Do Farmland Owners Have a Right To Farm?

The “alliance” portion of the name Kitsap Community and Agricultural Alliance means that we collaborate wherever possible with other groups or individuals to promote the interests of local food and local farmers on the peninsula. Many of our members participate on a committee of the Kitsap Economic Development Alliance named the Kitsap Ag 20-20 group. This group meets periodically to discuss issues and opportunities in the agricultural sector and when possible make connections for mutual benefit. The group includes Diane Fish, Mary McClure, Jerry Darnall, Nikki Johanson, Dwight Sutton, Joy Garitone, Arno Bergstrom, Jackie Aitchison, Jim Freeman and others on occasion. The individuals in the group bring a substantial accumulation of knowledge of and passion about agriculture and work on issues in public policy and private sector initiatives.

The alarming loss of our farmlands to development is a major concern for all those interested in local food. Not only are our most productive lands scraped and paved over but the increasing density in rural and suburban areas leads to a lot of misunderstandings among farmers who manage to remain and wish to continue farming and the new, suburban residents who sometimes find the collateral effects of farming objectionable. Local farming advocates for years have sought to support the enactment of legislation at the county and state level to protect the property rights of farmland owners who wish to keep their land in production. Presently, there are no such property right protections for farming in the Kitsap County Land Use Code. Over the past 18 months or so the Ag 20-20 Group contributed to the draft of a resolution to be presented the the Kitsap County Commissioners to enact such property right protections for farmers.

Following is a copy of the latest draft. It is to be presented soon to the commissioners. If accepted in some form by the commissioners for consideration there will be a further official period for public comment. Our posting of this draft language is presented only for the benefit of readers of this blog and the supporters and members of KCAA to better inform you and seek your input. Your comments are welcomed below.

KITSAP COUNTY
RIGHT TO FARM PROTECTIONS
( A draft proposal for language to be considered by the Kitsap County Commissioners )
Sections:
1.Purpose.
2.Definitions.
3.Nuisance.
4.Notification.
5.Complaints.
6.Mandate.

1.Purpose
WHEREAS, Agriculture represents the heritage of Kitsap County, remains a vital presence in Kitsap County, and commercially viable agricultural land exists within the County and,
WHEREAS, Kitsap County Agriculture and its supporting activities contribute significantly to the local and regional economy, with many local farmers growing meat and produce and sustaining six farmers markets that generate hundreds of thousands of dollars each year; and
WHEREAS, eating locally grown produce and meat helps reduce fuel consumption and greenhouse gas emissions; and offers Kitsap County citizens access to healthy, nutritious foods and healthy diet choices; and helps preserve our rural communities; and
WHEREAS maintaining a strong, healthy local food system is critical to emergency planning and the health of Kitsap County citizens, and
WHEREAS it is in the public interest to enhance and encourage agricultural operations within the County and residential and commercial development adjacent to agricultural property and agricultural operations may lead to restrictions on agriculture and agricultural operations to the detriment of the other agricultural uses, and cause diminished economic viability of agricultural industry in the County.

The purpose of this Chapter is to promote public health, safety, and welfare, to support and encourage continued and new agricultural operations in the County, and to provide the residents of the county proper notification of the county’s recognition and support of farming activities. This Chapter is not intended to modify or abridge State nuisance laws, but is to be used in the interpretation and enforcement of the provisions of this Code and County regulations.

2.Definitions.

For the purpose of this Chapter, the following definitions shall apply:
A. “Farm” means the land, buildings, waters, culturing and growing facilities, and machinery used in the commercial production of farm products. For purposes of this Chapter, agricultural education and research facilities shall be included in this definition.
B. “Commercially productive farm” means farms raising plants and/or animals for profit with a gross value greater than $1,000 per year
C. “Farm product” means those plants and animals useful to humans and includes, but is not limited to, forages and sod crops, dairy and dairy products, poultry and poultry products, livestock, including breeding, grazing, and recreational equine use, fruits, vegetables, flowers, seeds, grasses, trees, aquaculture and fish products, apiaries, equine and other similar products, or any other product which incorporates the use of food, feed, fiber, or fur.
D. “Agricultural Operation” means a condition or activity which occurs on a farm or ranch in connection with the commercial production of farm products and includes, but is not limited to,
1.marketed produce at roadside stands or on-site farm markets;
2.the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use;
3.noise; odors; dust; fumes; insects;
4.the current employment of land for the purpose of stabling or training equines including but not limited to providing riding lessons, training clinics and schooling shows;
5.operation of machinery and irrigation pumps;
6.movement, including, but not limited to, use of current county road ditches, streams, rivers, canals, and drains, and use of water for agricultural activities;
7.ground and aerial application of seed, fertilizers, conditioners, and plant protection products;
8.employment and use of labor;
9.roadway movement of equipment and livestock;
10.protection from damage by wildlife;
11.prevention of trespass;
12.construction and maintenance of equipment, buildings, fences, roads, bridges, ponds,  drains, waterways, and similar features and maintenance of stream banks and watercourses;
13.the propagation, cultivation, maintenance and harvesting of aquatic species and bird and animal species to the extent allowed by the rules adopted by the State Fish and Wildlife Commission; and
14.recycling of organic waste on a farm.
15.It shall also include conversion from one agricultural activity to another as per RCW 7.48.310
E.  “Agricultural-tourism” means agriculturally related accessory uses that are subordinate to the growing of crops or the raising of livestock, designed to bring the public to the farm on a temporary or continuous basis, such as U-pick farm sales, retail sales of farm products, farm mazes, pumpkin patches, farm animal viewing and petting, wagon rides, farmland and facility tours, horticulture nurseries and associated display gardens, cider pressing, classes or workshops, wine or cheese tasting, etc.

