Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Right to Farm Act Bars Nuisance Suits

Mengesha Tadesse Seyoum
National AgLaw Center Research Fellow

In Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. 2003), the Supreme Court of Texas held that nuisance suits brought against agricultural operations are prohibited if the alleged nuisance remains substantially unchanged for one year.

Defendants David and Mary Holubec owned and operated a sheep farm that was adjacent to plaintiffs Robin Lee, Laverne Lee, and Carl Brandenberger. See id. at 34. In 1996 the defendants constructed a ten-acre feedlot on their sheep farm that within one year contained approximately 6,000 sheep. See id. The defendants began using the new feedlot in March of 1997. See id. By August of 1997 the plaintiffs began noticing foul odors, increased dust, and swarms of flies among other things that they claimed were produced by the new feedlot. See id.

On July 31,1998, the plaintiffs brought an action against the defendants alleging, in relevant part, that the "foul odors, flies, dust, noise, and light constituted a nuisance." Id. at 35. The defendants argued that the Texas Right to Farm Act barred the plaintiffs' nuisance action. See id. The trial court jury ruled that the feedlot was a nuisance, and the court issued a permanent injunction that prohibited the defendants from engaging in certain farming activities. See id. The defendants appealed the trial court's decision to the Texas Court of Appeals. See id. After the appeals court affirmed the trial court's decision, the defendants appealed to the Supreme Court of Texas. See id.

The Texas Supreme Court explained that "[i]n order 'to conserve, protect, and encourage the development and improvement of . . . agricultural land for the production of food and other agricultural products,' the Legislature passed the Right to Farm Act in 1981 'limiting the circumstances under which agricultural operations may be regulated or considered a nuisance.'" Id. (quoting Tex. Agric. Code § 251.001). It also explained that to further this policy, the Legislature enacted Tex. Agric. Code § 251.004(a), which provides that

[n]o 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.

Id. (quoting Tex. Agric. Code § 251.004(a)).

The defendants argued that the "'conditions or circumstances complained of as constituting the basis for the nuisance action' are the confinement of sheep in their newly constructed feeding facility, a condition that began in March 1997 and has existed substantially unchanged since then." Id. The defendants also argued that the plaintiffs' nuisance action was barred under § 251.004(a) because the suit was not filed until July 31, 1998, more than a year after the condition allegedly causing a nuisance began. See id. The plaintiffs argued that neither the defendants' new feedlot nor the sheep placed on the new feedlot in March of 1997 are the "'conditions or circumstances complained of as constituting the basis for the nuisance action.'" Id. Instead, they argued that it was the foul odor, flies, dust, and noise that invaded their property no sooner than August of 1997-less than a year before their action was filed- that gave rise to their nuisance claim. See id.

The court stated that pursuant to the Right to Farm Act,

the one-year bar applies on proof of two conditions: (1) the agricultural operation was in business lawfully for more than a year before the nuisance action was filed; and (2) the "conditions and circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged" since then. . . . In light of . . . the Act's stated purpose, we conclude that the defense in section 251.004(a) was intended to bar a nuisance action against a lawful agricultural operation one year after the commencement of the conditions or circumstances providing basis for that action. Thus, under the Act it does not matter when the complaining party discovers the conditions or circumstances constituting the basis for the nuisance action. . . . Instead, the relevant inquiry is whether the conditions or circumstances constituting the basis for the nuisance action have existed for more than a year.

Id. (citations omitted).

The case was decided on May 22, 2003; this summary was posted Jan. 27, 2004.