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The Right to Farm Act (RTFA), Ind. Code § 32-30-6-9 provides an exception where an alleged nuisance results from the negligent operation of the agricultural operation or its appurtenances. Ind. Code § 32-30-6-9(a). Unless the nuisance results from the negligence, and not just from the agricultural operation, the Act applies and defeats plaintiffs claim. Negligent siting cannot constitute negligent operation under the RTFA.
Martin Richard Himsel, Janet L. Himsel, Robert J. Lannon, and Susan M. Lannon (collectively, the Plaintiffs) filed a complaint, alleging nuisance, negligence, and trespass, against Samuel T. Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP (collectively, the Defendants). Specifically, the Plaintiffs alleged in their complaint that the concentrated animal feeding operation (CAFO) placed on 4/9 Livestock's property in 2013 created noxious odors that are so extreme as to greatly diminish the Plaintiffs' quality of life, reduce their property values, and alter their daily activities. In their complaint, the Plaintiffs also challenged the constitutionality of Ind. Code § 32-30-6-9, which is commonly known as the Right to Farm Act (the RTFA), and Ind. Code § 15-11-2-6(a), which requires the Indiana Code to be construed to "protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology." The Defendants moved for summary judgment on all claims, and, thereafter, the Plaintiffs filed a motion for partial summary judgment regarding their constitutional challenges. Following a hearing, the trial court granted summary judgment in favor of Clinton, Cory, and Samuel Himsel (the Individual Himsel Defendants) but otherwise denied both motions for summary judgment. The Defendants filed a motion to correct error, once again seeking summary judgment on all claims against them. Amici curiae — the Indiana Agricultural Law Foundation (IALF) and Hendricks County — filed briefs in support of the Defendants' motion to correct error. In addition to opposing the Defendants' motion to correct error, the Plaintiffs asserted cross-error regarding the trial court's grant of summary judgment to the Individual Himsel Defendants. The trial court granted the Defendants' motion to correct error and then entered summary judgment in favor of the Defendants on all claims. On appeal, the Plaintiffs challenged the entry of summary judgment.
Was the nuisance claim barred under Ind. Code § 32-30-6-9(d)(2)?
The court held that a nuisance claim alleging that use and enjoyment of homes, and home values, were ruined by noxious odors and airborne emissions from a concentrated animal feeding operation (CAFO) was barred under Ind. Code § 32-30-6-9(d)(2) because the evidence established that the land had been used for row crops since at least 1941 and the homeowners’ non-farming use began well after 1941. Although the farm later changed from crop farming to pig farming, the coming to the nuisance doctrine, as applied by the Right to Farm Act, encompasses coming to the potential future nuisance. No regulatory taking resulted because the homeowners were not deprived of all or substantially all economic or productive use of their properties.