North Carolina's Right-to-Farm Summary

Legislators proposed Right-to-Farm (RTF) in North Carolina as a tool to “encourage the development and improvement of its agricultural land and forestland for the production of food, fiber, and other products.”1 Since passing its first RTF law in 1979, the state has 50% fewer farms and 28% fewer acres of farmland.2 So what does this legislation do in practice?

North Carolina RTF Law at a Glance

North Carolina’s RTF law provides no explicit protection for farmland. Rather, North Carolina’s RTF law, like those present in all other fifty states, centers around protecting certain types of agricultural and forestry operations from nuisance suits when they impact neighboring property, for example through noise or pollution. The state defines nuisance as actions that are “injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property.”3 North Carolina’s RTF law protects agricultural operations and facilities related to the commercial production of crops, livestock, poultry, livestock products, or poultry products.4 Since an amendment in 1991, the RTF law also protects from nuisance suits forestry operations engaged in activities related to growing, managing, and harvesting trees.5

Before bringing an action in court for a farm nuisance dispute, North Carolina typically requires mediation.6 This means that the court appoints a mediator to try to develop an agreement before a case proceeds to court. Upon the written agreement of all parties, however, this requirement can be waived.

RTF Conditions and Activities

When it was first enacted in 1979, North Carolina’s RTF law protected agricultural operations from nuisance lawsuits arising out of changed conditions in the area surrounding the operations. However, the protections only applied after operations had been in existence for at least one year.7 A 1985 case, Mayes v. Tabor, tested the limits of the original RTF law. In Mayes, the North Carolina Court of Appeals concluded that if a farm came into existence after the establishment of a surrounding land use—in that case, a private camp—the farm was not protected by the RTF law because the lawsuit did not arise out of any changed circumstances in or around the location of the farm.8 In other words, because the camp was there first, the agricultural operation in Mayes was not protected. In this respect, North Carolina’s initial RTF protections were essentially a “coming to the nuisance” defense that allowed pre-existing farms to avoid nuisance liability arising from those who might later move onto neighboring lands. Likewise, the original RTF policy stated: “When other land uses extend into agricultural and forest areas, agricultural and forestry operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations.”9

In 1994, the Court of Appeals further interpreted the RTF law, finding that although the aim of the law was to protect “any agricultural operation, without limitation, when the operation was initially begun,” the law was not intended to protect operations where the nature of the agricultural activities fundamentally changed.10 Accordingly, the Court held that when a turkey farm changed to a hog production facility it was a fundamental change that deprived the farm of the state’s RTF protections.

However, the meaning of the RTF law changed dramatically with amendments in 2013. They forthwith identified what cannot be considered a fundamental change, effectively allowing operations to substantially change while still maintaining RTF protections.11 As a result of the amendments, courts can no longer treat the following changes as “fundamental”: ownership or size changes; stopping operations for three years or less; participation in a government-sponsored program; using a new technology; or changing the type of agricultural and forestry product produced.12

Numerous other lawsuits, and ensuing amendments, furthered the protection of agricultural and forestry operations by making it harder to bring nuisance actions. Between 2014 and 2015, dozens of lawsuits were brought by neighbors of multiple hog facilities owned by Murphy-Brown, a subsidiary of Chinese owned Smithfield Foods, alleging various nuisances related to the facilities.13 These cases were consolidated and multiple trials followed. In one of the cases, Murphy-Brown attempted to use the state’s RTF law in order to bar a suit by those neighboring its facility, but the court found that the RTF law did not apply because the plaintiffs had been on their land before Murphy-Brown began its nearby swine operations.14 As the court stated, “here, plaintiffs’ use of their properties as residences did not extend into an agricultural area. Their land use had been in existence well before the operations of the subject farms began.”15 Accordingly, the court held that the RTF law did not bar the neighbors’ claims.

