by Becki Gray
Former Senior Vice President, John Locke Foundation
Gov. Roy Cooper vetoed House Bill 467, Agriculture and Forestry Nuisance Remedies, on Friday. In his veto message, he noted, “Special protection for one industry opens the door to weakening our nuisance laws in other areas which can allow real harm to homeowners, the environment, and everyday North Carolinians.”
He may be onto something. House Bill 467 was introduced, intended to address, and passed with current litigation in mind: A group of 500 some property owners have sued a subsidiary of Smithfield Foods over nuisance and other claims they contend violate their property rights. The original bill even applied to “pending litigation,” which was removed from the bill in subsequent editions.
But the ratified bill says nothing about Smithfield Foods or any of those 500 property owners or any specific litigation. It applies to every North Carolinian in every part of the state and applies to any and all agricultural and forestry operations and any and all property owners who might be affected by those operations.
With that in mind, there are some unanswered questions.
If an aggrieved property owner settles for nuisance claims, can they pursue other claims, including injunctive relief? Some legal experts (Sen. Paul Newton) say yes, others (Duke Law professor Michelle Nowlin) believe the availability of injunctive relief would be significantly limited.
If private nuisance claims (as outlined in H.B. 467) are limited, will public nuisance actions then be brought more often?
Should limits on damages be based on market or rental value? What’s fair?
Does the cap on compensation to the loss in property value provide relief to those who rent their home? What about to those whose property lacks a clear title, as is sometimes the case with Native Americans and African-Americans in rural areas?
Is this a de facto eminent domain taking if it caps nuisance damages at the fair market value of the property? Is that the same thing as a Kelo taking? If so, would this taking be considered for a public use?
Does the bill limit damages for loss of property value or more generally limit all damages other than damage to property value? Should the language be specific that the measure of damages provided refers only to the “property damage”?
I have great respect for the sponsors of the bill and their commitment to the farming community and their constituents. I also have great respect for property rights and a commitment to protecting those rights for all North Carolinians. It is important to protect our agricultural businesses — and indeed, all businesses — from abusive tort claims. But it is equally important to provide protection for North Carolinians’ fundamental property rights. H.B. 467 leaves us with unanswered questions, along with the potential of unintended and unforeseen consequences.
Perhaps there is a better way to ensure balance and protect everyone’s rights. Let’s take some time — carefully and systematically — to consider tort reform that protects against abusive litigation without compromising property rights. A comprehensive study seems a better solution at this point.