WEST virginia legislature
2019 regular session
Senate Bill 393
By Senators Sypolt, Azinger, Baldwin, Blair, Boso, Clements, Hamilton, Jeffries, Maynard, Hardesty, Rucker, Smith, Takubo, Tarr, Plymale, Beach, Cline, Roberts, Swope, and Trump
January 22, 2019; Referred
to the Committee on the Judiciary]
A BILL to amend and reenact §19-19-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §19-19-7 and §19-19-8, all relating to the right to farm; providing for an amended definition of “agriculture”; providing for protections to agriculture operations from nuisance litigation if the facility has been in operation for more than one year; and providing a severability clause.
Be it enacted by the Legislature of West Virginia:
ARTICLE 19. PRESERVATION OF AGRICULTURAL PRODUCTION.
For the purposes of this article:
(a) “Agriculture” or “agricultural operation” shall
mean the production of food, fiber and woodland products, by means of
cultivation, tillage of the soil and by the conduct of animal, livestock,
dairy, apiary, equine or poultry husbandry, and the practice of forestry,
sylviculture, horticulture, or any other legal plant or animal
production and all farm practices. Appurtenant activities include
storing, packing, shipping and marketing, but not including as
well as any manufacturing, milling or processing of such products by other
than the producer thereof.
(b) “Agricultural land” shall mean
not less than five
acres of land and the improvements thereupon, used or usable in the
production of food, fiber or woodland products of an annual value of $1,000 or
more, by the conduct of the business of agriculture, as defined in subsection
(a) of this section.
§19-19-7. Additional limitations on nuisance actions.
(a) In addition to the limitations on actions brought against an agricultural operation in §19-19-4 of this code, this section shall also apply to any nuisance action brought against an agricultural operation in any court of this state.
(b) A person may not file a nuisance action to recover damages in which an agricultural operation is alleged to be a public or private nuisance unless:
(1) He or she is the majority legal land owner;
(2) He or she owns property adversely affected by agricultural operations within one half mile of the agricultural operation;
(3) He or she limits the claim for damages to the actual amount his or her property is devalued; and
(4) The agricultural operation has committed a criminal act, and found guilty.
(c) No agricultural operation shall be considered to be a nuisance, private or public, by any changed conditions in the locality thereof after the facility has been in operation for more than one year, when the facility was not a nuisance at the time the operation began.
(d) No agriculture or forestry operation or any of its appurtenances shall be or become a private or public nuisance if the operators are applying reasonably acceptable management practices to comply with all applicable laws and regulations.
(e) No agriculture operation shall be considered a nuisance, private or public, if an agricultural operation expands, in terms of acres or animal units, so long as all state and federal environmental codes, laws, and regulations are met by the agricultural operation: Provided, That the expansion does not:
(1) Create a substantially adverse effect upon the environment;
(2) Create a hazard to public health and safety;
(3) Create a measurably significant difference in environmental conditions that exceed minimum recommendations of reasonably acceptable management practices for storing, processing, removing or applying animal waste; or,
(4) Fundamentally change operations, including, but not limited to, complete relocation of an agricultural operation by the owner within or without the present boundaries of the farming operation.
(f) For the purpose of this section, a reasonable expansion may include, but is not limited to:
(1) Sale of the agricultural operation;
(2) Introducing technology to an existing agricultural operation;
(3) Applying a natural resources conservation practice or other United States Department of Agriculture program to an existing agricultural operation; or,
(4) Any other change that is related and applied to an existing agricultural operation.
(g) A requirement of a municipality does not apply to an agricultural operation situated outside of the municipality’s corporate boundaries on the effective date of this chapter. If an agricultural operation is subsequently annexed or otherwise brought within the corporate boundaries of a municipality, the requirements of the municipality do not apply to the agricultural operation.
(h) No nuisance action may be brought against an agricultural operation that has lawfully been in operation for one year or more prior to the date on which the action is brought, if the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation.
(i) The provisions of this section shall not apply in any of the following circumstances:
(1) Whenever a nuisance results from the negligent operation of any such agricultural
(2) To affect or defeat the right of any person to recover for injuries or damages sustained because of an agricultural operation or portion of an agricultural operation that is conducted in violation of a federal, state, or local statute or governmental requirement that applies to the agricultural operation or portion of agricultural operation.
(j) The protected status of an agricultural operation shall be assignable, alienable, and inheritable. The protected status of an agricultural operation may not be waived by the temporary cessation of operations or by diminishing the size of the operation.
(k) In any action brought in which an agricultural operation is alleged to be a public or private nuisance, and that the court finds to be meritless, the agricultural operation may recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred in connection with the defense of such action, together with a reasonable amount for attorney’s fees.
(l) in no event shall the total amount of damages in any successful nuisance action exceed the diminished value of the subject property.
The provisions of this article are severable and accordingly, if any part of this article is
validity of the remaining provisions of this article.
NOTE: The purpose of this bill is to protect the right to farm and protect agricultural operations from nuisance litigation if the facility has been in operation for more than one year.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.