"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
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