultry slaughterhouse not protected by RTF). But see Northville Township v. Coyne, 429 N.W.2d 185, 187 (Mich. Ct. App. 1988) (finding RTF valid defense to nuisance suit arising out of zoning ordinance violation); Judge Throws Out Parents' Complaint Against Agricultural Field Burning, Idaho Statesman, Sept. 5, 1997, at 5B, available in 1997 WL 12712420 (reporting judge's decision that county cannot be forced to adopt law banning field burning because of RTF).
202. See Telephone Interview with Andy Ellen, supra note 135; Telephone Interview with Lee Gardner, supra note 151; Telephone Interview with Paul Gutierrez, Director of Governmental Affairs, New Mexico Farm Bureau (Mar. 18, 1998); Telephone Interview with Richard S. Hannah, supra note 117; Telephone Interview with Ben Parks, Lobbyist, Florida Farm Bureau (Mar. 18, 1998).
203. See supra note 178 and accompanying text.
204. See supra Part III.A.
205. Processing plants, industrial operations, and large scale livestock operations can hardly be said to contribute to open space in an aesthetically valuable way.
206. Some empirical data confirm this distortion of incentives. Cf. Heimlich, supra note 124, at 24-25 (describing success of "adaptive" farming techniques in farms near metro areas, with shift towards intensive crops, and away from odor causing livestock operations); Klein & Reganold, supra note 127, at 9 (suggesting advantages of farming in metropolitan areas). In addition, at least one Farm Bureau supporter has suggested that farmers may be taking advantage of the protections offered by RTFs. See Telephone Interview with Lee Gardner, supra note 151.
207. Many commentators have explored the possibility that RTFs work an unconstitutional taking, but that issue will not be raised in this Note. See Grossman & Fischer, supra note 8, at 135-42 (reviewing takings argument and concluding that takings claim is potential obstacle to operation of RTFs); Hand, supra note 10, at 328-47 (surveying arguments and concluding RTFs do not constitute taking). Interestingly, the highest court in one state has struck down the section of an RTF providing farms immunity from nuisance suits, holding that the provision constitutes a taking of private property without just compensation. See Borman v. Board of Supervisors, No. 96-2276, 1998 WL 650904, at *14 (Iowa Sept. 23, 1998) (resting holding on conclusion that entitlement to create nuisance constitutes easement).
208. Lawrence Ragonese, Farmland May Dwindle, But Not Without a Fight, Star-Ledger (Newark, N.J.), Mar. 23, 1997, at 51 (quoting Bill Cogger, Chester Township's liaison to county agricultural board).
209. See Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1907 (1987) (arguing that property with personal value should not be viewed as market commodity).
210. For a thorough critique of Radin's property-for-personhood theories, see generally Jeanne Lorraine Schroeder, Virgin Territory: Margaret Radin's Imagery of Personal Property as the Inviolate Feminine Body, 79 Minn. L. Rev. 55 (1994).
211. Radin uses a wedding band as one example of this phenomenon. See Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 960 (1982). While a jeweler may view the ring as fungible, such that its theft would cause pain that can be compensated with money, the owner of the wedding ring might never be truly compensated for its loss because of its personal value.
212. See Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 960 (1982) id.
213. See Radin, supra note 193, at 1905-06. Distinguishing property-for-personhood from fungible property is not easy. Radin posits the line between property-for-personhood and fungible property as a continuum; there is no bright line rule for distinguishing between the two. See id. at 1908 ("There is no algorithm or abstract formula to tell us which items are (justifiably) personal. A moral judgment is required in each case.").
214. Long-time farmers often speak of an attachment to the land that goes beyond its mere economic value. See Ragonese, supra note 192, at 51 (quoting Maria Young, long-time farmer: "I like to come out and pick up the dirt, feel it. It's like my blood, my whole being. And I don't like to see it hurt."); see also Terri P. Guess, Farmers in Bethlehem Township Fight for Right-to-Farm Ordinance, Star-Ledger (Newark, N.J.), May 5, 1996, at 45 (reporting sixth-generation farmer backing right-to-farm ordinance so that "the land he has tilled for decades [will] always be used for agriculture").
