IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-693

No. COA21-175

Filed 21 December 2021

Wake County, No. 19 CVS 8198

RURAL EMPOWERMENT ASSOCIATION FOR COMMUNITY HELP, et al., 

Plaintiffs,

v.

STATE OF NORTH CAROLINA, et al., Defendants.

Appeal by plaintiffs from order entered 23 December 2020 by a three-judge 

panel of Wake County Superior Court appointed by the Chief Justice pursuant to 

N.C. Gen. Stat. § 1-267.1 (2019). Heard in the Court of Appeals 1 December 2021.

Lawyers’ Committee for Civil Rights Under Law, by Elizabeth Haddix and 

Mark Dorosin, and Patterson Harkavy LLP, by Burton Craige, Narendra K. 

Ghosh and Christopher A. Brook, for plaintiffs-appellants.

Attorney General Joshua H. Stein, by Special Deputy Attorney General 

Matthew Tulchin and Assistant Attorney General Kenzie M. Rakes, for the 

State.

Phelps Dunbar LLP, by Nathan A. Huff, Jared M. Burtner, W. Thomas Siler, 

admitted pro hac vice, and Nicholas Morisani admitted pro hac vice, for 

defendants-appellees Timothy K. Moore and Philip E. Berger.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Christopher 

G. Smith and David R. Ortiz, and Phillip Jacob Parker, Jr., Secretary & 

General Counsel North Carolina Farm Bureau Federation, Inc., for defendantsappellants North Carolina Farm Bureau Federation, Inc.

Southern Environmental Law Center, by Blakely E. Hildebrand, Alex J. 

Hardee, and Chandra T. Taylor, for Environmental Justice Community Action 

Network, amicus curiae.
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Zaytoun Ballew & Taylor, PLLC, by Matthew D. Ballew, for North Carolina 

Advocates for Justice, amicus curiae.

Tien K. Cheng and Christopher R. McLennan for North Carolina Department 

of Agriculture and Consumer Services, amicus curiae.

TYSON, Judge.

¶ 1 Rural Empowerment Association for Community Help, North Carolina 

Environmental Justice Community Action Network, and Waterkeeper Alliance 

(collectively “Plaintiffs”) appeal from an order of a superior court three-judge panel, 

which granted Defendants’ motion to dismiss in favor of the State of North Carolina; 

Phillip E. Berger; Timothy K. Moore, in their capacities, respectively, as President 

Pro Tempore of the North Carolina Senate and as Speaker of the North Carolina 

House of Representatives; and, N.C. Farm Bureau Federation, Inc., Intervenor,

(collectively “Defendants”). We affirm. 

I. Background 

¶ 2 Forty-two years ago in 1979, the North Carolina General Assembly enacted the 

Right to Farm Act with the stated policy goal to: “[R]educe the loss to the State of its 

agricultural and forestry resources by limiting the circumstances under which an 

agricultural or forestry operation may be deemed a nuisance.” N.C. Gen. Stat. § 106-

700 (2019); see 1979 N.C. Sess. Laws ch. 202, § 1. Hundreds of plaintiffs filed 
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nuisance actions against swine farmers in the superior courts in 2013. The General 

Assembly amended the Right to Farm Act in 2013 by rewriting N.C. Gen. Stat. § 106-

701 as: 

When agricultural and forestry operation, etc., not 

constituted nuisance by changed conditions in or 

about the locality outside of the operation. 

(a) No agricultural or forestry operation or any of its 

appurtenances shall be or become a nuisance, private or 

public, by any changed conditions in or about the locality 

outside of the operation after the operation has been in 

operation for more than one year, when such operation was 

not a nuisance at the time the operation began. 

(a1) The provisions of subsection (a) of this section shall not 

apply when the plaintiff demonstrates that the 

agricultural or forestry operation has undergone a 

fundamental change. A fundamental change to the 

operation does not include any of the following: 

(1) A change in ownership or size,

(2) An interruption of farming for a period of no more 

than three years,

(3) Participation in a government-sponsored 

agricultural program, 

(4) Employment of new technology, 

(5) A change in the type of agricultural or forestry 

product produced. 

(a2) The provisions of subsection (a) of this section shall not 

apply whenever a nuisance results from the negligent or 

improper operation of any agricultural or forestry 
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operation or its appurtenances. 

(b) For the purposes of this Article, “agricultural operation” 

includes, without limitation, any facility for the production 

for commercial purposes of crops, livestock, poultry, 

livestock products, or poultry products.

