A Farmer's Duty to his Neighbors

Hemp Smells. Farmers have rights. Neighbors need to realize they are in a farm zone.

That was yesterday's message.

Today, a Guest Post: A farmer has responsibilities.   

Thad Guyer represents an unhappy neighbor to a farmer in a farm zone. The neighbor says the neighbor's farm is a smelly, vermin-infected nuisance.

Amy's Kitchen pot pie

Warning to farmers.  A farmer's safe harbor is "common, customary, and accepted farming practices." This creates a huge highway of protected behavior, including noice, spray, dust, odor, and more. But not everything. 

A farmer in the Table Rock area allowed several local food manufacturers to dump daily truckloads of peach and pear orchard waste, plus food waste from Amy's Kitchen, on his property. The arrangement had the twin benefit of getting paid to provide a site for dumping waste while simultaneously improving his own soil as he tilled the rich organic matter into it.

On the surface this sounds like a sweet arrangement. 

Farmers customarily till organic matter into their soil to improve it, with manure being the time honored material. Surely food waste is better than manure. Win for Amy's Kitchen, win for the farmer, win for the farm soil. Right?

The problem was one of volume and timely tilling. At some point the farm transforms into a waste dump if too much material is deposited and if is not promptly worked into the soil and if the soil is beyond its capacity to break it down. A farmer has a right to improve his soil. He doesn't have a right to have a badly maintained solid waste dump in an EFU zone.  

The neighbor thinks it got way, way out of hand, with a huge stench, rats everywhere, and piles of food waste rotting.

As always, there are gray areas and room for disagreement.

Neighbors might object to multiple dump trucks coming and going. A farmer might counter that equipment coming and going on a farm is usual and customary because wagons and trucks delivering and shipping bulky items, sometimes at late and early hours, are the nature of farms. He just happens to have a successful farm business with lots of trucks.

Another gray area is the smell. Rotting pear peels and food waste smell--but so does manure the farmer might argue. Customary.

A third gray area is timeliness of tilling in organic material. The neighbor can say it is piling up. Still, the farmer can argue that farm animals drop manure throughout the day and no farmer collects and tills it in immediately. It sits there and decomposes and may be smelly while it does so. It is a matter of degree, not clear difference.

But at some point a farm transforms into a nuisance solid waste dump. When? When it attracts an unusual number of mice and rats? When it piles up deeper than manure would customarily pile up?  When its smell is the customary smell of a dump rather than the customary smell of a farm with animals?

People will disagree. 

At that point lawyers get involved and it can become very expensive for farmer and neighbor, both.

Neighbors have rights. But farmers have responsibilities. 

Guest Post by Thad Guyer

Attorney Thad Guyer

"Stone Cold Legal Immunity"

I'm litigating for a client now under Oregon's "Right to Farm" state law. It's an odor case but not from pot, although I do represent pot farmers and their landlords. Here's the low down.

Pot farmers-- like all farmers-- are immune from local laws and neighbor lawsuits. The statute is ORS 30.935

entitled "Prohibition on local laws that make farm practice a nuisance or trespass". It reads:

"Any local government or special district ordinance or regulation now in effect or subsequently adopted that makes a farm practice a nuisance or trespass or provides for its abatement as a nuisance or trespass is invalid with respect to that farm practice for which no action or claim is allowed under ORS 30.936 (immunity from private action based on farming or forest practice on certain lands) or ORS 30.937 (immunity from private action based on farming or forest practice allowed as preexisting nonconforming use)." 

It does not matter that pot farming and the odors were never contemplated when the law was passed decades ago. Indeed, the law protects farming practices that have not even been dreamed of yet. In its "may become" futuristic terminology the statute says:

(2) “Farming practice” means a mode of operation on a farm that:

(a) Is or MAY BE used on a farm of a similar nature;

(b) Is a generally accepted, reasonable and prudent method for the operation of the farm to obtain a profit in money;

(c) Is OR MAY BECOME a generally accepted, reasonable and prudent method in conjunction with farm use;

(d) Complies with applicable laws; and

(e) Is done in a reasonable and prudent manner.

A neighbor has one narrow opening for suing my farmer to abate nuisance odors. A pot farmer-- any farmer-- can be sued for failing to grow her pot in a "reasonable and prudent manner", or in manner that violates some other "applicable law", eg. environmental regulations. But, those other laws do not include anti-pot local ordinances since local laws cannot be passed or enforced to protect complaining neighbors or schools or country inns. Farming immunity is more powerful than local politicians trying to please neighbors. 

So, who decides a neighbor's or city attorney's claim that a pot farmer is not being "reasonable and prudent"? Yes, a jury, but there's a big, big catch on that: If the neighbor loses, he will be ordered to pay the farmer's attorney's fees, likely tens of thousands of dollars, an order that might then be made a lien on the neighbor's house if he doesn't pay up! Pot farmers have no trouble finding lawyers to defend any lawsuits against them. While the winning neighbor also gets reimbursed attorney's fees, due to the powerful legal immunity the pot farmer is armed with, it's the neighbors who will have trouble finding a lawyer.

Risk tip to my clients: Don't farm while stoned.