                                         2015 IL App (3d) 130445

                               Opinion filed February 25, 2015
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                 A.D., 2015

     THE VILLAGE OF LaFAYETTE, an Illinois
                                       )                      Appeal from the Circuit Court
     Municipal Corporation,            )                      of the 10th Judicial Circuit,
                                       )                      Stark County, Illinois,
          Plaintiff-Appellee,          )
                                       )                      Appeal No. 3-13-0445
          v.                           )                      Circuit No. 12-CH-11
                                       )
     JEROD A. BROWN and DANA M. BROWN, )
                                       )                      Honorable Scott A. Shore,
          Defendants-Appellants.       )                      Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justice Holdridge specially concurred, with opinion.
            Justice Lytton dissented, with opinion.

                                                 OPINION


¶1          In April 2012, the Village of LaFayette (Village) enacted ordinance No. 420, which

     declared commercial farming within the boundaries of the Village to be a nuisance. LaFayette

     Ordinance No. 420 (eff. Apr. 2, 2012). Shortly thereafter, the Village brought an action against

     defendants, Jerod and Dana Brown, seeking conviction for a violation of the ordinance and to

     enjoin the defendants from further commercial farming on the property.

¶2          Following a bench trial in the circuit court of Stark County, the court found defendants

     not guilty of violating the ordinance as the Village failed to prove the element of notice. The
     trial court did, however, issue an injunction prohibiting further commercial farming on the

     property.

¶3          Defendants appeal, arguing that the Farm Nuisance Suit Act (740 ILCS 70/1 (West

     2012)) preempts the Village’s ordinance No. 420, that application of the Farm Nuisance Suit Act

     precludes enforcement of the ordinance against defendants, and that the ordinance is an

     unreasonable and, therefore, unconstitutional exercise of the Village’s authority.

¶4          We reverse.

¶5                                           BACKGROUND

¶6          The Village is a municipal corporation with a population of approximately 230 located in

     Stark County, Illinois. Defendants purchased the 57-acre farm in question at public auction on

     June 27, 2011. Six of those acres lie within the Village’s boundaries.

¶7          Immediately prior to the sale to defendants in 2011, the property was known as LaFayette

     Home Nursery, Inc., operating commercially as a tree and prairie grass nursery in and around the

     Village from 1979 until it declared bankruptcy and the bank foreclosed upon it. Within its day-

     to-day operations, the nursery used pesticides, fertilizers, and heavy equipment. After the

     nursery’s foreclosure and leading up to its sale, some of the owners and employees remained

     working, with all proceeds going to the bank.

¶8          After purchasing the property, defendants removed the trees, leveled off the property, and

     began preparing the soil for growing corn and soybeans. Prior to purchasing the Stark County

     property, Jerod Brown farmed commercially for 16 growing seasons. In that time, the

     Environmental Protection Agency never cited defendants for a violation. No one disputes that

     defendants operated their farm according to the standard practices of the industry.




                                                      2
¶9            On April 2, 2012, approximately nine months after defendants, residents of neighboring

       Henry County, purchased the property, the Village enacted ordinance No. 420. Ordinance No.

       420 expanded ordinance No. 378, which prohibited the keeping of farm animals or livestock

       within the Village. LaFayette Odinance No. 378 (eff. Mar. 6, 2000). Ordinance No. 420

       expanded the definition of nuisances within the Village to include engaging “in any commercial

       farming for the production and harvesting of any agricultural or horticultural products on any

       private or public property within the Village of LaFayette.” LaFayette Odinance No. 420 (eff.

       Apr. 2, 2012).

¶ 10          On May 22, 2012, during the first growing season since having purchased the property,

       defendants planted their first corn crop. On June 1, 2012, the Village sent defendants a notice to

       abate, claiming that defendants were creating a nuisance by being in violation of the newly

       enacted ordinance.

¶ 11          On June 6, 2012, the Village filed a complaint against defendants, seeking both a penalty

       for violation of the ordinance and an injunction against continued commercial farming. On

       March 19, 2013, the parties filed pretrial briefs outlining their positions, and the trial court held a

       half-day bench trial.

¶ 12          On April 5, 2013, the trial court entered a judgment order acquitting defendants of the

       alleged ordinance violation based on a lack of notice. However, on April 26, 2013, the court

       issued an injunction, enjoining defendants from engaging in any commercial farming on their

       property within the Village. The court specifically found that the protections of the Act did not

       apply. It noted that “[a]lthough Defendants’ property was in continuous use for agricultural

       commercial purposes, the Village has been a municipal corporation far longer, and has been




                                                          3
       obligated to serve the public welfare of its residents since its incorporation, which purposes have

       not changed.”

¶ 13          The trial court denied the defendants’ motion for reconsideration. Defendants appeal the

       injunction. We reverse and vacate the injunction.

¶ 14                                               ANALYSIS

¶ 15          On appeal, defendants argue that the application of the Farm Nuisance Suit Act (the Act)

       (740 ILCS 70/1 (West 2012)) precludes enforcement of the ordinance against them; that the Act

       preempts ordinance No. 420. In the alternative, the defendants argue that the ordinance is

       arbitrary and an unreasonable exercise of the Village’s authority and is, therefore,

       unconstitutional. We need not address the constitutionality of the ordinance as we find that, on

       the facts of this case, the Act preempts the ordinance.

