Wisconsin’s farm industry has made its way into the headlines often in the last couple of years, with our state often seen as emblematic of the economic issues in modern agriculture: commodity prices tumbled, small farms dwindled, and large-scale concentrated animal feeding operations (CAFOs) were on the rise.
Yet, the boundaries of Wisconsin’s Right to Farm law have remained largely undeveloped since it was expanded in 1990s. Administrative rule changes proposed in 2019 by the Wisconsin Department of Agriculture, Trade, and Consumer Protection have brought the law back into the spotlight, with substantial potential changes to rules on siting, setbacks, and odor control aimed at reducing nuisance concerns.
History of Wisconsin Right to Farm
Since the early 1980s, Wisconsin law has largely favored and protected the rights of farmers to farm their land and even expand operations over the objections of nearby landowners, provided that the farming activity did not harm “public health or safety.”1
The initial “Right to Farm” law was enacted in 1982. It was largely seen as a reaction to the Wisconsin Supreme Court’s decision in favor of the state’s public nuisance claim against a large egg producer in State v. Quality Egg Farm, Inc.2
com dettmann hplawoffice Cathleen A. Dettmann, U.W. 2009, is a shareholder with Palmersheim Dettmann, S.C., Middleton, where she practices business law and business litigation, including work with family farms and succession planning.
In the 1990s, the law was expanded to effectively eliminate private nuisance claims against farmers so long as the agricultural use was in place before the plaintiff began using the neighboring land, and the use of the land “does not present a substantial threat to public health or safety.”3
This standard is significantly higher for plaintiffs than that which applies in a standard nuisance claim, which does not require a public safety threat for the claim to be successful. Rather, a typical private nuisance plaintiff must show that the use at issue is an “unreasonable and substantial interference with the use and enjoyment of one’s property.”4
The Right to Farm law not only sets a higher burden for plaintiffs over all, it also requires that the plaintiff not “come to the nuisance.” This is true even if the agricultural use has intensified or expanded over time.5 So, a resident of rural Wisconsin might purchase a country home adjacent to small dairy farm, but years later find themselves next to a 24-hour CAFO without a realistic right of action to contest the expansion and its impact on their property.
Lastly, the Right to Farm law significantly limits the available remedies even if plaintiffs are successful, and also provides that an unsuccessful plaintiff must pay the defendant’s attorney fees. These limitations and potential penalties have resulted in a significant chilling effect for potential litigants, and the parameters of the Right to Farm law have remained largely unchallenged.
Generally speaking, the Right to Farm law empowers local governments to enact zoning rules aimed at farming practices, including rules which can make the presence of CAFOs more palatable for local communities. However, only a very small percentage of local governments have done so.
Back in the Spotlight
Wisconsin’s livestock facility siting law (Wis. Stat. section 93.90) and recent proposed rule changes associated with that law (Wis. Admin. Code chapter ATCP 51) have brought issues associated with Right to Farm controversies back into the spotlight.
The Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) is now proposing rule changes on a number of items that are often the subject of nuisance complaints, including:
changes to the rules for odor management plans;
requiring more stringent testing and evaluations for waste storage facilities; and
increasing setback requirements for facilities with a high number of animal feeding units.
Many of these changes are geared toward ameliorating the impact of intensive farming operations on neighboring properties and associated nuisance concerns.
Status of the Proposed Changes
The DATCP board was supposed to take action on the proposed changes at its Nov. 7, 2019, meeting, but intense debate and hundreds of written and verbal comment submissions led the department to pull the rule from the board’s consideration.
A third “technical advisory group” is working on the continued evaluation of the rule. However, the statute requires that ATCP 51 be evaluated every four years, and this delay likely means that the rule changes will not be timely passed.
In short, while the proposed changes to ATCP 51 have engendered significant debate about agricultural use of land in large animal feeding operations and their impact on the local communities, the status of the changes and the next steps in implementing them remain unclear.
More information on the proposals and their impact on rural communities can be found on the DATCP website. Note that you can choose to receive updates via email via a link at the bottom of the page.
1 Wis. Stat. § 823.08(3)(1982), repealed and recreated by 1995 Act 149.
2 State v. Quality Egg Farm, Inc., 104 Wis. 2d 506, 311 N.W.2d 650.
3 Wis. Stat. § 823.08(3)(a)2.
4 Quality Egg, 104 Wis. 2d at 518.
5 Wis. Stat. § 823.08(3)(am).