2015 IL App (3d) 130445

Opinion filed February 25, 2015

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

THE VILLAGE OF LaFAYETTE, an Illinois )

Municipal Corporation, )

)

Plaintiff-Appellee, )

)

v. )

)

JEROD A. BROWN and DANA M. BROWN, ) 

)

Defendants-Appellants. )

Appeal from the Circuit Court

of the 10th Judicial Circuit, 

Stark County, Illinois,

Appeal No. 3-13-0445

Circuit No. 12-CH-11

Honorable Scott A. Shore,

Judge, Presiding.

_____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

Justice Holdridge specially concurred, with opinion.

 Justice Lytton dissented, with opinion.

OPINION

¶ 1 In April 2012, the Village of LaFayette (Village) enacted ordinance No. 420, which 

declared commercial farming within the boundaries of the Village to be a nuisance. LaFayette

Ordinance No. 420 (eff. Apr. 2, 2012). Shortly thereafter, the Village brought an action against 

defendants, Jerod and Dana Brown, seeking conviction for a violation of the ordinance and to 

enjoin the defendants from further commercial farming on the property.

¶ 2 Following a bench trial in the circuit court of Stark County, the court found defendants

not guilty of violating the ordinance as the Village failed to prove the element of notice. The 
2

trial court did, however, issue an injunction prohibiting further commercial farming on the 

property. 

¶ 3 Defendants appeal, arguing that the Farm Nuisance Suit Act (740 ILCS 70/1 (West 

2012)) preempts the Village’s ordinance No. 420, that application of the Farm Nuisance Suit Act 

precludes enforcement of the ordinance against defendants, and that the ordinance is an 

unreasonable and, therefore, unconstitutional exercise of the Village’s authority.

¶ 4 We reverse.

¶ 5 BACKGROUND

¶ 6 The Village is a municipal corporation with a population of approximately 230 located in 

Stark County, Illinois. Defendants purchased the 57-acre farm in question at public auction on 

June 27, 2011. Six of those acres lie within the Village’s boundaries. 

¶ 7 Immediately prior to the sale to defendants in 2011, the property was known as LaFayette 

Home Nursery, Inc., operating commercially as a tree and prairie grass nursery in and around the 

Village from 1979 until it declared bankruptcy and the bank foreclosed upon it. Within its dayto-day operations, the nursery used pesticides, fertilizers, and heavy equipment. After the 

nursery’s foreclosure and leading up to its sale, some of the owners and employees remained 

working, with all proceeds going to the bank. 

¶ 8 After purchasing the property, defendants removed the trees, leveled off the property, and 

began preparing the soil for growing corn and soybeans. Prior to purchasing the Stark County 

property, Jerod Brown farmed commercially for 16 growing seasons. In that time, the 

Environmental Protection Agency never cited defendants for a violation. No one disputes that 

defendants operated their farm according to the standard practices of the industry. 
3

¶ 9 On April 2, 2012, approximately nine months after defendants, residents of neighboring 

Henry County, purchased the property, the Village enacted ordinance No. 420. Ordinance No. 

420 expanded ordinance No. 378, which prohibited the keeping of farm animals or livestock 

within the Village. LaFayette Odinance No. 378 (eff. Mar. 6, 2000). Ordinance No. 420 

expanded the definition of nuisances within the Village to include engaging “in any commercial 

farming for the production and harvesting of any agricultural or horticultural products on any 

private or public property within the Village of LaFayette.” LaFayette Odinance No. 420 (eff. 

Apr. 2, 2012). 

¶ 10 On May 22, 2012, during the first growing season since having purchased the property, 

defendants planted their first corn crop. On June 1, 2012, the Village sent defendants a notice to 

abate, claiming that defendants were creating a nuisance by being in violation of the newly

enacted ordinance. 

¶ 11 On June 6, 2012, the Village filed a complaint against defendants, seeking both a penalty

for violation of the ordinance and an injunction against continued commercial farming. On 

March 19, 2013, the parties filed pretrial briefs outlining their positions, and the trial court held a 

half-day bench trial. 

