Joint Subcommittee Studying Industrial Swine Production

July 15, 1998, Richmond

The joint subcommittee held the first meeting of its second year to discuss the Right to Farm Act. A bill amending the Act was introduced during the 1998 Session, carried over, and referred to the subcommittee for study. The subcommittee heard from the patron of the legislation, Delegate Councill, as well from as representatives of two of the Virginia organizations most knowledgeable about the act, the Virginia Association of Counties (VACo) and Virginia Farm Bureau. The subcommittee also received an update on the implementation of the Agricultural Stewardship Act from the Department of Agriculture and Consumer Services.

History of the Right to Farm Act

As enacted in 1981, the act prevented agricultural operations from becoming public or private nuisances "by any changed conditions in or about the locality thereof" after the operation had existed for one year. This exception to nuisance law did not apply if the nuisance had resulted from improper operation or there had been a significant change in the operation. Under the common law, a nuisance is the use of one's property in a way that interferes with another's use of his property (private nuisance) or in a way that endangers the public's health, safety or welfare (public nuisance). In 1994 the act's nuisance provisions were strengthened by replacing the requirement that the operation had been in operation for more than a year with a requirement of compliance with best management practices and existing laws and regulations.

The 1994 amendments also added a restriction on local government power. As amended, the act prohibits counties from requiring special exceptions or special use permits "for any production agriculture or silviculture activity in an area that is zoned as an agricultural district or classification" and provides that "no county, city or town shall enact zoning ordinances which would unreasonably restrict or regulate farm structures or farming and forestry practices in an agricultural district or classification unless such restrictions bear a relationship to the health, safety and general welfare of its citizens." The act specifically allows counties, however, to "adopt setback requirements, minimum area requirements, and other requirements that apply to land on which agriculture and silviculture activity is occurring within the locality that is zoned as an agricultural district or classification."

House Bill 863

House Bill 863 (1998) would eliminate the 1994 amendments to the act. Delegate Councill told the subcommittee that he introduced the legislation out of concern that the 1994 changes to the law were creating a difficult situation for localities whose citizens oppose large hog farms and other kinds of intensive agricultural operations, as well as unnecessary discord among local governments and farmers. He emphasized that, having been the patron of the original act in 1981, he has always been a staunch supporter of agriculture. In his view, however, the 1994 amendments to the Right to Farm Act did not strike an appropriate balance between protecting the ability of farmers to earn a living and preserving the ability of local governments to provide for the needs of their citizens by regulating land use.

The Farm Bureau representative agreed that local governments should have the flexibility to make land use decisions. He contended that the authority to impose setbacks and other requirements provides sufficient flexibility, so that special use permit requirements for agricultural uses in agricultural zones are unnecessary. Rural residents should not be able to prevent a farmer from raising livestock in an agricultural zone so long as he does so responsibly.

The VACo representative suggested that the root of disagreements over the extent to which localities should be able to control the siting of confined animal feeding operations is different views of the nature of the operations. Some people consider such operations to be farms, while others believe that they are industrial operations.

Confined Feeding Operation Ordinances

Because the Right to Farm Act specifically allows localities to regulate agricultural operations by adopting setbacks and other conditions, many counties have amended their zoning ordinances to impose such requirements on confined animal feeding operations. Both VACo and the Farm Bureau have assisted counties in drafting these ordinances. To date, 32 counties have amended their ordinances, and at least three are currently considering changes. Common provisions of the ordinances include requirements pertaining to: Determining where setbacks should be imposed and the lengths of setbacks can be a very controversial task for counties, and the setbacks imposed by different counties vary widely. One county requires a setback from any dwelling not owned by the farmer of 500 feet, while another requires 2,500 feet. One county requires a setback from any adjoining district of 1,000 feet, while another requires 3,500 feet. One county requires a setback from any drinking water sources of 200 feet, while another requires a setback of 5,280 feet from any impoundment which is a drinking water source. Two counties are currently defending lawsuits in which the plaintiffs allege that the county's confined animal feeding operation ordinance violates the Right to Farm Act's prohibition on unreasonable regulation of farming practices.

Some counties have divided rural areas into different zones. Amelia County, for example, has four rural classifications: the A-5 Agricultural district allows intensive agricultural uses (such as confined animal feeding operations) by right; the RP-5 Rural Preservation district allows expansion of existing intensive agricultural operations by right and requires a special exception for new intensive operations; the RR-3 Rural Residential district allows expansion of intensive operations with a special exception; and the RR-1 Rural Residential district allows only limited agriculture.

Agricultural Stewardship Act

The deputy commissioner of Agriculture and Consumer Services pronounced the agency's first year of implementing the Agricultural Stewardship Act a success. From April 1, 1997, through March 31, 1998, the agency received 75 inquiries regarding agricultural activities that may have been causing pollution. Of these, 46 became official complaints. Of those, 24 were determined to be unfounded, 19 were determined to be founded, and two are still under investigation. Thirty-nine complaints concerned livestock operations, two of which were for farms with fewer than 10 animals. The deputy director also stated that farmers have been cooperative in responding to complaints.

Future Meetings

The subcommittee, which will meet again in September, discussed several possible agenda topics for future meetings, including the availability of accurate soil information for nutrient management planning, water quality in agricultural areas outside of the Chesapeake Bay watershed, and developing farm waste management technologies.

The Honorable Mitchell Van Yahres, Chairman
Legislative Services contact: Nicole R. Beyer