ARIZONA HOUSE OF REPRESENTATIVES

Fifty-fifth Legislature

First Regular Session

House: LARA DP 6-5-0-0

HB 2372: agricultural operations; nuisance; liability

Sponsor:  Representative Dunn, LD 13

Caucus & COW

Overview

Replaces the state's agricultural nuisance law with one that sets criteria for when a nuisance action can be brought, specifies when an agricultural operation is presumed to not be a nuisance and outlines how courts should award costs and expenses or assess damages in any action.

History

Agricultural Nuisance Law

Under state law, agricultural operations conducted on farmland (operation) that are consistent with good agricultural practices and established before surrounding non-agricultural uses are presumed to be reasonable and are not considered a nuisance unless they have a substantial, adverse effect on public health and safety. Operations that comply with federal, state and local laws and regulations are presumed to be good agricultural practices and not adversely affecting public health and safety (A.R.S. § 3-112).

Relevant Legal Terms

A rebuttable presumption is an assumption made by a court that is accepted as true until otherwise disproven.

Compensatory damages are awarded to a plaintiff in civil court to compensate for damages, injury, or other incurred losses. By contrast, punitive damages are assessed to punish a defendant.

A preponderance of evidence is a standard used in civil cases that is satisfied when a party can demonstrate that their claims have a greater than 50% chance of being true.

Provisions

1.   ☐ Prop 105 (45 votes) ☐ Prop 108 (40 votes) ☐ Emergency (40 votes) ☐ Fiscal NoteRepeals A.R.S. § 3-112. (Sec. 1)

2.   Prohibits a nuisance action from being filed against an operation unless all the following apply:

a)   The plaintiff is a legal possessor of the real property affected by the alleged nuisance;

b)   The real property affected by the alleged nuisance is within half a mile of the source of activity or the structure alleged to be the nuisance; and

c)   The action is brought within one year after the operation is established, regardless of any subsequent change in the operation's ownership, size or agricultural practice or product produced. (Sec. 2)

3.   Declares that it is a rebuttable presumption that the operation is not a public or private nuisance, even when the operation:

a)   Changes ownership or sizes;

b)   Temporarily ceases or interrupts its farming operations;

c)   Participates in any government-sponsored agricultural program;

d)   Uses new technology; or

e)   Changes the type of agricultural product it produces. (Sec. 2)

4.   Allows this rebuttable presumption to be overcome by a preponderance of evidence if the operation is violating applicable federal, state or local laws or regulations. (Sec. 2)

5.   Specifies that in nuisance actions against an operation:

a)   If the court finds that the operation is not a nuisance, it must award costs and expenses (including reasonable attorney fees) to the operation.

b)   If the court finds the alleged nuisance emanated from the operation, it may award compensatory damages to the plaintiff action as follows:

i.   For a permanent nuisance, compensatory damages will be measured by the reduction in fair market value of the plaintiff's property caused by the nuisance but cannot exceed the property's fair market value.

ii. For a temporary nuisance, compensatory damages will be limited to the diminution of fair rental value of the plaintiff's property caused by the nuisance.

c)   Limits the court to awarding punitive damages for a nuisance action only when the alleged nuisance emanated from an operation that has been subject to a criminal conviction or civil enforcement action taken by a state or federal environmental regulatory agency pursuant to a violation for the conduct alleged to be the source of the nuisance within 3 years before the first action on which the nuisance is based. (Sec. 2)

6.   Declares that this section of statute supersedes any municipal ordinance that makes an operation a nuisance or provides for an abatement of the operation as a nuisance and any such ordinance is void and has no force or effect. (Sec. 2)

7.   Contains legislative findings. (Sec. 3)

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11.                    HB 2372

12.  Initials PAB           Page 0 Caucus & COW

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