Legislature(1999 - 2000)
04/10/2000 01:28 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 341 - FARM OPERATIONS:DISCLOSURE/NUISANCES CHAIRMAN KOTT announced that the next order of business would be HOUSE BILL NO. 341, "An Act relating to agricultural facilities and operations as private nuisances; and to disclosures in transfers of real property located within one mile of an agricultural facility or an agricultural operation." Number 2210 JOHN MANLY, Staff to Representative John Harris, Alaska State Legislature, stated that he would present HB 341 on behalf of the bill sponsor, Representative Harris. He informed the committee that HB 341 amends the current farm law statute, which was created in 1986. This legislation expands and redefines what is meant by agricultural facilities and operations. It protects agricultural facilities and operations from becoming private nuisances when the use of the land surrounding them change. MR. MANLY pointed out that HB 341 ties this protection to the farmer Ato the fact that he has a valid farm conservation plan on file with the local soil and water conservation district.@ Therefore, this will provide the farmer with incentive to file a farm conservation plan. Mr. Manly informed the committee that the other major part of HB 341 is that it would add a disclosure requirement in the transfer of real property sold within one mile of a farm that is protected by this statute. Therefore, people purchasing [property] in the neighborhood of a farm would be on notice, at the time of purchase, that [nearby] property is a farm operation. He offered to answer any questions. REPRESENTATIVE KERTTULA inquired as to why disclosure is being required. She asked if there is any case law that would support the notion that disclosure would make it easier for farmers to protect themselves from a nuisance case. She also inquired as to who would ensure implementation of disclosure; would it be the owner of the property? MR. MANLY said he was not very familiar with that, but supposed the burden would fall on the seller of the property. REPRESENTATIVE KERTTULA expressed concern in a situation in which no disclosure occurred and a subsequent property owner brings a nuisance suit saying that he/she didn=t receive any disclosure. She surmised that in such a situation, the farmer would ultimately be hurt. Number 2360 PETE FELLMAN, Staff to Representative John Harris, Alaska State Legislature, testified via teleconference from Fairbanks. He pointed out that throughout the Lower 48 there have been many laws that protect farmers against nuisance lawsuits. However, many of those have not been able to stand up to the tests in a court of law. Mr. Fellman informed the committee that in New York State there is a farm law which requires disclosure by those that are selling the land. That disclosure protects all parties involved. [He indicated that HB 341 is modeled after the New York State law.] The soil and water conservation plan is sort of a new idea. He explained that New York created a new branch of government in order to do exactly what the soil and water conservation districts already do. Currently, the soil and water conservation districts come out, look at farms and make suggestions - when requested by farmers - in regard to how the farmer can be a better farmer and preserve and protect the soil and water. Therefore, this legislation hopes to protect the farmer and those purchasing land by affording the farmer with protection from nuisance lawsuits if a soil and water conservation plan is filed. If the farmer chooses not to file such a plan, then the farmer wouldn=t be protected by HB 341. REPRESENTATIVE KERTTULA inquired as to how many farmers currently don=t have soil and water conservation plans. MR. FELLMAN noted that he had spoken with the Delta soil and water district as well as Glen Franklin (ph), Division of Agriculture. [From those conversations] he learned that there are a substantial number of smaller farmers - with farms in the range of 100-150 acres - who don=t have soil and water conservation plans. [From the committee secretary=s notes: Mr. Fellman said that most farmers in Alaska with larger operations do have soil and water conservation plans.] TAPE 00-53, SIDE B MR. FELLMAN explained that without a soil and water conservation plan, a farmer wouldn=t qualify for things such as CRP payments or cost-sharing payments. Therefore, it behooves most farmers to have a soil and water conservation plan. Number 0035 REPRESENTATIVE KERTTULA asked if Mr. Fellman is aware of any cases in Alaska in which there has been mention of this notice provision. She said, AI=m, frankly, on the farmer=s side on this. I just don=t want to see a situation where property gets transferred and because they don=t have this notice in it, for whatever reason, the farmer doesn=t get the benefit of claiming the protection that the law already provides.@ Upon Mr. Fellman=s questioning, Representative Kerttula clarified that she was asking whether anyone in Alaska has tried to protect him/herself from a nuisance lawsuit in which the lack of a warning to the property owners was an issue. MR. FELLMAN answered that he was not aware of any such case. He pointed out that there had been some situations in the Delta and Palmer-Wasilla areas in which some concerns were raised by people moving close [to farm operations]. However, to the best of his knowledge, those situations were resolved by negotiations through the department. REPRESENTATIVE ROKEBERG asked whether Mr. Fellman had been in contact with the Alaska Real Estate Commission and the Alaska Board of Realtors regarding HB 341. MR. FELLMAN responded that the Alaska real estate folks had been in Representative Harris=s office and that Representative Harris had brought HB 341 to their attention. However, he was unaware as to what was actually said or how they felt about this legislation. Number 0125 REPRESENTATIVE CROFT referred to page 1, line 10, and noted his concern in regard to the use of Aor@ versus Aand". In the current protections for agricultural operations as private nuisances, the language used was Aand". With the Aor@ language, he indicated there could be a situation in which there was not a nuisance on the date an agricultural operation began, but it turned into a nuisance shortly thereafter. He asked if, in such a situation, he would really be prohibited from enjoining that operation simply because the operation wasn=t a nuisance on the date it started. MR. FELLMAN reiterated that in order for [an agricultural operation] to be covered by this plan, it would have to have a soil and water conservation plan. In that plan, it