Goeringer advises would-be backyard flockers
WESTMINSTER, Md. (March 6, 2018) — A University of Maryland ag legal specialist had several bits of advice for new small flock poultry owners last month.
But the biggest one? Don’t live in a neighborhood with a homeowners association.
“The first thing I teach all of my undergrads is you never want to live in an HOA,” said Paul Goeringer, an Extension legal specialist who lectured on concerns related to keeping poultry at the university’s Mid-Atlantic Small Flock Expo at the Carroll County Agricultural Center on Feb. 10.
Homeowners associations can be incredibly restrictive, which is their right — a point he said he felt the need to emphasize.
“It’s not un-American,” he said. “It’s just contract law. We allow you to contract these rights away.”
Goeringer also focused on Maryland’s right-to-farm laws.
After frustrated residents in encroaching suburbs across the country shut down several farms with nuisance laws in the 1970s, state legislatures across the country passed right-to-farm laws in the 1980s to protect farmers, Goeringer said.
“You can create local ordinances, but you can’t create local ordinances that call ag a nuisance for being ag,” he said.
Each Maryland county has its own right-to-farm law laid on top of the state’s, which requires that all nuisance claims go to mediation before court.
Either the county or the state department of agriculture can mediate the dispute, he said.
To claim a right-to-farm defense, however, an ag operation must be at least a year old because the defense was created to protect established farm operations, he said.
One audience member said her Montgomery County operation predated much of the development around her.
Shouldn’t frustrated nearby residents be denied legal standing in a nuisance complaint because they moved near an existing farm, she asked.
“They shouldn’t (have standing), but they’ll keep complaining, because they hope they’ll complain enough to make you leave,” Goeringer said.
But, surprisingly, most right-to-farm disputes across the country don’t come from frustrated homeowners, he said.
Most come from neighboring farmers, who, for instance, are disrupted by another farmer’s change in practices.
In Maryland, however, farmers are usually facing frustrated residents, he said.
And protections are likely to evaporate in an urban setting. Maryland’s right-to-farm law is less likely to be a successful defense for a new farm in an urban environment because the urban development predates the farm operation, he said.
“The idea is that we want ag to have existed first,” Goeringer said.
Maryland is particularly unique when it comes to disputes over negligence.
If a farm can be proven to be just 1 percent at fault, it can lose, Goeringer said.
Maryland is one of just four states in the nation with such a low legal threshold for proving negligence.
As an example, he said, if you use your small flock to produce eggs, which you give away, and someone gets sick, if it can be proven in court that your farm was at least 1 percent responsible, you can lose your defense.
“This is the hardest part, negligence,” Goeringer said. “It sucks for law students to figure out.”
And, of course, make sure you live in an area conducive to small flock ownership.
“Make sure you’re zoned properly for this,” Goeringer said. “If you’re in an HOA, just leave.”
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