In a direct response to the Murphy-Brown lawsuits, the North Carolina General Assembly once again amended the state’s RTF law.16 In 2018, the General Assembly cited, as one reason for the amendment, “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.”17 Since the 2018 amendments, nuisance lawsuits may only be filed against an agricultural operation if three conditions are met.18 First, only legal possessors of real property can now file suit. This means that while a renter or a spouse of the legal property owner could bring a nuisance lawsuit against an agricultural or forestry operation, family members (like children) who do not reside on the property would not be able to. Real property can include land, buildings, and mobile homes fixed in place.19 Second, only those who live within .5 miles of the alleged nuisance or activity can file suit.20 In practice, this means those who experience air or water contamination further away could be disqualified from filing lawsuits. Finally, any nuisance lawsuit against an agricultural or forestry operation must be filed within one year of the operation’s establishment or within a year of a fundamental change.21

The 2018 amendments also removed the RTF law’s original requirement that operations can only be protected if there is a subsequent change in the area surrounding the operation. In other words, agricultural operations no longer need to be there first in order to be protected by the RTF law. The 2018 amendments, however, did not apply to the Murphy-Brown cases because those lawsuits were brought prior to the effective date of the amendments.22

The 2018 amendments also completely removed the stipulation that RTF protections did not apply when operations were negligent or improper.23 However, the RTF law does not apply to any lawsuit for trespass, personal injury, strict liability, or other torts besides nuisance.24 Further, if the lawsuit is not specific to nuisances, injunctive relief (meaning stopping the offending activities) remains possible for other causes of action.

In addition, agricultural and forestry operations can still be liable for nuisance damages if they pollute or change the conditions of the waters of any stream or overflow onto the lands of another person, firm, or corporation.25 However, agricultural operations are exempt from certain pollution control laws if they meet the following conditions: the processing activities are carried out by the owner; the activities produce no more than 1,000 gallons of wastewater per day; the wastewater is disposed of by land application; no wastewater is discharged to surface waters; the disposal of the wastewater does not result in any violation of surface water or groundwater standards; and the wastewater is not generated by an animal waste management system.26 Elsewhere, an animal waste management system is defined as a combination of structures and nonstructural practices serving a feedlot that provide for the collection, treatment, storage, or land application of animal waste.27 Despite these exemptions, the operation could still be liable for nuisance under the RTF law for some instances of pollution.28

RTF and Local Government

North Carolina’s RTF law voids local ordinances that would make the operation of agricultural or forestry operations a nuisance. However, operations that predate the RTF law’s 1979 enactment are not protected if they were located within a city’s limits at that time.29

Other North Carolina laws also limit the ability of local governments to regulate potential agricultural nuisances. For example, although one law allows counties to “remove, abate, or remedy everything that is dangerous or prejudicial to the public health or safety,” the law specifically does not apply to “bona fide farms,” unless the property is being used for nonfarm purposes.30 Similarly, another law provides that “county zoning may not affect property used for bona fide farm purposes,” except in cases where the farm property is being used for nonfarm purposes.31

With respect to swine operations specifically, courts have interpreted the state’s Swine Farm Siting Act as well as its Animal Waste Management Systems rules as voiding local attempts to provide more stringent oversight of swine facilities.32

Caps on Payments for Damages

In 2014, as part of the consolidated Murphy-Brown lawsuits, ten neighbors of an industrial hog-feed facility owned by Murphy-Brown, a subsidiary of Smithfield Foods, brought a lawsuit against the commercial hog producer alleging various nuisances related to the operation.33 In 2018, four years after the case was filed, a jury awarded each neighbor of the hog-feed facility $75,000 in compensatory damages for the loss of the their use and enjoyment of their property.34 In between when the McKiver lawsuit was first filed and when the jury’s verdict was issued, the North Carolina legislature responded by passing another RTF amendment that limited the damages that plaintiffs could receive when they won nuisance suits.35 This 2017 amendment restricted compensatory damages under the RTF law by basing them exclusively on the loss of property values.36 The amendment was a departure from a longstanding measure of recovery in nuisance suits in North Carolina, which had—for over a century—allowed plaintiffs to recover for the loss of use and enjoyment of their property, in addition to the loss of property values.37