215. See Verhovek, supra note 17, at 6 (quoting Norman Greig, farmer for 17 years: "I'm very much aware that my farm may be worth more dead than alive . . . But this is what I do, and I'd like to be able to keep doing it.").
216. Radin considers the home one of the prime examples of property-for-personhood. See Radin, supra note 194, at 991-92 (discussing idea of sanctity of home).
217. See Weinhold v. Wolff, 555 N.W.2d 454, 459 (Iowa 1996) (summarizing claim that odors prevented plaintiff from sleeping and forced him to sleep in his son's trailer); Cline v. Franklin Pork, Inc., 361 N.W.2d 566, 570 (Neb. 1985) (summarizing plaintiffs' complaints that they cannot enjoy outdoors or entertain family and friends); Flansburgh v. Coffey, 370 N.W.2d 127, 130 (Neb. 1985) (restating complaints of odor so strong it causes watering eyes and breathing difficulty and prevents grandchildren from playing outside); Rebecca Sausner, A Tale of Pigs and Unhappy Homeowners, Hartford Courant, Jan. 8, 1996, at B1, available in 1996 WL 4340596 (reporting complaints of firsttime homeowners who unknowingly moved adjacent to hog farm protected by RTF); Richard Warchol, Residents Want Farm's Pesticide Permit Revoked, L.A. Times (Ventura County ed.), June 26, 1997, at B6, available in 1997 WL 2223688 ("Some of the homes sit as close as 23 feet to the farm, and residents say fumigation last August caused headaches, stomach aches, sore throats, dizziness and vomiting, and left a dry, metallic taste in their mouths.").
218. See Bowen v. Flaherty, 601 So. 2d 860, 861 (Miss. 1992) (summarizing complaint by chronic asthmatic of dust from cotton gin); Judge Throws Out Parents' Complaint Against Agricultural Field Burning, supra note 185, at 5B (reporting suit by parents on behalf of five-year-old daughter whose cystic fibrosis and asthma is exacerbated by grass burning); Sausner, supra note 199, at B1 (reporting exacerbation of homeowner's asthma).
219. See Jones, supra note 181, at 5D (reporting of complaints regarding composting operation).
220. See Hog Odor Lawsuit Will Get an Airing, Wilmington (N.C.) Morning Star, May 9, 1995, at 1B (reporting complaint of ruined meals, canceled barbecues, and summers spent inside because of high density swine farm);
221. Deborah Moore, New Right-To-Farm Bill Aims to Protect Rights of Farmers and Keep Them in Business, Cap. District Bus. Rev., July 20, 1992, § 1, at 15, available in 1992 WL 3374836 (reporting complaint from resident whose parents ceased visiting house because of smell from neighboring farm).
222. Radin uses property-for-personhood to describe relationships between an individual and external resources which are important to self-development. See Radin, supra note 194, at 957.
223. See Clinton Twp. Acts to Protect Farmers, Star-Ledger (Newark N.J.), May 30, 1997, at 41 ("The mayor has said officials [approving a right-to-farm ordinance] want to maintain the township's rural character."); De Palma, supra note 119 (stating that one reason for supporting RTF ordinance, according to supporter, is to keep people from "moving into the country and taking the city with them");
224. Editorial, Don't Plow Ventura County's Agricultural Heritage Under, L.A. Times (Ventura County ed.), July 6, 1997, at B17
225. [hereinafter Don't Plow Ventura County] ("[H]aving some 105,000 acres sprouting crops rather than new neighbors helps keep the population and some big-city problems under control.");
226. Mary S. Yamin, Farming Remains Vital to County's Economy, Cap. District Bus. Rev., July 21, 1997, at 18, available in 1997 WL 10935775 (passing right-to-farm ordinance thought to preserve town's rural element). As might be expected, a general antiurban theme pervades this rationale. While this aspect of rural-urban relations is beyond the scope of this Note, it raises the issues of the roles race and class conflict play in rural resistance to the extension of urban areas.
