AN ACT TO AMEND TITLE 3 AND TITLE 10 OF THE DELAWARE CODE RELATING TO AGRICULTURAL OPERATIONS.

Legislation Document

SPONSOR:

Sen. Huxtable & Sen. Wilson & Rep. Carson & Rep. Vanderwende

Sens. Hocker, Hoffner, Lawson; Reps. Collins, D. Short, Yearick

DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE BILL NO. 84

AN ACT TO AMEND TITLE 3 AND TITLE 10 OF THE DELAWARE CODE RELATING TO AGRICULTURAL OPERATIONS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 8141, Title 10 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 8141. Limitation on agricultural operations nuisance suits.

(a) For the purposes of this section,

an

agricultural

operations

operation

and its appurtenances means an operation for

the purpose of:

any of the following purposes:

(1) Cultivation of

land;

land.

(2) Production of agricultural

crops;

crops.

(3) Raising of

poultry;

poultry.

(4) Production of

eggs;

eggs.

(5) Production of milk and milk products, including

but not limited to

ice cream,

cheese

cheese,

and

butter;

butter.

(6) Production of fruit or other horticultural crops including

but not limited to

Christmas trees and

forestry;

forestry.

(7) Production of livestock, including

pasturage;

pasturage.

(8) Production of bees and their

products;

products.

(9) Production and raising of horses of all types and descriptions or other equine activity for the purpose of

profit;

profit.

(10) The operation of a roadside farmer’s stand, or a farmer’s cart in which not less than 50% of the products sold at the stand or cart are directly from the agricultural

operation;

operation.

(11) Grain elevators, bins, feed mills, silos, and seed

cleaners; and

cleaners.

(12) Transportation of an agricultural product to or from a market storage area, or to or from any agricultural-related infrastructure as identified in paragraph (a)(11) of this section.

(b) This section does not apply to:

(1) An agricultural operation that does not conform to federal,

state

state,

or local health or zoning

requirements;

requirements.

(2) A federal, state or local agency when enforcing air, water

quality

quality,

or other environmental standards under federal, state or local

law; or

law.

(3) An agricultural operation that is conducted in a negligent or improper manner.

(c)

No agricultural operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality thereof after the same has been in operation for more than 1 year if the operation or the change did not constitute a nuisance from the date the agricultural operation began or the date the change in the operation began.

An agricultural operation or its appurtenances may not be deemed a nuisance, private or public, based on a changed condition to that agricultural operation or its appurtenances, except as provided for in subsection (b) of this section.

(e) Any and all ordinances of any unit of local government now in effect or hereafter adopted that would make the operation of any

such

agricultural operation or its appurtenances a nuisance or providing for abatement thereof as a nuisance in the circumstances set forth in this section

and

shall be null and

void; however, this section shall not apply whenever a nuisance results from the failure to conduct the operation in a manner consistent with good agricultural practice as defined in § 1401 of Title 3 or when there has been a significant change in the operation itself.

void.

(f) If the defendant is a prevailing party in an action or proceeding based on a claim of nuisance arising from an agricultural operation or its appurtenances that meets the requirements of subsection (a) of this section, and the court determines that the claim is frivolous, the plaintiff in the action shall pay court costs and reasonable attorney fees incurred by the defendant.

Section 2. Amend § 1401, Title 3 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 1401. Agricultural and

forestal

forestry

operations not considered

nuisances; exception

.

nuisances.

No agricultural or forestal operation within this State which has been in operation for a period of more than 1 year shall be considered a nuisance, either public or private, as the result of a changed condition in or about the locality where such agricultural or forestal operation is located.

In any nuisance action, public or private, against an agricultural operation or its principals or employees, including forestall activity, proof that the agricultural operation, including forestall activity, has existed for 1 year or more is an absolute defense to the nuisance action, if the operation is in compliance with all applicable state and federal laws, regulations, and permits. If the operation is in compliance with all applicable state and federal laws, regulations, and permits, it shall be presumed to be conducted in a manner consistent with good agricultural practice. No state or local law-enforcement agency may bring a criminal or civil action against an agricultural operation for an activity that is in compliance with all applicable state and federal laws, regulations, and permits.

An agricultural or forestry operation that meets the requirements of § 8141(a) of Title 10 may not be deemed a nuisance, unless it is excluded from protection under § 8141(b) of Title 10.

SYNOPSIS

This Act strengthens Delaware’s existing Right to Farm laws by expanding protections for agricultural operations against nuisance lawsuits. Specifically, this Act removes the current requirement that an agricultural operation have existed for 1 year or more in order to benefit from statutory protections against nuisance suits. Under this Act, an agricultural operation cannot be deemed a nuisance as long as it is operating in accordance with all applicable local, state, and federal requirements and is not being conducted in a negligent or improper manner. This protection cannot be used against a federal, state, or local agency that is enforcing air, water quality, or other environmental standards under federal, state, or local law.

This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

Author: Senator Huxtable