By Todd J. Janzen, Partner, Plews Shadley Racher & Braun LLP
Indiana farms that are the victims of "nuisance" suits by neighbors who don't like the smell, sounds, or sights associated with farming are generally protected by Indiana's Right to Farm Act. The Right to Farm Act bars nuisance suits against "agricultural operations" that have been in operation for more than one year at the time the alleged "nuisance" began. An "agricultural operation" is broad category, encompassing crop farming, raising livestock and poultry, and forestry. In addition, conversion from one type of agricultural operation to another--e.g. from raising hogs to milking cows--does not strip away the Right to Farm Act's protections. In essence, if the area where the complained-of nuisance exists was "agricultural" for more than one year before the suit began, the Right to Farm Act bars the claim.
There are good reasons for this. The Indiana legislature declared that it wanted to protect farmland and encourage its development for agricultural purposes. The Right to Farm Act states:
The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly finds that 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, and many persons may be discouraged from making investments in farm improvements. 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.
Indiana Code 32-30-6.
In spite of the strength of the Right to Farm Act, nuisance suits against Indiana farmers--based upon my unscientific observations--have been on the rise in recent years, due to the expansion of small farms combined with the number of non-farmers moving into rural areas. This year House Bill 1091 (HB 1091) was introduced to the Indiana legislature to try to bolster the Right to Farm Act by giving farmers that successfully defended against "frivolous" lawsuits an award of attorneys' fees. HB 1091 stirred up a lot of controversy, and as a result, the final bill that the governor signed into law is substantially watered-down. It now states:
(a) If a court finds that an agricultural operationthat is the subject of a nuisance action:(1) was not a nuisance under section 9 ofthis chapter and thatthe nuisance action was frivolous,the courtshall award courtcosts and reasonable attorney's fees, to the defendant in theaction; or(2) was a nuisance under this chapter and that the defense ofthe nuisance action was frivolous,the courtshall award courtcosts, including reasonable attorney's fees, to the plaintiff inthe action.
The key difference between the enrolled act and the original introduced bill is that now plaintiffs--neighbors complaining of nuisance--can also be awarded their attorneys' fees if the farmer's "defense of the nuisance action was frivolous." In sum, now either side risks having to pay the opposing side's attorneys' fees if they take a position in the litigation that was "frivolous." (Indiana law already provides an award of attorneys' fees if the lawyer asserts a frivolous claim or defense in any litigation. See IC 34-52-1-1). Still, HB 1091 raises the stakes of nuisance litigation.But the stakes were already high. My prediction is that HB 1091 will have no measurable effect on the number of nuisance suits filed in Indiana.Posted by Todd JanzenPS:
What is a "nuisance"? The answer is found in the Indiana Code 32-30-6-6.
Whatever is: (1) injurious to health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to the free use of property;so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.
Todd J. Janzen, a partner at Plews Shadley Racher & Braun LLP, represents buyers and sellers of commercial and industrial properties and other business assets in transactional, regulatory compliance and business litigation matters. Todd also assists landowners with cost recovery and environmental clean up efforts. He has a vibrant agricultural law practice and is a founding member and past chair of the Indiana State Bar Association's Agricultural Law Section. Todd serves as the General Counsel to the Indiana Professional Dairy Producers, an organization representing more than 200 dairy farmers in Indiana, and is a frequent author and speaker on agricultural law and commercial real estate topics.
Read more at Janzen Ag Law Blog by Todd Janzen.
For more information about LexisNexis products and solutions, connect with us through our corporate site.