Landowners complaining about odors emanating from biosolid fertilizers on a York County farm were barred from bringing a nuisance action by a one-year statute of repose in the Right to Farm Act, the Pennsylvania Supreme Court held in Gilbert v. Synagro Central, LLC, __ A.3d __ (No. 121 MAP 2014, filed Dec. 21, 2015). The Court also held that determining what constitutes a “normal agricultural operation” under the Act is for a court, not a jury, to decide.
The subject farm in this case, Hilltop Farms, is a 220-acre farm in York County owned and operated by George Phillips since 1986. From 2006 through 2009, Phillips applied approximately 11,635 tons of biosolid fertilizer to his fields, which he obtained from Synagro, a biosolids recycling contractor. Nearby landowners soon complained about the extremely offensive odor, which they described as much stronger than animal manure and which caused physical symptoms such as burning eyes, sore throats, coughing, headaches and nausea. A group of 34 landowners filed a complaint against Synagro and Hilltop Farms alleging a private nuisance, negligence in the handling of the biosolids, and trespass. The defendants moved for summary judgment on the basis that the nuisance claims were barred by Section 954(a) of the Right to Farm Act, which states, in pertinent part: “No nuisance action shall be brought against an agricultural operation which has lawfully been in operation for one year or more prior to the date of bringing such action, where the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation and are normal agricultural operations.” 3 P.S. §954(a). The trial court granted the motion, holding that the application of biosolids is a “normal agricultural operation” and was not a substantial change from Hilltop’s use of fertilizers since 1986.
On appeal, the Superior Court reversed and remanded, holding in a 2-1 decision that summary judgment was improper. Gilbert v. Synagro Central, LLC, 90 A.3d 37 (Pa. Super. 2014). The majority observed that, even though there was a factual issue as to whether Hilltop’s switch to biosolids in 2006 constituted a “substantial change,” it was irrelevant since appellees did not commence their nuisance action until 2008. The Court emphasized that any substantial change in an agricultural operation resulting in a nuisance does not eliminate Section 954(a)’s statute of repose but, rather, resets it. The Court further held that the trial court erred in deciding that Hilltop’s use of biosolids was a “normal agricultural operation” under Section 954(a), which was a factual issue that should have been resolved by a jury.
On further appeal, the Supreme Court reversed in part, in an opinion authored by Justice Eakin. The Court noted that because Section 954(a) is a statute of repose, it is jurisdictional and the determination of whether an activity is a “normal agricultural operation” is a question of law for a court to decide. Sending this question to a jury, the Court reasoned, and allowing varying local perceptions to dictate what is “normal,” would frustrate the Right to Farm Act’s core purpose of protecting farmers from nuisance suits. Turning to the application of the statute in this case, the Court held that “the record concerning biosolids’ history, related statutes and regulations, case law, and executive agencies’ views” all supported the trial court’s conclusion that the use of biosolids as fertilizer constitutes a “normal agricultural operation” – a term the Court emphasized must be read expansively to account for new developments in the farming industry.
In a concurring opinion, Chief Justice Saylor agreed with the majority analysis in this case, but opined that a future dispute could require an evidentiary record on whether the use of odor-control practices is necessary for a particular application of biosolids to qualify as “normal” under Section 954(a).