requires a slow and progressive growth. He posed a situation in which a person begins with one cow and in two weeks this person brings in 300 cows on 20 acres. Mr. Fellman believes it would be safe to assume that if he had a soil and water conservation plan, that this person would not be following that plan. He pointed out that the soil and water conservation plan has to be registered with and signed off by the Department of Natural Resources (DNR). Therefore, this person would not be covered by this law [HB 341] because he didn=t follow his soil and water conservation plan. Number 0256 REPRESENTATIVE ROKEBERG informed everyone that he preferred that HB 341 be held over as it places a burden on property owners. The property owners would have to know that they are within one mile of a [farm] operation that may not necessarily know. REPRESENTATIVE CROFT recalled similar legislation in regard to shooting ranges that were placed in the middle of nowhere, but people slowly began to [reside] near the shooting range. However, he recalled that the aforementioned shooting range legislation said, Aunless the character of the shooting range operation has changed substantially.@ In other words, the shooting range could continue to do [or offer] what it has, but couldn=t [expand its activities]. However, HB 341 seems to take a broader approach and explicitly says, Aregardless of any subsequent expansion@. This unlimited capability of expansion is of concern. He also reiterated his concern with the use of the word Aor@ on page 1, line 10. MR. FELLMAN reiterated that [an agricultural facility or operation] would not be covered without a soil and water conservation plan. Mr. Fellman noted that he understands how those plans develop and work. Therefore, he was certain that an individual with 20 acres and a few cows would not be able to then place 200-300 cows on that land. Furthermore, Mr. Fellman felt it is a benefit to property owners to be made aware that they are in an agricultural area. He informed the committee that in Spokane, Washington, there is a Asniff before you leap@ law in order [to educate those from the city who want to move into an agricultural area] in regard to what occurs in the rural areas. Number 416 REPRESENTATIVE KERTTULA referred to the top of page 2 and pointed out that the language is not drafted such that the soil and water conservation plan is a condition. She offered to work with Mr. Manly on that problem. She then referred to page 3, line 5, where aquatic farming is included. She didn=t recall that aquatic farming has been included in the right to farm bills and thus she wasn=t sure of the intention. MR. FELLMAN pointed out that the farmers in Prince William Sound are new to the industry. He informed the committee that the legislation attempts to include as many diverse farm operations as possible and thus aquatic farming was included. REPRESENTATIVE KERTTULA asked if [the term Aaquatic farming@] refers to oyster farming since Alaska doesn=t allow fish farming. MR. FELLMAN replied yes and informed the committee that oysters and sea urchins are what are being targeted. With time, this legislation could be refined; thus he offered to do dome refining [on HB 341] with Representative Kerttula=s office. REPRESENTATIVE MURKOWSKI turned to the term Aagricultural facility". She informed the committee that her neighbor, who is not in an agricultural area, grows tomatoes and sells them at an agricultural market. Although she recognizes that is not what is being referred to with the definition the term Aagricultural facility,@ she asked if that person would be classified within that definition. MR. FELLMAN remarked that [the legislation=s intent] is to protect anyone trying to do a good job providing quality products whether those products are milk, tea or tomatoes. Furthermore, [the legislation intends to] afford them protection such that they have the ability to grow with the markets. He noted that there are some cases in the Lower 48 in which someone is not allowed to expand in order to meet an expanding market. Mr. Fellman referred to a person in Anchorage, who with a soil and water conservation plan, could receive help from Anchorage=s soil and water conservation district in regard to providing the best quality product while protecting the environment and those around him. Number 0628 SCOTT MILLER, Farmer; Chair, Delta Farm Bureau, testified via teleconference from Delta Junction. He announced that the Delta Farm Bureau supports HB 341. From his own experience in farming in the Delta area since 1981, Mr. Miller has seen numerous instances in which people knowingly moved next to a farm. However, those people created hardships because they were not happy with the practices that took place under the normal circumstances of that farm. Therefore, HB 341 is appropriate in order to protect the stability and long-term growth of Alaskan agriculture. ROBERT WELLS, Director, Division of Agriculture, Department of Natural Resources, testified from the Matanuska-Susitna area. He announced that in general DNR is in support of right-to-farm legislation. Mr. Wells offered to work with committee members and the sponsor to make improvements to HB 341. CHAIRMAN KOTT announced that public testimony on HB 341 would be closed since no one else wished to testify. He further announced that HB 341 would be held since the committee doesn=t have a quorum; perhaps the language could be worked on in the meantime. He commented that he had difficulty in considering bees to be livestock. He referred to page 3, line 3, which refers to livestock and poultry; he said that language seems redundant because on page 3, line 11, the definition of Alivestock@ includes poultry. REPRESENTATIVE JAMES related her belief that [everyone] would be better off if legislation such as HB 341 was passed before there are problems. Furthermore, she stressed her support of planning and zoning which could identify where agricultural uses are allowed in order to help protect a person=s livelihood. CHAIRMAN KOTT commented, AIt=s good to be proactive versus reactive.@ REPRESENTATIVE KERTTULA noted her agreement with Representative James. She reiterated her concern of [possibly] creating a way for a property owner to say that he/she didn=t receive this notice, which would be problematic for the farmer. REPRESENTATIVE JAMES remarked that it seems that when real estate [agents] sell property, they should have maps. She reiterated her belief that there should be agricultural zoning in order to protect agricultural use. CHAIRMAN KOTT again announced that HB 341 would be held.
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