WEST virginia legislature
2021 regular session
Introduced
Senate Bill 339
By Senators Sypolt, Smith, Woodrum, and Rucker
[Introduced February 18,
2021; referred
to the Committee on Agriculture and Rural Development; and then to the
Committee on the Judiciary]
A BILL to amend and reenact §19-19-2 and §19-19-7 of the Code of West Virginia, 1931, as amended, all relating to the right to farm; defining terms; expanding protection of agricultural operations from nuisance and other legal actions to agricultural and horticultural practices allowed within municipalities, aquaponics, and hydroponics; requiring compliance with local laws, regulations, and ordinances for protection from nuisance and other legal actions to apply; and making technical changes.
Be it enacted by the Legislature of West Virginia:
ARTICLE 19. PRESERVATION OF AGRICULTURAL PRODUCTION.
§19-19-2. Definitions.
For the purposes of this article:
(a) “Agriculture” shall
mean means the production of food, fiber, and woodland products, by
means of cultivation; tillage of the soil; and by the conduct of animal,
livestock, dairy, apiary, equine, or poultry husbandry; and the practice of
forestry, silviculture, or horticulture; harvesting of silviculture
products; storage, packing, shipping, milling, and marketing of
agricultural products; and the manufacturing, milling, or processing of
products conducted by the proprietor of the agricultural operation; or any
other legal plant or animal production and all farm practices.
(b) “Agricultural land” shall
mean means any amount of land and the improvements thereupon, used
or usable in the production of food, fiber or woodland products of an annual
value of $1,000 or more, by the conduct of the business of agriculture, as
defined in subsection (a) of 11 this section.
(c) “Agricultural operation”
shall mean means any facility utilized for agriculture, urban
agriculture, aquaponics, or hydroponics.
(d) “Aquaponics” means the cultivation of fish and plants together in a constructed, recirculating ecosystem utilizing natural bacterial cycles to convert fish waste to plant nutrients.
(e) “Garden” means a planned space for the display, cultivation, and enjoyment of plants, including vegetables, flowers, and fruits, for private or personal use.
(f) “Hydroponics” means the cultivation of plants in nutrient solution rather than soil.
(g) “Urban agriculture” means agricultural, horticultural, and silvicultural practices that are allowed by ordinance, code, permit, or license within the corporate boundaries of a municipality including, but not limited to, agriculture, aquaponics, hydroponics, and the maintaining of a garden.
§19-19-7. Additional limitations on nuisance actions.
(a) The provisions of this section are in addition to the limitations on actions brought against an agricultural operation in § 19-19-4 of this code, and shall also apply to any nuisance action brought against an agricultural operation in any court of this state.
(b) A person may not file a nuisance action to recover damages in which an agricultural operation is alleged to be a public or private nuisance unless:
(1) He or she is the majority legal land owner;
(2) He or she owns property adversely affected by agricultural operations within one half mile of the agricultural operation; and
(3) The agricultural
operation has materially violated a federal, state, or local law, or
ordinance applicable to agriculture.
(c) No agricultural operation
within this state which has been in operation for a period of more than one
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 operation
is located. In any nuisance action, public or private, against an agricultural
operation or its principals or employees proof that the agricultural operation
has existed for one year or more is an absolute defense to the nuisance action,
if the operation is in compliance with all applicable state, and federal,
and local laws, regulations, and permits.
(d) No state or local
agency may bring a criminal or civil action against an agricultural operation
for an activity that is in material compliance with all applicable state, and
federal, and local laws, regulations, and permits.
(e) No agricultural
operation shall be or become a private or public nuisance if the operators are
conducting the agricultural operation in a manner consistent with commonly accepted
agricultural practice. If the operation is in material compliance with all
applicable state, and federal, and local laws, regulations, and
permits, it shall be presumed to be conducted in a manner consistent with
commonly accepted agricultural practice.
(f) No agricultural
operation shall be considered a nuisance, private or public, if the agricultural
operation makes a reasonable expansion, so long as the operation is in material
compliance with all applicable state, and federal, and local
laws, regulations, and permits.
(1) For the purpose of this section, a reasonable expansion includes, but is not limited to:
(A) Transfer of the agricultural operation;
(B) Purchase of additional land for the agricultural operation;
(C) Introducing technology to an existing agricultural operation including, but not limited to, new activities, practices, equipment, and procedures consistent with technological development within the agricultural industry;
(D) Applying a Natural Resources Conservation Service program or other United States Department of Agriculture program to an existing or future agricultural operation; or
(E) Any other change that
is related and applied to an existing agricultural operation, so long as the
change does not affect the agricultural operation's compliance with applicable
state, and federal, and local laws, regulations, and permits.
(2) The reasonable expansion exemption provided by this subsection cannot apply to an expansion that:
(A) Creates a substantially adverse effect upon the environment; or
(B) Creates a hazard to public health and safety.
(g) A requirement of a
municipality does not apply to an agricultural operation situated outside of
the municipality's corporate boundaries on the effective date of this chapter.
If an agricultural operation situated outside of a municipality’s corporate
boundaries is subsequently annexed or otherwise brought within the municipality’s
corporate boundaries of a municipality, the requirements of the municipality do
not apply to the agricultural operation.
(h) An agricultural operation is not, nor shall it become, a private or public nuisance after it has been in operation for more than one year, if such operation was not a nuisance at the time the operation began, and the conditions or circumstances complained of as constituting the basis for the nuisance action exist substantially unchanged since the established date of operation. The established date of operation is the date on which an agricultural operation commenced.
(i) The provisions of this section shall not apply in any of the following circumstances:
(1) Whenever a nuisance results from the negligent operation of any such agricultural operation; or
(2) To affect or defeat the right of any person to recover for injuries or damages sustained because of an agricultural operation or portion of an agricultural operation that is conducted in violation of a federal, state, or local statute, regulation, ordinance, or governmental requirement that applies to the agricultural operation or portion of agricultural operation.
NOTE: The purpose of this bill is to expand the types of agricultural operations that are protected from nuisance and other legal actions to include agricultural and horticultural practices allowed within a municipality and to hydroponics and aquaponics. The bill also requires compliance with local laws for the legal protections to apply.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.