Ga Legislature Fails to Give Final Passage to Ag Nuisance/‘Right to Farm’ Bill

A lobbyist-backed initiative endorsed by the Georgia Farm Bureau that placed rural Georgians in a duel of private property rights against farm protections failed to cross the finish line before the Georgia General Assembly adjourned for the year. 

House Bill 545, donned the ‘Right to Farm’ bill, was revised a number of times before the final day of the 2019-2020 legislative session, but lawmakers could not negotiate the measure to a point of consensus in order to change the law. 

What did the bill seek to do?

House Bill 545, sponsored by House Agriculture Chairman Tom McCall, sought to prohibit nuisance claims after one year of the establishment of an agricultural facility, agricultural support facility, or any operation at an agricultural support facility. The bill, which targeted nuisance claims exclusively in the agriculture community, provided an exception to that 1-year timeline in the event that a facility expanded, changed ownership, or changed purpose only to the extent that said change or growth requires approval by a state agency or authorization by a local zoning board.  An agricultural operation, as defined, could be something as simple as a roadside market or honeybee farm to something more complex like the application of pesticides or the manufacturing of feed for poultry, livestock or forestry products.

Under HB 545, property owners would be prohibited from taking actions against other landowner and/or agricultural operation owners unless the action is taken within one year of the establishment of the operation, regardless of how severe the impact on the complainants property may be. Even those who sought injunctive relief, as opposed to financial relief, would be barred from doing so.

Initially, the bill’s sponsor sought to restrict the distance from the agriculture operation to ½ mile, but a floor amendment expanded that distance to ownership within 5 miles of the nuisance. Chairman McCall repeatedly told the Rules committee that the bill sought to “protect the state’s largest industry,” which is agriculture. McCall also told colleagues that the bill doesn’t eliminate the ability to sue if a facility is doing something illegal, but HB 545 made no mention of that.

Current Law

OCGA 41-1-1 already defines a ‘nuisance’ as “anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.”

The current law has been in place since 1980 and has been argued to balance the protections for all parties involved through the discretion of a judge instead of the arbitrary direction of the legislative branch.  The code section already on the books states, “It is the purpose of this Code section to reduce losses of the state’s agricultural and forest land resources by limiting the circumstances under which agricultural facilities and operations or agricultural support facilities may be deemed to be a nuisance.”

The new version of the bill mimicked a 2018 North Carolina law designed to stop the ability of neighbors to pursue nuisance actions against industrial hog facilities. North Carolina farmers direct the waste of 10 million hogs into open air lagoons whose stench and water pollution have created nuisances for property owners far and wide.

Support and Opposition 

The bill was controversial from the start and after clearing a number of hurdles in the Georgia House in 2019, the Georgia Farm Bureau came out strong with a digital ad campaign, engaging farmers in all corners of the state to call on state lawmakers to pass the bill for the livelihood of the Georgia’s agriculture community. 

The Georgia Poultry Federation, the Georgia Urban Ag Council, the Georgia Forestry Association, and the Georgia Agribusiness Council also backed the bill.  

Small property owners, the US Water Coalition, the Flint Riverkeeper, and the Georgia Water Coalition – which comprises over 250 organizations, including conservation groups, farmers, homeowners and lake associations, business owners, sporting clubs, professional associations, and religious groups – vocally opposed HB 545. 

April Lipscomb, an attorney with the Southern Environmental Law Center said that “HB 545 flips current law on its head” and “prevents existing land owners from protecting their property values from new and expanding agricultural operations that move into their neighborhoods.” This, in part, is a foundation for opposition because if a state agency or local zoning board doesn’t have to approve the move or expansion, the “establishment period” does not apply. This would be especially troublesome for rural counties without any zoning regulations at all.

Legislative Approval

While sponsored by some of Georgia’s agriculture-oriented lawmakers, the measure passed by a vote of 107-58 in the Georgia House.Then-Rules Committee Chairman Jay Powell told his colleagues in 2019 that he had concerns with the bill but they would work to ‘fix it in the Senate.’ 

Strong opposition prompted Senate lawmakers to alter the bill slightly in June 2020, holding the five mile radius change and expanding the lawsuit period to two years. It passed the Senate 29-21, but the House did not take the measure to consider agreement to the Senate version. 

The Ogeechee Riverkeeper, another opponent of the bill in both 2019 and 2020, said after the adjournment of the legislative session: