I recently discussed an important victory for farmers in the case of Branton v. Nicholas Meat, LLC. The Branton case also had another interesting discussion that should help all agricultural operations, even those that do not generate or use food processing waste (“FPW”).
One of the requirements to be protected under the Right to Farm Act is that an operation must be “lawfully” in operation for more than one year. During the operation of the farms that spread FPW, the DEP issued a couple of notices of violation (“NOV”) to the farmers. The NOVs complained of spreading FPW without an approved Nutrient Management Plan, spreading FPW during winter months and spreading within 150 feet of a stream.
The surrounding homeowners argued that, since there were a number of NOVs issued against the farmers, the operation was not “lawfully in operation.” The Court said that applying this argument would be “ridiculous.” This would mean that every time a farm got a minor violation or NOV, the one year clock under the Right to Farm Act would reset. This was obviously not the intention of the Right to Farm Act. The Court said that “an agricultural operation need only be substantially compliant with applicable federal, state, and local laws for at least one year prior to the filing of the complaint in order to satisfy” the Right to Farm Act.
This finding is very important because in every contested zoning hearing that I attend, a neighbor who is against the proposal brings up an argument similar to this. Sometimes the zoning hearing goes off into a tangent – sometimes adding months to the process – to dive into all of the minor inspection reports in a operation’s file. It is hard for any operation, especially an agricultural operation that has a number of steps or outside employees, to be absolutely compliant one hundred percent of the time. The ruling in Branton makes it clear that minor NOVs do not put the entire farming operation at risk.