¶ 12 On April 5, 2013, the trial court entered a judgment order acquitting defendants of the 

alleged ordinance violation based on a lack of notice. However, on April 26, 2013, the court 

issued an injunction, enjoining defendants from engaging in any commercial farming on their 

property within the Village. The court specifically found that the protections of the Act did not 

apply. It noted that “[a]lthough Defendants’ property was in continuous use for agricultural 

commercial purposes, the Village has been a municipal corporation far longer, and has been 
4

obligated to serve the public welfare of its residents since its incorporation, which purposes have 

not changed.”

¶ 13 The trial court denied the defendants’ motion for reconsideration. Defendants appeal the 

injunction. We reverse and vacate the injunction.

¶ 14 ANALYSIS

¶ 15 On appeal, defendants argue that the application of the Farm Nuisance Suit Act (the Act) 

(740 ILCS 70/1 (West 2012)) precludes enforcement of the ordinance against them; that the Act 

preempts ordinance No. 420. In the alternative, the defendants argue that the ordinance is 

arbitrary and an unreasonable exercise of the Village’s authority and is, therefore,

unconstitutional. We need not address the constitutionality of the ordinance as we find that, on 

the facts of this case, the Act preempts the ordinance. 

¶ 16 Ordinance No. 420 regulates nuisances within the Village and, in relevant part, provides 

as follows:

“SECTION 1: Paragraph 13 of Section II. Nuisances 

include, but are not limited to, the following: shall be Amended 

to read as follows:

13. *** or to engage in any commercial farming 

for the production and harvesting of any agricultural or 

horticultural products on any private or public property within the 

Village of LaFayette.” LaFayette Ordinance No. 420 (eff. Apr. 2

2012).

While the Village clearly has the authority to enact a nuisance ordinance (see 65 ILCS 5/11-60-2 

(West 2012)) (providing that the “corporate authorities of each municipality may define, prevent,
5

and abate nuisances”), the legislature has limited this authority in certain instances. Passed in

1981, the Act states that “[i]t is the declared policy of the state to conserve and protect and 

encourage the development and improvement of its agricultural land for the production of food 

and other agricultural products.” 740 ILCS 70/1 (West 2012). Thus, the purpose of the Act is 

“to reduce the loss to the State of its agricultural resources by limiting the circumstances under 

which farming operations may be deemed to be a nuisance.” (Emphasis added.) Id. 

¶ 17 Section 2 of the Act defines a farm as:

“§ 2. The term ‘farm’ as used in this Act means any parcel 

of land used for the growing and harvesting of crops; for the 

feeding, breeding and management of livestock; for dairying or for 

any other agricultural or horticultural use or combination thereof.” 

740 ILCS 70/2 (West 2012).

¶ 18 Finally, and at issue in the case at bar, section 3 of the Act provides:

“§ 3. No farm or any of its appurtenances shall be or 

become a private or public nuisance because of any changed 

conditions in the surrounding area occurring after the farm has been 

in operation for more than one year, when such farm was not a 

nuisance at the time it began operation, provided, that the 

provisions of this Section shall not apply whenever a nuisance 

results from the negligent or improper operation of any farm or its 

appurtenances.” 740 ILCS 70/3 (West 2012).

¶ 19 The Village contends that the trial court properly found that section 3 of the Act was not 

applicable to defendants, as defendants failed to prove “any changed conditions in the 
6

surrounding area.” The mere enactment of an ordinance, the Village argues, does not constitute 

changed conditions as there was no encroaching residential use of land as contemplated by the 

statute. We disagree and find the trial court misinterpreted both the Act and the holding of 

Toftoy v. Rosenwinkel, 2012 IL 113569.

¶ 20 In Toftoy, the defendants owned 160 acres of farmland in rural Illinois. Id. ¶ 3. 

Originally, Clarence Toftoy owned 120 acres of farmland across the road from defendants upon 

which an over 100-year-old farmhouse sat. Id. While the farmhouse across the road was 

unoccupied, the defendants began using their property to raise cattle. Id. ¶ 4. Several years later, 

Clarence tore down the historic farmhouse and transferred ownership of the 1.83 acres upon 

which it sat to his son and daughter-in-law, plaintiffs Roger and Bobbie Toftoy. Id. ¶ 5. 

