MEMORANDUMState of Hogsmeade

TO:CLA EXAMINEE, Paralegal

DATE:

FROM:Christy Powers, Staff Attorney

RE:Ron and Hermione Weasley

New Client File

Ron and Hermione Weasley recently consulted our firm about the Ravenclaw Farm Supply Company operation that is directly across from their property.The Weasleys and their 2 children enjoy living out in the country on their 5 acre farm.They have a horse and raise chickens, turkeys, and geese for their own use.They believe it teaches their children responsibility to care for the animals.Their house is set back from the road about 100 feet and has a large front lawn with oak and maple trees.

When they moved in 6 years ago, the Ravenclaw Farm Supply Company was only a minor inconvenience during harvest season.The company sold farm machinery, fertilizer, and misc. farm equipment.The company is located on a 30 acre parcel.The family homestead and the business occupy some of the land; the rest is devoted to raising corn.In the fall, the company dried grain, particularly corn, in its grain dryer.The dryer was noisy to a person standing next to it, and it generated some dust and "bee's wings" (dried skin that covers corn kernels).The Weasleys were not particularly inconvenienced and the grain drying only occurred in the end of Sept. and beginning of Oct.

Last spring, the company installed a new, state-of-the-art grain dryer.During harvest season, the new dryer ran almost continuously.It was noisier than the old model, and it generated substantially more dust than "bee's wings."The "bee's wings" were inch thick on the Weasleys' driveway on October 11, 2013.They stuck to the windows and siding on their house, their car, and their animals.

The company also added liquid ammonia to its fertilizer line last spring.The ammonia is stored in a huge tank adjacent to the Ravenclaw Store.The tank is also state of the art.There is an automatic pressure release valve on the top of the tank.Whenever the pressure in the tank reaches the limit on the valve, it automatically releases ammonia gas into the surrounding atmosphere.As the prevailing wind is to the east, the fumes drift across the road to the Weasleys' property.The dozen or so releases that occurred over the course of the spring and summer poisoned their trees.The leaves withered and fell.I have a great forestry expert that will testify that the ammonia fumes killed the trees.

The Weasleys would like to bring a case against Ravenclaw Co.Our research indicates that there are 2 possible causes of action, a common law nuisance for the dust and "bee's wings" generated by the new grain dryer and a Hogsmeade Environmental Protection Act action for the dead trees.The Air Pollution Act does not apply.It does however refer to a recent amendment to the Hogsmeade Right to Farm Act.

Please read the Hogsmeade Right to Farm Act and its accompanying annotations to see if it potentially applies to this case.There is no applicable legislative history.

HOGSMEADE RIGHT TO FARM ACT

AN ACT to provide for circumstances under which a farm shall not be found to be a public nuisance.

The People of the State of Hogsmeade enact:

Short title.Sec. 1

This act shall be known and may be cited as the "Hogsmeade Right to Farm Act."

Definitions.Sec. 2

As used in this act:

(a)"Farm" means land, buildings, and machinery used in the commercial production of farm products.

(b)"Farm operation" means a condition or activity which occurs on a farm in connection with the commercial production of farm products, and includes, but is not limited to, marketed produce at roadside stands or farm markets; noise; odors; fumes; operation of machinery and irrigation pumps; ground and aerial seeding and spraying; the application of chemical fertilizers, conditioners, insecticides, pesticides, and herbicides; and the employment and use of labor.

(c)"Farm product" means those plants and animals useful to [human beings] and includes , but is not limited to, forages and sod crops, gains and feed crops, dairy and dairy products, poultry and poultry products, livestock, including breeding and grazing, fruits, vegetables, flowers, seeds, grasses, trees, fish, apiaries, equine and other similar products, or any other product which incorporates the use of food, feed, fiber, and fur.

(d)"Generally accepted agricultural and management practices" means those practices as defined by the Commission on Agriculture.The commission shall give due consideration to available Hogsmeade Department of Agriculture information and written recommendations from the Hogsmeade State University College of Agriculture and Natural Resources Cooperative Extension Service and the Agricultural Experiment Station in cooperation with the United States Department of Agriculture Soil and Conservation Service and the Agricultural Stabilization and Conservation Service, the Department of Natural Resources and other professional and industry organizations.

(e)"Person" means an individual, corporation, partnership, association, or other legal entity.

Farm as nuisance.Sec. 3.

(1)A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to he policy as determined by the State Agriculture Commission.Generally accepted agricultural and management practices shall be reviewed annually by the State Agriculture Commission and revised as considered necessary.

(2)Conditions.A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation existed before a change in the land use or occupancy of land within 1 mile of the boundaries of the farm land, and if before that change in land use or occupancy of land, the farm or farm operation would not have been a nuisance.

Applicability of act.Sec. 4.

This act shall not affect the application of state or federal statutes.

Annotations

Roadside stands.A township ordinance which regulates roadside stands for the sale of agricultural products does not violate 2007 HG 93. Op Atty Gen, May 1, 2009, No. 6222.

Construction, operation, and effect.The Right to Farm Act provides for circumstances under which a farm and its operation shall not be found to be a public or private nuisance and is a valid defense to a suit alleging that a farm building is a nuisance per se because it violates a zoning ordinance.Northville Tp. V. Coyne, 170 Hogs. App. 446.

Construction and effect.The Hogsmeade Right to Farm Act does not affect application of state and federal statutes.Villageof Potterv. Hoist, 153 Hogs. App. 787.