Related North Carolina Legislation: The "Bona Fide Farms" Exemption from County Zoning and the "Right-to-Farm" Law

Related North Carolina Legislation: The "Bona Fide Farms" Exemption from County Zoning and the "Right-to-Farm" Law

County Zoning. In theory, one option for mediating or resolving land use conflicts between Intensive Livestock Operations* and their neighbors would be to apply zoning concepts in order to separate incompatible uses from one another. This option is precluded at the county level in North Carolina, however, by the county zoning enabling act which has long exempted "bona fide farms" from county zoning (in GS 153A-340). The definition of bona fide farms in GS 153A-340 clearly covers ILOs. There is no similar exemption in the city zoning enabling act, and cities can and do use zoning to regulate farms. Many also have general police power ordinances limiting the number of animals that may be kept. The zoning power extends to extraterritorial jurisdiction. A number of small towns use this jurisdiction to prevent location of ILO's within a mile of town limits. Most ILOs are likely, though, to be located within the county's zoning jurisdiction but not the city's zoning jurisdiction. The North Carolina Court of Appeals has interpreted the bona fide farms exemption as applying to a plant nursery but not applying to a dog breeding and boarding facility.

Baucom's Nursery v. Mecklenburg County, 62 N.C. App. 396, 303 SE 2d 236 (1983); Development Assocs, Inc., v. Wake County Board of Adjustment, 48 N.C. App. 541, 269 SE 2d 700 (1980), cert. den. 30/N.C. 719, 274 S.E 2d 227 (1981).

The bona fide farms exemption does not appear to prevent counties from applying their zoning ordinances to processing plants, such as slaughterhouses. The Edgecombe County Board of Commissioners amended their county zoning ordinance on Jan. 10, 1996, to clear the way for a large slaughterhouse by rezoning a potential site for industrial use. (Raleigh News and Observer, January 11, 1996.)

The "Right-to-Farm" Law. In the mid-1970s, several civil suits were brought in North Carolina against hog farmers, based on odor and other nuisance problems of neighbors. When one suit in Pamlico County resulted in a $2,000 damage award against the farmer, agricultural interests persuaded the General Assembly to enact the Agricultural Nuisance or Right-to-Farm law to allay their concerns that the proliferation of such litigation would disrupt important farming activities. GS 106-701. The statute essentially codified the old common law defense of "coming to the nuisance" in this fashion:

— It provided that "changed conditions" in an area cannot make an agricultural operation a nuisance if it wasn't a nuisance initially, and it has operated more than one year. (An obvious example of a "changed condition" might be a neighbor moving in more than a year after the agricultural operation began.)

— The statute barred nuisance suits that contradict the "changed conditions" rule. It also voided local ordinances making such activities a nuisance or providing for their abatement as a nuisance. This part of the statute may be relevant for some of the local rules and ordinances discussed later.

— The statute was later amended to add forestry operations to the protected class.

There have been two Court of Appeals decisions interpreting the Right-to-Farm Law. The first decision reached the straightforward conclusion that the statute did not provide a defense for a hog farmer against the owner of a boys' camp that was in place 60 years before the hog farm was established. Mayes v. Tabor, 77 N.C. App. 197 (1985).

The second decision held that the Right-to-Farm Law did not bar a nuisance suit brought by a neighbor of a farm converted from three turkey houses to a large hog production facility that the plaintiff feared would adversely affect his planned subdivision of lots. Durham v. Britt, 117 N.C. App. 250, 451 S.E. 2d 1 (1994). The court stated, in reversing a trial court's grant of summary judgment against plaintiff:

We do not believe the legislature intended North Carolina General Statutes § 106-701 to cover situations in which a party fundamentally changes the nature of the agricultural activity which had heretofore been covered by the statute. For example, a fundamental change could consist of a significant change in the type of agricultural operation, or a significant change in the hours of the agricultural operation. 117 N.C. App. 250, 254-5, 451 S.E. 2nd 1, 3.

* ILO = Intensive Livestock Operation, referring to concentrated livestock and poultry facilities

Excerpted from:

INTENSIVE LIVESTOCK OPERATIONS IN NORTH CAROLINA: CASES AND MATERIALS in Environmental and Conservation Law; Number 2 March 1996