(b1) For the purposes of this Article, “forestry operation” 

shall mean those activities involved in the growing, 

managing, and harvesting of trees.

(c) The provisions of subsection (a) shall not affect or defeat 

the right of any person, firm, or corporation to recover 

damages for any injuries or damages sustained by him on 

account of any pollution of, or change in condition of, the 

waters of any stream or on the account of any overflow of 

lands of any such person, firm, or corporation.

(d) Any and all ordinances of any unit of local government 

now in effect or hereafter adopted that would make the 

operation of any such agricultural or forestry operation or 

its appurtenances a nuisance or providing for abatement 

thereof as a nuisance in the circumstance set forth in this 

section are and shall be null and void; provided, however, 

that the provisions of this subsection shall not apply 

whenever a nuisance results from the negligent or 

improper operation of any such agricultural or forestry 

operation or any of its appurtenances. Provided further, 

that the provisions shall not apply whenever a nuisance 

results from an agricultural or forestry operation located 

within the corporate limits of any city at the time of 

enactment hereof.

(e) This section shall not be construed to invalidate any 

contracts heretofore made but insofar as contracts are 

concerned, it is only applicable to contracts and agreements 

to be made in the future.

(f) In a nuisance action against an agricultural or forestry 

operation, the court shall award costs and expenses, 
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including reasonable attorneys’ fees, to:

(1) The agricultural or forestry operation when the 

court finds the operation was not a nuisance and the 

nuisance action was frivolous or malicious; or

(2) The plaintiff when the court finds the agricultural or 

forestry operation was a nuisance and the operation 

asserted an affirmative defense in the nuisance action 

that was frivolous and malicious.

2013 N.C. Sess. Law 314, § 1 (emphasis supplied). 

¶ 3 The plaintiffs refiled the nuisance actions in the United States District Court 

for the Eastern District of North Carolina (“federal district court”) in 2014 and added

Murphy-Brown, LLC as a defendant. Murphy-Brown is a wholly owned subsidiary 

of Smithfield Foods Corporation. Murphy-Brown sought to defend the suits before 

the federal district court under the Right to Farm Act. The federal district court held 

the Right to Farm Act did not apply. See In re NC Swine Farm Nuisance Litig., 2017 

WL 5178038, at *4-5 (E.D.N.C. Nov. 8, 2017) (unpublished). The litigation in the 

federal district court without the right to farm defense resulted in five jury verdicts 

in favor of the plaintiffs. 

¶ 4 In 2017 and 2018, the General Assembly again amended the Right to Farm 

Act. See An Act to Make Various Changes to the Agricultural Laws, 2018 N.C. Sess.

Laws 113, § 10(a) (“S.B. 711”); An Act to Clarify the Remedies Available in Private 

Nuisance Actions Against Agricultural and Forestry Operations 2017 N.C. Sess.

Laws 11 (“H.B. 467”). 
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¶ 5 S.B. 711 was codified as N.C. Gen. Stat. § 106-701, which provides: 

(a) No nuisance action may be filed against an agricultural 

or forestry operation unless all of the following apply:

(1) The plaintiff is a legal possessor of the real property 

affected by the conditions alleged to be a nuisance.

(2) The real property affected by the conditions alleged 

to be a nuisance is located within one half-mile of the 

source of the activity or structure alleged to be a 

nuisance.

(3) The action is filed within one year of the 

establishment of the agricultural or forestry operation 

or within one year of the operation undergoing a 

fundamental change.

(a1) For the purposes of subsection (a) of this section, a 

fundamental change to the operation does not include any 

of the following:

(1) A change in ownership or size.

(2) An interruption of farming for a period of no more 

than three years.

(3) Participation in a government-sponsored 

agricultural program.

(4) Employment of new technology.

(5) A change in the type of agricultural or forestry 

product produced.

(b) For the purposes of this Article, “agricultural operation”

includes, without limitation, any facility for the production 

for commercial purposes of crops, livestock, poultry, 

livestock products, or poultry products.
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(b1) For the purposes of this Article, “forestry operation”

shall mean those activities involved in the growing, 

managing, and harvesting of trees.

(c) The provisions of subsection (a) shall not affect or defeat 

the right of any person, firm, or corporation to recover 

damages for any injuries or damages sustained by him on 

account of any pollution of, or change in condition of, the 

waters of any stream or on the account of any overflow of 

lands of any such person, firm, or corporation.

