Nothing really can be done: the harsh reality is that CAFO's (concentrated animal feeding operations) stink. But many state legislatures have concluded that farming and ranching are so important that the consequences ("externalities") that naturally occur have to be accepted.
Right to Farm Acts, Indiana's included, generally deprive neighboring property owners of their common law tort nuisance claims for the smell and noise, and other effects of having a nearby agricultural operation, often subject to certain conditions. One Indiana court summed up Right to Farm Acts as well as anyone when it noted, "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).
In Himsel v. Himsel, No. 18A-PL-645 (Apr. 22, 2019), that same court has now concluded that depriving neighboring landowners of their nuisance tort claims is not a taking. The opinion noted that this was a regulatory takings claim and not a physical invasion (see slip op. at 21 & n.10), and concluded that the neighbors have not been deprived of all use of their land. Yes, they have lost value, but "[t]he designated evidence reveals that the Plaintiff's properties have retained significant economic value." Slip op. at 22.
The court also applied the other two Penn Central factors, and held:
Moreover, they continue to reside in their residences, making valuable use of their properties, and have alleged no distinct, investment-backed expectations that have been frustrated by the CAFO. Finally, with respect to the character of the governmental action, we do not agree with the Plaintiffs that the RTFA has permitted a physical invasion of their property. While their property rights are clearly affected by application of the RTFA, the Plaintiffs cannot dispute that the regulation is reasonably related to the promotion of the common good. In sum, we conclude that the odorous emissions from 4/9 Livestock’s CAFO do not effect a taking.
Slip op. at 23.
Himsel v. Himsel, No. 18A-PL-645 (Indiana App. Apr. 22, 2019)