Since the passing of the 2017 amendment, damages for a private nuisance claims under the RTF law are now measured as follows: (1) for permanent nuisances, compensatory damages are measured by the reduction in the fair market value of the plaintiff's property caused by the nuisance, not to exceed the fair market value of the property; (2) for temporary nuisances, compensatory damages are limited to the diminution of the fair rental value of the plaintiff's property caused by the nuisance.38

Crucially, the 2017 amendment also added that the limitations on damages applies “to any private nuisance claim brought by any party based on that party’s contractual or business relationship with an agricultural or forestry operation.” In effect, this means that subsidiary corporations like Murphy-Brown, as well as their parent corporations like Smithfield, receive the same RTF protections from paying damages. The limits on compensatory damages put in place with the 2017 amendment did not, however, affect the damages award in the Murphy-Brown case because that lawsuit was filed prior to the passing of the amendment.

In addition to compensatory damages, the same jury in the McKiver case also awarded the neighbors $5 million in punitive damages—meaning damages intended to punish a defendant for egregiously wrong acts and deter others from committing similar acts.39 However, because North Carolina’s law caps punitive damages at three times the awarded compensatory damages or $250,000—whichever is greater—the jury verdict was reduced.40 When the McKiver case went up on appeal, the court vacated the award of punitive damages after concluding that financial evidence of Smithfield and WH Group—the corporate parent entities of Murphy-Brown—should have been excluded because it could unfairly prejudice the jury against big businesses.41 The case was therefore remanded back down to the lower court for a rehearing on the issue of punitive damages.

After the McKiver case was decided, a 2018 amendment to the state’s RTF law further changed the circumstances under which punitive damages can be imposed in nuisance suits against agricultural and forestry operations.42 Now, punitive damages are not allowed at all, unless within the previous three years the operations were subject to conviction or a civil enforcement action relating to the alleged nuisance.43

The impact of the RTF amendments, passed with various Murphy-Brown cases in mind, have yet to fully play out. Moving forward, however, current law will starkly reduce compensation for neighbors, as property values are often lower in rural and minority communities.44

RTF and Attorney Fees

North Carolina allows attorney fees to be awarded to either party in a nuisance action against an agricultural or forestry operation, when the action or the defense are considered frivolous or malicious.45 Frivolous generally refers to legal actions intended to harass, delay or embarrass. Malicious generally captures wrongful actions performed because of wicked or mischievous motives.

