Anti-Nuisance Legislation: Can the Derogation of Common-Law Nuisance Be a Taking?

Terence J. Centner

Terence J. Centner is a professor at the University of Georgia College of Agricultural and Environmental Sciences.

Common-law nuisance actions have long been a part of our jurisprudence.¹ Landowners who are not reasonable in their use of property can be restrained under an action in nuisance. While courts have balanced the utilities and applied various tests of reasonableness, the end result is that an activity or land use that is too offensive to surrounding property owners may be enjoined. Moreover, even in cases where a balancing test shows a close question of whether there is a nuisance, courts have only two major choices.² The offensive conduct is either a nuisance or not. If there is a nuisance, the plaintiff is entitled to relief; otherwise, the plaintiff receives nothing even though the one-sided result may be unfair.³

While the winners take all approach embedded in nuisance law has its deficiencies, another consideration has involved investments by landowners conducting objectionable activities that constitute a nuisance. Courts have devised resolutions to these problems as exemplified by the celebrated Boomer v. Atlantic Cement Co.⁴ case. Because of the investments the cement company made to its facility and the economic benefits it provided to the community, the court declined to simply enjoin the disturbing activities.⁵ Rather, the court found a nuisance, awarded the neighbors permanent damages, and allowed the cement plant to remain.⁶

While the 1970 Boomer case endorsed the idea that courts could consider the investments of landowners engaged in objectionable activities, nuisance lawsuits continued to force landowners to terminate activities and abandon or move existing buildings and facilities. Establishing zones for industrial and commercial activities helped reduce nuisance conflicts, but many rural areas remained unzoned until the 1970s.⁷ With the movement of people to suburbs and the countryside, agriculture was confronted by nuisance lawsuits.⁸

Especially troublesome to many of the new rural and suburban residents were the odors and annoying activities that accompanied the production of animals.⁹ Neighbors resorted to nuisance law to end the disagreeable activities and often were able to enjoin the offensive activities. For animal producers, injunctive relief granted in favor of their neighbors often meant that they could no longer use existing barns and equipment. Naturally, nuisance law created hardships for farmers with nonmobile structures and attached equipment. Agricultural interest groups advanced anti-nuisance legislation¹⁰ that subsequently acquired the name of "right-to-farm" laws.¹¹

State right-to-farm (RTF) laws have existed for more than 20 years and have given many agricultural activities sufficient protection from nuisance lawsuits so that existing farmers could carry on with their operations. While reported lawsuits may support a conclusion that RTF laws were not very effective in protecting agricultural producers,¹² such a conclusion cannot serve as a proxy for individual landowner responses to these laws. RTF laws have undoubtedly stopped many nuisance lawsuits from ever entering the judicial system.¹³ At the same time, the RTF law concept was not intended to thwart all nuisance lawsuits. The laws were to provide a statutory defense or affirmative defense only for some nuisance actions.

As might be expected, farm groups have overwhelmingly supported the nuisance protection provided by these laws. Unfortunately, some special interest groups and state legislatures have ignored the justifications commending these laws. Some RTF laws provide such generous protection to agricultural operations that they offend principles of fairness as well as the efficient use of land.¹⁴ Neighbors' dissatisfaction with the loss of rights to enjoin objectionable activities has led to challenges of RTF laws. In Bormann v. Board of Supervisors,¹⁵ the Iowa Supreme Court held that the RTF [30 ELR 10254] protection offered in Iowa Code § 352.11(1)(a)¹⁶ effected an unconstitutional taking of private property for public use.

This finding has alarmed agricultural groups and farmers, as well as municipal officials. If Iowa Code § 352.11(1)(a) is unconstitutional, what about other states' RTF laws and governmental regulations that restrict land use? Decisions by other state courts to follow the Bormann decision may lead to the demise of the nuisance protection afforded by RTF laws. In turn, the elimination of nuisance protection would impact land use, as new land uses that are incompatible with existing agricultural activities would no longer be discouraged. Because a community standard can be set by the majority, new neighbors would be able to terminate nearby existing agricultural operations. Objectionable agricultural activities would be forced to adopt new technology and practices or relocate.

Of greater significance might be the adoption of the Bormann finding into other areas of state action. If an easement created by an RTF law constitutes a taking, what about the easements, servitudes, and restrictions imposed by various zoning provisions, land use regulations, and municipal ordinances? May some of these governmental actions also constitute unconstitutional takings?

This Article examines state RTF laws to project whether the rationalization for the Iowa decision might be extended to nullify other laws. The initial sections of the Article address substantive provisions of state RTF laws to delineate the scope of protection afforded by these laws. With this understanding of RTF laws, the principles of "takings" jurisprudence are presented as a foundation for an analysis of the Bormann ruling. Distinctions between Iowa Code § 352.11(1)(a) and other RTF laws are then discussed to infer that most RTF laws should not be found to create an unconstitutional taking. Moreover, given existing takings jurisprudence, other courts may decline to follow the individualistic deduction of the Bormann court.

RTF Laws

While all states have acknowledged the special needs of agriculture by enacting RTF laws to curb nuisance litigation, they have not followed the same model. State RTF laws differ considerably on the activities that are covered by the statutory nuisance protection. While some laws specifically delineate coverage to farms and farming operations,¹⁷ other laws cover roadside markets and the manufacturing of animal feed.¹⁸ Generally, RTF laws cover the growing and harvesting of crops, the feeding, breeding, and management of livestock, and other agricultural and horticultural uses.¹⁹

Prerequisites concerning location and practices also restrict RTF laws' coverage of agricultural operations.²⁰ Many RTF laws only apply to commercial activities so that hobbyists or non-farmers do not qualify for the nuisance protection.²¹ Some states require agricultural producers to be in an agricultural district before they can qualify for the nuisance protection.²² A law may require that the activity at issue be a sound agricultural practice before it qualifies for legal protection.²³ Other provisions say that improper and negligent agricultural activities are not protected.²⁴ Given the variability of the RTF laws in covering activities, close examination of the RTF law is required to determine whether a particular activity is afforded protection against nuisance lawsuits.

