Updated: Nov 11, 2020
By Kelly Nuckolls
The article is not a substitute for legal advice. See here for the site’s reposting policy.
I am going to discuss some of Delaware’s agricultural laws in my next few posts. To read more about ALEI’s partnership with the University of Delaware, click here. Recently, there have been a lot of questions about Delaware’s right-to-farm law, so this post will go over what the law does and does not cover.
What the Law Covers
Delaware’s right-to-farm law is an absolute defense to a nuisance claim in a lawsuit. What this means is a nuisance claim will be dismissed if the defendant meets all of the right-to-farm law requirements. A nuisance is a thing or activity interfering with another person’s enjoyment of his or her property. There are two types of nuisance claims: private and public. A private nuisance claim arises when something impacts individuals’ right to enjoy their property. A public nuisance claim arises when something impacts the public’s right to enjoy property. So, for example, if a new neighbor files a lawsuit in court claiming the manure smell from your farm is a private nuisance, you can use the right-to-farm defense. The claim will be dismissed if you have met the right-to-farm law requirements.
Delaware farms must meet the following requirements to use the right-to-farm defense:
First, the farm must fall under the definition of an agricultural operation. An agricultural operation is defined as an operation with the purpose of cultivating the land; producing agricultural crops, eggs, milk and milk products, fruit, horticultural crops, trees, livestock, bees, and/ or horses; raising poultry; operating a roadside stand where at least 50% of the products are directly from that farm; transporting any agricultural product to and from a market storage area; and all grain elevators, bins, feed mills, silos, and seed cleaners.
Second, the operation or any change in the operation must exist for at least one year at the time conditions begin to change in the area where the operation is located. For example, if a farm has operated for a little over a year, and the neighboring land is sold and becomes a housing development, the farm can use the right-to-farm defense if a neighbor in the new residential area files a nuisance claim.
Third, the farm operation must comply with all state and federal laws, permits, and regulations, as well as all local zoning and health regulations.
What the Law Does Not Cover
Delaware’s right-to-farm law does not provide a defense against other types of legal claims, like negligence. Negligence is a failure to exercise a standard of care that a reasonable, prudent person would exercise. For example, Joe knows his horses keep getting out because of a broken fence. Joe fails to repair the fence, and the horses escape and cause a car accident. Joe cannot use the right-to-farm law as a defense in this instance. Most likely, Joe will be liable for damages because a reasonable person would have repaired the fence when he or she first noticed the horses were getting out.
Trespass is another legal claim where Delaware’s right-to-farm defense will not apply. Trespass is when you or something under your control enters onto another person’s property without permission and interferes with the person’s right to use their property. For example, if your animals get out and eat your neighbor’s crops, you will not be able to use right-to-farm as a defense to any claim your neighbor files against you.
The federal, state, or even a local government can still enforce air, water, or other environmental quality standards against a farm. Farms must comply with federal, state, and local environmental standards; Delaware’s right-to-farm defense will not apply to these laws and regulations.
Delaware’s right-to-farm law also does not apply in any case where a person is attempting to recover damages for an injury due to pollution or change in the condition of waters of a stream or flooding onto the person’s land.
Delaware’s right-to-farm law may not be a defense to a nuisance claim brought by a neighbor who lived there before the agricultural operation. In the McKiver v. Murphy-Brown hog nuisance case in federal court in North Carolina, the court found North Carolina’s right-to-farm law did not apply because the personal residences existed before the hog operation. Right-to-farm laws differ depending on what state you are in, but Delaware does have language similar to North Carolina’s right-to-farm law. Read Sarah’s recent post about the case here.
Delaware’s law states an agricultural operation in existence for more than one year is not considered a nuisance “as the result of a changed condition in or about the locality where such agricultural or forestal operation is located.” A residential area built before the farm operation is probably not a “changed condition” in the area around the farm. Delaware’s right-to-farm law only provides the absolute defense to a claim which arose from a change in the area surrounding the already established farm.
To learn more about what right-to-farm laws do and do not cover, check out this fact sheet on Maryland’s right-to-farm law. Maryland’s law, however, is different from Delaware’s. What is covered under right-to-farm in Maryland may not cover the same operation or activity in Delaware, so be sure to consult any attorney if you have a question specific to your state.
To learn more about right-to-farm laws, read this post.
3 Del. C. § 1401 (2018).
10 Del. C. § 8141 (2018).