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“Right to Farm Act” Trumps Nuisance Abatements

by on October 7, 2014

posted in Code Enforcement, Public Nuisance,

You can see it throughout California—new residential subdivisions being built right up against farms that have been in existence for generations.  The new residents, who thought it would be nice to look out over the open space provided by the farm, are now experiencing the realities of being a farm neighbor: noisy and smelly animals, early morning tractor and truck noise, flies, spraying, the arrival and departure of farm workers, etc.

Objecting to farm “nuisances”

Sometimes residents file complaints with the city or county code enforcement officials.  Any annoyance that is “offensive to the senses” can be considered to be a public nuisance.  But abating complaints about agricultural uses may be difficult because of the California “Right to Farm Act.”  This law, enacted in 1981, provides that a farming activity cannot be a public nuisance if all of the following factors are met:

  • The agricultural activity is commercial in nature;
  • The activity is conducted “in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations in the same locality”;
  • The farming activity must have been in operation for at least three years; and
  • The farming activity was not a nuisance at the time it began.

Determining “proper and accepted customs”

 It is unlikely that zoning officials or code enforcement officers will be familiar with various farming practices, so it may be difficult for them to determine whether the farm they are investigating complies with accepted farming customs.  To determine typical agricultural practices, the local county Agricultural Department or Farm Bureau could be consulted.  The U.S. Department of Agriculture also issues regulations dealing with different types of farming.

Perhaps it is noteworthy that the Law does not require “best management practices” or BMP’s, being state-of-the-art practices.  Instead, it requires adherence to “accepted” customs and practices, which perhaps can be interpreted to mean “average practices” or practices that are commonly followed in the local area.

Types of uses covered

The requirement that an agricultural use have been in operation for at least three years applies to the historic operation of the farm use, not the length of time the current owner or operator has used the property. Rancho Viejo LLC v. Tres Amigos Viejos LLC (2002) 100 Cal.App.4th 550.

Right to Farm protections apply to traditional farming by way of cultivation of soil and also to dairying, the harvesting of any agricultural commodity (timber, viticulture, etc.), the raising of livestock, fish and poultry and also to delivery operations.  However, the protections do not apply if the operations obstruct the free passage or use of navigable waters or of any public park, street or highway.

Disclosures permitted; Law not an immunity

 The statute specifically states that it prevails over any contrary provision of a city or county ordinance or regulation, but does allow cities and counties to require disclosures to be given to prospective home buyers that a dwelling is in close proximity to an agricultural operation.

The title of the law may be a bit of a misnomer, as it conveys no unlimited right to ag businesses to conduct operations in any way they please.  Farm operations are still subject to local enforcement, or private party litigation, if they do not meet all of the law’s criteria, especially the requirement that operations be consistent with practices followed by other farms in the area.

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tags: Code Enforcement, Complaints, Public Nuisance, Right to Farm,

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