(d) Any and all ordinances of any unit of local government 

now in effect or hereafter adopted that would make the 

operation of any such agricultural or forestry operation or 

its appurtenances a nuisance or providing for abatement 

thereof as a nuisance in the circumstance set forth in this 

section are and shall be null and void. Provided, however, 

that the provisions shall not apply whenever a nuisance 

results from an agricultural or forestry operation located 

within the corporate limits of any city at the time of 

enactment hereof.

(e) This section shall not be construed to invalidate any 

contracts heretofore made but insofar as contracts are 

concerned, it is only applicable to contracts and agreements 

to be made in the future.

(f) In a nuisance action against an agricultural or forestry 

operation, the court shall award costs and expenses, 

including reasonable attorneys’ fees, to:

(1)The agricultural or forestry operation when the court 

finds the operation was not a nuisance and the nuisance 

action was frivolous or malicious; or

(2)The plaintiff when the court finds the agricultural or 

forestry operation was a nuisance and the operation 

asserted an affirmative defense in the nuisance action 
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that was frivolous and malicious.

N.C. Gen. Stat. § 106-701 (2019). 

¶ 6 H.B. 467 was codified as N.C. Gen. Stat. § 106-702, which provides: 

Limitations on private nuisance actions against 

agricultural and forestry operations

(a) The compensatory damages that may be awarded to a 

plaintiff for a private nuisance action where the alleged 

nuisance emanated from an agricultural or forestry 

operation shall be as follows:

(1) If the nuisance is a permanent nuisance, 

compensatory damages shall be measured by the 

reduction in the fair market value of the plaintiff's 

property caused by the nuisance, but not to exceed the 

fair market value of the property.

(2) If the nuisance is a temporary nuisance, 

compensatory damages shall be limited to the 

diminution of the fair rental value of the plaintiff's 

property caused by the nuisance.

(a1) A plaintiff may not recover punitive damages for a 

private nuisance action where the alleged nuisance 

emanated from an agricultural or forestry operation that 

has not been subject to a criminal conviction or a civil 

enforcement action taken by a State or federal 

environmental regulatory agency pursuant to a notice of 

violation for the conduct alleged to be the source of the 

nuisance within the three years prior to the first act on 

which the nuisance action is based.

(b) If any plaintiff or plaintiff’s successor in interest brings 

a subsequent private nuisance action against any 

agricultural or forestry operation, the combined recovery 

from all such actions shall not exceed the fair market value 
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of the property at issue. This limitation applies regardless 

of whether the subsequent action or actions were brought 

against a different defendant than the preceding action or 

actions.

(c) This Article applies to any private nuisance claim 

brought against any party based on that party’s 

contractual or business relationship with an agricultural 

or forestry operation.

(d) This Article does not apply to any cause of action 

brought against an agricultural or forestry operation for 

negligence, trespass, personal injury, strict liability, or 

other cause of action for tort liability other than nuisance, 

nor does this Article prohibit or limit any request for 

injunctive relief that is otherwise available.

N.C. Gen. Stat. § 106-702 (2019). 

¶ 7 Plaintiffs’ complaint was filed on 19 June 2019 and challenges the facial 

constitutionality of H.B. 467 and S.B. 711 (collectively “The Amendments”). 

Defendants moved to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2019) 

on 1 October 2019. Plaintiffs moved for summary judgment under N.C. Gen. Stat. § 

1A-1, Rule 56 (2019). The Wake County Superior Court transferred this case to a 

three-judge panel pursuant to N.C. Gen. Stat. § 1A-1, Rule 42(b)(4) (2019) and N.C. 

Gen. Stat. § 1-267.1 (2019). 

¶ 8 On 23 December 2020, the three-judge panel granted Defendants’ Rule 12(b)(6) 

motion to dismiss and denied Plaintiffs’ summary judgment motion. Plaintiffs 

appeal. 
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II. Jurisdiction 

¶ 9 This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b)(1) 

(2019). 

III. Issue

¶ 10 Plaintiffs argue the trial court erred by granting Defendants’ Rule 12(b)(6) 

motion. 

IV. Defendants’ Rule 12(b)(6) Motion 

A. Standard of Review 

¶ 11 “A Rule 12(b)(6) motion tests the legal sufficiency of the pleading.” Kemp v. 