Provisions in most of the RTF laws do not affect other causes of action in tort or obviate the requirements of other statutes. Agricultural producers remain subject to zoning ordinances,²⁵ building codes,²⁶ and local and state laws.²⁷ RTF laws do not impact environmental laws or pollution legislation, thus, producers must comply with legislation governing clean water and the disposal of animal manure.²⁸ Further, the RTF laws do not offer protection to the operation or the operator if the activities or actions constitute negligence or trespass²⁹ or violate other legal provisions. For causes of action for negligence, many of the RTF laws specifically provide that any negligent or improper operation at an agricultural facility is not protected.³⁰ Other provisions in RTF laws may state that the laws do not affect any other right to sue for damages.³¹

The question of whether these laws effect a "taking" depends on the specific provisions of each law. If the anti-nuisance provisions of an RTF law provide for the physical invasion of neighboring property, it would operate as an unconstitutional taking.³² However, the protection of farmers from nuisance lawsuits incorporated in most RTF laws is an exercise of the state's police powers. Thus, it embodies state action that should be evaluated as a regulatory taking.

Coming to the Nuisance Doctrine

Because one of the major objectives of RTF laws is to protect existing investments of farmers in their agricultural operations, many laws incorporate a "coming to the nuisance" doctrine.³³ This doctrine provides that whenever persons and land uses move next to an established agricultural activity, nuisance law is not available to seek judicial abeyance of the preexisting operations or activities. Neighbors who change the use of their land and subsequently find a nearby agricultural activity to be offensive to that use cannot employ nuisance law to close down the existing operation. Farmers, therefore, enjoy the right to engage in activities that at some time in the future may be objectionable due to new neighboring land uses.

[30 ELR 10255]

Under RTF laws incorporating the coming to the nuisance doctrine, the dates that farming operations began their activities as compared to changed conditions in the community whereby new land uses have come to rural areas are important. Commonly, an agricultural operation that has been in business for more than one year prior to new neighboring land uses is afforded protection from nuisance lawsuits.³⁴ Farmers do not always appreciate this inception date requirement and may have a false sense of security under the RTF laws.³⁵ Property owners with land uses that preceded neighboring agricultural activities continue to be able to use nuisance law to terminate these activities.³⁶ Rather than having protection against nuisance actions by their neighbors, qualifying farmers have protection against actions by future neighbors.³⁷

Given the protection afforded against nuisance lawsuits, RTF laws reduce the rights of neighboring landowners. This legislative interference is similar to land use regulations and zoning provisions. Land use regulations, zoning ordinances, and RTF laws operate to circumscribe land uses within a district. In many instances, the provisions reduce the options of the district's property owners to use their land and facilities for some purposes.

Expansion, New Technology, and New Production Activities

The expansion of existing agricultural operations, the adoption of new technology, and new production activities pose difficult issues under most RTF laws.³⁸ If the protection of an RTF law is not available to operations that expand or change practices, such law will not afford very meaningful protection. Agricultural operations need to grow and expand in order to remain competitive in today's marketplace. Furthermore, the adoption of new technology and changes in production activities are common for farming activities. Many RTF laws attempt to grant producers some leeway in modernizing their operations.

Simultaneously, unlimited expansion, implementation of new technologies, or changes in production may be unfair to neighbors. While existing neighbors may not mind a farming operation that simply involves the production of crops, the introduction of animals may create odors that are quite disagreeable. The expansion of a small-scale livestock agricultural operation may significantly alter the acceptability of the operation to neighbors.

RTF laws may be grouped into three categories that represent different approaches to the issue of whether neighbors should have to bear the increased inconveniences generated by changes in an operation or whether reasonable limitations should apply: (1) broad expansion permitted; (2) limited changes permitted; and (3) changes not protected.

Broad Expansion Permitted

One legislative response is to provide a sweeping assertion to facilitate expansion and changes under the RTF law. Iowa Code § 352.11(1)(a) incorporated this tenet by providing that farming operations within designated agricultural areas should not be found to be a nuisance regardless of the expansion of the agricultural activities.³⁹ Under the Oregon RTF law, land zoned for farm or forest use outside an urban growth boundary is protected from nuisance actions "regardless of whether the farming or forest practice has undergone any change or interruption."⁴⁰ Similarly, under a Texas RTF law, persons constructing pens, barns, and other improvements for sheltering or feeding animals qualify for nuisance immunity with respect to neighbors on other agricultural lands.⁴¹

In a slightly different manner, RTF laws in Georgia⁴² and New Mexico⁴³ decree that the expansion of an operation's physical facilities and the adoption of new technology retains nuisance protection. These two laws achieve this end by providing that expansion does not alter the established date of the agricultural operation. Under these laws, farmers seem to be able to expand their operations exponentially and remain qualified for whatever protection was available to their original facility.

A third possibility that could allow for broad expansion is an RTF law that grants nuisance protection to expanded operations and contains a statute of limitations for the initiation of a nuisance lawsuit. The South Dakota RTF law embodies these characteristics.⁴⁴ An agricultural facility in operation for more than one year that was not a nuisance at the time the operation began can reasonably expand and not be deemed a nuisance.⁴⁵ A special exception for operations that expand their physical facilities under the Pennsylvania RTF law also appears to provide a statute of limitations for expanded operations to protect them from nuisance lawsuits.⁴⁶

Limited Changes Permitted

A few RTF laws offer some nuisance protection for limited changes and expansion. The Florida RTF law permits adjustments in the type of farm product being produced as well as changes brought about to comply with best management practices.⁴⁷ "New activities, practices, equipment and procedures consistent with technological development within the industry . . ."⁴⁸ are considered normal agricultural activities protected against nuisance lawsuits under the Pennsylvania law. The Colorado law also allows for some expansion by providing that the nuisance protection does not apply when there is a substantial increase in the size of the operation.⁴⁹ At the same time, other changes are not allowed under the Colorado law.

