Virginia's Right-to-Farm Summary

Virginia’s right-to-farm law has pitted farmer against farmer, with advocates understanding it as crucial to farming while opponents say it protects industries that “are not really farming.”1 Since the enactment of the original RTF law in 1981, Virginia has lost 29 percent of its farm operations and 21 percent of its acres of farmland.2 So what does the RTF law do in practice?

Virginia’s RTF Law at a Glance

Virginia’s RTF law provides no explicit protection for farmland or farms based on size (for example, family farm). Rather, Virginia’s RTF law, like those present in the other forty-nine states, centers on protecting agricultural operations from nuisance suits when they impact neighboring property, for example through noise or pollution. Virginia’s RTF law protects agricultural operations from public nuisance suits (those brought by the government on behalf of the general public) and private nuisance suits (those brought by people, like neighbors).3 Protected agricultural operations include those devoted to the “bona fide” production of crops, animals, or fowl.4 This includes the production of fruits, vegetables, meat, dairy, poultry, tobacco, and nuts and nursery, floriculture, and silviculture products. A Virginia court ruled in 2016 that aquaculture operations were not protected under the state’s RTF law.5

Importantly, a 2018 amendment substantially expanded Virginia’s RTF protections. Now any party that has a business relationship with the agricultural operation receives protection from nuisance suits.6 Associated businesses could include, for example, poultry or swine integrators, investment groups, or waste handling companies.

Conditions and Activities

To receive RTF protections, agricultural operations must be in “substantial compliance” with best management practices and any applicable laws or regulations.7 Substantial compliance means that agricultural operations adhere to best management practices to such a degree that does not cause “significant risk to human health or safety.” In effect, this means that as long as agricultural operations meet existing laws and regulations, they are shielded from nuisance suits, even if they impact human health or safety. Potential litigants have to prove a “significant” impact; otherwise the law presumes that the operation is compliant.

Certain activities, however, are not protected by Virginia’s RTF law. For example, the statute does not protect against claims that an agricultural operation failed to use proper care (that is, operated negligently) or against other claims such as trespass.8 For example, neighbors sued Sussex Surry, LLC, and Synagro Central, Inc., for damages related to negligence, private nuisance, and trespass. The companies sprayed and spread by-products of wastewater treatment plant processing that the plaintiffs alleged caused them severe health problems. The judge ruled that the companies qualified as agricultural operations that were likely entitled to RTF protection. However, the judge left it to the jury to determine whether the companies acted negligently or were improperly managed.9

Since passage of amendments in 2018, the law also stipulates that lawsuits cannot be brought by those who already knew about the operation when their “occupancy” began.10 Further, only persons with an ownership interest in the property that is impacted by the alleged nuisance can file suit.11 In practice, this can leave out family members, renters, and others without clear title to their property but who may be impacted by operations.

The RTF law does not afford protections to an agricultural operation that pollutes any stream water or causes any overflow onto the lands of another.12

Local Governance

Virginia’s RTF law voids local ordinances that would make any agricultural operation a nuisance or require that nuisance to stop.13 In a 1985 case, the court ruled that vacant lots with overgrown weeds are allowed, so long as they are used for general farming and not managed negligently or improperly.14

Since a controversial amendment in 1994, local government’s power became even further constrained. Localities can no longer require a special exception or use permit for agriculture or silviculture activities in areas zoned agricultural.15 A critic said the amendment “gives guarantees of protection without any responsibility and obligation.”16 In one case, a county tried to impose a zoning ordinance on a log yard, but the court ruled it could not, as the RTF law protected operations in agricultural residential zoning districts.17 In another case, a court ruled that the RTF law superseded a 1987 zoning ordinance that required a special exemption permit for a nursery’s expansion.18

More generally, the law bars localities from regulating any of the following activities of an agricultural operation, unless they substantially impact the health, safety, or general welfare of the public: agritourism; sales of agricultural or silvicultural products; preparation, processing, or sales of food products; or other activities and events customary at Virginia agricultural operations.19

Limits on Damages

Virginia’s RTF law limits the damages—meaning monetary settlements—that those who sue agricultural operations can receive in private nuisance suits.20 Compensatory damages for permanent nuisances cannot be more than the amount by which an agricultural operation reduces the fair market value of the person’s property. Damages for temporary nuisances are limited to the diminution in fair market value of the person’s property.

If a person brings multiple private nuisance suits against different operations, that person can only receive compensation equal to the fair market value of their property. This is true even if the person bringing the lawsuit includes additional defendants, such as those who have a business relationship with the agricultural operation.

While these limitations on settlements are similar to those in neighboring West Virginia, they do not go as far. Crucially, Virginia allows people to recover compensation (up to any amount) for physical or mental injuries caused by an alleged nuisance, so long as it is shown by objective and documented medical evidence that the nuisance endangered life or health.21

1. Pat Murphey, “Right to Farm Bill Argued,” Harrisonburg (Va.) Daily News-Record, January 23, 1995; M. W. Goodwin, “Urban vs. Rural Issue Simmers in Dinwiddie,” Richmond Times-Dispatch, 1994.
2. U.S. Department of Agriculture, USDA Quick Stats Tool: June 1981 Survey, Virginia, distributed by National Agricultural Statistics Service, accessed January 6, 2021, https://quickstats.nass.usda.gov/results/7ADB5C51-B175-3DFB-A96D-8F3EA4F4CFEA; “2021 State Agriculture Overview: Virginia,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022, https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=VIRGINIA.
3. Va. Code § 3.2-302(A) (2021).
4. Va. Code § 3.2-300 (2021).
5. Cty. of York v. Bavuso, No. 160104, 2016 WL 6304568 (Va. Oct. 27, 2016).
6. Va. Code § 3.2-302 (2021) (amended by 2018 Va. Acts 147 (H.B. 987)).
7. Va. Code § 3.2-302(A) (2021).
8. Va. Code § 3.2-302(A) (2021).
9. Wyatt v. Sussex Surry, LLC, No. CL06-6900, 2007 WL 5969399 (Va. Cir. Ct. Nov. 2, 2007).
10. Va. Code § 3.2-302(A) (2021) (amended by 2018 Va. Acts 147 (H.B. 987)); Kelly Clark, “Agriculture Lawsuit Bill Heads to House Floor,” Harrisonburg Daily News-Record, February 2, 2018.
11. Va. Code § 3.2-302(C) (2021).
12. Va. Code § 3.2-302(B) (2021).
13. Va. Code § 3.2-302(E) (2021).
14. French v. Town of Mt. Jackson, No. 2606, 1985 WL 306829 (Va. Cir. Ct. July 2, 1985).
15. Va. Code § 3.2-301 (2021) (amended by 1994 Va. Acts 779 (S.B. 513)).
16. Murphey, “Right to Farm Bill Argued.”
17. Buckley v. Loudoun Cty. Bd. of Zoning Appeals, No. 20141, 2002 WL 31943390 (Va. Cir. Ct. June 4, 2002).
18. Layng v. Gwinn, No. C162042, 2000 WL 1052936 (Va. Cir. Ct. Feb. 24, 2000).
19. Va. Code § 15.2-2288.6(1)–(4) (2021).
20. Va. Code § 3.2-302(C) (2021).
21. Va. Code § 3.2-302(C) (2021).