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