Spivey, 166 N.C. App. 456, 461, 602 S.E.2d 686, 690 (2004) (citation and quotation 

marks omitted). “When considering a [Rule] 12(b)(6) motion to dismiss, the trial court 

need only look to the face of the complaint to determine whether it reveals an 

insurmountable bar to plaintiff’s recovery.” Carlisle v. Keith, 169 N.C. App. 674, 681, 

614 S.E.2d 542, 547 (2005) (citation and quotation marks omitted). 

¶ 12 “On appeal from a motion to dismiss under Rule 12(b)(6) this Court reviews de 

novo whether, as a matter of law, the allegations of the complaint . . . are sufficient 

to state a claim upon which relief may be granted[.]” Christmas v. Cabarrus Cty., 192 

N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008) (ellipses in original) (citation and 

internal quotation marks omitted). This Court “consider[s] the allegations in the 

complaint [as] true, construe[s] the complaint liberally, and only reverse[s] the trial 
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court’s denial of a motion to dismiss if [the] plaintiff is entitled to no relief under any 

set of facts which could be proven in support of the claim.” Id. (citation omitted).

B. Facial Challenge

¶ 13 “A facial challenge is an attack on a statute itself as opposed to a particular 

application.” City of Los Angeles v. Patel, 576 U.S. 409, 443, 192 L. Ed. 2d 435, 443 

(2015). Facial challenges are “the most difficult challenge to mount” successfully. 

United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707 (1987). “In a facial 

challenge, the presumption is that the law is constitutional, and a court may not 

strike it down if it may be upheld on any reasonable ground.” Affordable Care, Inc. 

v. N.C. State Bd. of Dental Exam’rs, 153 N.C. App. 527, 539, 571 S.E.2d 52, 61 (2002). 

¶ 14 In a facial challenge, “a plaintiff must establish that a law is unconstitutional 

in all of its applications.” Patel, 576 U.S. at 418, 192 L. Ed. 2d at 445 (citation and 

internal quotation marks omitted). During oral argument, Plaintiffs’ counsel 

conceded their complaint alleges only facial challenges and no as-applied allegations 

are asserted. 

C. Private Property Rights under Law of the Land Clause 

¶ 15 Article I, Section 19 of the North Carolina Constitution, the Law of the Land 

Clause, provides, inter alia: “No person shall be taken, imprisoned, or disseized of his 

freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of 

his life, liberty, or property, but by the law of the land.” N.C. Const. art I, § 19. The 
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Law of the Land Clause has been held to be the equivalent of the Fourteenth 

Amendment’s Due Process Clause in the Constitution of the United States. See State 

v. Collins, 169 N.C. 323, 324, 84 S.E. 1049, 1050 (1950). Plaintiffs argue H.B. 467 

and S.B. 711 violate the Law of the Land Clause and assert the statutes facially

exceed the scope of the State’s police power. 

¶ 16 “[A] decision of the United States Supreme Court interpreting the Due Process 

Clause is persuasive, though, not controlling, authority for interpretation of the Law 

of the Land Clause.” Evans v. Cowan, 132 N.C. App. 1, 6, 510 S.E.2d 170, 174 (1999) 

(citation omitted). Our Supreme Court has expressly “reserved the right to grant 

Section 19 relief against unreasonable and arbitrary state statutes in circumstances 

where relief might not be attainable under the Fourteenth Amendment to the United 

States Constitution.” In re Meads, 349 N.C. 656, 671, 509 S.E.2d 165, 175 (1998) 

(citation omitted). 

¶ 17 In A-S-P Associates v. City of Raleigh, 298 N.C. 207, 214, 258 S.E.2d 444, 448-

49 (1979), our Supreme Court articulated the analysis to be applied when examining 

due process challenges to governmental regulations of private property, which are

claimed to be an invalid exercise of the State’s police power. The Court held: “First, 

is the object of the legislation within the scope of the police power? Second, 

considering all the surrounding circumstances and particular facts of the case is the 

means by which the governmental entity has chosen to regulate reasonable?” Id. 
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(citation omitted). 

¶ 18 Our Supreme Court examined the role of a court in Responsible Citizens in 

Opposition to Flood Plain Ordinance v. City of Asheville, 308 N.C. 255, 261, 302 

S.E.2d 204, 208 (1983), to “determine[] whether the ends sought, i.e., the object of the 

legislation, is within the scope of the power.” The second prong is a two-part inquiry, 

requiring the court to determine: “(1) Is the statute in its application reasonably 

necessary to promote the accomplishment of a public good and (2) is the interference 

with the owner’s right to use his property as he deems appropriate reasonable in 

degree?” Id. at 261-62, 302 S.E.2d at 208 (citation omitted). 