[30 ELR 10256]

Changes Not Protected

A more common legislative response is not to protect operations that change their production activities.⁵⁰ Under a Texas statutory provision, the nuisance protection only applies to the conditions or circumstances that form the basis of the nuisance that have existed substantially unchanged since the established date of the operation.⁵¹ A Florida law specifically says that any change of operation resulting in more excessive noise, dust, fumes, and odors is not protected.⁵² Under Indiana's law, significant changes in the type of operation do not qualify for the nuisance protection.⁵³

A few states approach changes in expansion and production activities as constituting the commencement of a new agricultural operation that must meet the conditions imposed by the RTF law. Minnesota defines the established date of operation to exclude expansions of more than 25 percent of the number of animals located on an operation.⁵⁴ Therefore, expansion greater than this percentage is considered to be a new operation that must requalify for statutory protection. The substantial expansion or alteration of an operation's physical facilities in Pennsylvania is protected only if a nuisance action is not brought within one year or is part of an approved nutrient management plan.⁵⁵ Under these laws, farmers can adopt new technology, but expansion generally is considered to start a new operation for the purposes of qualifying for nuisance protection under the RTF law.

Several courts have interpreted RTF laws as not protecting changes in farming activities. For example, the production of hogs and the construction of a hog confinement building on a farm in Nebraska was not protected from an existing neighbor's nuisance action.⁵⁶ A court in Kansas found that the state RTF law did not protect a change involving improvements on pastureland consisting of a confined feedlot type operation.⁵⁷ The Indiana RTF law specifically states that it only applies if there is no significant change in the type of operation and "the operation would not have been a nuisance when it began on that locality."⁵⁸

Unconstitutional Takings

With the emergence of private-property rights legislation and public disaffection with excessive governmental regulation, it is not surprising that the derisive nuisance protection provided by some RTF laws would be challenged. By eliminating common-law nuisance actions, it may be argued that RTF laws embody an unconstitutional taking in violation of the federal or a state constitution.⁵⁹ The Fifth Amendment's "just compensation clause" of the U.S. Constitution requires payment if a government forces some people to bear public burdens.⁶⁰ All takings of property, both permanent and temporary, require compensation under the just compensation clause.⁶¹

At the same time, the government's police power to safeguard public health, safety, and general welfare authorizes state actions having incidental adverse effects on the value of personal property.⁶² If a state's action has a substantial relation to the promotion of public health, safety, or general welfare, it may be sustained under a government's police powers.⁶³ To differentiate an exercise of the police power from a taking, a court will consider whether there is mere restriction on the use of property or something more that operates as a taking.⁶⁴

Courts have recognized two categories of state action that ought to be compensated without inquiry into other factors. Whenever an owner is deprived of all economically beneficial or productive use of the land, the state must pay compensation.⁶⁵ This is known as a "categorical" taking.⁶⁶ Second, state action involving physical invasions of the property, known as "per se" takings,⁶⁷ must be compensated.⁶⁸ Per se takings generally require a direct invasion of another's property.⁶⁹ A conveyance of an easement outright⁷⁰ or the direct and immediate interference constituting an invasion is sufficient to require the payment of just compensation.⁷¹

Nuisance actions, however, ordinarily do not involve physical invasions but rather nontrespassory invasions.⁷² A nuisance entails the invasion of another's interest inthe private use and enjoyment of land.⁷³ While a nuisance may result in the physical presence of noise, light, odors, and smells on neighboring property, there is no physical invasion.⁷⁴

Under takings jurisprudence, a per se taking only occurs where the state action requires landowners to submit to the [30 ELR 10257] physical occupation of their land.⁷⁵ In the absence of a per se taking, a court must go further and conduct an ad hoc factual inquiry to determine whether the state's action is a regulatory taking.⁷⁶ The U.S. Supreme Court set forth three factors for this inquiry: (1) the economic impact of the restriction on the claimant's property; (2) the restriction's interference with investment-backed expectations; and (3) the character of the governmental action.⁷⁷ To determine whether a regulation goes too far and violates the Constitution's Fifth Amendment, the Supreme Court has delineated a "rough proportionality" test for land use decisions conditioning approval of development on the dedication of property.⁷⁸

Prior to testing a restriction against these factors, a court must first find that the governmental restriction substantially advances legitimate state interests.⁷⁹ An actual and substantial relationship must exist between the restriction and a legitimate governmental goal.⁸⁰ The means must also be reasonably necessary to accomplish the purpose.⁸¹ Moreover, despite the promotion of a public interest, if a restriction causes excessive hardship to an individual that outweighs the public benefit or is confiscatory, then the restriction may be invalidated as unreasonable. An oppressive restriction or an interference of too great a magnitude can constitute a taking.⁸²

The Challenge to Iowa Code § 352.11(1)(a)

The issue of whether an RTF law could effect a taking was answered in the affirmative by the Iowa Supreme Court in Bormann.⁸³ Under Iowa Code § 352.11(1)(a), persons may petition to create an "agricultural area" that would offer landowners protection against nuisance lawsuits.⁸⁴ After receiving such a petition, a county board of supervisors approved the creation of an agricultural area, and neighbors challenged its formation.⁸⁵ The neighbors argued that the designation of an area where landowners have a right to create a nuisance constituted a per se taking and, therefore, was unconstitutional.

