Delaware's Right-to-Farm Summary

In 1980, legislators passed Delaware’s first version of a right-to-farm law and later justified it as a tool to protect the state’s agricultural resources from nonagricultural land uses.1 Since that time, the number of farms in the state has dropped by 34 percent, with 18 percent fewer acres of farmland.2 So what does this legislation do in practice?

Delaware’s RTF Law at a Glance

Delaware’s RTF related statutes, like those present in the other forty-nine states, centers on protecting certain types of operations from nuisance suits when they impact neighboring property, for example through noise or pollution. The RTF statutes themselves provide no explicit protection for farmland or family farms. In practice, this means that land is not tied to RTF protections; rather, such protections apply generally to agricultural operations.3 The state defines protected agricultural operations as those engaged in producing or raising crops, poultry, eggs, milk and related products, livestock, bees, horses, or forestry products or in the cultivation of land more generally.4 Protected agricultural operations also include structures such as grain elevators and feed mills, as well as the transportation of agricultural products to and from various storage areas.

Delaware’s RTF related statutes also tie into the state’s 1991 Agricultural Lands Preservation Act, where property owners who agree not to develop their lands for at least ten years receive tax benefits, RTF protections, and an opportunity to sell their preservation easement to the state to permanently protect it from development.5 An Agricultural Preservation District contains at least 200 usable and contiguous acres.6 Any parcel of land that is less than 200 acres but within three miles of an established district can be enrolled (and thus expand the district). 7

Conditions and Activities

Delaware law has two primary RTF statutes that provide protections to agricultural operations from either private nuisance suits (those brought by people, like neighbors) or public nuisance suits (those brought by the government on behalf of the general public).8 One statute protects agricultural operations that have been operating for more than one year from being deemed a public or private nuisance by any changed conditions that occur in or around their location.9 The one-year clock begins either with the start of the operation or when the operation changes, so long as the operation was not a nuisance when it began or when it changed. However, the statute does not define what constitutes a change in operation and thus what would restart the one-year clock. Under this statute, operations lose RTF protections if they are negligent (not acting with appropriate care), if they are conducted in an improper manner, or if they do not comply with federal, state, or local health or zoning requirements.10 Moreover, this law does not protect operations against certain types of environmental damages. For example, federal, state, and local agencies may still enforce air, water quality, or other environmental standards against agricultural operations.11 In addition, people, firms, or corporations can recover damages from an agricultural operation that causes overflow onto their land or if the operation pollutes and/or changes the condition of water. 12

A separate Delaware statute similarly provides protections to agricultural operations, as well as forestry operations, that have been operating for more than one year.13 These operations cannot be deemed a public or private nuisance by any changed conditions that occur in or around their location. This statute, however, was amended in 2010 to provide even greater protections to agricultural and forestry operations by also giving them an absolute defense from nuisance suits (meaning they are immune from liability) if they can prove they have been in operation for at least a year and so long as they are in compliance with all relevant state and federal laws, regulations, and permits.14 The absolute defense from nuisance suits also applies to an operation’s employees and principals.

Local Governance

The RTF protections void any local governmental ordinance that attempts to regulate or stop agricultural nuisances. However, this law does not apply if there has been a significant change in the operation itself or if the nuisance results from a failure to utilize “good agricultural practices.”15 Delaware law presumes that operations utilize good agricultural practices as long as they are in compliance with all applicable state and federal laws, regulations, and permits.16 In addition, state or local law enforcement agencies cannot bring a criminal or civil action against an agricultural operation for any activity that complies with state and federal laws, regulations, and permits.17

Agricultural operations participating in Agricultural Preservation Districts receive further protection against claims of nuisance.18 Property deeds in subdivisions within 300 feet of an Agricultural Preservation District come with a notice about agricultural chemicals, nighttime operations, manure, dust, noise, and other odors. The notice also states that “the use and enjoyment of this property is expressly conditioned on acceptance of any annoyance or inconvenience which may result from such normal agricultural uses and activities.”19 As long as lawful, the preservation statute treats agricultural uses and activities in such districts as “protected actions” that no existing or future municipal codes and ordinances can regulate.20