¶ 19 Our State’s long-asserted interest in promoting and preserving agriculture, 

forestry, horticulture, livestock, and animal husbandry activities and production

within North Carolina clearly rests within the scope of the State’s police power. “It 

is the declared policy of the State to conserve and protect and encourage the 

development and improvement of its agricultural land and forestland for the 

production of food, fiber, and other products.” N.C. Gen. Stat. § 106-700. The first 

prong is met. Responsible Citizens, 308 N.C. at 261, 302 S.E.2d at 208.

¶ 20 Both parts of the second prong in Responsible Citizens are also met. H.B. 467 

and S.B. 711 are intended to promote agricultural and forestry activities and 

production in North Carolina by defining and limiting nuisance claims from

agricultural, forestry, and related operations. N.C. Gen. Stat. §§ 106-701, 702.
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“[W]ithin constitutional limits, it is the function of the Legislature, not of the courts, 

to determine the [public and] economic policy of the State and this Court may not

properly declare a statute invalid merely because the Court deems it economically 

unwise.” Bulova Watch Co. v. Brand Distributors, 285 N.C. 467, 478, 206 S.E.2d 141, 

149 (1974) (citations omitted). 

¶ 21 The asserted and purported interference in the statute with the enjoyment of 

property is reasonable and clearly rests within the General Assembly’s enumerated 

powers. By passage of an act with the signature of the Governor of North Carolina, 

the General Assembly can modify or amend the common law or amend, replace, or 

repeal a state statute. See Pinkham v. Unborn Child. of Jather Pinkham, 227 N.C. 

72, 78, 40 S.E.2d 690, 694 (1946) (“It is said that no person has a vested right in a 

continuance of the common or statute law. It follows, generally speaking, a right 

created solely by the statute may be taken away by its repeal or by new legislation.” 

(citation omitted)). 

¶ 22 Limiting potential nuisance liability from agricultural, forestry, and related

operations helps ensure the State’s stated goal to protect agricultural activities in 

North Carolina and to encourage the availability and continued “production of food, 

fiber, and other products.” N.C. Gen. Stat. § 106-700. Plaintiff’s argument is 

overruled. 

D. Fundamental Right to Property
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¶ 23 Plaintiffs assert the limitations imposed on a cause of action for nuisance 

violates their fundamental right to enjoy their property, citing Kirby v. N.C. Dep’t of 

Transp., 368 N.C. 847, 786 S.E.2d 919, 921 (2016). In Kirby, our Supreme Court held 

the North Carolina Department of Transportation’s application of the Roadway 

Corridor Official Map Act (repealed 2019 N.C. Sess. Laws 35), which placed 

restrictions on the “plaintiffs’ fundamental rights to improve, develop, and subdivide 

their property for an unlimited period of time[]” constituted “a taking of plaintiffs’ 

elemental property rights by eminent domain.” Kirby, 368 N.C. at 848, 786 S.E.2d at 

921. 

¶ 24 The Supreme Court of North Carolina has long recognized the right to the 

enjoyment of property and the right to judicial review. See Bayard v. Singleton, 1 

N.C. (Mart.) 5, 9 (1787). Here, unlike Kirby, Plaintiffs’ have not alleged an inverse 

condemnation has occurred or any other kind of governmental taking by eminent 

domain. Plaintiffs assert these statutes facially violates their prospective 

fundamental right to property, which we above hold are facially constitutional under 

the Law of the Land Clause and the Due Process clause. Plaintiffs’ argument is 

overruled. 

E. Local, Private, or Special Act 

¶ 25 Article II, section 24 of the North Carolina Constitution states: “The General 

Assembly shall not enact any local, private, or special act or resolution: . . . Relating 
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to health, sanitation, and the abatement of nuisances[.]” N.C. Const. art II, § 24. The 

North Carolina Constitution further provides: “The General Assembly may enact 

general laws regulating matters set out in this Section.” Id. (emphasis supplied).

¶ 26 Plaintiffs argue the Amendments are private or special laws “relating to 

health, sanitation, and the abatement of nuisances” in violation of Article II, section 

23 of the North Carolina Constitution. “A statute is either ‘general’ or ‘local’, there is 

no middle ground.” High Point Surplus Co. v. Pleasants, 264 N.C. 650, 656, 142 

S.E.2d 697, 702 (1965). 

