Right to Farm: What Wisconsin Farmers Need to Know About State Law vs. Local Ordinances

Attorney Timothy H. Lindau

Local government is empowered to manage and regulate the lands within its jurisdiction. However, this authority operates within restrictions laid out in Wisconsin’s law. Over the years, the state has recognized the importance of farming and the agricultural industry for the state’s economy, culture, and history.

Understanding how state laws and local ordinances work together and the limitations on local government authority is crucial for farmers facing issues such as nuisance claims or zoning challenges. At Nowlan Law, our seasoned Agricultural Law attorneys stand ready to answer your questions and help you fight for your farming rights.

Wisconsin’s Right to Farm Law

In 1982 and 1995, the Wisconsin legislature took action to protect farmers from frivolous nuisance lawsuits. The Right to Farm law protects farmers using industry best practices to perform farming activities. In short, a farmer may not be sued for noise, smell, dust, pollution, etc. produced by normal farming activities.
A court cannot find a producer’s actions to be a nuisance if:

The plaintiff bringing the suit “came into” the nuisance (the agriculture in question has been continuously occurring for longer);
The agricultural use does not pose a “substantial threat to public health or safety.”

In addition, Courts are limited in the types of relief they can provide in a farm nuisance case. In some cases, the Court may order the farmer to mitigate the hazards. They may engage the assistance of government agencies with expertise in the specific issue. They may extend to the ag producer enough time to complete the mitigation. On the other hand, if the defendant agricultural producer proves that the farming practice is not a nuisance, they may be awarded attorneys’ fees and legal costs.

Preserving America’s Agriculture Lands and Industry

With farmlands and the agricultural industry is dwindling, protecting producers and activities is crucial. The purpose of the Right to Farm law is to prevent farmers from being forced off their land or changing operations. But there is no absolute right to agricultural activity or polluting. It is up to local governments to determine the best use of land and manage land through zoning and permitting processes.

Zoning and Permitting Authority of Local Governments in Wisconsin

In Wisconsin, local governments (cities, villages, towns, and counties) have the power to adopt zoning ordinances. As such, local governments can regulate land use through zoning to protect health, safety, and general welfare. This authority includes:

Designating zoning districts
Requiring permits
Enforcing development standards

There is a presumption that zoning ordinances are valid, and the burden is on the person challenging that ordinance to prove that it is arbitrary, oppressive, or unreasonable, and that there is no rational basis for it. Similarly, zoning must be applied uniformly within a district and cannot arbitrarily discriminate between similarly situated landowners. An ordinance that is so restrictive that it deprives a landowner of all or nearly all economically viable uses of their land may be considered an unconstitutional taking unless compensation is provided.

Agricultural Use and Zoning

While agriculture is often classified as a permitted use in designated agricultural zoning districts, local governments may still place restrictions on these operations.
In particular, it may:

Restrict certain types of agricultural operations
Require conditional use permits or special exceptions for specific agricultural practices
Impose setback and buffer requirements

Livestock Facility Siting Law

In summary, Wisconsin’s Livestock Facility Siting Law, administered by the Department of Agriculture, Trade and Consumer Protection (DATCP). It limits local government authority to regulate livestock operations.
Under this law, local governments may require permits for new or expanded livestock facilities only if they adopt a compliant ordinance based on DATCP’s model standards. However, these standards cannot be more restrictive than the state standards unless justified by public health or safety concerns. Farmers may challenge local permit denials or conditions through an administrative appeal process.

Nowlan Law – Your Ag Law Partner

Whether you are fighting a nuisance claim, feeling the impact of zoning laws, or experiencing permit denials, an experienced lawyer can help you fight for your farm. We fiercely advocate for your interests inside and outside the courtroom, helping you manage the litigation or administrative processes and supporting you in your agriculture operations.
We know that farming is your livelihood and your legacy. Contact a trusted agricultural law partner at Nowlan Law today.