21160 Box Springs Road Suite 102 Moreno Valley, CA 92557    T: 951.684.6732   F: 951.782.0621   E: President@RiversideCFB.com
Home What's New About RCFB Site Map Contact Us
Information
   » AG Magazine
   » AG Information
   » Certified Farmers Markets
Representation
   » Legislators
Events
Membership
   » Benefits
   » Member Renewal
   » Join Farm Bureau
Links
   » CFBF
   » American FB
 

Local Government: Right To Farm: Discussion of Right to Farm Law

Be a farmer, go to jail? The D. A. says no


Right to Farm


Notes prepared by Executive Manager Robert Eli Perkins

This is a discussion of some aspects of Right To Farm law. It is not intended as legal advice. Readers who may be interested in the application of the laws discussed herein should consult an attorney.

July 28, 1999


"No agricultural activity, operation or facility, or appurtenances thereof, conducted or maintained for commercial purposes, and in a manner consistent with proper and accepted customs and standards, as established and followed by similar agricultural operations in the same locality, shall be or become a nuisance, private or public, due to any changed condition in or about the locality, after the same has been in operation for more than three years if it was not a nuisance at the time it began."

(California Civil Code 3482.5 and
Riverside County Ordinance 625.1.)

The right to farm depends to a degree on protection against nuisance complaints, and this is the basis for the California Right to Farm law, Civil Code 3482.5, and the Riverside County Right to Farm ordinance, Ordinance 625.1. These laws recognize that agricultural activities can conflict with adjacent, non-agricultural uses. In the development of Ordinance 625.1, in which Riverside County Farm Bureau participated, county officials understood that nuisance factors included noise, dust and odors commonly associated with farming.

The elements of the Right to Farm policy enacted in these laws include:

  • "Agricultural activity, operation or facility, or appurtenances thereof," a broad category that covers owned and leased sites and off-site activity;
  • "Conducted or maintained for commercial purposes," a description that encompasses passive as well as active practices;
  • "In a manner consistent with proper and accepted customs and standards," a recognition of established operating practices within the local industry;
  • "As established and followed by similar agricultural operations in the same locality," suggesting that a defense against complaints may include proof that a farm practice is customarily used by the local industry;
  • "Any changed condition in or about the locality," a qualification that considered the subsequent arrival of conflicting or incompatible uses, such as new residences (additionally reinforced by Riverside County Ordinance 625.1 Section 6 requiring a notice to buyers of land within 300 feet of an agriculturally-zoned parcel);
  • "After the same has been in operation for more than three years," a characterization based on an understanding that many agricultural practices such as planting and harvesting occur only occasionally during the year; and,
  • "If it was not a nuisance at the time it began," clearly recognizing that a nuisance requires an injured party.

These laws do not interfere with other statutes, such as regulations affecting the application of pest control materials, fish and game laws, and air quality rules. Acknowledging the problematic nature of agricultural activities, South Coast Air Quality Management District Rule 403, in its subsections affecting western Riverside County and the Coachella Valley, acknowledges that dust is an inherent feature of farming and provides limited controls under specific conditions.

Noise

California Penal Code 415 provides that "Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine:" applicable to "(2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise."

It could be argued that noise incidental to agricultural activity is not malicious and further is not willfully intended to disturb another person. It can be a subjective judgment whether noise is loud. Since farm-related noise is incidental to agricultural activity, it is not unreasonable.

Citations

Case law does not entirely resolve the issue, leaving opportunity for a court to decide. There is ample reason to defend agriculture against nuisance complaints as intended under state and county statute, but this defense is not absolute, as indicated in the following citations.

"Immunity under statute providing that '(n)othing which is done or maintained under the express authority of a statute can be deemed a nuisance' is available only where acts complained of are authorized by express terms of statute or permit under which justification is made, or by plainest and most necessary implication from powers expressly conferred, so that it can be fairly stated that legislature contemplated doing of very act which occasions injury; courts must scrutinize statutes in question to ascertain whether legislative intent exists to sanction nuisance." Jordan v. City of Santa Barbara (App. 2 Dist. 1996) 54 Cal. Rptr. 2d 340, 46 Cal. App. 4th 1245, review denied, West's Annotated California Codes, c. 1999 by West Group.