  • 1. N.C. Gen. Stat. § 106-700 (2020).
  • 2. United States Department of Agriculture. 1979. USDA Quick Stats Tool: June 1979 Survey, North Carolina. Retrieved January 6, 2021. (https://quickstats.nass.usda.gov/results/C90690DD-4ADC-3D46-8A70-D832F09BA9D9); Department of Agriculture. 2019. USDA/NASS 2019 State Agriculture Overview North Carolina. Retrieved January 6, 2021. (https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=NORTH%20CAROLINA).
  • 3. N.C. Gen. Stat. § 7A-38.3 (2020).
  • 4. N.C. Gen. Stat. § 106-701 (2020).
  • 5. 1991 N.C. Sess. Laws 892 (H.B. 978) (amending, in relevant part, N.C. Gen. Stat. § 106–701).
  • 6. N.C. Gen. Stat. § 7A-38.3 (2020).
  • 7. N.C. Gen. Stat. § 106-701 (1979).
  • 8. Mayes v. Tabor, 334 S.E.2d 489 (1985).
  • 9. N.C. Gen. Stat. § 106-700 (1979).
  • 10. Durham v. Britt, 451 S.E.2d 1 (1994).
  • 11. 2013 N.C. Sess. Laws 314 (H.B. 614) (amending, in relevant part, N.C. Gen. Stat. § 106–701).
  • 12. N.C. Gen. Stat. § 106–701 (2020).
  • 13. Dalesio, Emery P. 2018. “Trail begins in suit blaming pork giant for farm smells- - Case pits Smithfield Foods against farm’s 10 neighbors.” Daily Advance. April 4, pp. 3.; Berendt, Chris. 2014. “Murphy-Brown grower speaks out, perplexed by litigation.” Sampson Independent. May 25.
  • 14. In re NC Swine Farm Nuisance Litigation, 2017 WL 5178038.
  • 15. In re NC Swine Farm Nuisance Litigation, 2017 WL 5178038.
  • 16. 2018 N.C. Sess. Laws 113 (S.B. 711) (amending N.C. Gen. Stat. § 106–701). One of the stated reasons for the amendment was that “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.”
  • 17. 2018 N.C. Sess. Laws 113 (S.B. 711) (amending N.C. Gen. Stat. § 106–701).
  • 18. 2018 N.C. Sess. Laws 113 (S.B. 711) (amending N.C. Gen. Stat. § 106–701).
  • 19. See, for example, N.C. Gen. Stat. § 105-273 (2020).
  • 20. N.C. Gen. Stat. § 106–701 (2020).
  • 21. N.C. Gen. Stat. § 106–701 (2020).
  • 22. See McKiver v. Murphy-Brown LLC, 2018 WL 6606061.
  • 23. 2018 N.C. Sess. Laws 113 (S.B. 711) (amending N.C. Gen. Stat. § 106–701).
  • 24. N.C. Gen. Stat. § 106–702 (2020).
  • 25. N.C. Gen. Stat. § 106–701 (2020).
  • 26. N.C. Gen. Stat. § 143-215.1 (2020).
  • 27. N.C. Gen. Stat. § 143-215.10B (2020).
  • 28. See, for example, State ex rel. Cobey v. Ballard, 429 S.E.2d 735 (1993) (“The very complex and comprehensive set of regulatory requirements and controls established under the pertinent provisions of Chapter 143 of the General Statutes are clearly distinguishable from the parameters of a private nuisance as that term was understood under common law.”); Biddix v. Henredon Furniture Indus., Inc., 331 S.E.2d 717 (1985) (“We conclude that the Clean Water Act does not abrogate the common law civil actions for private nuisance and trespass to land for pollution of waters resulting from violation of a NPDES permit.”).
  • 29. N.C. Gen. Stat. § 106–701 (2020).
  • 30. N.C. Gen. Stat. § 153A-140 (2020).
  • 31. N.C. Gen. Stat. § 160D-903 (2020).
  • 32. See Craig v. Cty. of Chatham, 565 S.E.2d 172, 177 (2002). The Swine Farm Siting Act, which governs the placement of swine farms and lagoon, can be found at N.C. Gen. Stat. §§ 106-800 to -806; the state’s Animal Waste Management Systems rules can be found at N.C. Gen. Stat. §§ 143-215.10A to -215.10M.
  • 33. For a summary of the initial lawsuit, see McKiver v. Murphy-Brown, LLC, 980 F.3d 937 (2020).
  • 34. For a discussion of the award of compensatory damages, see McKiver v. Murphy-Brown, LLC, 980 F.3d 937 (2020)
  • 35. Doran, Will. 2019. “After Smithfield lost millions in lawsuits, N.C. changed a law; was it constitutional?” Courier-Tribune. June 22.
  • 36. 2017 N.C. Sess. Laws 11 (H.B. 467) (adding N.C. Gen. Stat. § 106-702).
  • 37. See McKiver v. Murphy-Brown, LLC, 980 F.3d 937 (2020).
  • 38. N.C. Gen. Stat. § 106-702 (2020).
  • 39. McKiver v. Murphy-Brown, LLC, 2018 WL 10322917.
  • 40. N.C. Gen. Stat. § 1D-25 (2020); see also McKiver v. Murphy-Brown, LLC, 2018 WL 10322917.
  • 41. McKiver v. Murphy-Brown, LLC, 980 F.3d 937 (2020).
  • 42. 2018 N.C. Sess. Laws 113 (S.B. 711) (amending N.C. Gen. Stat. § 106-702).
  • 43. N.C. Gen. Stat. § 106-702 (2020).
  • 44. Wireback, Taft. 2017. “Blust breaks with GOP over nuisance lawsuits.” Greensboro News & Record. April 11, pp. 3A.
  • 45. N.C. Gen. Stat. § 106-701 (2020).