¶ 27 “[N]o exact rule or formula capable of constant application can be devised for 

determining in every case whether a law is local, private, or special or whether [it is] 

general.” McIntyre v. Clarkson, 254 N.C. 510, 517, 119 S.E.2d 888, 893 (1961). Our 

Supreme Court has adopted the “reasonable classification” test from McIntyre to 

determine whether an act is private or special prohibited by Article II, section 24 or 

is a general law, which the General Assembly has the constitutional authority to 

enact. See Id. at 517-19, 119 S.E.2d at 893-99. 

¶ 28 A special law is “made for individual cases[.]” Id. at 517, 119 S.E.2d at 893 

(citation omitted). “A private law is one which is confined to particular individuals, 

associations or corporations.” Id. (citation omitted). While, “[g]eneral laws embrace 

the whole of a subject and are of common interest to the whole State.” Id. (citation 

omitted). A law has general applicability, if: 
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it applies to and operates uniformly on all the members of 

any class of persons, places or things requiring legislation 

peculiar to itself in matters covered by the law. . . . 

Classification must be reasonable and germane to the law. 

It must be based on a reasonable and tangible distinction 

and operate the same on all parts of the State under the 

same conditions and circumstances. Classification must 

not be discriminatory, arbitrary or capricious.

High Point Surplus Co., 264 N.C. at 657, 142 S.E.2d at 702-03 (ellipses in original)

(citation and internal quotation marks omitted).

¶ 29 While Plaintiffs assert the Amendments are private protections for the swine 

industry, the statutes are statewide laws of general applicability to “agricultural and 

forestry operation[s].” This distinction between agricultural and forestry industries 

and all other industries satisfies prong one. The second prong is satisfied because of 

the distinction between agricultural “production of food, fiber, and other products” 

and forestry and all other industries is germane to The Amendments’ stated purpose 

to preserve and protect the agricultural and forestry activities and production. N.C. 

Gen. Stat. § 106-700. The Amendments seek to define and ameliorate the 

consequences that nuisance suits by remote parties pose prospectively to established 

and essential agricultural and forestry operations. See id. Finally, all members of 

the classifications of agricultural and forestry operations, subject to The 

Amendments’ general terms and applicability, may invoke their protections against 

suit. Id. Plaintiffs’ argument is overruled. 
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F. Right to Trial by Jury 

¶ 30 Article I, section 25 of the North Carolina Constitution provides: “In all 

controversies at law respecting property, the ancient mode of trial by jury is one of 

the best securities of the rights of the people, and shall remain sacred and inviolate.” 

N.C. Const. art I, § 25. Plaintiffs argue H.B. 467, which partially limits a jury’s ability 

to award traditional compensatory damages and limits the compensatory damages 

any successor-in-interest can seek in nuisance actions, removes from the jurors a 

determination respecting property in violation of Article I, section 25 of the North 

Carolina Constitution. 

¶ 31 Our Supreme Court has long held: “the General Assembly is the policy-making 

agency of our government, and when it elects to legislate in respect to the subject 

matter of any common law rule, the statute supplants the common law rule and 

becomes the public policy of the State in respect to that particular matter.” 

McMichael v. Proctor, 243 N.C. 479, 483, 91 S.E.2d 231, 234 (1956). 

¶ 32 “The legislature has the power to define the circumstances under which a 

remedy is legally cognizable and those under which it is not.” Lamb v. Wedgewood 

South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983). The prior iterations of 

the Right to Farm statute dating back to 1979 and with the enactment of H.B. 467,

the General Assembly has modified the common law and statutory cause of actions

for nuisance claims and relevant defenses. As with many other caps on compensation 
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and remedies enacted in other areas of civil tort law, HB 467 did not impair nor 

abolish the right to a jury trial. Plaintiffs’ argument is overruled. 

V. Conclusion 

¶ 33 The trial court did not err in granting Defendants’ Rule 12(b)(6) motion to 

dismiss. Plaintiffs’ facial challenges in their complaint fails to state any legally valid 

cause of action. Plaintiffs have not met their burden to show no “reasonable ground” 

exists to support the Amendments. See Affordable Care, 153 N.C. App. at 539, 571 

S.E.2d at 61. 

¶ 34 The Amendments are a valid exercise of legislative and the State’s police 

powers, do not violate the Law of the Land Clause or Due Process, are not a special 

or private law, and do not deprive a prospective plaintiff of the right to a jury trial.

The order of the trial court is affirmed. It is so ordered. 

AFFIRMED.

Judges GORE and GRIFFIN concur.