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Todd Janzen: Thinking of Expanding Your Farm? Don’t Assume the Right to Farm Act’s Protections Apply

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Todd J
Todd J. Janzen Attorney At Plews Shadley Racher & Braun

I recently litigated a case that made state and national news involving a “nuisance” claim against the Obert’s Legacy Dairy after it expanded from its traditional 100 cow size to a more modern 760 cow farm. A neighbor, who never complained about the 100 cow farm, did complain about the smell of the 760 cow farm. Citing the Indiana Right to Farm Act, the Indiana Court of Appeals affirmed that the neighbor had no case.

The Right to Farm Act is an Indiana statute that shields farms properly located in agricultural areas from nuisance suits—those complaints that odor, noise, flies, etc. affect nearby landowners. In the Obert’s case, the Right to Farm Act even applied to protect a farm expansion from a nuisance suit. The court’s logic: if the small farm was not a nuisance, the large farm is not a nuisance. This makes sense and follows a long line of precedence applying the Right to Farm Act to bar suits against Hoosier farms. Indeed, the Indiana Court of Appeals once wrote, “as long as the human race consumes pork, someone must tolerate the smell.” Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind.Ct.App. 1987). In Indiana, our courts have held the Right to Farm Act’s protections are broad.

But this should not lead farmers to assume any expansion or new farm is automatically protected by the Right to Farm Act. The Oberts did everything right. They consulted neighbors before building. They hired experts to ensure that odor and flies would be minimal. They obtained the proper environmental permits. They built a modern, clean farm. Even though courts need not consider such subjective factors when evaluating a Right to Farm Act motion, as lawyers, we know that well-researched, well-thought-out siting of an expanding farm matters. A cavalier farmer who decides to build his farm without any regard to the surrounding neighbors might have had a more difficult time.

Even where an expansion farm is properly situated in a rural area, the Right to Farm Act protections are lost if the farm operates negligently, resulting in a nuisance. Sloppy farming practices—for example, leaving manure piles in a field unspread for days on end—can cause a forfeiture of the Act’s protections. Some neighbors are just looking for a way to shut down the large farm nearby. Bad manure management can give them the ammunition they need.

There is a smart way to expand your farm. Consult with engineers about how to minimize odor impacts to neighbors. Consult with attorneys about the potential for nuisance suits. Make sure your farm is as clean and well run as any you know. And most importantly, discuss your plans with your neighbors. Doing these things is no guaranty you won’t be sued, but it makes it much easier for the Right to Farm Act to come to your defense.

 

Todd Janzen grew up on a Kansas farm and now practices law with Plews Shadley Racher & Braun LLP, which has offices in Indianapolis and South Bend.   He also serves as General Counsel to the Indiana Dairy Producers and writes regularly about agricultural law topics on his blog:  JanzenAgLaw.com.  This article is provided for informational purposes only. Readers should consult legal counsel for advice applicable to specific circumstances.

 

Submitted by: Todd J. Janzen, Plews Shadley Racher & Braun LLP 

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