Right to Farm Act protects Salem family farm from lawsuit over its smell

By Tomas Kassahun | Apr 23, 2018

HARRISBURG — The Superior Court of Pennsylvania has upheld a trial court’s decision to dismiss a lawsuit against a family-owned farm in Luzerne County that was accused of creating a disturbing odor in the neighborhood, according to a decision filed on March 29.

The case was heard by Judges Paula Francisco Ott, Alice Beck Dubow and Eugene B. Strassburger III, who penned the decision.

The appellate judges said they ruled in favor of the farmers because they met all of the requirements of the Right to Farm Act, which protects them from nuisance lawsuits if certain conditions are met.

“Because the record reveals that, as a matter of law, all three prongs of the blueprint for protection from nuisance claims provided by Subsection 954(a) have been established, [the] plaintiffs’ claims are barred and the trial court properly granted [the] defendants’ motions for summary judgment,” Strassburger wrote in the decision.

The case revolves around the Will-O-Bett Farm in Salem Township, which the Dagostin family has operated since 1955.

The farm initially was a dairy farm, but the family turned it into a beef farm in the 1990s and raised a small numbers of goats, chickens and pigs on the property, according to the appellate court’s decision.

In 2011, the Dagostins converted their farm into a concentrated animal feeding operation (CAFO) for pigs, and animals owned by Country View currently stay on the property for a few months while they grow.

The Dagostins were given permission to build the CAFO from the township, and their land development and nutrient management plans were approved by the Pennsylvania Department of Agriculture and the township.

After the first shipment of pigs arrived, the defendants said they began spreading liquid swine manure (LSM) collected from the CAFO onto the surrounding fields of their farm in June 2013.

Different groups of neighbors filed complaints in 2014 and 2015, claiming that “the spread of LSM created a private nuisance.”

The defendants, however, moved to dismiss the case, citing the Right to Farm Act, which protects farmers from nuisance lawsuits, according to the appeals court’s decision.

After the trial court ruled in favor of the farmers, the neighbors appealed.

In their analysis of the case, the appellate judges described the requirements of the Right to Farm Act and whether the Dagostins’ operation was in compliance with the law.

The judges said that the first requirement was met because the farm lawfully operated for at least one year prior to the plaintiffs’ nuisance complaints.

Second, the appellate judges said that spreading LSM on the fields is a normal agricultural operation.

Lastly, the appellate judges added that the farm’s nutrient management plan had been approved.

“[T]he Will-O-Bett Farm’s physical facilities... were addressed in a nutrient management plan approved prior to the commencement of the CAFO’s operation and... the Will-O-Bett Farm has operated in compliance [with it] at all relevant times,” Strassburger wrote in the decision.

Strassburger said there is no doubt that the odor has disturbed the neighborhood, but the Right to Farm Act has to be applied in this case because it was established to encourage farmers to expand operations.

“Our legislature has determined that such effects are outweighed by the benefit of established farms investing in the expansion of agricultural operations in Pennsylvania,” Strassburger said in the decision. 

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