| "Taking" the
Right to Farm
Doug
Kendall,
Executive Director, Community Rights Counsel
The delicious irony of it. The Iowa Supreme Court
recently struck down Iowa's "Right to Farm"
law, ruling that the law -- which immunized farmers from
certain nuisance suits -- was an unconstitutional
"taking" of neighboring landowners' right to
stop smells and noises from spilling over on their
property. Having watched the American Farm Bureau
tirelessly promote both Right to Farm laws and extreme
interpretations of the "Takings Clause" of the
U.S. Constitution, I take a slightly guilty pleasure in
seeing the prodigal takings son return to slay his elder
Right to Farm brother, all under the Farm Bureau's
horrified eyes.
But proponents of community rights must not celebrate,
lest we foster a bad seed of our own. For however
laudable the policy result, the Iowa Supreme Court's
analysis in Bormann
vs. Board of Supervisors is badly off the
mark and, if adopted in other contexts, the court's
ruling will cause serious problems for communities.
Right to Farm laws are the Farm Bureau's response to
what every law student knows as the "coming to the
nuisance" problem. A hog farmer sets up shop in a
rural area and, for years, goes merrily about his dirty
business, sending loud noises and foul odors onto his
neighbor's vacant property.
Then, lo and behold, the neighbor develops a
subdivision and the new residents suddenly complain about
those same smells and noises. It is among the most vexing
policy questions in property law: Should what was
formerly an uncontroversial and productive use be deemed
a nuisance simply because neighbors settle within
smelling distance?
Right to Farm laws, which the Farm Bureau has
succeeded in passing in numerous states, resolve this
policy question in favor of farmers. The laws immunize
far mers from some types of nuisance suits (generally
suits based on noise and smell, but not those based on
other forms of pollution).
But Right to Farm laws are bad public policy. Why
should farmers have the right to foul their neighbors'
property, even if they have been doing it for a long
time? Yet they do not, as the Iowa court ruled, always
constitute takings.
The Bormanns and the other farm neighbors who
challenged the law could not establish either of the
touchstones of a successful takings claim. The government
had not physically taken their property or deprived them
of all beneficial use
In finding a taking nonetheless, the Iowa court relied
heavily on an analogy between Right to Farm laws and
overflights by military planes. The court opined that by
stripping neighbors of their ability to stop noise and
odor nuisances, the government had, in effect, created an
easement in favor of the farmers. Because courts have
occasionally found takings based on government
overflights -- which create similar easement-like
interests for the government -- the Iowa court, by
analogy, struck down the Right to Farm law.
In terms any hog farmer can relate to, the court's
analogy stinks. The successful government overflight
takings claims have been "as applied" claims,
in which the landowner demonstrated that the flights were
low and frequent enough to have a dramatic impact on
their specific parcel of property. The Bormanns' claim
was a general challenge to the law itself. While Right to
Farm laws may sometimes have a dramatic enough impact on
farm neighbors to support a takings claim (the Bormanns
may, in other words, have an "as applied"
takings claim), these laws are not always takings.
In ruling for the Bormanns, the Iowa court continued a
disturbing trend by courts of finding a taking based on
government interference with just one aspect of property
ownership -- here, the right to enjoin nuisances.
Because innumerable laws -- ranging from the federal
Clean Water Act, to workplace safety rules, to local
zoning -- impact on some aspect of property ownership,
this trend gravely threatens the ability of communities
to protect their health and safety.
Bormann's silver lining is that it shows takings
litigation is a double-edged sword. Every developer's
claim to a "right" to develop is
counterbalanced by an equally or more valid claim by a
neighbor of a "right" to be free of spillover
costs. Thoughtful farmers have long ago concluded that it
is not in their interest for either side to win this
battle of absolute rights . If developers have an
unfettered right to build subdivisions, communities will
be unable to protect farmland from encroaching sprawl. If
neighbors have an absolute right to be free from
spillover costs, farms will operate entirely at their
neighbor's mercy.
Perhaps after Bormann, the Farm Bureau, which has
heretofore blindly taken the developer's side in takings
disputes, will get this message.
This article was written for Knight-Ridder
newswire and published in:
Dubuque, Iowa Telegraph
Herald
Macon, Georgia Telegraph
Las Vegas, Nevada Review-Journal
Corvallis, Oregon Gazette-Times
Twin Falls, Idaho Times-News
Madison, Wisconsin State Journal
Ventura County, California Sunday Star |
