Illinois's Right-to-Farm Summary

Legislators justified Illinois’s 1981 right-to-farm law and subsequent amendments as tools to prevent the loss of farmland.1 Since that time, the number of farms in the state has dropped by 28 percent, with 6 percent fewer acres of farmland.2 So what does this legislation do in practice?

Illinois’s RTF Law at a Glance

Although land is used in its definition of farming, Illinois’s “Farm Nuisance Suit Act” provides no explicit protection for land or for family farmers. Rather, Illinois’s RTF law, 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. In 2018, the law expanded its definition of farming to add horses to an expansive list that includes crops, livestock, and “any other agricultural or horticultural use or combination.”3 Following a 1995 amendment to Illinois’s RTF law, the burden of litigation fees falls on the plaintiffs (typically the local government and neighboring property owners) in the event they lose in court and the defendant takes no corrective action.4 In contrast, defendants (typically agricultural operations) are not required to pay such fees in the event they lose. This fee-shifting provision was upheld by an Illinois court in 2020. Local property owners sued corporate hog farm operators, arguing that the provision was a violation of the special legislation clause within Illinois’s state constitution. 5 The court held in favor of the corporate concentrated animal feeding operation, determining that the fee-shifting provision was not a violation of the state constitution. 6

Conditions and Activities

Once in operation for one year, farms and their related properties cannot be declared a nuisance as long as the operation was not a nuisance at the time it began.7 Even if conditions change in the surrounding area, ownership changes, or the type of agricultural use changes, the one-year time clock for immunity does not restart, so long as land use remains agricultural.8 Courts have treated new or changed ordinances as a “changed condition,” in effect barring lawsuits that come after any agricultural use.9 Any agricultural use can be treated as the same agricultural use, meaning the clock does not restart when a farm changes, for example, from a corn field to a CAFO.

What constitutes a change in the surrounding area plays an important role in RTF outcomes. In a 2012 case, the Illinois Supreme Court ruled that a new cattle operation was not a nuisance, because the owners of the adjacent land and farmhouse had changed. A father had willed his century-old farmhouse, which was on 160 acres of farmland, to his son, who was one of the plaintiffs. While the father had farmed the land long prior to the cattle operation’s arrival, the court considered a family exchange of landownership a “changed condition” for the old farmhouse. However, it did not apply the same level of scrutiny to the new cattle operation.10

To receive RTF protection, farms must not be operating improperly or negligently. The law still allows persons to recover damages for injuries caused by (1) pollution of water; (2) any changed conditions in the waters of any stream; or (3) harm caused by the overflow of water onto land.11 While air pollution is not similarly referred to, courts have held that the Farm Nuisance Suit Act does not provide a defense against air pollution violations under the state’s Environmental Protection Act.12

Local Governance

Illinois’s Farm Nuisance Suit Act does not address the power of local government but still has an impact on the validity of ordinances. In 2015, a court used the RTF law as a basis for denying a village’s enforcement of a nuisance ordinance against a farm.13 One month prior to the transition of a tree and grass nursery to a commercial corn and soybean growing operation, the village amended an existing ordinance prohibiting farm animals to also prohibit other types of commercial farming. The court ruled the ordinance was invalid, stating, “It is well established that municipalities may not adopt ordinances which infringe upon the spirit of the state law or are repugnant to the general policy of the state… A local ordinance which infringes upon the legislative intent of a state statute is preempted.” In addition, the Illinois Counties Code and the Illinois Livestock Management Facilities Act explicitly limit the power of counties to regulate nuisances when the land is not zoned or is zoned as agricultural.14 A farming operation that is a prevailing defendant can recover costs and expenses, including attorney fees, “reasonably incurred” in its defense. Prevailing defendants are those with the final court order or judgement in their favor, which does not include a negotiated settlement or taking any corrective action.15 Notably, the reverse is not true: prevailing plaintiffs are not automatically awarded attorney fees, which may have a chilling effect on the filing of nuisance litigation.

  • 1. 740 Ill. Comp. Stat. 70/0.01 (1981); “Farm Bureau Adopts Land Policy,” Farmers’ Weekly Review 59, no. 47 (May 7, 1981): 1.
  • 2. U.S. Department of Commerce, “Table 1. Farms, Land in Farms, and Land Use: 1982 and Earlier Census Years,” in 1982 Census of Agriculture, Volume 1: Geographic Area Series, Part 13: Illinois State and County Data, Chapter 1: State Data (Washington, D.C.: U.S. Bureau of the Census, 1984),; “2021 State Agriculture Overview: Illinois,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022,
  • 3. 740 Ill. Comp. Stat. 70/2 (2021). Effective January 1, 2018, the law was amended to add horse boarding and horse keeping. See 2017 Ill. Laws ch. 447 (S.B. 1529) (amending 740 Ill. Comp. Stat. 70/2).
  • 4. 1995 Ill. Laws ch. 256 (H.B. 1940) (adding 740 Ill. Comp. Stat 70/4.5).
  • 5. Marsh v. Sandstone N., LLC, 179 N.E.3d 402 (Ill. App. Ct. 2020).
  • 6. Marsh, 179 N.E.3d 402.
  • 7. 740 Ill. Comp. Stat. 70/0.01, et seq. (2021).
  • 8. Vill. of Chadwick v. Nelson, 95 N.E.3d 1230 (Ill. App. Ct. 2017).
  • 9. Vill. of LaFayette v. Brown, 27 N.E.3d 687 (Ill. App. Ct. 2015).
  • 10. Toftoy v. Rosenwinkel, 983 N.E.2d 463 (Ill. 2012).
  • 11. 740 Ill. Comp. Stat. 70/4 (2021).
  • 12. Donetta Gott, Lyndell Chaplin, Gary Wells, Ernest L. Ellison v. M’orr Pork, Inc., No. PCB#96-68, 1997 WL 85191 (Ill. Pol. Control. Bd. Feb. 20, 1997) (noting that the Illinois Supreme Court has held that actions under the Environmental Protection Act “alleging air pollution are distinct from common law nuisance claims” and quoting Incinerator, Inc. v. Pollution Control Bd., 319 N.E.2d 794, 799 (Ill. 1974) (“violations of the Act here in question are not defined in terms of nuisances”)).
  • 13. Vill. of LaFayette, 27 N.E.3d 687
  • 14. 55 Ill. Comp. Stat. 5/5-12001 (2021); 510 Ill. Comp. Stat. 77/12 (2021).
  • 15. 740 Ill. Comp. Stat. 70/4.5 (2021).