Plaintiffs began construction of a new home. Id. Several years after this, plaintiffs filed a 

nuisance action against the defendants’ farm operation, and defendants responded with a motion 

for summary judgment based upon the Act. Id. ¶¶ 6-7. The trial court denied the motion, and 

the case proceeded to trial. Id. ¶ 8. The trial court entered judgment in favor of plaintiffs and 

ordered defendants to take remedial measures to reduce the nuisance caused by the cattle farming 

operation. Id. ¶ 9. The appellate court affirmed, finding that “ ‘the conditions must alter the 

character of the surrounding area such that, where the farm was not a nuisance when it began 

operation, it is transformed into a nuisance by the changed conditions.’ ” Id. ¶ 10 (quoting 

Toftoy v. Rosenwinkel, 2011 IL App (2d) 100565, ¶ 36). Applying that analysis, “the appellate 

court held that plaintiffs’ acquisition and occupation of their land ‘did not alter the character of 

the area such that the cattle operation, which previously had not been a nuisance, thereby became 

a nuisance.’ ” Id. (quoting Toftoy v. Rosenwinkel, 2011 IL App (2d) 100565, ¶ 37).
7

¶ 21 Our supreme court reversed, finding that “plaintiffs’ acquisition of ownership created the

legally protected interest in which the plaintiffs are claiming interference.” Id. ¶ 21. “In other 

words, defendants’ farm could not ‘become a nuisance’ to plaintiffs until they acquired their 

property in 1998. The change in ownership was a ‘changed condition’ that gave rise to 

plaintiffs’ nuisance action.” Id. The court went on to note that plaintiffs did not acquire their 

land until 1998, “six years after defendants’ cattle farm began operating, and well beyond the 

one-year limitation contained in section 3. Plaintiffs came to the nuisance and, under section 3 

of the Act, are barred from filing a nuisance suit.” Id. ¶ 22.

¶ 22 Following Toftoy, if a change in ownership (i.e., a change in legal rights) constitutes a 

“changed condition” to bar a nuisance action, so, too, does a change in the local ordinance. 

Here, the trial court found that, “[a]lthough Defendants’ property was in continuous use for 

agricultural commercial purposes, the Village has been a municipal corporation far longer, and 

has been obligated to serve the public welfare of its residents ***, which purposes have not 

changed.” That leads to the age-old legal question: so what? In Toftoy, the plaintiffs’ land had 

continually been used as a farmstead. The changed condition was the change in ownership, 

which occurred after the defendants’ cattle farm had been in operation for well over a year. 

Similarly, the Village has continually operated as a municipality obligated to serve the public 

welfare of residents. The changed conditions were the sensibilities of the residents of the 

Village, or at least the Village board, which provoked it to label defendants’ farm as a nuisance. 

Something provoked the Village, which has been around since the nineteenth century, to pass the 

ordinance months after the farm was purchased by Henry County residents. 

¶ 23 We further take issue with the trial court’s finding that "[e]ven accepting that the 

Village’s enforcement of its ordinance can be equated with a private entity’s suit to abate a 
8

nuisance, the protection of the Act does not extend to a business that locates within a previously 

established residential use.” The defendants’ land has, at all relevant times, been used for 

commercial agricultural/horticultural purposes and has, likewise, been located in the Village next 

to residential land. It did not relocate; the crop raised at the commercial farming operation 

simply changed. Obviously, some nearby residents did not like the new crop and all that goes 

with planting and harvesting it; the Village enacted the ordinance. To, again, apply the rationale 

of Toftoy, defendants’ commercial farming endeavors could not “become a nuisance” to the 

Village until the Village amended the ordinance. That change to the ordinance was a “changed 

condition” that gave rise to the Village’s nuisance action. See Toftoy, 2012 IL 113569, ¶ 21.

¶ 24 Under the Act, the change in legal ownership is not dispositive. We believe that the 

result would have been the same in Toftoy had plaintiffs lived on the property from the beginning 

and then waited six years to file their nuisance action. 