The operative language of Iowa Code § 352.11(1)(a) provides that "[a] farm or farm operation located in an agricultural area shall not be found to be a nuisance regardless of the established date of operation or expansion of the agricultural activities . . . ."⁸⁶ Due to the extinguishment of the rights of neighbors to maintain nuisance lawsuits, § 352.11(1)(a) operated as an easement under Iowa law.⁸⁷ The statute impelled easements upon neighboring properties in and around designated agricultural areas. Because these statutorily created easements are property interests subject to the just compensation requirements of the Fifth Amendment,⁸⁸ the court went on to determine whether the easements resulted in a taking of the neighbors' properties.

The Bormann court proceeded to note the distinction between per se and regulatory takings as delineated by Lucas v. South Carolina Coastal Council,⁸⁹ and addressed the requirement of a physical invasion for per se takings.⁹⁰ But the Iowa court retreated from the physical invasion requirement. "To constitute a per se taking, the government need not physically invade the surface of the land."⁹¹ The court referred to a recognized treatise for this proposition⁹² but altered the treatise's observations. The treatise addresses nontrespassory invasions that may be takings without differentiating between per se and regulatory takings.⁹³ However, by articulating factual inquiries in the its discussion of nontrespassory invasions, the treatise's notation that there need not be a physical invasion concerned regulatory takings.⁹⁴ The treatise does not assert that nontrespassory invasions are per se takings.

Nevertheless, the Bormann court opined that a nontrespassory invasion could constitute a per se taking.⁹⁵ After referring to pre-Lucas judicial examples of takings, the Bormann court applied the Lucas per se rule to find that the nontrespassory invasion of private property by a governmental enterprise under Iowa Code § 352.11(1)(a) constituted a taking of private property for public use contrary to the Fifth Amendment.⁹⁶ Thus, the Bormann decision alters takings law in Iowa to hold that nontrespassory invasions may constitute per se takings. This command was followed by a lower court that found an anti-nuisance provision set forth in Iowa Code § 657.11⁹⁷ to be unconstitutional.⁹⁸

Contrast to the Gravert Constitutional Challenge

The Bormann decision is surprising in view of the Iowa Supreme Court's 1995 decision in Gravert v. Nebergall,⁹⁹ which involved a constitutional challenge to a state fence law grounded in due process and equal protection.¹⁰⁰ Although the constitutional challenge in Gravert did not involve easements or takings, the court's analysis of Iowa [30 ELR 10258] fence law to enunciate a public benefit contrasts with its refusal in Bormann to analyze Iowa Code § 352.11(1)(a) as a regulatory taking.¹⁰¹

In Gravert, the plaintiffs owned property bounded by a township where adjacent landowners needed a fence to raise animals.¹⁰² Under the state fence provisions applicable to townships, a judicial order was entered requiring plaintiffs to maintain a portion of the fence.¹⁰³ Thereby, the state fence law established some type of servitude on properties next to animal operations needing fences. In Gravert, the fence was to prevent the defendants' animals from trespassing on the plaintiffs' property. The plaintiffs appealed this order claiming the state requirements were unconstitutional.¹⁰⁴ The Iowa Supreme Court concluded that a law forcing a neighbor without livestock to help pay for a fence was a reasonable exercise of the state's police powers.¹⁰⁵

If an Iowa fence law imposing charges on neighboring property owners can pass constitutional muster, why cannot a state RTF law action imposing nuisances on neighbors be treated in the same manner? The statutory requirement to help pay for fences resembles the nuisance easements created under Iowa Code § 352.11(1)(a). The distinction involves separating constitutional due process challenges from taking challenges.¹⁰⁶ The constitutional challenge involvinga financial exaction in Gravert required the court's consideration of public benefits; the per se taking challenge involving nuisance easements in Bormann did not require consideration of public benefits.

While courts may draw distinctions between due process and takings challenges, state fence and anti-nuisance provisions are similar in that they both involve financial exactions from neighbors. The fence law burdens neighbors of persons who decide to raise livestock; the anti-nuisance provisions of RTF laws diminish the value of neighboring properties whenever a farmer generates an offensive nuisance. If unfair exactions under a fence law are of a political dimension, as noted in Gravert,¹⁰⁷ the same can be said of the nuisance easements created by an RTF law. The anti-nuisance provisions ought to be analyzed as regulatory takings to give deference to the General Assembly's determination to support agricultural production by obviating some causes of actions in nuisance.

Implications for Other States' Laws

While the Bormann decision has no direct effect on other states' laws, municipal and agricultural interest groups are concerned. Will another court find that a nontrespassory invasion constitutes a per se taking? Could some other court find an RTF law to effect a taking? What provisions incorporated in other RTF laws distinguish them from Iowa Code § 352.11(1)(a)? Three distinct reasons may be advanced to conclude that the Bormann decision may not presage the end to the nuisance protection afforded by most RTF laws: (1) no physical invasion, (2) limitation on nuisance protection, and (3) the coming to the nuisance doctrine.

No Physical Invasion

In Bormann, the Iowa Supreme Court did not have to engage in a factual inquiry to determine whether the law operated to take an interest in neighbors' property because the court determined that Iowa Code § 352.11(1)(a) amounted to a per se taking even though it involved a nontrespassory invasion. While an easement created by Iowa Code § 352.11(1)(a) may constitute an invasion sufficient for the Iowa Supreme Court to find a per se taking, other states may be expected to continue to hold that a physical invasion rather than a nontrespassory invasion is required for per se takings.

