House File 223 - Introduced HOUSE FILE BY SANDS Passed House, Date Passed Senate, Date Vote: Ayes Nays Vote: Ayes Nays Approved A BILL FOR 1 An Act providing restrictions on nuisance actions or proceedings 2 involving farm operations. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 4 TLSB 1563YH 83 5 da/nh/14 PAG LIN 1 1 Section 1. Section 352.11, subsection 1, Code 2009, is 1 2 amended by striking the subsection. 1 3 Sec. 2. NEW SECTION. 352.13 NUISANCE ACTION OR 1 4 PROCEEDING == RESTRICTIONS. 1 5 1. The general assembly finds and declares all of the 1 6 following: 1 7 a. Development in rural areas and changes in agricultural 1 8 technology, practices, and scales of operation have 1 9 increasingly tended to create conflicts between farm 1 10 operations and other uses of land. 1 11 b. To the extent possible, consistent with good public 1 12 policy, the law should not hamper agricultural production or 1 13 the use of modern agricultural technology. 1 14 c. It is in the best interest of the state to establish 1 15 limits on the remedies available in those conflicts which 1 16 reach the judicial system. 1 17 2. This subsection applies to a farm operation conducted 1 18 on a farm, or on a public right=of=way adjacent to a farm, 1 19 which is alleged to be a nuisance. 1 20 a. The farm operation shall not be found to be a nuisance 1 21 if all of the following apply: 1 22 (1) The farm operation is conducted without substantial 1 23 interruption before the plaintiff began the use of property 1 24 that the plaintiff alleges was interfered with by the farm 1 25 operation. 1 26 (2) The farm operation does not present a substantial 1 27 threat to public health or safety. 1 28 b. Paragraph "a" applies without regard to whether a 1 29 change in the farm operation is alleged to have contributed to 1 30 the nuisance. 1 31 3. In any nuisance action or proceeding in which a farm 1 32 operation is found to be a nuisance, and the court orders the 1 33 defendant to take any action to mitigate the effects of the 1 34 nuisance, all of the following apply: 1 35 a. The order shall only apply to that part of the farm 2 1 operation found to be a nuisance. 2 2 b. The relief granted shall not substantially restrict or 2 3 regulate that part of the farm operation found to be a 2 4 nuisance more than necessary to prevent its substantial threat 2 5 to public health or safety. 2 6 c. The court shall request that Iowa state university 2 7 furnish the court with suggestions for practices suitable to 2 8 remedy the effects of that part of the farm operation found to 2 9 be a nuisance, which may include odor mitigation as provided 2 10 in section 266.49. 2 11 d. The court shall provide the defendant with a reasonable 2 12 period to take any action directed in the court's order which 2 13 shall not be less than one year after the date of the order 2 14 unless the court determines that remedying the substantial 2 15 threat to public health or safety requires earlier action. 2 16 e. The court shall not order the defendant to take any 2 17 action that substantially and adversely affects the economic 2 18 viability of the farm, unless no other option is reasonably 2 19 available to remedy the substantial threat to public health or 2 20 safety. 2 21 4. a. In any nuisance action or proceeding, if the farm 2 22 operation is not found to be a nuisance, the court shall award 2 23 litigation expenses to the defendant which shall be taxed as 2 24 court costs. 2 25 b. For purposes of this subsection, "litigation expenses" 2 26 means the sum of the costs, disbursements and expenses, 2 27 including reasonable attorney, expert witness, and engineering 2 28 fees necessary to prepare for or participate in an action in 2 29 which a farm operation is alleged to be a nuisance. 2 30 EXPLANATION 2 31 This bill strikes the current provision in Code section 2 32 352.11 that restricts the right of a person to bring a 2 33 nuisance action against a person engaged in farm operations 2 34 and provides new restrictions in new Code section 352.14. 2 35 These provisions are often referred to as "right=to=farm" 3 1 laws. 3 2 The current right=to=farm law applies to a farm operation 3 3 located in an agricultural area designated for agricultural 3 4 uses by petition of neighboring landowners (Code section 3 5 352.6) or pursuant to a county agricultural land preservation 3 6 ordinance (Code section 335.27). Under current law the 3 7 nuisance protection applies during the period that a farm 3 8 operation is part of the agricultural area and six years after 3 9 its exclusion (Code section 352.11). For an analysis of the 3 10 statute, see the Iowa supreme court case Bormann v. Board of 3 11 Supervisors, 584 N.W.2d 309 (Iowa 1998). 3 12 The bill provides that a farm operation located in an 3 13 agricultural area is immune from a nuisance action if two 3 14 conditions are satisfied: (1) it is conducted without 3 15 substantial interruption before the plaintiff began the use of 3 16 their property, and (2) the farm operation does not present a 3 17 substantial threat to public health or safety. The protection 3 18 would apply regardless of whether there was a change in the 3 19 farm operation. 3 20 The bill provides that if the farm operation is found to be 3 21 a nuisance, a court granting relief cannot substantially 3 22 restrict or regulate the farm operation, except to the extent 3 23 that it remedies the substantial threat to public health or 3 24 safety. In granting the relief, the court must consult with 3 25 Iowa state university regarding suitable mitigating practices, 3 26 and provide the defendant with a period of one year to comply, 3 27 unless exigent circumstances exist. A court could not order a 3 28 defendant to take action that substantially and adversely 3 29 affects the economic viability of the farm unless no other 3 30 remedy is available to remedy the substantial threat to public 3 31 health or safety. 3 32 The bill also provides that in any action in which a 3 33 nuisance is not found, the plaintiff would be required to pay 3 34 the defendant's litigation expenses. 3 35 LSB 1563YH 83 4 1 da/nh/14