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CRC Op-eds and Letters to the Editor
“Taking” the Right to Farm
By Douglas T. Kendall
Appeared in the Las Vegas Review-Journal on December 3, 1998

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 farmers 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 uses.

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.

Douglas Kendall is founder and executive director of the Community Rights Counsel, a nonprofit law firm that helps state and local governments defend against takings lawsuits. His address is 1726 M St. NW, Suite 703, Washington, D.C. 20036.

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