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E-M:/ S.Ct. denies reivew of Right to Farm takings decision
- Subject: E-M:/ S.Ct. denies reivew of Right to Farm takings decision
- From: Julie Stoneman <firstname.lastname@example.org>
- Date: Tue, 23 Feb 1999 14:04:03 -0500
- List-Name: Enviro-Mich
- Reply-To: Julie Stoneman <email@example.com>
Enviro-Mich message from Julie Stoneman <firstname.lastname@example.org>
More on the U.S. Supreme Court decision and Iowa's
Right-to-Farm law from Glenn Sugameli of the National
>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.
>National Wildlife Federation
>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
> 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
> 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
>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.
>Community Rights Counsel
>*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
>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
>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
>knows as the "coming to the nuisance" problem. A hog farmer sets up shop
>a rural area and, for years, goes merrily about his dirty business,
>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
>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
>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
>a long time? Yet they do not, as the Iowa court ruled, always constitute
>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
> 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
>odor nuisances, the government had, in effect, created an easement in
>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
>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
>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
> * * * * *
> 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
> 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
>EPP website: http://www.envpoly.org
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