3.Nuisance.
aAgricultural operations that are consistent with good agricultural practices and conducted on land where agriculture is a permitted use are presumed to be reasonable and shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on the public health and safety.
bIf those agricultural operations are undertaken in conformity with all applicable laws and rules, then the operations are presumed to be good agricultural practices not adversely affecting the public health and safety and such activities shall not constitute a nuisance for purposes of this Chapter. Agricultural operations that are in conformity with such laws and rules shall not be restricted as to the hours of the day or day or days of the week during which it may be conducted.  Nothing in this Chapter shall affect or impair any right to sue for damages.
a)Nuisance Claims. A farmer who prevails in a claim alleging that agricultural activity on a farm constitutes a nuisance may recover full, reasonably incurred costs and expenses, as determined by a court.
b)Violation of Specified Laws. A farmer who prevails in a claim: (1) based on an allegation that agricultural activity on a farm violates specified laws; (2) where the activity is not found to violate the laws; and (3) actual damages are realized by the farm, may recover full, reasonably incurred costs and expenses, as determined by a court. A farmer may not recover costs and expenses from a state or local agency investigating or pursuing an enforcement action.
Recoverable costs and expenses include actual damages–including lost revenue and the replacement value of crops or livestock damaged or unable to be harvested or sold–and reasonable attorneys’ fees and costs. A farmer may, in addition, recover exemplary (punitive) damages if a court finds that the claim was initiated maliciously and without probable cause.
c)Agency Investigative Costs. Where a state or local agency is required to investigate a complaint alleging that agricultural activity on a farm violates specified laws, and the activity is not found to violate the laws, the agency may recover its investigative costs and expenses if a court determines that the complaint was initiated maliciously and without probable cause.

4.Notification.
A. Notification.
Every owner of property within 2,500 feet of properties where agricultural operations are permitted (Rural Protection, Rural Residential, Rural Wooded) shall be notified of the possibility of the agricultural operations and activities on adjacent parcels and the nuisance protections afforded by State and local laws.  This notice shall advise real estate agents and brokers of the Right to Farm protections provided by this Chapter and request that information about the proximity of agricultural operations be included in a disclosure notice in a buyer’s purchase agreement for affected properties.

5.Complaints.
A. Filing. Complaints about off-site effects and impacts of agricultural operations shall be filed with the appropriate review authority. The Department of Community Development (DCD) enforces the provisions of the Kitsap County Code contained within the Title 17 series. These codes and regulations include, but are not limited to: the Uniform Building Code; Uniform Mechanical Code; Uniform Plumbing Code; Uniform Fire Code; Zoning and Sign Regulations; Energy Code; grading, filling, and clearing; flood damage prevention; road approach standards; and other construction and development-related regulations. The Kitsap County Health Department (KCHD) enforces the adopted provisions regarding any declared nuisance, source of filth or cause or probable cause of injury to health (see KCC Chapter —-).
B. Monitoring Complaints. The Department of Community Department and the Kitsap County Health Department shall be responsible for maintaining a record of nuisance complaints related to agricultural operations and forwarding a summary of the subject complaints to the Kitsap County Farm Advisory Council on a quarterly. The Council shall review and consider the issues raised in the complaints and may make recommendations to the Commissioners on appropriate changes in agricultural policies, programs or regulations to address complaints.
C. Complaint Resolution.

6.  Mandate
Kitsap regulatory authorities are hereby directed to recognize and protect the value of existing and future farms and ranches and work with the WSU Kitsap Extension, Kitsap Conservation District and other applicable local and regional agricultural and farming interests.