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E-M:/ S.Ct. denies reivew of Right to Farm takings decision



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Enviro-Mich message from Julie Stoneman <juliemec@voyager.net>
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More on the U.S. Supreme Court decision and Iowa's
Right-to-Farm law from Glenn Sugameli of the National
Wildlife Foundation:  
 
>On Feb. 22, 1999, the U.S. Supreme Court declined to review the Iowa 
>Supreme Court's decision that invalidated the state's right to farm because 
>immunizing agricultural operations from nuisance lawsuits resulted in a 
>taking of the property rights of the neighbors to be free of a nuisance.
>While the U.S. Supreme Court's action means the case is final in Iowa, it 
>does not express any views on the merits of the case and has no direct 
>effect on other states.
>
>Bormann v Board of Supervisors, 584 N.W.2d 309 (Iowa Sept. 23, 1998), cert. 
>denied (U.S. Feb. 22, 1999)
>I have included the USA Today article, an earlier opinion piece by Doug 
>Kendall of Community Rights Counsel and a report on the Iowa decision by 
>Environmental Policy Project.
>
>--Glenn Sugameli
>National Wildlife Federation
>202-797-6865
>sugameli@nwf.org
>
>---------------------
> 
>02/23/99- Updated 01:01 AM ET USA TODAY Feb. 23, 1999  p.1A
>                                      The Nation's Homepage
>
>
>             Farmers' anti-sprawl law falls in
>             court
>
>             By Tony Mauro, USA TODAY 
>
>             WASHINGTON - The Supreme Court Monday
>             handed farmers a sharp defeat in their growing battle
>             against "suburban sprawl" in rural areas. 
>
>             Justices let stand an Iowa Supreme Court ruling that
>             struck down that state's "right to farm" law - similar to
>             laws on the books in all other states. 
>
>             Although farmers still had to obey state and federal
>             environmental regulations, the law protected them
>             from being sued by neighbors as a "public nuisance"
>             for the odors, noise or dust they produced. 
>
>             Without that immunity, farm advocates say, farmers
>             can be sued by residents of new developments who
>             don't appreciate those aspects of rural life. 
>
>             "There's a lot of concern in Iowa and beyond that you
>             have more and more people coming to rural America
>             who think food comes from the supermarket, not from
>             the farm," says Richard Degner of the 18,000-member
>             Iowa Pork Producers Association. "Some are not
>             tolerant of farm practices, and now they can sue." 
>
>             The right-to-farm laws were passed in the 1970s and
>             1980s during a wave of disputes between farmers and
>             developers. In September, Iowa's law became the first
>             struck down by a state supreme court. 
>
>             Property owners in Algona, Iowa, challenged the law
>             after farmers had 1,000 acres designated an
>             agricultural area protected by the immunity. No actual
>             development plan or nuisance claim was involved. 
>
>             The Iowa Supreme Court said that by protecting
>             farmers from lawsuits, the law diminishes the value of
>             neighbors' land. That amounts to the government
>             "taking" the neighbors' land without paying them,
>             which is unconstitutional. 
>
>             A broad coalition of farm groups urged the high court
>             to take up the case. 
>
>             "Under the Iowa court's reasoning, the right-to-farm
>             laws of all 50 states stand to be invalidated," said
>             John MacLeod, a lawyer for the group. He predicted
>             that challenges in other states will follow. 
>
>             Ralph Grossi of the American Farmland Trust says the
>             court's action proves that right-to-farm laws are not
>             enough. 
>
>             Measures such as tax incentives, zoning and the
>             purchase of farming easements are needed. "If we
>             really want to protect the right to farm, we have to
>             make sure there's land to farm on." 
>
>             Justice John Paul Stevens, who owns a 200-acre farm
>             in Webster County, Iowa, did not participate in the
>             case. 
>
>----------------
>Dec. 1, 1998
>
>Knight-Ridder News Service sent out the enclosed opinion piece
>on the Bormann v. Board of Supervisors case, in which the Iowa Supreme 
>Court declared that Iowa's "Right to Farm" law was a taking of farm 
>neighbors'right to enjoin nuisances.  The piece has turned up, to date, in 
>the Fresno Bee and the Dubuque (Iowa) Telegraph Herald.
>
>Doug Kendall
>Community Rights Counsel
>(202) 296-6889
>
>*TAKING* THE RIGHT TO FARM
>By:  Douglas T. Kendall
>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.
>
>
>---------------
>                 Environmental Policy Project's
>                              Takings-Net
>
>                           *     *     *     *     *
>
>   On September 23, 1998, in a blockbuster decision, the
>Iowa Supreme Court ruled the Iowa right to farm law
>effected an unconstitutional taking in violation of the
>Fifth Amendment and the Iowa Constitution.  Bormann
>v. Board of Supervisors, 1998 WL 650904.  Iowa is
>apparently the first state supreme court to reach this
>result.
>
>   Like similar laws in virtually every other state in the
>country, the Iowa law immunizes farmers from liability
>in nuisance actions brought by neighbors complaining
>that farm operations produce offensive odors,
>unreasonable noise, etc.  The Court held that the law
>resulted in a per se physical taking of the neighbors'
>property, and effected what it called a condemnation by
>nuisance.   Although not explicitly discussed in the
>opinion, the case was fought out against the background
>of widespread public controversy in Iowa over
>corporate hog farm operations.  (According to press
>reports, one of the Iowa Supreme Court justices who
>recused himself from the case has openly opposed a
>proposed hog operation near his home.)
>
>   The case presents a delicious irony.   The American
>Farm Bureau Federation and many of its state affiliates
>have vigorously supported the takings agenda, confident
>that it would serve farmers' self interest.  The Bormann
>case suggests that the agricultural community may need
>to rethink its position on takings.
> 
>For more information, please contact John Echeverria
>or Jon Zeidler at the Environmental Policy Project:
>Georgetown University Law Center
>600 New Jersey Ave., N.W.
>Washington, D.C. 20001
>tel: (202) 662-9850
>fax: (202) 662-9497
>E-mail: envpoly@law.georgetown.edu
>EPP website: http://www.envpoly.org
>
>
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>

Julie Stoneman
Director of Land Programs
Michigan Environmental Council
119 Pere Marquette Dr., Suite 2A
Lansing, MI  48912
Ph:	517-487-9539
Fax:	517-487-9541
Email:	juliemec@voyager.net
Web:	www.mienv.org  

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