In addition, the state’s agricultural preservation law requires that villages, when considering a new subdivision development, provide a fifty-foot setback from any Agricultural Preservation District.21 For example, a developer sued the Delaware Agricultural Lands Preservation Foundation after the state agency approved an Agricultural Preservation District adjacent to a planned residential subdivision.22 The developer argued that the fifty-foot setback required on the subdivision’s property constituted an unconstitutional taking of property. Initially, the Delaware Superior Court ruled that the developer had to provide the setback.23 However, the state’s supreme court later ruled that because the development predated the proposed Agricultural Preservation District, the developer did not have to provide a setback.24

Attorney Fees

Delaware’s two main RTF related statutes do not provide any specific provisions for attorney fees. However, if a lawsuit alleging nuisance is filed against owners of lands in an Agricultural Preservation District and the owners prevail, the owners are entitled to recover costs and expenses related to the lawsuit, including attorney fees.25 This, and similar language, may have a chilling effect on the filing of nuisance suits in favor of industrial operators.26

  • 1. Del. Code tit. 3, § 1401 (1980). For the justification of later RTF amendments, see 71 Del. Laws 462 (1998) (H.B. 609) (adding Del. Code tit. 10, § 8141).
  • 2. U.S. Department of Agriculture, USDA Quick Stats Tool: June 1980 Survey, Delaware, distributed by National Agricultural Statistics Service, accessed December 8, 2020,; “2021 State Agriculture Overview: Delaware,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022,
  • 3. Del. Code tit. 3, § 1401 (2021); Del. Code tit. 10, § 8141(a) (2021).
  • 4. Del. Code tit. 10, § 8141(a) (2021).
  • 5. For the laws on Agricultural Preservation Districts, see Del. Code tit. 3, §§ 907–911 (2021). See also Antonio Prado, “65 Farms Permanently Preserved by Agricultural Lands Preservation Foundation,” Dover Post, January 4, 2013; and “Del. Hits Farm Preservation Milestone,” Delaware State News (Dover), March 21, 2009.
  • 6. Del. Code tit. 3, § 907(a) (2021).
  • 7. Del. Code tit. 3, § 907(d) (2021); “Preservation Program Helps Protect Farmland, Open Space,” Middletown (Del.) Transcript, April 4, 2013.
  • 8. See generally Del. Code tit. 3, § 1401 (2021), and Del. Code tit. 10, § 8141 (2021).
  • 9. Del. Code tit. 10, § 8141(c) (2021).
  • 10. Del. Code tit. 10, § 8141(b)(1), (3) (2021).
  • 11. Del. Code tit. 10, § 8141(b)(2) (2021).
  • 12. Del. Code tit. 10, § 8141(d) (2021).
  • 13. Del. Code tit. 3, § 1401 (2021).
  • 14. 77 Del. Laws 376 (2010) (S.B. 265) (amending Del. Code tit. 3, § 1401)
  • 15. Del. Code tit. 3, § 1401 (2021); Del. Code tit. 10, § 8141(e) (2021).
  • 16. Del. Code tit. 3, § 1401 (2021).
  • 17. Del. Code tit. 3, § 1401 (2021).
  • 18. Del. Code tit. 3, § 910(b) (2021)
  • 19. Del. Code tit. 3, § 910(a)(1) (2021).
  • 20. Del. Code tit. 3, § 910(b) (2021).
  • 21. Del. Code tit. 3, § 910(a) (2021).
  • 22. In re 244.5 Acres of Land in the Vill., LLC v. Del. Agric. Lands Found., 808 A.2d 753, 758 (Del. 2002).
  • 23. In re 244.5 Acres of Land the Vill., L.L.C. v. Del. Agric. Lands Found., No. Civ.A. 98C-02-021, 2001 WL 1469155 (Del. Super. Ct. Aug. 22, 2001).
  • 24. In re 244.5 Acres of Land in the Vill., LLC, 808 A.2d at 758.
  • 25. Del. Code tit. 3, § 910(b) (2021).
  • 26. Cordon M. Smart, “The ‘Right to Commit Nuisance’ in North Carolina: A Historical Analysis of the Right-to-Farm Act,” North Carolina Law Review 94, no. 6 (2016): 2097–154.