"Cal. 1938. The law relating to private nuisances is one of degree, and a use that would be reasonable under one set of facts may be unreasonable under another. Civ. Code 3479." Hassell v. City and County of San Francisco, 78 P. 2d 1021, 11 C. 2d 168, West's California Digest 35 Cal D - 52.

"Cal. App. 1968. A nuisance is a nuisance regardless of cause." People v. Greene, 70 Cal. Rptr. 818, 264 C. A. 2d 774, West's California Digest 35 Cal D - 52.

"Cal. App. 1957. Whether a particular use of property is a nuisance cannot be determined by any fixed general rule; it depends upon the facts of each particular case, such as nature of the use, extent and frequency of injury, the effect upon the enjoyment of health and property, and other similar factors; and basic principle of law of nuisance is that substantial harm is required and the gravity of the harm must be weighed against the utility of defendant's conduct." Shields v. Wondries, 316 P. 2d 9, 154 C. A. 2d 249, West's California Digest 35 Cal D - 52.

"The fact that a statute recognizes the legality of a certain occupation, and makes provision for its regulation, to prevent injury from its conduct, does not justify or legalize such business, so as to prevent its abatement, where it becomes a public nuisance, unless the statute expressly authorizes the conduct of the business in the manner alleged to constitute a nuisance." Woodruff v. North Bloomfield Gravel Mining Co., 1884, 9 Sawy. 441, 18 F. 753, West's Annotated California Codes, c. 1999 by West Group.

"C. C. Cal. 1884. Under Civ. Code 3482 defining nuisances, acts otherwise constituting a nuisance cannot be justified and legalized by implication, but only by express authority of some statute." Woodruff v. North Bloomfield Gravel-Mining Co., 18 F. 753, West's California Digest 35 Cal D - 58.

"Cal. 1938. Statutory sanction cannot be pleaded in justification of acts that by general rules of law constitute a nuisance, unless such acts are authorized expressly or by necessary implication showing that Legislature contemplated the very act which occasions injury. Civ. Code 3482." Hassell v. City and County of San Francisco, 78 P. 2d 1021, 11 C. 2d 168, West's California Digest 35 Cal D - 58.

"Cal. App. 1971. Statute providing that nothing done or maintained under express authority of statute can be deemed a nuisance applies only to a specific act authorized, and although an activity authorized by statute cannot be deemed a nuisance the manner in which activity is performed may constitute a nuisance. West's Ann. Civ. Code, 3482." Venuto v. Owens-Corning Fiberglas Corp., 99 Cal. Rptr. 350, West's California Digest 35 Cal D - 58.

"Cal. App. 1968. Nothing which is done or maintained under express authority of a statute can be deemed a 'nuisance.' West's Ann. Civ. Code 3482." Union City v. Southern Pac. Co., 67 Cal. Rptr. 816, 261 C. A. 2d 277, West's California Digest 35 Cal D - 58.

"Where it is sought to enjoin a lawful business as a nuisance, the court will consider the comparative injury which will result from the granting or refusing of an injunction, and it will not be granted where it would inequitable and oppressive, as where it would cause a large loss to defendant or others, while the injury, if it is refused, will be comparatively slight and can be compensated by damages." Mountain Copper Co. v. U. S., 142 F. 625, 73 C. C. A. 621, appeal dismissed, 29 S. Ct. 685, 212 U. S. 587, 53 L. Ed. 662, West's California Digest 35 Cal D - 58.

"Cal. 1932. Injunction against nuisance will not be denied solely on ground that injury suffered by defendant will be greater, if injunction be granted, than injury to plaintiff if injunction be refused." Vowinckel v. N. Clark & Sons, 13 P. 2d 733, 216 C. 156, West's California Digest 35 Cal D - 58.

The texts of the county and state Right To Farm laws are included in adjacent pages:

Ordinance 625


(Top)