North Carolina § 106-701 - Right to farm defense; nuisance actions.

§ 106-701. Right to farm defense; nuisance actions.

No nuisance action may be filed against an agricultural or forestry operation unless all of the following apply: The plaintiff is a legal possessor of the real property affected by the conditions alleged to be a nuisance. The real property affected by the conditions alleged to be a nuisance is located within one half-mile of the source of the activity or structure alleged to be a nuisance. The action is filed within one year of the establishment of the agricultural or forestry operation or within one year of the operation undergoing a fundamental change. For the purposes of subsection (a) of this section, a fundamental change to the operation does not include any of the following: A change in ownership or size. An interruption of farming for a period of no more than three years. Participation in a government-sponsored agricultural program. Employment of new technology. A change in the type of agricultural or forestry product produced. Repealed by Session Laws 2018-113, s. 10(a), effective June 27, 2018. For the purposes of this Article, "agricultural operation" includes, without limitation, any facility for the production for commercial purposes of crops, livestock, poultry, livestock products, or poultry products. For the purposes of this Article, "forestry operation" shall mean those activities involved in the growing, managing, and harvesting of trees. The provisions of subsection (a) shall not affect or defeat the right of any person, firm, or corporation to recover damages for any injuries or damages sustained by him on account of any pollution of, or change in condition of, the waters of any stream or on the account of any overflow of lands of any such person, firm, or corporation. Any and all ordinances of any unit of local government now in effect or hereafter adopted that would make the operation of any such agricultural or forestry operation or its appurtenances a nuisance or providing for abatement thereof as a nuisance in the circumstance set forth in this section are and shall be null and void. Provided, however, that the provisions shall not apply whenever a nuisance results from an agricultural or forestry operation located within the corporate limits of any city at the time of enactment hereof. This section shall not be construed to invalidate any contracts heretofore made but insofar as contracts are concerned, it is only applicable to contracts and agreements to be made in the future. In a nuisance action against an agricultural or forestry operation, the court shall award costs and expenses, including reasonable attorneys' fees, to: The agricultural or forestry operation when the court finds the operation was not a nuisance and the nuisance action was frivolous or malicious; or The plaintiff when the court finds the agricultural or forestry operation was a nuisance and the operation asserted an affirmative defense in the nuisance action that was frivolous and malicious. History (1979, c. 202, s. 1; 1991 (Reg. Sess., 1992), c. 892, s. 1; 2013-314, s. 1; 2018-113, s. 10(a).) Editor's Note. - Session Laws 2013-314, s. 3, made the amendment to this section by Session Laws 2013-314, s. 1, which amended subsection (a), added subsections (a1), (a2), and (f), and amended subsection (b1), applicable to actions commenced or brought on or after July 18, 2013. Session Laws 2015-79, s. 3, provides: "The provisions of G.S. 106-701 shall apply to the North Carolina State University Central Crops Research Station tract described in Section 1 of this act." Session Laws 2015-79, s. 1, provided for the annexation by the Town of Clayton of "All those certain tracts, parcels, or pieces of land commonly known as the North Carolina State University Central Crops Research Station, lying and being in Johnston County and Wake County . . ." Session Laws 2015-79, s. 4, provides: "The keeping of swine as part of a research or educational mission on the North Carolina State University Central Crops Research Station tract described in Section 1 of this act shall be exempt from any municipal ordinance governing the keeping of swine." Session Laws 2015-79, s. 1, provided for the annexation by the Town of Clayton of "All those certain tracts, parcels, or pieces of land commonly known as the North Carolina State University Central Crops Research Station, lying and being in Johnston County and Wake County . . ." Session Laws 2018-113, s. 10(c), made the amendment of this section by Session Laws 2018-113, s. 10(a), effective June 27, 2018, and applicable to causes of action commenced on or after that date. Session Laws 2018-113 provides in its preamble: "Whereas, frivolous nuisance lawsuits threaten the very existence of farming in North Carolina; and "Whereas, in response to the long-standing threat to agriculture, in 1979 the General Assembly enacted the State's first effort to statutorily protect the ability of farms and forestry operations to continue to operate as surrounding development encroached; and "Whereas, following the 1979 enactment, at least three succeeding General Assemblies in 1992, 2013, and 2017 tried to perfect a statutory framework that broadly fosters a cooperative relationship between farms and forestry operations and their neighbors across North Carolina; and "Whereas, recently a federal trial court incorrectly and narrowly interpreted the North Carolina Right to Farm Act in a way that contradicts the intent of the General Assembly and effectively renders the Act toothless in offering meaningful protection to long-established North Carolina farms and forestry operations; and "Whereas, regrettably, the General Assembly is again forced to make plain its intent that existing farms and forestry operations in North Carolina that are operating in good faith be shielded from nuisance lawsuits filed long after the operations become established; Now, therefore," Sessions Laws 2018-113, s. 16(a), is a severability clause. Effect of Amendments. - Session Laws 2013-314, s. 1, effective July 18, 2013, substituted "or about the locality outside of the operation" for "locality" in the section heading; in subsection (a), substituted "outside of the operation after the operation" for "thereof after the same" and deleted "provided, that the provisions of this subsection shall not apply whenever a nuisance results from the negligent or improper operation of any such agricultural or forestry operation or its appurtenances" at the end; added subsections (a1), (a2) and (f); and deleted "but not sawmill operations" at the end of subsection (b1). For applicability, see editor's note. Session Laws 2018-113, s. 10(a), rewrote subsection (a); substituted "For the purposes of subsection (a) of this section, a" for "The provisions of subsection (a) of this section shall not apply when the plaintiff demonstrates that the agricultural or forestry operation has undergone a fundamental change. A" in subsection (a)(1); deleted former subsection (a2) which read: "The provisions of subsection (a) of this section shall not apply whenever a nuisance results from the negligent or improper operation of any agricultural or forestry operation or its appurtenances."; and substituted "void. Provided, however," for "void; provided, however, that the provisions of this subsection shall not apply whenever a nuisance results from the negligent or improper operation of any such agricultural or forestry operation or any of its appurtenances. Provided further," in the middle of subsection (d). For effective date and applicability, see editor's note. Legal Periodicals. - For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980). For comment, "The Eight Million Little Pigs - A Cautionary Tale: Statutory and Regulatory Responses to Concentrated Hog Farming," see 31 Wake Forest L. Rev. 851 (1996). For article, "Looking Beyond the Title Search: Attorneys Must Consider Environmental Regulations," see 25 N.C. Cent. L.J. 182 (2003). For article, "The 'Right to Commit Nuisance' in North Carolina: A Historical Analysis of the Right-to-Farm Act," see 94 N.C.L. Rev. 2097 (2016).