227. See Judith Kohler, Urban, Rural Lifestyles Clash as Colorado Grows, Fresno Bee, June 29, 1997, at F7 ("As the fields and pastures disappear, so do open space, wildlife habitat and a vital part of the state's culture, say some involved in protecting ag land.").
228. See Don't Plow Ventura County, supra note 204, at B17 ("It's not too late to preserve Ventura County's agricultural past - and future. Yet."); John Lucas, Editorial, Sea Change Challenges Kentucky, Evansville (Ill.) Courier, Apr. 27, 1997, at A18, available in 1997 WL 6523650 ("How, for most of us, do we cast aside the old and take up something new, while at the same time holding on to the best of the former way of life?").
229. See, e.g., William Howarth, The Value of Rural Life in American Culture, 12 Rural Dev. Persp. 5, 9 (1996) ("Societies that develop deliberately court change, and modernization inevitably brings the crowded, swifter pace of urban life. Rural values monitor that social change, calming fears of progress with the stability of nature.").
230. See, e.g., Daniel B. Danborn, Why Americans Value Rural Life, 12 Rural Dev. Persp. 15, 16-17 (1996) (noting use of rural imagery to uphold American identity in contrast to Europe in early 19th century).
231. There are many theories as to why our culture values rural life, and the emphasis on symbolic meaning is not far-fetched. See, e.g., John R. Logan, Rural America as a Symbol of American Values, 12 Rural Dev. Persp. 19, 19 (1996) ("[W]hat we value in rural settings is defined by what we suspect we have lost in the city.").
232. See Pierre Crosson, The Issues, in Vanishing Farmland, supra note 14 at 1 12 (arguing that scenic amenities are public good);
233. B. Delworth Gardner, The Market Allocation of Land to Agriculture, in Vanishing Farmland, supra note 14, at 17, 25 (concluding that only market failure that "seemingly justifies social intervention in the land market is the provision of open space as a collective good");
234. see also James E. Holloway & Donald C Guy Policy Coordination and the Takings Clause: The Coordination of Natural Resource Programs Imposing Multiple Burdens on Farmers and Landowners, 8 J. Land Use & Envtl. L. 175, 226 (1992) (arguing that neighboring landowners and general public receive reciprocal benefits from farming, so that as public seeks to preserve farming and farmland, its members must often forego right to challenge unwanted farming operations).
235. See Radin, supra note 194, at 988. In addition, Radin argues that some property-for-personhood relationships should be protected by market-inalienable entitlements. See Radin, supra note 193, at 1921-36 (discussing babyselling, surrogacy, and prostitution).
236. It is reasonable to assume that these two groups view the land solely as a means to a profit and that any loss of a certain use of the land can be compensated monetarily.
237. For residents, this may depend on how long they have lived there, whether their family is linked to the geographical area in some specific way, and whether there are specific circumstances, such as health, that particularly affect a resident. For family farmers, it may depend on factors such as how long their family has farmed there and the size of the farm.
238. See Keith Burgess-Jackson, The Ethics and Economics of Right-to-Farm Statutes, 9 Harv. J.L. & Pub. Pol'y 481, 510 (1986) (noting that RTFs offer property rule protection of farmer's entitlement).
239. 494 P.2d 700 (Ariz. 1972) (en banc).
240. See supra notes 47-47 and accompanying text.
241. See Burgess-Jackson, supra note 214, at 510-11 (noting that property rules are inefficient when transaction costs are high and lower-valuing party receives entitlement).
242. See Calabresi & Melamed, supra note 44, at 1106-07 (describing justifications for choosing liability over property rule).
243. See supra Part III.B.1 for a discussion of how this personal connection relates to the theoretical defects of RTFs.
244. See Michael I. Krauss, The Perils of Rural Land Use Planning: The Case of Canada, 23 Case W. Res. J. Int'l L. 65, 73-74 (1991) (arguing that RTF statutes freeze existing land uses that are obsolete by making efficient Coasian buy-out impossible);
245. see also Jim Chen, Get Green or Get Out: Decoupling Environmental From Economic Objectives in Agricultural Regulation, 48 Okla. L. Rev. 333, 344 (1995) (arguing that RTFs violate traditional "polluter pays" principle).
246. See Burgess-Jackson, supra note 214, at 493-94.
247. See id. at 512 (arguing that move from traditional law of nuisance to RTFs substituted one allocatively inefficient regime for another).
248. This argument rests on the realization that some people decide to use resources without taking full account of how that decision affects others (producing an "externality"). Arguably, some positive externalities associated with farming, such as health and low food prices, are not easily internalized by agricultural operations, given that the externalities benefit a large, diffuse population. See, e.g., Dennis Munson, Get Off Farmer Brown's Back: A Common Sense Approach to Farmer Liability for Groundwater Contamination Caused by the Normal Application of Pesticides, 18 Hamline L. Rev. 521, 524-25 (1995) ("Because farmers are extremely efficient producers, they enable the rest of society to participate in other areas of the economy without having to worry about the production of their own food."); see also Opie, supra note 25, at 182 (noting that Europeans spend up to 50% of income on food while Americans spend less than 20%). Development, on the other hand, also creates positive externalities. See Luttrell, supra note 122, at 42 (stating that cost of land for housing, factories, and hospitals will increase if rural lands are not transformed to urban use). For instance, a farmer cannot charge the public for the sensory benefit enjoyed when driving by a strawberry field in full bloom. Thus, protection against nuisance suits may be thought necessary in order to make up for the fact that farms are not able to capture some of the social benefits that they produce. RTFs, in this light, may remedy this inequity.
249. See supra note 110 and accompanying text.
250. While some have questioned the wisdom of treating municipalities as "natural" political units with sovereign power to zone, see, e.g., Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841, 1844 (1994) (arguing that conceptions of political space exacerbate racial segregation), RTFs restrict the power of a shifting municipal electorate to regulate land uses that have traditionally been subject to local majoritarian rule.
251. See John D. Burns, The Eight Million Little Pigs - A Cautionary Tale: Statutory and Regulatory Responses to Concentrated Hog Farming, 31 Wake Forest L. Rev. 851, 880-81 (1996) (arguing that RTFs' limitation of municipalities' ability to zone out hog farming is troublesome because hog farming is "every bit as threatening to rural life as any other [industry]"). Some commentators have taken the position that the laws could be underprotective as well.
252. See Martha L. Noble & J. W. Looney, The Emerging Legal Framework for Animal Agricultural Waste Management in Arkansas, 47 Ark. L. Rev. 159, 199 (1994) (stating that potential pitfalls of RTFs include numerous "technical requirements");
253. J. Walter Sinclair, The Laws of Nuisance and Trespass as They Impact Animal Containment Operations in Idaho, 30 Idaho L. Rev. 485, 502-03 (1993-1994) (predicting litigation will still occur over what constitutes improper or negligent operation).
254. See supra Part III.B.
255. See supra Part III.A.2.
256. This suggestion is at least partly supported by a survey of Washington county agricultural departments. Most Washington planning departments felt that the significant factors contributing to an operator's decision to retain farmland were farm operation profitability, farm operator age, farm operator plans for his/her land at retirement, and farmland tenure, yet these criteria were rarely used in farmland preservation programs. See Klein & Reganold, supra note 127, at 12. The last three criteria relate to property-for-personhood interests, while only the first criterion would appear to be recognized by a strict economic efficiency perspective.
257. The classic parties for this type of exchange are developers and commercial farmers because both groups treat land as fungible.
258. It is unclear how the social interest should weigh in this balance, but one possibility is to distinguish between open areas with aesthetic and environmental value, and open areas used solely for economic gain. Factors in this equation might include the quality of the agricultural land, its aesthetic value, and how it fits in with state and national resource conservation objectives.
259. See supra Part III.A.2.