Right to Farm law; nuisance; budget bill; LEBOR; Lake Erie Bill of Rights; affirmative defenses; immunity
The funny thing about a "budget bill" is that it’s not all about the budget. Many laws that are not related to the budget are created or revised within a budget bill. That’s the case with Ohio’s HB 166, the "budget bill" signed on August 18 by Governor DeWine. In the midst of the bill’s 2,602 pages are revisions to an important law for agricultural landowners—the “Right to Farm” Law.
Ohio’s Right to Farm Law, also referred to as the "Agricultural District Program," provides immunity from a civil nuisance claim made by those who move near an existing farm. To receive the immunity under the old law, the land must be enrolled as an “agricultural district” with the county auditor, agricultural activities have to be in place first, i.e., before the complaining party obtained its property interest, and the agricultural activities must not be in conflict with laws that apply to them or must be conducted according to generally accepted agricultural practices. The immunity comes in the form of an affirmative defense that a farmer can raise if sued for nuisance due to agricultural activities such as noise, odors, dust, and other potential interferences with neighbors. If the landowner can prove that the activities are covered by the Right to Farm law, the law requires dismissal of the nuisance lawsuit. For years, we’ve been encouraging farmers to enroll land in this program to protect themselves from those who move out near a farm and then complain that the farming activities are a nuisance.
The new revisions to the law in the budget bill change the requirements for the land and agricultural activities that can receive Right to Farm immunity. In addition to protecting agricultural activities on land that is enrolled with the county auditor as agricultural district land, the law will now also protect the following from nuisance claims:
- Agricultural activities on land devoted exclusively to agricultural use in accordance with section 5713.30 of the Revised Code, which is Ohio’s Current Agricultural Use Valuation Program (CAUV), and
- Agricultural activities conducted by a person pursuant to a lease agreement, written or otherwise.
These two provisions significantly expand the geographic scope of the Right to Farm law. A landowner may not have to take the step to actively enroll and re-enroll land in the agricultural district program in order to obtain Right to Farm immunity. Instead, the agricultural activities are automatically covered by the Right to Farm law if the land is enrolled in Ohio’s CAUV property tax reduction program or is under a lease agreement, presumably a farmland lease, whether that lease is in writing or is verbal. This means that any land in Ohio that is actively being used for commercial agricultural production will likely qualify for the Right to Farm law’s nuisance protection.
The budget bill also added new language to the Right to Farm law that clarifies that “agricultural activities” means “common agricultural practices.” The law specifically includes the following as “common agricultural practices:”
- The cultivation of crops or changing crop rotation;
- Raising of livestock or changing the species of livestock raised;
- Entering into and operating under a livestock contract;
- The storage and application of commercial fertilizer;
- The storage and application of manure;
- The storage and application of pesticides and other chemicals commonly used in agriculture;
- A change in corporate structure or ownership;
- An expansion, contraction, or change in operations;
- Any agricultural practice that is acceptable by local custom.
This new language answers a question that we’ve long heard from farmers: if I expand my farming operation or change it from the farming activities that I, my parents or grandparents have always done, will I still have Right to Farm protection? We couldn’t answer this question with assurance because the law is unclear about whether it would also protect such changes. Under the new law, the answer is clear: transitions to new or expanded agricultural activities will also receive Right to Farm immunity. The law also states that certain practices, such as storing and applying fertilizers, pesticides, chemicals and manure, are “common agricultural practices.”
The final change to the Right to Farm law concerns a provision that addresses farmers suing other farmers for nuisance. Under the old law, Right to Farm immunity does not apply if the plaintiff who brings the nuisance law suit is also involved in agricultural production. That is, farmers don’t receive Right to Farm protection from nuisance claims by other farmers. The new law removes this provision. Under the revised law, farmers will be able to raise the Right to Farm law as an affirmative defense if sued for nuisance by another agricultural producer.
Many lawmakers who were focused on understanding and negotiating the financial provisions in Ohio’s recent budget bill may have missed the inclusion of changes to our Right to Farm law in the bill. Even so, with the passage of the budget bill, the legislature significantly expanded the reach of the Right to Farm Law and agricultural activities in Ohio now have broad protections from nuisance lawsuits.
Find the changes to Ohio’s Right to Farm Law--Ohio Revised Code 929.04, on pages 308 and 309 of HB 177, which is available on this page.
Tags: Right to Farm law; nuisance; budget bill; LEBOR; Lake Erie Bill of Rights; affirmative defenses; immunity