State action involving nuisance easements under RTF laws is similar to restrictions placed on private property by zoning ordinances and land use regulations. Due to the regulation, some property owners may experience a diminution in the value of their properties. Despite the protections afforded by the Fifth Amendment,¹⁰⁸ a regulation generally does not effect a taking if it advances a legitimate state interest and the owner retains an economically viable use of the property.¹⁰⁹ For example, a municipal ordinance that precluded a sand and gravel excavating business from the use of soil itself was found to constitute a valid police regulation.¹¹⁰

The Bormann court found the immunity of Iowa Code § 352.11(1)(a) to involve private nuisances that are easements, thus, it considered the neighbors' challenge as one of inverse condemnation involving a physical invasion.¹¹¹ Although the court lacked allegations of a present nuisance,¹¹² it concluded that the interferences short of physical takings imposed by Iowa Code § 352.11(1)(a) were a taking.¹¹³ Moreover, as the Bormann court declined to conduct an ad hoc factual inquiry, it found Iowa Code § 352.11(1)(a) to be a per se taking.

The question, therefore, is whether other courts will find a regulation eliminating some nuisance actions to be the equivalent of a physical invasion. As previously noted, accepted jurisprudence treats nuisances as an invasion of a personal interest in land, but not a physical invasion due to the absence of a physical occupation.¹¹⁴ Moreover, state action alleging an inverse condemnation generally has been found to require a weighing of the public interests.¹¹⁵ Because [30 ELR 10259] a nuisance does not result in a crass physical invasion,¹¹⁶ most courts may be expected to evaluate allegations of nuisances as regulatory takings. This will require an ad hoc factual inquiry.¹¹⁷

Limitation on Nuisance Protection

Checks and balances incorporated in many RTF laws to limit the statutory nuisance protection afforded to agricultural operations may distinguish these laws from Iowa Code § 352.11(1)(a). State RTF laws often incorporate requirements concerning sound agricultural practices, accepted practices, or normal agricultural operations to limit the scope of the nuisance protection. Two judicial decisions up-holding the constitutionality of state RTF laws have recognized these statutory limitations as being significant.

In a lower court decision from New York, Pure Air & Water, Inc. v. Davidsen,¹¹⁸ a trial court differentiated the New York RTF law from Iowa Code § 352.11(1)(a). Under the New York law, the state Commissioner of Agriculture and Markets determines whether an agricultural practice is sound.¹¹⁹ Only sound practices have a defense against nuisance actions, and plaintiffs can present proof to overcome this nuisance defense. Due to this statutory scheme, the court found that the New York law did not confer immunity against nuisance suits or create a property right.¹²⁰ Therefore, the New York law did not constitute a compensable taking under the U.S. or New York Constitutions.

A Michigan court followed a similar rationale in Gillis v. Gratiot County.¹²¹ Under the Michigan RTF law, operations are not nuisances if the operation conforms to generally accepted agricultural and management practices.¹²² According to a state policy, qualification of practices is reviewed annually by the Michigan Commission of Agriculture.¹²³ Under this policy, the law creates burdens on neighboring properties. Consequently, the burdens created by the Michigan RTF law constitute an easement.¹²⁴

However, the Michigan court found that not all easements constitute per se takings.¹²⁵ The Michigan RTF law does not divest the neighbors of possession of their property or render their properties valueless.¹²⁶ Instead, the law permits an intermittent, transient, and uncertain interference with neighboring properties.¹²⁷ For such interference, the question is whether the law as applied to the plaintiffs constitutes a regulatory taking requiring the payment of just compensation. The Michigan court deferred to the inquiry set forth by the U.S. Supreme Court for regulatory takings to find that the RTF law withstood constitutional scrutiny.¹²⁸

Under other state RTF laws, the regulatory determination that agricultural practices are not nuisances and the structure of the nuisance protection may offer sufficient justification for a court to find that the law is a valid governmental regulation. For example, a Kansas RTF law provides that compliance with standards constitutes prima facie evidence that a nuisance does not exist.¹²⁹ This should be sufficient to differentiate the Kansas law from Iowa Code § 352.11(1)(a).

Coming to the Nuisance Doctrine

For those state RTF laws that adopt the coming to the nuisance doctrine, an additional rationalization exists for not following the Bormann decision. Iowa Code § 352.11(1)(a), which did not adopt the coming of the nuisance doctrine, provided protection for future new agricultural activities against current neighboring land uses. Under this code section, agricultural producers could engage in activities on their land that would be a nuisance with respect to current neighboring land uses.¹³⁰ Under an RTF law incorporating the coming to the nuisance doctrine, however, new agricultural activities normally are not protected.

An example may show the scope of Iowa Code § 352.11(1)(a) prior to its invalidation by the Iowa Supreme Court. Assume there exists a crop farm in an agricultural area that is subsequently developed into an objectionable confined animal feeding operation. Would neighbors be able to maintain a nuisance lawsuit successfully given the protection proffered by Iowa Code § 352.11(1)(a)? The answer seems to be "no." Rather than considering the established date of an agricultural operation or the establishment of a confined feeding operation, Iowa Code § 352.11(1)(a) provides that farming operations in an agricultural area are not nuisances.¹³¹ Operations can change and adopt nuisance-generating activities yet still qualify for the statutory nuisance protection.

This situation often does not exist under laws incorporating the coming to the nuisance doctrine. The nuisance protection generally is available only when there are new neighboring land uses. Existing neighbors retain the right to use nuisance law against agricultural facilities that are a nuisance. Furthermore, when an operation starts a new activity that is a nuisance, such as changing from a crop farm to a confined animal feeding operation, the new agricultural activity rather than a new neighboring land use creates the nuisance.¹³² In the absence of new neighboring land uses, an RTF law with a coming to the nuisance provision would not offer a viable defense in a nuisance action involving the new animal feeding operation.¹³³

The distinction between Iowa Code § 352.11(1)(a) and RTF laws with a coming to the nuisance doctrine may be meaningful for courts scrutinizing other RTF laws. Because [30 ELR 10260] RTF laws with the coming to the nuisance doctrine do not offer protection for future agricultural activities, they do not embrace a servitude or easement over existing land uses of the type considered in Bormann. Rather, the laws create restrictions that may be justified as permissible regulations serving legitimate public purposes. Treating RTF laws as regulatory takings does not preclude a conclusion that they effect a taking, but it would require the court to conduct an ad hoc factual inquiry. A court reviewing an RTF law could follow Gillis¹³⁴ and decline to find a taking.

