Lawprofs and other academics will tell you that nuisance law is about "negative externalities" and the like, but to us, it has always been about the smell.
Especially when it comes to nuisance claims about farms and ranches. Excessive noise, dust, weird hours. No question, those can be disturbing to neighbors and the public, but man, the smell. As one Indiana court put it about a pig farm, "so long as the human race consumes pork, someone must tolerate the smell." Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. App. 1987).
Deciding who has to tolerate the smells is of the main driving forces behind "right to farm" acts, adopted by many states. These laws generally restrict the ability to bring nuisance lawsuits, or even prohibit them, against farmers and ranchers for the usual "negative externalities" which result from normal farming operations. Hawaii has a right to farm act, and a pretty strong one. Like many states, Hawaii has elevated agriculture to a constitutional imperative, and a muscular right to farm act is one byproduct of that.
Back to the smells. It sounds like when a Pennsylvania farm applied "biosolids" (a fancy way of saying treated human sewage) as a fertilizer, the neighbors were assaulted by the smell, even a neighbor who testified, "I enjoy the smell of manure. I think it is the most down-to-earth country smell that you could smell. I go outside and take a big whiff. I enjoy it." Here are how other neighbors reacted:
Appellees contended that as soon as the biosolids were applied, extremely offensive odors emanated; many of the appellees were long-time farm residents and were thus accustomed to the smell of animal manure, and characterized the biosolids’ odor as unusually noxious, so bad that they could not leave their homes on many occasions. Appellees described the odor and its impact as: “smells like a dead horse[,]” “the most horrendous smell I ever smelled[,]” Cleo Fockler Deposition, 1/17/12, at 40, 41; “smelled like dead animals[,]” Beverly Cox Deposition, 1/19/12, at 65; “typically smelling like a herd of dead, rotting deer[,]” Gilbert, at 40 (quoting Amended Complaint, 7/23/10, ¶ 86), “I can tell you the difference between manure — this doesn’t even go on the same scale as that ... It smelled like death[,]” Scott Eckert Deposition, 1/30/12, at 37; “[t]hat smell changed the way we lived[,]” “made your kids stay in P [m]ade you close your windows when you didn’t want to ... [m]ade you tell people not to come visit you, or people that came visit you said they aren’t staying[,]” Terrence Fancher Deposition, 2/24/12, at 36; “like rotting flesh P [n]auseating, repulsive stench[,]” Susan Fox Deposition, 4/4/12, at 112; “was a lot stronger odor [than animal manure], and it stayed constantly[,]” Rickey McSherry Deposition, 2/3/12, at 29; and “like a dead, rotting flesh type of situation[,]” Joseph Jasinski Deposition, 4/12/12, at 56. During the period the biosolids were applied, appellees described suffering from physical symptoms such as burning eyes, sore throats, coughing, headaches, and nausea. See, e.g., Melda Bittorf Deposition, 1/18/12, at 28-29; Wendy Fodel Deposition, 3/6/12, at 119; William Strine Deposition, 1/18/12, at 140-41; Terrence Fancher Deposition, 2/24/12, at 144-45; Susan Fox Deposition, 4/4/12, at 94, 170; Kathryn Jasinski Deposition, 4/12/12, at 114, 128-29; Jeffrey Van Voorhis Deposition, 3/20/12, at 144, 271-72.Holy cow. Not surprisingly, they sued.
But the Pennsylvania right to farm act -- which limits nuisance actions for "normal agricultural operations" if the "agricultural operation" has been in operation more than one year before the lawsuit, and the "normal agricultural operation" has continued "substantially unchanged" -- stood in their way. The question arose about whether spreading biosolids is a "normal agricultural operation," and, more importantly, whether a judge or a jury makes that call. Is the use of biosolids as a normal farming practice something determined on a case-by-case basis, or broadly?
In Gilbert v. Synagro Central, LLC, No. J-32-3015 (Dec. 21, 2015), the Pennsylvania Supreme Court said it is a legal question, for the judge to decide. No need for evidence, no need for a jury. The first issue the court resolved was whether the statute was a statute of limitations or a statute of repose. It is the latter, the court concluded, because it immunizes farmers from any nuisance lawsuits one year after they start, and not from the injury like a statute of limitations. Statutes of repose are generally legal questions for judges, and the legislature did not mean for juries to make "an idiosyncratic determination of a farming practice's 'normality[.]'" Slip op. at 28.
Having determined the question was one of law, the court resolved the substantive issue, and concluded that spreading biosolids as fertilizer is a "normal agricultural operation," and reading the statute that way "protects farms now and in the future," as the legislature intended. See slip op. at 36 ("Thus, a review of related authority concerning biosolids land use leads to the conclusion this is and has been an accepted farming practice in Pennsylvania."). There was no real dispute that the farm had been spreading biosolids more than one year prior to the lawsuit, by the way.
Summary judgment for the farm, nuisance claim dismissed.
All in all, a very strong reading of a right to farm law.
Gilbert v. Synagro Central, LLC, No. J-32-3015 (Pa. Dec. 21, 2015)
