Before we get into this subject, I have to make a couple of corrections. We have been operating under the assumption that Jeff’s neighbor already signed the contract with Cobb. We now believe that he has not signed the contract yet. This makes it more likely that we can resolve this issue without resorting to legal action. Second, each chicken house holds 20,000 birds, making the total number of chickens 40, not 80 thousand. Still a large number, but I prefer to be accurate. It is these types of errors that have me wary of releasing the hounds upon our adversaries in this fight. Many details may still emerge and need correction, and I want our statements to be as accurate as possible, lest we be characterized as exaggerating or worse, lying for effect.
Many of you reading this may be really wanting to take some action right now. Please be patient. We want to try basic communication and cooperation to put this to rest. We are not litigious, and hope that a resolution can be found without the courts. If the time should come when we need people to act, I promise to ask for your help. For now, be careful what you say, and especially of badmouthing Jeff’s neighbor or Cobb. I know how tempting it is to smear those who threaten, through ignorance, selfishness, or malice, Jeff’s farm and livelihood, or that of any small farmer of whose methods we approve. Cooler heads and measured responses will get us much further in this fight.
Just to be clear- I am not a lawyer. I am simply doing my best to understand the laws that govern this dilemma, and how we might mount a defense. In the end, the lawyers we are consulting may have to take this to the next level, but both Jeff and I hope to find a better, more human solution.
Now, as to the law. I mentioned in my previous post that Macon County has a nuisance law that protects citizens from the bad choices of their neighbors. I also mentioned that Macon county’s nuisance law is on the verge of being changed, presumably by Cobb, which exempts farming operations from nuisance suits. As it turns out, thanks to a reader who sent me a helpful email, that the state of Tennessee has laws addressing these issues too. State laws trump county laws, just as federal laws trump state laws. In other words, counties may enact their own laws as long as they don’t break state laws. The text of the state law appears in full, below my comments, for you to read, but I want to explain how I think this can help us.
First, the state law begins with the presumption that farms are not a nuisance. It also recognizes this presumption as open for rebuttal, and offers criteria which we must meet for rebuttal to be considered. It stipulates that a “new type of farming operation” may qualify. It then defines this- “a new type of farming operation”means a farm operation that is materially different in character and nature from previous farming operations and that is initiated subsequent to the date that the person alleging nuisance became the owner or lessee of the land, the use or enjoyment of which is alleged to be affected by the farming operation.”
Jeff has lived on this property for 15 years, and the whole of that time, his neighbor grew tobacco, without chemicals, in the field where the chicken houses are to be built. Jeff’s long tenure on this land meets the requirement that he lived there before the new farming operation was initiated. The shift from tobacco to two chicken houses, each holding 20,000 birds, is an operation that is “materially different” than growing tobacco. This should firmly establish the chicken houses as a new type of farming operation.
Next we must show nuisance, that Jeff’s “use or enjoyment “of his land is affected by this new type of farming next door. While it is easy to grasp that this will affect Jeff’s enjoyment of the land, establishing a legal definition and providing legal proof of that fact may be harder to show. Showing that Jeff’s use of the land is affected depends largely on how the court defines “use”. If by use they mean simply that his crops will still grow, or that water still emerges from the spring, we may run into trouble. If, on the other hand, use is defined by the practices used for years on the land, the biodynamic and organic practices Jeff uses will easily be affected by the chicken houses, as will the purity of the water coming from the spring. We believe this meets the standards required by law to show nuisance.
We are still learning more each day, and have identified other areas of the law that might apply in this situation. We are exploring everything we can think of as a means to put a stop to this. I will write about the other options more as they become clearer and better defined. Thanks for being willing to help in this matter, and keep checking for updates.
Tennessee Code 43-26-103 – Farms presumed not nuisances
(a) It is a rebuttable presumption that a farm or farm operation, except a new type of farming operation as described in subsection (b), is not a public or private nuisance. The presumption created by this subsection (a) may be overcome only if the person claiming a public or private nuisance establishes by preponderance of the evidence that either:
(1) The farm operation, based on expert testimony, does not conform to generally accepted agricultural practices; or
(2) The farm or farm operation alleged to cause the nuisance does not comply with any applicable statute or regulation, including without limitation statutes and regulations administered by the department of agriculture or the department of environment and conservation.
(b) With regard to the initiation of a new type of farming operation, there is a rebuttable presumption that the new type of farm operation is not a public or private nuisance, if the new type of farming operation exists for one (1) year or more on the land that is the subject of an action for nuisance before the action is initiated. The presumption created by this subsection (b) may be overcome only if the person claiming a public or private nuisance establishes by a preponderance of the evidence that either:
(1) The new type of farm operation, based on expert testimony, does not conform to generally accepted agricultural practices; or
(2) The new type of farm operation alleged to cause the nuisance does not comply with any applicable statute or regulation, including without limitation statutes and regulations administered by the department of agriculture or the department of environment and conservation.
(c) As used in this section, “new type of farming operation” means a farm operation that is materially different in character and nature from previous farming operations and that is initiated subsequent to the date that the person alleging nuisance became the owner or lessee of the land, the use or enjoyment of which is alleged to be affected by the farming operation; “new type of farming operation” does not include the expansion or addition of facilities for a type of farming operation that existed on the land that is the subject of an action for nuisance prior to the date that the person alleging nuisance became the owner or lessee of the land, the use or enjoyment of which is alleged to be affected by the farming operation.
(d) Nothing in this section shall be construed as limiting the ability of the trier of fact to determine whether a particular farming activity is either a new type of farming operation as defined in this section, or is an expansion of or addition to an existing type of farming operation.
[Acts 1982, ch. 609, § 3; 2002, ch. 604, § 1.]