Kentucky's Right-to-Farm Summary

Legislators passed Kentucky’s initial Right-to-Farm (RTF) law with the stated intention of conserving, protecting, but simultaneously developing and improving agricultural land.1 Since the law was first passed in 1980, the number of farms in the state dropped by 27% and the number of acres in farmland by 12%.2 So what does the state’s RTF law do in practice?

Kentucky’s RTF Law at a Glance

Kentucky’s RTF law provides no explicit protection for farmland. Rather, Kentucky’s RTF law, like those present in all other fifty states, centers around protecting certain types of operations from nuisance suits when they impact neighboring property, for example through noise or pollution. Initially, Kentucky defined protected agricultural operations as “without limitation, any facility for the production of crops, livestock, poultry, livestock products, or poultry products including horticultural and growing of timber.”3 However, in 1996 the law was amended to include equine, the application of pesticides and herbicides approved by a “public authority,” and the construction of buildings and other associated activities. That same year, silviculture gained its own protected section, inclusive of timber harvest, site preparation, slash disposal, controlled burning, insect and disease control, amongst other things required for “monetary profit.”4 Further, the amendment expanded the definition of agricultural operations to include “any generally accepted, reasonable, and prudent method for the operation of a farm to produce monetary profit.”5

Unique to Kentucky, a 2010 amendment introduced protections for sustainable agriculture operations, defined as “science-based practices that are supported by research and the use of technology, demonstrated to lead to broad outcomes-based performance improvements that meet the needs of the present, and that improve the ability of future generations to meet their needs while advancing progress toward environmental, social, and economic goals…”6 The law stipulates that Best Management Practices (BMPs) related to sustainable agriculture may be used to qualify for protection from nuisance suits. However, sustainable agricultural operations or agricultural operations more generally still receive RTF protection from nuisance suits even if they do not use BMPs.7 Rather, the RTF definition of agricultural operations includes those that use “any generally accepted, reasonable, and prudent methods.”8

RTF Conditions and Activities

Originally in 1980, Kentucky stipulated that agricultural operations could not become public or private nuisances if (1) local conditions changed around the operation after it had been operating for over a year; and (2) when the operation was a not a nuisance at the time it began.

However, in 1996 the law changed to substantially broaden protections for agricultural operations. Since then, operations are protected once they are up and running for over a year regardless of any changed conditions in their locality. A federal court interpreted this to mean that the RTF law only protects agricultural operations that were there before the neighbors filing suit.9 In the case, the neighbors’ residences predated the installation of intensive hog confinements and they filed suit after hogs were brought to the site.10 Relatedly, the court stated that parent companies or livestock producers that control aspects of hog-raising operations could be liable for the actions of the producers that they contract with.11

The 1996 amendments also changed the law to protect agricultural operations that have been in existence for at least a year regardless of any later changes in ownership.12 Further, such operations do not lose their protected status if they cease operations for five years or less or for one year after a state or national contract expires. The 1996 amendment also ensured protections for operations that change crops or methods of production due to the introduction and use of new and generally accepted technologies.13

Kentucky explicitly identifies corporations as protected by the RTF law.14

RTF and Local Governance

Kentucky’s RTF law prohibits local governments from using zoning or other ordinances that restrict the use of “normal” and “accepted” practices by silvicultural and agricultural operations.15 The Kentucky Court of Appeals has interpreted the law to apply only in areas zoned for agriculture, but not residentially-zoned areas.16

In response, some counties have passed their own ordinances with RTF language.17 In one case, a county attempted to require a conditional use permit for a fish-farming operation in an area that was zoned as low-density residential, which allowed for agricultural uses. The court held that the county’s own RTF ordinance prohibited it from restricting such agricultural use.18 The court also noted that farmers were afforded broad protections through the “agricultural supremacy clause,” meaning that conditional use permits or building permits for outbuildings could not be required.19

Courts have described the agricultural supremacy clause as exempting agriculture from the jurisdiction of local zoning ordinances and subdivision regulations, but not county land use or comprehensive planning.20 Typically, to qualify as an “agricultural use,” a parcel of land must consist of at least five continuous acres.21

  • 1. 1980 Ky. Acts 214 (H.B. 909).
  • 2. United States Department of Agriculture. 1980. USDA Quick Stats Tool: June 1980 Survey, Kentucky. Retrieved October 28, 2020. (https://quickstats.nass.usda.gov/results/A3A519CF-F11D-3C57-B8D3-1232C37EC4FB); United States Department of Agriculture. 2019. USDA/NASS 2019 State Agriculture Overview Kentucky. Retrieved October 28, 2020.
  • 3. 1980 Ky. Acts 214 (H.B. 909).
  • 4. 1996 Ky. Acts 91 (H.B. 335) (amending Ky. Rev. Stat. § 413.072).
  • 5. 1996 Ky. Acts 91 (H.B. 335) (amending, in relevant part, Ky. Rev. Stat. § 413.072(3)).
  • 6. 2010 Ky. Acts (H.B. 486) (amending, in relevant part, Ky. Rev. Stat § 413.072(3)).
  • 7. Ky. Rev. Stat. § 413.072(3) (2020); see also Ky. Rev. Stat. §§ 224.71-100 to 224.71-140 (2020).
  • 8. Ky. Rev. Stat. § 413.072(3) (2020).
  • 9. Powell v. Tosh, 929 F.Supp.2d 691 (2013) (It should be noted that federal court rulings have limited application to future state law cases).
  • 10. Powell v. Tosh, 929 F.Supp.2d 691 (2013).
  • 11. Powell v. Tosh, 929 F.Supp.2d 691 (2013).
  • 12. 1996 Ky. Acts 91 (H.B. 335) (amending, in relevant part, Ky. Rev. Stat. § 413.072(5)).
  • 13. 1996 Ky. Acts 91 (H.B. 335) (amending, in relevant part, Ky. Rev. Stat. § 413.072(5)).
  • 14. 1996 Ky. Acts 91 (H.B. 335) (amending, in relevant part, Ky. Rev. Stat. § 413.072(5)).
  • 15. Ky. Rev. Stat. § 413.072(2) (2020).
  • 16. Price v. Johnson, 2013 WL 2359728.
  • 17. See Waters, Doug. 2007. “Allen County drafting farm ordinance.” Daily News. February 3.; Harden, Crystal. 1996. “‘Right to Farm’ push on Boone farmers fear encroachment.” The Kentucky Post. February 13, pp. 2K.; and Associated Press. 1998. “Forewarned: Country has its smells, sounds." The Kentucky Post, September 4, pp. 12A.
  • 18. Oldham County Bd. of Adjustments and Appeals v. Davis, 2004 WL 1857309 (citing Ky. Rev. Stat. §§ 100.203, 413.072).
  • 19. Oldham County Bd. of Adjustments and Appeals v. Davis, 2004 WL 1857309.
  • 20. According to 21st Century Develop. Co., LLC v. Watts, 958 S.W.2d 25 (1997), even if the property or use is exempt from zoning under the “agricultural supremacy clause” or through case law, the comprehensive plan must still consider future changes and make recommendations. Therefore, in Nash v. Campbell Cnty. Fiscal Court, 345 S.W.3d 811 (2011), land used for agricultural purposes is exempt from most regulations.
  • 21. KY Rev. Stat. § 100.111(2) (2020); see also Nash v. Campbell Cnty. Fiscal Court, 345 S.W.3d 811 (2011); 21st Century Develop. Co., LLC v. Watts, 958 S.W.2d 25 (1997).