Farming: a nuisance for suburban aesthete?

There's a new kind of "range war" brewing in pastures and fields across rural America. It isn't a battle over cattle or sheep, fences or open plans; it's a conflict over how farmers use their land in areas where a growing number of nonfarmers are staking claims.

The 1980 census showed that, for the first time in more than 160 years, the population growth rate in rural and small-town communities of the United States was greater than in metropolitan areas.

But only about one in every eight rural residents now lives on a farm, estimates Calvin Beale in charge of population studies at the US Department of Agriculture in Washington. Many rural newcomers work in cities and towns, he said, and have moved to the country looking for a better life.

As more people choose rural living, the number of nuisance suits brought against farmers is increasing. (A "nuisance" in this sense is any activity which unreasonably hinders another person's right to use and enjoy his property.)

In some cases, farmers are fined or forced to close down or change their operations because their neighbors claim the noise, dust, or smell of the farm is objectionable. In addition, an array of state and local regulations, mainly aimed at protecting the environment, are being more strictly enforced.

As a result, at least 18 states have "right to farm" laws --states enacted such laws inthe early 1970s, but most were passed in the last two years.

Some half-dozen more states, including Ohio and Arkansas, are considering such measures.

Farmers say their citified neighbors move in with fuzzy ideas about a bucolic country life that never existed -- odor-free and fitting into the 9-to-5 day.

The rural realities, though, include smelly fertilizers, powerful herbicides, and farm machinery that sometimes labors late into the night, depending on the season. All these are crimpling the newcomers' suburban style and, in some cases, posing apparent threats to public health and safety.

"But I've been here longer than most of the ones who complain," says Carroll Barnard, a Virginia hog farmer recently fined $1,500 as the result of a nuisance suit brought by a group of neighbors. He says modern techniques have made his farm as odor-free as possible.

"We're saying, in effect, 'Look, when you move into the country, you've got to put up with the odor and whatever other discomforts are related to the farming operation,'" says Illinois State Rep. Fred J. Schraeder, cosponsor of a "right to farm" bill in that state.

But like most of the laws, the Illinois measure includes a clause that says improper farming techniques aren't protected, especially if they endanger the pulic health.

Some states, like North Carolina, make a point of not calling it a "right to farm" law because this might give the impression of unlimited farm protection.

"Some people might think it means you can set up a pigpen in the middle of a subdivision," says David McLeod, counsel for the North Carolina Department of Agriculture. "But it doesn't allow that at all." Several provisions -- such as one which excludes "negligent of improper" farming procedures --narrow the application of the law.

There are three kinds of "right to farm" laws. One type protects farmers from restrictive local government regulations, another from state regulations, and the third from private nuisance suits.

All three varieties are expected to face tough legal tests in the years ahead.

"There's a potential constitutional problem involved," says John Keene, a lawyer and associate professor of city and regional planning at the University of Pennsylvania. Some states may find that giving farmers protection from nuisance suits may be seen as depriving neighbors of use of their land without just compensation.

"The laws will either be ineffective or unconstitutionally restrict the rights of neighbors," says Edward Thompson Jr., director of an agricultural lands project for the National Association of Counties.

Further complicating matters, some of the laws contain foggy phrases such as "good agricultural practices," which may have to be defined through litigation.

While the legal tests are still coming, some observers say the "right to farm" movement is sidestepping the real issue: split-level sprawl on America's farmland.

"The only effective protection for the right to farm is to stop the residential development of prime farmland," says Mr. Thompson.

Some knowledgeable sources say a better solution is to establish more agricultural districts -- where farms take precedence over other types of development.

"Farming is unique; it's a technique, more than just an idyllic life style," says James Miller, assistant legislative director for the National Grange. "When the plowing has to be done at 9 p.m. -- it just has to be."