Concluding Observations

Approximately 20 years ago, state legislatures acknowledged the benefits of protecting investments of agricultural producers by barring some nuisance actions. The nuisance protection granted in RTF laws was intended to provide a defense against nuisance lawsuits that resulted when urban and suburban land uses extended into agricultural areas. Most legislatures did not intend RTF laws to eliminate all nuisance lawsuits. Moreover, the anti-nuisance provisions were not intended to grant agricultural producers a license to pollute or engage in bad practices. Rather, RTF laws adopted qualifications that circumscribed some nuisance actions. Qualifications included the coming to the nuisance doctrine and requirements of sound agricultural practices, accepted practices, or normal agricultural operations.

Although Iowa Code § 352.11(1)(a) incorporated some of the above-noted qualifications, it declined to adopt the coming to the nuisance doctrine. Instead, it attempted to grant producers in designated areas the right to engage in future nuisance activities. Given that the anti-nuisance provision creates an easement under Iowa law, the invasive character of the easement becomes important. The Bormann court found that the nontrespassory invasion conferred under Iowa Code § 352.11(1)(a) constituted a per se taking.¹³⁵

The Bormann decision demonstrates the danger of overzealous protection of agriculture as delineated under Iowa Code § 352.11(1)(a). If state action goes too far and the interference with the rights of the neighbors is too great, the action may be a taking. RTF laws providing excessive nuisance protection for the broad expansion of operations and changes in production activities may not withstand constitutional challenge.¹³⁶

For a majority of RTF laws, qualifications and other distinctive provisions mean that the interferences with the property rights of neighbors are quite dissimilar to the interferences imposed by Iowa Code § 352.11(1)(a). Because most RTF laws decline to restrain nuisance lawsuits against new objectionable activities, they may be differentiated from the Iowa code section.

Even RTF laws that do not adopt a coming to the nuisance doctrine may be expected to withstand constitutional scrutiny. As already noted by lower courts in New York and Michigan, RTF laws incorporating qualifications regarding management practices do not involve per se takings.¹³⁷ Instead, RTF provisions permit intermittent and uncertain interference with neighboring properties and, therefore, may constitute a regulatory taking.¹³⁸

For other types of state action, the Bormann decision opens up the potential that nontrespassory invasions might be found to constitute per se takings. This is a marked change from existing jurisprudence. Allegations that nontrespassory invasions constitute a taking have traditionally been analyzed as regulatory takings whereby other considerations are taken into account. While agricultural interest groups and governments have reason to be concerned about the finding of Bormann, the decision should not lead to the demise of the nuisance protection afforded by most RTF laws nor the emasculation of other land use regulations.

1. See Jeff L. Lewin, Boomer and the American Law of Nuisance: Past, Present, and Future, 54 ALB. L. REV. 189, 192 (1990); Marlow Green, Common Law, Property Rights, and the Environment: A Comparative Analysis of Historical Developments in the United States and England and a Model for the Future, 30 CORNELL INT'L L.J. 541, 547 (1997); Andrew J. Heimert, Keeping Pigs Out of Parlors: Using Nuisance Law to Affect the Location of Pollution, 27 ENVTL. L. 403, 406 (1997).

2. Lewin, supra note 1, at 276.

3. Jeff L. Lewin, Comparative Nuisance, 50 U. PITT. L. REV. 1009, 1013-14 (1989).

4. 257 N.E.2d 870 (N.Y. 1970).

5. Id. at 873.

6. Id. at 874.

7. Alexander A. Reinert, The Right to Farm: Hog-Tied and Nuisance-Bound, 73 N.Y.U. L. REV. 1694, 1704 (1998).

8. Jacqueline P. Hand, Right-to-Farm Laws: Breaking New Ground in the Preservation of Farmland, 45 U. PITT. L. REV. 289, 290 (1984).

9. Margaret R. Grossman & T.G. Fischer, Protecting the Right to Farm: Statutory Limits on Nuisance Actions Against the Farmer, 1983 WIS. L. REV. 95, 101.

10. John C. Bergstrom & Terence J. Centner, Agricultural Nuisances and Right-to-Farm Laws: Implications of Changing Liability Rules, 19 REV. REGIONAL STUD. 23 (1989)

11. See, e.g., Grossman & Fischer, supra note 9, at 97-98; Hand, supra note 8, at 289.

12. Neil D. Hamilton, Right-to-Farm Laws Reconsidered: Ten Reasons Why Legislative Efforts to Resolve Agricultural Nuisances May Be Ineffective, 3 DRAKE J. AGRIC. L. 103 (1998).

13. Reinert, supra note 7, at 1727.

14. Id. at 1695.

15. Bormann v. Board of Supervisors in & for Kossuth County, Iowa, 584 N.W.2d 309, 321, 29 ELR 20235, 20240 (Iowa 1998), cert. denied sub nom. Girres v. Bormann, 119 S. Ct. 1096 (1999).