¶ 25 The Village also argues that the defendants’ corn/soybean operation was not a mere 

continuation of the prior tree nursery and that there was a substantial gap between the tree 

nursery operation and defendants’ commercial farming operation. According to the Village, a 

change in the type of farming operations occurring after the farm has been in operation for more 

than one year prevents the application of the Act. If the Act was intended to be implicated when 

there is a cessation or interruption of farming operations, it posits, then the Act would expressly

state the same. 

¶ 26 In support, the Village cites to the Michigan Right to Farm Act, which provides a farm 

that is otherwise covered by the Right to Farm Act shall not be found to be a nuisance because of 

temporary cessation or interruption of farming. See Mich. Comp. Laws Ann. § 286.473(3)(b)

(West 2012). The Village also directs our attention to Kalkman v. Nedved, 2013 IL App (3d) 
9

120800, explaining that under the maxim expressio unius est exclusio alterius (the “ ‘expression 

of one thing is the exclusion of another’ ”), the court infers that when a statute lists the things to 

which it applies, the omissions should be understood as exclusions. Id. ¶ 22 (quoting Metzger v. 

DaRosa, 209 Ill. 2d 30, 44 (2004)).

¶ 27 We find this unpersuasive. The best indication of the legislature’s intent is the plain 

language of the statute. In re E.B., 231 Ill. 2d 459, 466 (2008). “[W]hen statutory language is 

plain and certain the court is not free to give it a different meaning.” In re Estate of Hoehn, 234 

Ill. App. 3d 627, 629 (1992). Additionally, a court may not depart from the plain statutory 

language by reading into it exceptions, limitations, or conditions not expressed by the 

legislature. In re Estate of Ellis, 236 Ill. 2d 45, 51 (2009).

¶ 28 The plain language states that the purpose of the Act is to protect and conserve the 

development and improvement of agricultural land and limit, not expand the circumstances 

under which farms can be considered nuisances. Unlike the Michigan Right to Farm Act cited 

by the Village, which lists changed circumstances to which the Act applies, our Act does not 

enumerate such a specific set of situations. We, therefore, decline to read the absence of 

language regarding a temporary cessation or interruption of farming as an exclusion, nor do we 

believe the fundamental rules of statutory interpretation allow us to do so. We also note that 

despite the Village’s arguments to the contrary, the trial court did find that defendants’ property 

was in continuous use for commercial agricultural purposes. Public policy further supports such 

a reading of the Act, as allowing a temporary cessation of farming operations to defeat 

application of the Act has the potential to drastically devalue farmland, especially land that might 

be tied up in either bankruptcy or foreclosure proceedings. 
10

¶ 29 We find that the construction of the Act promoted by the Village would lead to an 

absurdity. Illinois is an agricultural state. The stated purpose of the Act is to “conserve and 

protect and encourage the development and improvement of its agricultural land for the 

production of food and other agricultural products” and “to reduce the loss to the State of its 

agricultural resources by limiting the circumstances under which farming operations may be 

deemed to be a nuisance.” (Emphasis added.) 740 ILCS 70/1 (West 2012). The Village argues 

that while the statute bars declaring a farm a nuisance in the face of encroaching residential use 

of land, it does not bar declaring a farm a nuisance “just because we can.” That is (under the 

Village's construction), the Act would bar enforcement of the ordinance if it was passed so that 

someone would build a house or two on a vacant lot across the road from the farm, but the Act 

would not protect the farm if no one wants to build a house on a vacant lot across the road from 

the farm. This would be an absurd result. As discussed below, the only change in conditions in 

Toftoy was the sensibilities of the occupant of the residential property across the road from the 

farm. It was residential property before the cattle farm began operation, and it was residential 

property when the suit to enjoin the farming operation was filed. The “change in circumstances”

was that whoever owned the residential property at the time the farm started operation, and 

during its first year, did not object to the farm. More than one year later, the farm became 

occupied by a new owner who was not too keen on living across the road from a cattle farm.

