823.08.Actions against agricultural uses.

Section 823.08 opens by stating its purpose in the legislature’s own words: development in rural areas and changes in agricultural technology, practice, and scale have increasingly created conflict between farming and other land uses. The legislature declares its belief that the law should not hamper agricultural production or modern agricultural technology any more than necessary, sets out to limit judicial remedies in these conflicts, and urges local governments to use their zoning power to prevent the conflicts from arising in the first place.

The section defines an agricultural practice as any activity tied to an agricultural use, with agricultural use borrowing the definition in s. 91.01 (2). The core protection applies when the agricultural use or practice is conducted on land, or a public right-of-way next to land, that was in agricultural use without substantial interruption before the plaintiff began the conflicting use, and the agricultural use or practice does not present a substantial threat to public health or safety; a later change in the agricultural use or practice does not defeat that protection.

Even where an agricultural use or practice is found to be a nuisance, the relief a court can order is limited. It may not substantially restrict or regulate the operation unless it is a substantial threat to public health or safety. If the court orders mitigation, it must first ask public agencies with agricultural expertise for suggested practices, and it must give the defendant at least a year, unless there is a health or safety threat, to comply, without ordering anything that would substantially and adversely affect the operation’s economic viability absent that threat. The department of agriculture, trade and consumer protection or the department of natural resources, if asked, advises the court on relevant performance standards under s. 281.16 (3), though for a use begun before October 14, 1997, that advice depends on whether cost-sharing is available to the defendant.

Finally, the section defines litigation expenses broadly, covering costs, disbursements, and expenses including attorney, expert witness, and engineering fees, and requires the court, notwithstanding the ordinary cost rules in s. 814.04 (1) and (2), to award those expenses to the defendant whenever an agricultural use or practice alleged to be a nuisance is not found to be one.