Bormann Revisited: Using the Penn Central Test To Determine the Constitutionality of Right-To-Farm Statutes

I. INTRODUCTION All fifty states have enacted some form of right-to-farm statute1 to protect farmers from nuisance suits.2 These right-to-farm laws represent a legislative intent to change common law nuisance, which has long been held to be a constitutional exercise of legislative power. It is settled that, within constitutional limits not exactly determined, the Legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by so doing it affects the use or value of property.3 Although it is clear that a state legislature can change the common law of nuisance by adopting a right-to-farm law, questions still remain: What are the "constitutional limits" of right-to-farm laws? When do right-to-farm laws go "too far"4 and effect a taking of neighboring properties? What test should be used to determine if a taking has occurred? In 1998, the Iowa Supreme Court faced these questions in Bormann v. Board of Supervisors5 and became the first court to invalidate a right-to-farm law as an unconstitutional taking.6 The Bormann court reasoned that the nuisance immunity granted to farmers under an Iowa right-to-farm statute created an easement over neighboring properties and therefore effected a permanent, nontrespassory physical invasion of the neighboring properties that was a per se unconstitutional taking.7 The decision was not well received; some legal commentators disagreed with the court's holding entirely, and other commentators that agreed with its outcome questioned the court's reasoning.8 Additionally, many commentators worried about the effect the court's rationale would have in other land use contexts9-a worry that came to fruition when an Iowa district court used the Bormann reasoning to declare a municipal zoning ordinance an unconstitutional taking.10 This Comment argues that the constitutionality of right-to-farm laws should be examined using the fact-sensitive Penn Central balancing test. By using this test, rather than adopting the Bormann reasoning, courts can uphold most right-to-farm statutes as constitutional exercises of the police power and invalidate the right-to-farm statutes that go too far, while avoiding the backlash and side effects that the Bormann court faced as a result of its legal reasoning. Part II of this Comment gives a brief history of right-to-farm laws and discusses the different approaches to right-to-farm statutes. Part III examines the Bormann decision by giving the factual background of the case, the legal rationale used by the court, and the possible effects the decision may have on right-to-farm laws and other land use regulations. Part IV begins with a brief discussion of how, by viewing right-to-farm laws as regulations of neighboring property owners' bundle of property rights, courts can turn to the Penn Central balancing test to evaluate takings challenges to right-to-farm laws. This Part then discusses the Penn Central case and the three factors of the balancing test. Part V applies the Penn Central factors to the different right-to-farm approaches to identify the approaches that may be suspect under the Penn Central test. Part VI gives two factual scenarios and applies the Penn Central test to the scenarios to demonstrate how courts can uphold right-to-farm statutes that are valid exercises of the police power while striking down statutes that go too far and effect a regulatory taking. Part VII briefly points out the advantages of using the Penn Central test in takings claims involving right-to-farm laws. Finally, Part VIII gives a conclusion. II. BACKGROUND A. History of Right-To-Parm Laws In 1978, Iowa, Louisiana, and Wyoming enacted the first statutes protecting farmers from nuisance suits.11 Other states quickly followed suit, and "[a]lmost overnight the farmer . . . received some needed recognition from nearly all of the state legislatures. …