¶ 30 Somehow the trial court thought it important that the Village had been a municipal 

corporation far longer than the farm had been in operation. First of all, we see nothing in the 

record that tells us what the property in question was used for prior to 1979, or what it was being 

used for at whatever time the Village incorporated. Most importantly, we find the trial court’s 

observation regarding the relative longevity of the Village and the farm as totally irrelevant to 
11

the issue. There is nothing on the face of the statute nor could we conjure up any logical reason 

to believe that the Act only protects farms from nuisance ordinances if the existence of the farm 

predated the municipality’s incorporation. Under the Act, there are two relevant questions with 

respect to time: (1) was the farm a nuisance at the time it began operation? and (2) if not, and 

assuming it was properly operated, had it been in operation for more than one year when 

someone, either private or public, tried to shut it down using nuisance law? 740 ILCS 70/3 

(West 2012). 

¶ 31 The reality of life in downstate Illinois is that many, if not most, cities, towns, and 

villages have farms operating within their boundaries. We suspect that they continue to operate 

as farms because the owners have decided that crop production is the highest and best use of the 

land. Whether it is or not is not important. What is important is that the Act limits the ability of

either an individual through private suit or a municipality through an ordinance to deprive the 

owner of the right to use the land to grow crops, either agricultural or horticultural. 

¶ 32 The dissent argues that “the farm” in the statute refers to a farm operated by the same 

owner and growing the exact same crops. Infra ¶¶ 47-49. If this is so, what rational person 

would purchase a farm located within municipal limits, knowing that the village had one year to 

put the farm out of operation at its whim? Everyone knows what farm is at issue. By changing 

ownership and crop, it does not stop being “the” farm and become some other farm. This is not a 

situation where someone went from growing crops to creating a feedlot. As the special 

concurrence points out, the ordinance bars all farming. 

¶ 33 The ordinance is preempted by the Act. “It is well established that municipalities may 

not adopt ordinances which infringe upon the spirit of the state law or are repugnant to the 

general policy of the state.” Village of Northfield v. BP America, Inc., 403 Ill. App. 3d 55, 58 
12

(2010). A local ordinance which infringes upon the legislative intent of a state statute is 

preempted. The Act mandates that a farm shall not be deemed a nuisance if it satisfies the 

requirements of the Act. However, the ordinance labels all commercial farming a nuisance. The 

ordinance has no exception for farm operations that satisfy the elements of the Act. It is,

therefore, preempted. 

¶ 34 There may be ways to stop farming within the Village of LaFayette. Labeling an existing

farm as a nuisance is not one of them. Accordingly, we find that the Farm Nuisance Suit Act 

applies and bars application of the ordinance to defendants’ farming operations. 

¶ 35 CONCLUSION

¶ 36 For the foregoing reasons, the judgment of the circuit court of Stark County is reversed 

and the injunction is vacated.

¶ 37 Reversed; injunction vacated. 

¶ 38 JUSTICE HOLDRIDGE, specially concurring.

¶ 39 I agree that the Farm Nuisance Suit Act (the Act) (740 ILCS 70/1 et seq. (West 2012))

preempts the Village's ordinance No. 420. I write separately to clarify one aspect of the analysis

that reviewing courts should apply in determining whether a particular agricultural or 

horticultural operation is protected under the Act. In my view, a change in the type or character 

of farming operations may be relevant to this determination. As I interpret the statute, a plaintiff 

may state a claim for nuisance against a farm even if that farm has been in existence for more 

than one year so long as the alleged nuisance is caused by a change in the farming operations 

rather than any changed conditions in the area surrounding the farm. For example, if a plaintiff 

lives across the street from a row crop farm for 10 years without incident but the farm 

subsequently changes to a hog farm, the plaintiff may state a nuisance claim against the hog farm 
13

so long as the alleged nuisance stems from the hog farming operations and not from any change 

in the plaintiff's ownership or use of his land. 

¶ 40 Courts in other jurisdictions have construed similar farm nuisance statutes in this manner. 

See, e.g., Flansburgh v. Coffey, 370 N.W.2d 127, 130-31 (Neb. 1985) (holding that the Nebraska 

Right to Farm Act did not apply where the change at issue occurred on the defendant's farm 

rather than on other land in the vicinity of the farm); Crea v. Crea, 16 P.3d 922, 925 (Idaho 

2000) (holding that defendant's expanded hog farm operations were not protected by the Idaho 

Right to Farm Act because the hog operation was alleged to be a nuisance "not because of 

changes in surrounding non-agricultural uses, but because of an expansion of the [farm] 

operation itself"); Durham v. Britt, 451 S.E.2d 1, 3-4 (N.C. Ct. App. 1994) (ruling that North 

Carolina's "right to farm" law did not apply to "situations in which a party fundamentally 

changes the nature of the agricultural activity which had theretofore been covered under the 

statute," and holding that a "fundamental change" occurred where the defendant, who previously 

operated turkey houses, changed his farming operation to a hog production facility (emphasis in 

original)).

