This memorandum was originally sent to Speaker Tim Moore of the North Carolina General Assembly by Paul Stam, J.D. Mr. Stam has extensive legal experience as a practicing attorney, instructor, House majority leader (2011-2012), and Speaker Pro Tem (2013-2016). The following is an abridged version of his memorandum. Click here to read SB 711, the bill in question, in its entirety.
Re: Senate Bill 711 – Section 10 “Clarify” and Amend Right to Farm
The Senate has this surprise on a fast track.
My opinion is that section 10 of this bill is a serious and direct threat to the private property rights of citizens throughout the state.
Due to the brief time elapsed since this section of the bill was publicly revealed Tuesday, I will succinctly state my conclusions and recommendations.
G.S. § 4-1 incorporates the common law as of 1776 into the law of North Carolina. That common law was stated by Blackstone in his Commentaries:
Also if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. A like injury is, if one’s neighbor sets up and exercises an offensive trade; as a tanner’s, a tallow-chandler’s, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, “sic utere tuo, ut alienum non loedas:”this therefore is an actionable nuisance. So that the nuisances which affect a man’s dwelling may be reduced to these three; 1. Overhanging it; which is also a species of trespass, for cujus est solum, ejus est usque ad coelum: 2. Stopping ancient lights: and 3. Corrupting the air with noisome smells: for light and air are two indispensable requisites to every dwelling. (Blackstone’s Commentaries – Book III, Ch. XIII, *739, emphases added.)
- The title of section 10 “Clarify and Amend North Carolina Right to Farm Law” should be amended to delete the word “Clarify.” The section does not clarify anything. It is a big change. Courts are not fooled or hamstrung by titles claiming “clarification.” Senator Brent Jackson stated in Committee Wednesday that it would not affect pending litigation. But he opposed the Daniels Amendment to state that. That tells you all you need to know. In 2017 the House and Senate sponsors stated on the floor that HB467 was not retroactive. But Smithfield’s lawyers argued in federal court that it was retroactive because it was called a “clarifying” amendment. They lost but will certainly try again in the 4th Circuit.
- In G.S. 106-701(a) delete the new language “For purposes of this section, the phrase ‘changed conditions’ includes, but is not limited to a change in ownership, occupancy, or the use of the property that is affected by the alleged nuisance.” This applies to change in ownership of the neighbors to a nuisance. This means that this big change in nuisance law will significantly reduce the market value of adjoining property since a purchaser (or even a spouse or child) of a home will not have the same legal protection that is available to the seller of the home. If a buyer does not have the same legal right to pursue a claim for nuisance as the seller does then the market price will decline drastically.
Existing law in (a1) refers to a change of ownership of the property creating the nuisance. It is ironic and perverse that a change in ownership of the nuisance does not count but a change in ownership of the victim of the nuisance does count as a change in condition.
So that this diminution in value may be amortized over a reasonable period of years, I propose that, if this section is retained, the effective date be seven years hence and apply to “claims for relief accrued on or after July. 1, 2025.”
It is imperative that the law protect “accrued” claims for relief rather than only claims for relief “filed” before the effective date. It is settled state constitutional law that accrued claims for relief for compensatory damages (but not punitive damages) are vested property rights and can not be taken by legislation. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004), citing Osborn v. Leach 135 N.C. 628, 47 SE, 811 (1904).
- Delete the new presumption in section (a3) which provides for a negative presumption that is contrary to fact and rebuttable only by “clear and convincing evidence” of a negative proposition. The bill requires that if there are pervasive nuisances in an undefined “region” then it is legislatively presumed that none were nuisances. That is an odd and counterfactual proposition. Occasionally my grandchildren try that one on me— “It’s alright, Yeye, everybody’s doing it.”
My argument is not contrary to the phrase “and (ii) applicable laws and regulations.” If these “laws” do not include the common law of nuisance then the remaining common law of nuisance is effectively repealed in these situations. If these “laws” do include the common law of nuisance then the effect of the section is to shift the burden of proof and raise the bar substantially by using “clear and convincing evidence,” which is a much higher evidentiary standard than “by a preponderance of the evidence.” How can this conceivably be called a “clarifying” amendment?
- One consequence (hopefully unintended) of the amendment to G.S. §106-701(a3) is that even nuisance claims brought by state and local government will fail if the government cannot show by clear and convincing evidence that the nuisance “has not been managed in a manner substantially consistent with . . . practices, methods, and procedures that are generally accepted and routinely utilized by other agricultural and forestry operations in region[.]” (emphasis added). In other words, if there are many nuisances then there are none. Even if the government can show a violation of “applicable laws and procedure,” it still cannot rebut the presumption of “no nuisance” if everybody (in the region) is doing it.
- One of the oddest provisions in section 10 is the deletion of subsection (a2) on lines 28-30 and similar language on lines 48-50. The effect is to hold that a negligent operation of the enterprise does not count toward a nuisance claim. What does that even mean?
- I would recommend completely deleting Section 10 as it is a direct attack on the private property rights of hundreds of thousands of North Carolinian property owners. Failing that, the amendments recommended above are essential.
The basic rights of private property include the land, the air above it and the earth below. No matter how well-intentioned, Section 10 is not constitutional or wise. It is a serious constitutional matter when legislation deprives homeowners of their property rights to own and enjoy their homes. Please amend section 10 out of this bill.