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REFERENCE TITLE: agricultural operations; nuisance liability. |
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State of Arizona Senate Fifty-fifth Legislature First Regular Session 2021
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SB 1224 |
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Introduced by Senator Kerr
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AN ACT
Repealing section 3‑112, Arizona Revised Statutes; amending Title 3, chapter 1, article 2, Arizona Revised Statutes, by adding a new section 3‑112; relating to agricultural administration.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Repeal
Section 3-112, Arizona Revised Statutes, is repealed.
Sec. 2. Title 3, chapter 1, article 2, Arizona Revised Statutes, is amended by adding a new section 3-112, to read:
3-112. Agricultural operations; nuisance; liability; rebuttable presumption; state preemption
A. A nuisance action may not be filed against an agricultural operation conducted on farmland unless all of the following apply:
1. The plaintiff is the legal possessor of the real property affected by the condition alleged to be a nuisance.
2. The real property affected by the condition alleged to be a nuisance is located within one‑half mile of the source of the activity or structure alleged to be a nuisance.
3. The action is brought within one year after the agricultural operation is established, regardless of any subsequent change in the agricultural operation's ownership, size or agricultural practice or product produced.
B. Notwithstanding any other law, it is a rebuttable presumption that an agricultural operation conducted on farmland is not a public or private nuisance.
C. The rebuttable presumption prescribed in subsection B of this section applies notwithstanding that the agricultural operation does any the following:
1. Changes its ownership or size.
2. Temporarily ceases or interrupts its farming operations.
3. Participates in any government-sponsored agricultural program.
4. Uses new technology.
5. Changes the type of agricultural product the agricultural operation produces.
D. The rebuttable presumption prescribed in subsection b of this section may be overcome by a preponderance of the evidence only if the agricultural operation conducted on farmland is violating applicable federal, state or local laws or regulations.
E. In a nuisance action against an agricultural operation conducted on farmland:
1. if the court finds that the agricultural operation is not a nuisance, the court shall award costs and expenses, including reasonable attorney fees, to the agricultural operation.
2. If the court finds the alleged nuisance emanated from the agricultural operation, the court may award compensatory damages to a plaintiff action as follows:
(a) If the nuisance is a permanent nuisance, compensatory damages shall be measured by the reduction in the fair market value of the plaintiff's property caused by the nuisance but may not exceed the fair market value of the property.
(b) If the nuisance is a temporary nuisance, compensatory damages shall be limited to the diminution of the fair rental value of the plaintiff's property caused by the nuisance.
3. The court may not award punitive damages for a nuisance action unless the alleged nuisance emanated from an agricultural operation that has been subject to a criminal conviction or a civil enforcement action taken by a state or federal environmental regulatory agency pursuant to a notice of violation for the conduct alleged to be the source of the nuisance within the three years before the first action on which the nuisance action is based.
F. The circumstances under which agricultural operations conducted on farmland may be regulated or considered to be a nuisance are a matter of statewide concern. This section supersedes Any municipal ordinance that makes an agricultural operation conducted on farmland a nuisance or provides for an abatement of the agricultural operation as a nuisance, and any such ordinance is, void and has no force or effect.
Sec. 3. Legislative findings
The legislature finds that it is the policy of this state to conserve, protect and encourage the development and improvement of its agricultural land for producing food and other agricultural products. It is the purpose of this act to reduce the loss to this state of its agricultural resources by limiting the circumstances under which agricultural operations conducted on farmland may be regulated or considered to be a nuisance.