Q. A neighboring residential property owner has recently complained that noise and odor coming from my farm operations are a “nuisance” and has threatened to take me to court. What can I do?
A. The manner in which a particular property is used can sometimes produce effects which travel beyond property lines. An owner who habitually plays loud music late at night, for example, may disturb the peace and enjoyment of close neighbors. While people living in an organized community are expected to tolerate some degree of annoyance and inconvenience from each other, New York common law has long recognized that no one may make an unreasonable use of their property to the material injury of a neighbor’s right to use and enjoy his or her land. Where a landowner’s conduct is unreasonable and results in a substantial interference with a neighbor’s use and enjoyment of his or her land, the neighbor may file a “private nuisance” lawsuit to both stop the conduct and recover any damages resulting from the interference. If a neighbor decides to file a lawsuit against you, you’ll want to hire a real estate attorney right away.
Farms and Residential Areas Are Closer Than Ever
Over the years, residential development has encroached more and more into traditionally rural areas. The close proximity of residences and farms can lead to disputes regarding the off site impacts of farming operations, including such conditions as noise and odors. For example, a farmer may decide to implement a manure management program through the U.S. Natural Resource Conservation Service in which animal manure stored in a concrete pit is emptied periodically and applied to the farmer’s crops. This agricultural practice, however, may generate complaints from nearby neighbors that the concentrated odor associated with the storage of large volumes of manure is adversely affecting their air quality and substantially interfering with the use and enjoyment of their properties, both indoors and outdoors. One or more of the neighbors may file, or threaten to file, a civil lawsuit claiming that the farmer’s operations constitute a “private nuisance” and requesting an award of money damages.
Unless settled between the parties, most civil private nuisance suits are resolved at a trial, with a jury panel deciding whether the landowner’s conduct was an “unreasonable” use of his or her property that resulted in a “substantial” interference with his or her neighbor’s right to use and enjoy their property. The litigation process can be very time consuming and very expensive. Section 308 of the Agriculture and Markets Law, however, affords certain farmers an alternative means of determining the reasonableness of their agricultural practices and avoiding protracted civil litigation.
Are The Complaints Against Your Farm Reasonable?
Section 308 authorizes the Commissioner of the Department of Agriculture and Markets to issue opinions, upon the request of any person, as to whether particular agricultural practices are “sound”. To qualify as an agricultural practice, the practice must be necessary to the on-farm production, preparation, and marketing of agricultural commodities. By way of example, Section 308 identifies “agricultural practices” as including the operation of farm equipment, the proper use of agricultural chemicals and other crop protection methods, the direct sale to consumers of agricultural commodities produced on-farm and agricultural tourism.
The Commissioner will conduct an investigation to determine, on a case-by-case basis, whether the particular agricultural practice at issue is sound. In conducting the investigation, the Commissioner may conduct an onsite review of the practice in operation, may interview neighbors, and may consult with appropriate State or federal agencies. Under the Department’s current guidelines, a number of factors are to be considered in determining whether an agricultural practice is sound. Is the practice consistent with all applicable federal, state, and local laws which reasonably govern farm operations? Does the practice result in significant adverse health consequences or property damage off the farm? Does the practice achieve the results intended in a reasonable and supportable way? Are there alternative practices available that could produce equal or superior results, without undue cost or disruption to farm operations, while reducing or avoiding off-farm impacts?
You Can Avoid a Lawsuit
If, upon investigation, the Commissioner issues a written opinion finding that the agricultural practice at issue is sound, Section 308(3) provides that such practice “shall not constitute a private nuisance” for the purposes of any civil action filed against the owner of the land, provided that the land is either located in an agricultural district or subject to an agricultural assessment. Section 308, therefore, allows a farmer to obtain, in advance of any lawsuit or trial, a binding determination that a particular agricultural practice is not a “private nuisance” through an administrative process which is much less time consuming and much less expensive than litigation.
If you are a farmer worried about complaints from local residences, it’s time to hire a real estate attorney. Contact Givin & Ferlazzo, PC to schedule a free consultation with our team of experienced lawyers today.