¶ 41 This is not such a case. Although the farm at issue in this case changed from a tree 

nursery to a row crop farm, the Village does not allege that the nuisance was caused by this 

change in farming operations. Rather, the Village claims that the farm is a nuisance because it 

has passed ordinance No. 420, which declares all commercial farming within the Village to be a 

nuisance (regardless of the type or character of the farming). Thus, the Village alleges that the 

farm became a nuisance because of a change that occurred to the area surrounding the farm. 

Moreover, as Justice Schmidt notes, ordinance No. 420 labels all commercial farming a nuisance 

without including an exception for farming operations that are protected by the Act. 
14

Accordingly, the Act applies in this case, and ordinance No. 420 conflicts with and is preempted 

by the Act. 

¶ 42 JUSTICE LYTTON, dissenting.

¶ 43 I disagree with the majority’s conclusion that the Farm Nuisance Act preempts the 

Village’s ordinance. The Act does not apply in this case. 

¶ 44 In interpreting statutes, like the Act, the cardinal rule is to ascertain and give effect to the 

legislature’s intent, which is best indicated by the statute’s plain language. People v. Martin, 

2011 IL 109102, ¶ 21. Words and phrases that have well-defined meanings in common law are 

interpreted to have the same meanings when used in statutes. CNB Bank & Trust, N.A. v. 

Rosentreter, 2014 IL App (4th) 140141, ¶ 40. 

¶ 45 Almost all states have right-to-farm laws similar to the Act. See Guth v. Tazewell 

County, 698 F.3d 580, 584 (7th Cir. 2012); Tricket v. Ochs, 2003 VT 91, ¶ 21, 176 Vt. 89, 838 

A.2d 66. The purpose of such laws is to protect farmers from nuisance suits caused by the 

encroachment of nonagricultural neighbors moving to traditionally rural areas. Tricket, 2003 VT 

91, ¶ 23, 176 Vt. 89, 838 A.2d 66 (citing 13 Neil E. Harl, Agricultural Law § 124.01, at 124-2 

(1993)). 

¶ 46 The Act codifies the “coming to the nuisance doctrine.” Toftoy v. Rosenwinkel, 2012 IL 

113569, ¶ 21. For the Act to apply, three requirements must be met: (1) the farm must be in 

operation for more than one year, (2) the farm must not have changed its operations, and (3) 

there must be changed conditions occurring in the area surrounding the farm. See 740 ILCS 70/3 

(West 2012); Herrin v. Opatut, 281 S.E.2d 575, 578 (Ga. 1981); Finlay v. Finlay, 856 P.2d 183, 

188 (Kan. Ct. App. 1993). All three requirements are necessary for application of the Act. See

740 ILCS 70/3 (West 2012); Herrin, 281 S.E.2d at 578; Finlay, 856 P.2d at 188. 
15

¶ 47 None of the Act’s requirements are met in this case. First, defendants owned the farm in 

question and operated it as a corn and soybean farm for less than 10 months before the Village 

filed its nuisance suit. Therefore, the one-year requirement is not met. The majority interprets 

the one-year requirement very loosely and finds that it is met as long as the land is used for 

commercial agricultural/horticultural purposes for more than one year. Supra ¶ 23. Such an 

interpretation of the Act ignores its plain language, which requires that “the farm has been in 

operation for more than one year.” (Emphasis added.) 740 ILCS 70/3 (West 2012). 

