RIGHT TO FARM PRIVATE PROPERTY

• Jurisdiction: United States

Mineral Development and Land Use
(May 1995)
CHAPTER 12B
RIGHT TO FARM PRIVATE PROPERTY
John M. Evans
Western Agricultural Land Use Institute
Englewood, Colorado

Farming and ranching are important Colorado industries. The cash receipts from all agricultural commodities for Colorado's 25,300 farm and ranch operators totaled $4.1 billion in 1993.¹ Despite these impressive figures, the average total net farm income in Colorado was $35,270. Net individual income in Colorado has varied as much as $5,000 from one year to the next. Livestock and livestock products are the major contributor to Colorado's cash receipts with a total income of $2.9 billion.

With the growth of Colorado's population, residential and industrial development has encroached on agricultural land. This section reviews the so called right to farm laws. This right has several different sources. The first source is through the Colorado Revised Statutes Section 35-3.5-101 (Supp. 1994). Here, Colorado provides protection to agricultural operations from nuisance suits.² The second is by local counties through zoning or other restrictive local regulations that attempt to preserve agricultural land. Regardless of the source, these regulations are designed to prevent conflict between agriculture and non-agricultural interests resulting from the restriction on the use of the land for farm operations.

1. Protection for Farming Operations.

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C.R.S. 35-3.5-101 provides protection from nuisance suits.³ The problems arises when nonagricultural land uses extend into agricultural areas. The result is that agricultural operations can become the subject of nuisance suits. The Colorado Act provides:

An agricultural operation is not, nor shall it become, a private or public nuisance by any changed conditions in or about the locality of such operation after it has been in operation for more than one year, if such operation was not a nuisance at the time the operation began; except the provisions of this subsection (1) shall not apply in the case of a negligent operation or when a change in operation would result in a private or public nuisance or with a substantial increase in size of operations occurs.⁴

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California takes a similar approach. California Civil Code 3482.5 applies to both public and private nuisance. This means that both private individuals and governmental entities are limited from acting against protected agricultural operations on a nuisance theory. The Act provides:

"No agricultural activity, operation or facility or appurtenances thereof, conducted or maintained for commercial purposes, and in the 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 change condition in or about the locality, after...it has been in operation for more than three years if it was not a nuisance at the time it began." Cal. Civil Code Section 3482.5 (a)(1).

a. Broad General Application.

The effect of the statute in both states is to provide a broad general exemption to nuisance actions. However, the key terms used in California deserve note. These terms included in the exemption are "agricultural activity", "operation" or "facility or...