16. IOWA CODE § 352.11(1)(a) (West 1994).

17. Id. § 352.11 (West 1994).

18. E.g., GA. CODE ANN. § 41-1-7 (1997).

19. E.g., 740 ILL. COMP. STAT. ANN. § 70/2 (West 1992).

20. E.g., MINN. STAT. § 561.19 (West Supp. 1999).

21. E.g., MICH. COMP. LAWS § 286.472 (1996).

22. E.g., OHIO REV. CODE ANN. § 929.04 (Banks-Baldwin 1994).

23. E.g., N.Y. AGRIC. & MKTS. LAW § 308 (McKinney Supp. 1999).

24. E.g., GA. CODE ANN. § 41-1-7 (1997).

25. See Jerome Township v. Melchi, 457 N.W.2d 52 (Mich. Ct. App. 1990).

26. See Northville Township v. Coyne, 429 N.W.2d 185 (Mich. Ct. App. 1990).

27. E.g., TEX. AGRIC. CODE ANN. § 251.004 (West 1982).

28. E.g., MO. ANN. STAT. § 537.295 (West Supp. 1999).

29. See Buchanan v. Simplot, 952 P.2d 610 (Wash. 1998).

30. E.g., MINN. STAT. § 561.19 (West Supp. 1999).

31. E.g., WASH. REV. CODE ANN. § 7.48.305 (West Supp. 1999).

32. Bormann v. Board of Supervisors in & for Kossuth County, Iowa, 584 N.W.2d 309, 29 ELR 20235 (Iowa 1998), cert. denied sub nom. Girres v. Bormann, 119 S. Ct. 1096 (1999).

33. E.g., IND. CODE ANN. § 34-19-1-4(c) (Michie 1998).

34. E.g., MO. ANN. STAT. § 537.295(1) (West Supp. 1999).

35. See Herrin v. Opatut, 281 S.E.2d 575 (Ga. 1981).

36. This is not true in those laws that delineate a statute of limitations. See, e.g., 3 PA. CONS. STAT. ANN. § 954(a) (West Supp. 1999). See also Horne v. Haladay, 728 A.2d 954 (Pa. Super. Ct. 1999) (finding that the Pennsylvania RTF law incorporated a statute of limitations that defeated plaintiff's nuisance allegation).

37. See Mayes v. Tabor, 334 S.E.2d 489 (N.C. App. 1985).

38. See Terence J. Centner, The Amended Georgia Right to Farm Law, 25 GA. ST. B.J. 36 (1988).

39. IOWA CODE § 352.11(1)(a) (West 1994).

40. OR. REV. STAT. § 30.936 (1998).

41. TEX. AGRIC. CODE ANN. § 251.006 (West Supp. 2000).

42. GA. CODE ANN. § 41-1-7(d) (1997).

43. N.M. STAT. ANN. § 47-9-3(C) (Michie 1995).

44. S.D. CODIFIED LAWS § 21-10-25.2 (Michie Supp. 1999).

45. Id.

46. 3 PA. CONS. STAT. ANN. § 954(a) (West Supp. 1999).

47. FLA. STAT. ANN. ch. 823.14(4) (Harrison Supp. 1998).

48. 3 PA. CONS. STAT. ANN. § 952 (West Supp. 1999).

49. COLO. REV. STAT. ANN. § 35-3.5-102(1) (West Supp. 1999).

50. Laux v. Chopin Land Ass'n. 550 N.E.2d 100 (Ind. Ct. App. 1990).

51. TEX. AGRIC. CODE ANN. § 251.004 (West 1982).

52. FLA. STAT. ANN. ch. 823.14(5) (Harrison Supp. 1998).

53. IND. CODE ANN. § 34-19-1-4(c) (Michie 1998).

54. MINN. STAT. § 561.19 (West Supp. 1999).

55. 3 PA. CONS. STAT. ANN. § 952 (West Supp. 1999).

56. Flansburgh v. Coffey, 370 N.W.2d 127 (Neb. 1985).

57. Finlay v. Finlay, 856 P.2d 183 (Kan. Ct. App. 1993).

58. IND. CODE ANN. § 34-19-1-4 (Michie 1998).

59. Bormann v. Board of Supervisors in & for Kossuth County, Iowa, 584 N.W.2d 309, 29 ELR 20235 (Iowa 1998), cert. denied sub nom. Girres v. Bormann, 119 S. Ct. 1096 (1999).

60. Dolan v. City of Tigard, 512 U.S. 374, 384, 24 ELR 21083, 21085 (1994).

61. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 17 ELR 20787 (1987).

62. Nollan v. California Coastal Comm'n, 483 U.S. 825, 834, 17 ELR 20918, 20920 (1987).

63. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1023, 22 ELR 21104, 21109 (1992).

64. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-125, 8 ELR 20528, 20533 (1978).

65. Lucas, 505 U.S. at 1029, 22 ELR at 21111.

66. Good v. United States, 189 F.3d 1355, 1361, 30 ELR 20102 (Fed. Cir. 1999); Dodd v. Hood River County, 136 F.3d 1219, 1228, 28 ELR 20534, 20537 (9th Cir. 1998).

67. Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 674 (1st Cir. 1998); Garneau v. City of Seattle, 147 F.3d 802, 809 (9th Cir. 1996); Vesta Fire Ins. Corp. v. Florida, 141 F.3d 1427, 1430-31 (11th Cir. 1998).

68. Lucas, 505 U.S. at 1028, 22 ELR at 21111.

69. Petition for a Writ of Certiorari at 17, Girres v. Bormann (U.S. 1998) (No. 98-1003).

70. Nollan v. California Coastal Comm'n, 483 U.S. 825, 834, 17 ELR 20918, 20920 (1987).

71. United States v. Causby, 328 U.S. 256, 266-67 (1946).

72. 4 RESTATEMENT (SECOND) OF TORTS § 821D (1979); In re Chicago Flood Litig., 680 N.E.2d 265, 278 (Ill. 1997); Golen v. Union Corp., 718 A.2d 298 (Pa. Super. Ct. 1998).

73. 4 RESTATEMENT (SECOND) OF TORTS § 821D (1979).

74. Golen, 718 A.2d at 300; In re Chicago Flood Litig., 680 N.E.2d at 278; McGee v. City of Rensselear, 663 N.Y.S.2d 949, 951-52 (N.Y. Sup. Ct. 1997).

75. Yee v. City of Escondido, 503 U.S. 519, 527 (1992); see also Guimont v. Clarke, 854 P.2d 1, 13 (Wash. 1993).

76. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 22 ELR 21104, 21107 (1992).

77. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 8 ELR 20528, 20533 (1978).

78. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 29 ELR 21133 (1999).

79. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 834-35, 17 ELR 20918, 20920 (1987).

80. Id. at 834 n.3, 17 ELR 20920 n.3.

81. Goldblatt v. Town of Hempstead, 369 U.S. 590, 595 (1962).

82. Penn Cent., 438 U.S. at 136, 8 ELR 20536.

83. 584 N.W.2d 309, 321, 29 ELR 20235, 20240 (Iowa 1998), cert. denied sub nom. Girres v. Bormann, 119 S. Ct. 1096 (1999).

84. IOWA CODE § 352.11(1)(a) (West 1994).

85. Bormann, 584 N.W.2d at 313, 29 ELR at 20235.

86. IOWA CODE § 352.11(1)(a) (West 1994).

87. Bormann, 584 N.W.2d at 316, 29 ELR at 20237 (citing Churchill v. Burlington Water Co., 62 N.W. 646 (1895)).

88. Bormann, 584 N.W.2d at 316, 29 ELR at 20238.

89. 505 U.S. 1003, 1023, 22 ELR 21104, 21109 (1992).

90. Bormann, 584 N.W.2d at 316-17, 29 ELR at 20238.

91. Id. at 317, 29 ELR at 20238.

92. JOHN W. SHONKWILER & TERRY MORGAN, LAND USE LITIGATION § 10.02(2), at 370-72 (1986).

93. Id.

94. Id.

95. Bormann, 584 N.W.2d at 317, 29 ELR at 20238.

96. Id. at 321, 29 ELR at 20240.

97. IOWA CODE §§ 172D.2, 657.11 (West 1999 & Supp. 1999).

98. Ehmen v. Hillstrand, No. EQCV019070 (Iowa Dist. Ct. Mar. 15, 1999).

99. 539 N.W.2d 184, 185 (Iowa 1995).

100. IOWA CODE ANN. §§ 359A.1 to 359A.25 (West 1994 & Supp. 1999).

101. See Terence J. Centner, Reforming Outdated Fence Laws: Good Fences Make Good Neighbors Only if They Are Fair, 12 J. ENVTL. L. & LITIG. 267, 290-93 (1997).

102. Gravert, 539 N.W.2d at 185-86.

103. Id.

104. Id. at 186.

105. Id. at 187-88.

106. See Karena C. Anderson, Strategic Litigating in Land Use Cases: Del Monte Dunes v. City of Monterey, 25 ECOLOGY L.Q. 465, 467 (1998).

107. Gravert, 539 N.W.2d at 188.

108. Hadacheck v. Sebastian, 239 U.S. 394 (1915); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

109. Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980).

110. Goldblatt v. Town of Hempstead, 369 U.S. 590, 593-96 (1962).

111. Bormann v. Board of Supervisors in & for Kossuth County, Iowa, 584 N.W.2d 309, 314-17, 29 ELR 20235, 20236-38 (Iowa 1998), cert. denied sub nom. Girres v. Bormann, 119 S. Ct. 1096 (1999).

112. Id. at 313, 29 ELR at 20236.

113. Id. at 318-20, 29 ELR at 20238-40.

114. See supra notes 72-75 and accompanying text.

115. See, e.g., Agins v. City of Tiburon, 447 U.S. 255, 261, 10 ELR 20361, 20362 (1980); Zealy v. City of Waukesha, 548 N.W.2d 528, 531 (Wis. 1996); Golf Club of Plantation, Inc. v. City of Plantation, 717 So. 2d 166, 170 (Fla. App. 1998); Karam v. New Jersey, 705 A.2d 1221, 1224 (N.J. Super. Ct. App. Div. 1998); City of Cincinnati v. Chavez Properties, 690 N.E.2d 561, 565 (Ohio Ct. App. 1996); Commonwealth v. Rogers, 634 A.2d 245, 252 (Pa. Super. Ct. 1993).

116. See In re Chicago Flood Litig., 680 N.E.2d 265, 278 (Ill. 1997).

117. See supra notes 76-77 and accompanying text.

118. No. 2690-97 (N.Y. Sup. Ct. May 25, 1999).

119. N.Y. AGRIC. & MKTS. LAW § 308 (McKinney Supp. 1999).

120. Pure Air & Water, Inc., No. 2690-97.

121. No. 97-04351-AV (Mich. Cir. Ct. Mar. 31, 1999).

122. MICH. COMP. LAWS § 286.473 (1996).

123. Id.

124. Gillis, No. 97-04351-AV.

125. Id.

126. Id.

127. Id.

128. See supra note 77 and accompanying text.

129. KAN. STAT. ANN. § 47-1505 (1993).

130. Bormann v. Board of Supervisors in & for Kossuth County, Iowa, 584 N.W.2d 309, 316, 29 ELR 20235, 20238 (Iowa 1998), cert. denied sub nom. Girres v. Bormann, 119 S. Ct. 1096 (1999).

131. IOWA CODE § 352.11(1)(a) (West 1994).

132. See Flansburgh v. Coffey, 370 N.W.2d 127 (Neb. 1985) (finding that because the new activity was on the agricultural producer's land, the Nebraska RTF law did not apply).

133. See Cline v. Franklin Pork, Inc., 361 N.W.2d 566, 572 (Neb. 1985) (finding no RTF protection because there was no change in land use of neighbors in the locality).

134. Gillis v. Gratiot County, No. 97-04351-AV (Mich. Cir. Ct. Mar. 31, 1999).

135. Bormann, 584 N.W.2d at 321, 29 ELR at 20240.

136. See supra notes 39-46 and accompanying text.

137. See supra notes 118-28 and accompanying text.

138. Gillis, No. 97-04351-AV.