¶ 48 It is a principle of statutory construction that “ ‘the definite article “the” particularizes the 

subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing 

force of “a” or “an.” ’ ” (Emphasis in original.) Sibenaller v. Milschewski, 379 Ill. App. 3d 

717, 722 (2008) (quoting Brooks v. Zabka, 450 P.2d 653, 655 (Colo. 1969)). “‘The’” is a 

restrictive term. Id. It is not synonymous with “any” and “is more nearly its antithesis.” Id. at 

721-22. Here, the Act requires that “the farm” be “in operation for more than one year.” 740 

ILCS 70/3 (West 2012). The majority’s interpretation of the Act ignores the word “the” and 

replaces it with “a” or “any.” I reject this construction of the statute. To satisfy the first 

requirement of the Act, the specific farm at issue, which in this case is defendants' corn and 

soybean farm, must be in operation for at least a year. See Davis v. Taylor, 132 P.3d 783, 785 

(Wash. Ct. App. 2006) (state right-to-farm statute did not apply to cherry orchard even though 

property had been operated as a farm for many years where farm recently changed from apple 

orchard to cherry orchard). Because defendants' farm was in operation for less than a year when 

the Village passed its ordinance, the Act does not apply. 

¶ 49 Similarly, the second requirement is not met because defendants' farm has changed 

operations. A right-to-farm statute is inapplicable where a change in use or operations has 
16

occurred on the agricultural land. See Payne v. Skaar, 900 P.2d 1352, 1355 (Idaho 1995) (cattle 

feedlot operation expanded); Finlay, 856 P.2d at 188 (hog operation expanded); Davis, 132 P.3d 

at 786 (apple orchard became cherry orchard); Durham v. Britt, 451 S.E.2d 1, 4 (N.C. Ct. App. 

1994) (turkey housing operation became hog production facility). Here, before defendants 

purchased the property in question, it was operated as a nursery and tree farm. Defendants 

removed the trees, leveled the land, and now use the property as a corn and soybean farm. 

Because defendants have changed the use of the farm, the Act does not apply. See Payne, 900 

P.2d at 1355; Finlay, 856 P.2d at 188; Davis, 132 P.3d at 786; Durham, 451 S.E.2d at 4. 

¶ 50 Finally, there are no changed conditions in the area surrounding the farm, as required by 

the Act. The majority finds that the Village’s change to the ordinance was a “changed 

condition” under the Act. Supra ¶ 23. I disagree. The plain language of the Act requires that

the changed condition occur in the “surrounding area.” 740 ILCS 70/3 (West 2012). Where the 

neighborhood surrounding the farm has remained substantially unchanged, a right-to-farm law 

does not apply. See McVicars v. Christensen, 320 P.3d 948, 953 (Idaho 2014); Crea v. Crea, 16 

P.3d 922, 925 (Idaho 2000); Payne, 900 P.2d at 1355. Right-to-farm laws, including the Act, 

only apply where there has been a change in land use, ownership or occupancy in the area 

surrounding the farm. See Toftoy, 2012 IL 113569, ¶ 21; Flansburgh v. Coffey, 370 N.W.2d 

127, 131 (Neb. 1985); Cline v. Franklin Pork, Inc., 361 N.W.2d 566, 572 (Neb. 1985). Here, 

there was no such change. The only change that has occurred is the enactment of the ordinance; 

the land surrounding defendants’ property has not changed. 

¶ 51 The intent of the Act and other right-to-farm laws supports my conclusion that the Act 

does not apply in this case. The purpose of right-to-farm laws, like the Act, is to protect 

agricultural areas from nuisance suits arising out of “urban sprawl.” Buchanan v. Simplot 
17

Feeders Ltd. Partnership, 952 P.2d 610, 612 (Wash. 1998); Herrin, 281 S.E.2d at 577. Thus, 

right-to-farm laws are not triggered unless there is an extension of nonagricultural land uses into 

existing agricultural areas. Herrin, 281 S.E.2d at 577; see also Trickett, 2003 VT 91, ¶ 32, 176 

Vt. 89, 838 A.2d 66 (right-to-farm statute inapplicable where there is no “urban encroachment”). 

Here, where no new nonagricultural neighbor has moved to a traditionally agricultural area and 

attempted to put the surrounding farms out of business, the purpose of the Act is not 

accomplished. See Toftoy, 2012 IL 113569, ¶ 21. 

¶ 52 I would find that the Act does not apply and does not preempt the Village’s ordinance.