Old McDonald Had a Right to Farm Statute
If you were to take a look at a zoning map of the town where I grew up, you’d see that the vast proportion of plots are zoned residential, with a small cluster of commercial land in our shopping district. But smack dab in the middle of town you’d see one vast parcel that is zoned completely differently from the rest: it is my family’s ancestral land, and it is zoned for agricultural use. The town I grew up in is now a wealthy commuter suburb but once was dotted with farms. Somehow my family’s business was the only entity to survive the introduction of nearby commuter rail stations in the first half of the 20th century and the highways and advent of suburban living during the second half of the 20th century. In a town of bankers, we were farmers.
And I was proud of that distinction. While my friends had a house, we had shops and garages and barns and forests. Where they had a few trees, we had forests and fields and lakes and streams. And where they had lawn mowers and rakes, we had industrial-scale payloaders and tractors. For a kid, the tractors were amazing, with their size and power and diesel-soaked roar. But that’s exactly the sort of thing that might annoy a neighbor, especially if they heard it at 7am.
And if the neighbors had a serious problem, they could have a remedy in tort. Specifically the tort of Nuisance. Boiled down, the law of nuisance says that you can do anything you want with your private property so long as it doesn’t interfere with somebody else’s ability to do whatever they want with their private property. It is an extraordinarily old tort (even older than negligence!), with known cases dating back to the turn of the century--the 12th century. In one example from 1201, Simon of Merston petitioned King John for compensation when his neighbor, “Jordan the miller,” raised the water level of his pond in a way that could damage Simon’s property. King John ordered that the pond be destroyed and awarded Simon three shillings in damages.
Common modern examples of a nuisance include a dog that incessantly barks, a pig farm that incessantly smells, or an assembly line that incessantly clangs. There are both public and private nuisances--a public nuisance being one that affects an entire community rather than just an individual. Public nuisance law has evolved to encompass activities that are considered “indecent” or “offensive to the senses” (Richard Epstein, Torts (1999) 357). So if your neighbor is running a prostitution ring or a gambling joint, the city might have a case for nuisance because of the offensive nature of these types of activities and the cast of characters they might invite to the neighborhood. One of my favorite recent nuisance disputes involves the culty hot sauce Sriracha. It seems that for a brief period every year Huy Fong, the producer of the hot sauce, would have to process hot chile peppers in a way that caused some of the capsaicin to get into the air. Neighbors would complain about burning eyes, sore throats, and other maladies. It was an classic nuisance, and has been the subject of litigation for several years.
While these cases may seem clear-cut, nuisance cases are rarely so straightforward. In fact, according to William Prosser, a bona fide Lion of the Law™, “there is no more impenetrable jungle in the entire law than that which surrounds the word nuisance” (Prosser, The Law of Torts (3rd ed. 1964) 592). Perhaps this is because, by definition, the tort seems to clash with the classic American tradition of promoting property rights.
Another American tradition is the reverence of farmers. We have been putting the noble agrarian on a pedestal since the days of Thomas Jefferson. What is more American than staking out a plot of land, getting your hands dirty, and emerging with a crop? But farms are dirty and messy and smelly. They can pollute and tarnish our environment. Who among us would actively want to live next door to a pig farm? As a result, farmers are often the target of nuisance suits by abutters whose quality of life has been diminished by their neighbors’ activities.
This sort of thing is particularly acute in towns like the one where I grew up, towns where the agricultural land is surrounded not by other farms but by people who simply want to have a peaceful refuge from their daily grind when they come home. It would seem that the days of farming in these communities is numbered. But local governments have stepped in to save the day, at least from the perspective of the farmers, in the form of “right to farm” statutes.
A right to farm statute is a law that specifically states that noises, smells, and other nuisances incidental to traditional agriculture cannot be the basis of a nuisance lawsuit against a farmer. For the sake of illustration, here is the text of the Right to Farm statute in Chelmsford, Massachusetts (which is based on a MA state model):
“The right to farm is hereby recognized to exist within the Town of Chelmsford. The above-described agricultural activities may occur on holidays, weekdays, and weekends by night or day and shall include the attendant incidental noise, odors, dust, and fumes associated with normally accepted agricultural practices. It is hereby determined that whatever impact may be caused to others through the normal practice of agriculture is more than offset by the benefits of farming to the neighborhood, community, and society in general.” Chapter 127-3: Right to Farm Declaration
Right to Farm statutes represent government and legislation staking a claim on matters traditionally reserved for the common law. When I think about these laws I can’t help but think of that property map from my hometown, the one where my family’s property is an island of agriculture in a sea of residential homes. The right to farm, it seems, is meant to protect families just like mine. And in towns all across America, that is exactly why Right to Farm statutes exist.
But more and more, the phrase “Right to Farm” has become associated not with protecting the noble farmer but instead massive agribusiness. That’s because the newest wave of Right to Farm statutes don’t just prohibit nuisance lawsuits against a farmer with a flock of confident roosters. These new statutes can also prohibit local governments from enacting and enforcing new environmental regulations, such as those limiting the use of certain hazardous pesticides. I am always wary of a good idea being co-opted by the powerful to promote their interests, and it seems that may be happening here. As a person who owes his college tuition to agriculture, I generally support the concept of Right to Farm statutes. But I am very, very wary of where they may be headed.
I asked my father recently if he could recall a time when our family was the subject of a nuisance complaint as the result of maintaining our little island of agriculture. To my surprise, he said he wasn’t aware of that ever happening, despite all the trucks and tractors and fertilizers we employed over the years. It seems that our town did not need a Right to Farm statute. Instead, our neighbors naturally adopted the notion that our presence outweighed any negative side effects of our agricultural activities. Last year, after a century of planting and growing, selling and kids playing, my family finally sold our business so that my parents could retire. Generations of my relatives owe so much to that place. And I’d suggest we also owe at least a tip of the cap to our neighbors, who graciously accepted and embraced our little island of agriculture amidst their sea of suburban homes.
-Ellis & Acton