¶ 16          Ordinance No. 420 regulates nuisances within the Village and, in relevant part, provides

       as follows:

                          “SECTION 1: Paragraph 13 of Section II. Nuisances

                       include, but are not limited to, the following: shall be Amended

                       to read as follows:

                                13. *** or to engage in any commercial farming

                       for the production and harvesting of any agricultural or

                       horticultural products on any private or public property within the

                       Village of LaFayette.” LaFayette Ordinance No. 420 (eff. Apr. 2

                       2012).

       While the Village clearly has the authority to enact a nuisance ordinance (see 65 ILCS 5/11-60-2

       (West 2012)) (providing that the “corporate authorities of each municipality may define, prevent,



                                                        4
       and abate nuisances”), the legislature has limited this authority in certain instances. Passed in

       1981, the Act states that “[i]t is the declared policy of the state to conserve and protect and

       encourage the development and improvement of its agricultural land for the production of food

       and other agricultural products.” 740 ILCS 70/1 (West 2012). Thus, the purpose of the Act is

       “to reduce the loss to the State of its agricultural resources by limiting the circumstances under

       which farming operations may be deemed to be a nuisance.” (Emphasis added.) Id.

¶ 17          Section 2 of the Act defines a farm as:

                              “§ 2. The term ‘farm’ as used in this Act means any parcel

                      of land used for the growing and harvesting of crops; for the

                      feeding, breeding and management of livestock; for dairying or for

                      any other agricultural or horticultural use or combination thereof.”

                      740 ILCS 70/2 (West 2012).

¶ 18          Finally, and at issue in the case at bar, section 3 of the Act provides:

                              “§ 3. No farm or any of its appurtenances shall be or

                      become a private or public nuisance because of any changed

                      conditions in the surrounding area occurring after the farm has been

                      in operation for more than one year, when such farm was not a

                      nuisance at the time it began operation, provided, that the

                      provisions of this Section shall not apply whenever a nuisance

                      results from the negligent or improper operation of any farm or its

                      appurtenances.” 740 ILCS 70/3 (West 2012).

¶ 19          The Village contends that the trial court properly found that section 3 of the Act was not

       applicable to defendants, as defendants failed to prove “any changed conditions in the



                                                         5
       surrounding area.” The mere enactment of an ordinance, the Village argues, does not constitute

       changed conditions as there was no encroaching residential use of land as contemplated by the

       statute. We disagree and find the trial court misinterpreted both the Act and the holding of

       Toftoy v. Rosenwinkel, 2012 IL 113569.

¶ 20          In Toftoy, the defendants owned 160 acres of farmland in rural Illinois. Id. ¶ 3.

       Originally, Clarence Toftoy owned 120 acres of farmland across the road from defendants upon

       which an over 100-year-old farmhouse sat. Id. While the farmhouse across the road was

       unoccupied, the defendants began using their property to raise cattle. Id. ¶ 4. Several years later,

       Clarence tore down the historic farmhouse and transferred ownership of the 1.83 acres upon

       which it sat to his son and daughter-in-law, plaintiffs Roger and Bobbie Toftoy. Id. ¶ 5.

       Plaintiffs began construction of a new home. Id. Several years after this, plaintiffs filed a

       nuisance action against the defendants’ farm operation, and defendants responded with a motion

       for summary judgment based upon the Act. Id. ¶¶ 6-7. The trial court denied the motion, and

       the case proceeded to trial. Id. ¶ 8. The trial court entered judgment in favor of plaintiffs and

       ordered defendants to take remedial measures to reduce the nuisance caused by the cattle farming

       operation. Id. ¶ 9. The appellate court affirmed, finding that “ ‘the conditions must alter the

       character of the surrounding area such that, where the farm was not a nuisance when it began

       operation, it is transformed into a nuisance by the changed conditions.’ ” Id. ¶ 10 (quoting

       Toftoy v. Rosenwinkel, 2011 IL App (2d) 100565, ¶ 36). Applying that analysis, “the appellate

       court held that plaintiffs’ acquisition and occupation of their land ‘did not alter the character of

       the area such that the cattle operation, which previously had not been a nuisance, thereby became

       a nuisance.’ ” Id. (quoting Toftoy v. Rosenwinkel, 2011 IL App (2d) 100565, ¶ 37).




                                                         6
¶ 21          Our supreme court reversed, finding that “plaintiffs’ acquisition of ownership created the

       legally protected interest in which the plaintiffs are claiming interference.” Id. ¶ 21. “In other

       words, defendants’ farm could not ‘become a nuisance’ to plaintiffs until they acquired their

       property in 1998. The change in ownership was a ‘changed condition’ that gave rise to

       plaintiffs’ nuisance action.” Id. The court went on to note that plaintiffs did not acquire their

       land until 1998, “six years after defendants’ cattle farm began operating, and well beyond the

       one-year limitation contained in section 3. Plaintiffs came to the nuisance and, under section 3

       of the Act, are barred from filing a nuisance suit.” Id. ¶ 22.

¶ 22          Following Toftoy, if a change in ownership (i.e., a change in legal rights) constitutes a

       “changed condition” to bar a nuisance action, so, too, does a change in the local ordinance.

       Here, the trial court found that, “[a]lthough Defendants’ property was in continuous use for

       agricultural commercial purposes, the Village has been a municipal corporation far longer, and

       has been obligated to serve the public welfare of its residents ***, which purposes have not

       changed.” That leads to the age-old legal question: so what? In Toftoy, the plaintiffs’ land had

       continually been used as a farmstead. The changed condition was the change in ownership,

       which occurred after the defendants’ cattle farm had been in operation for well over a year.

       Similarly, the Village has continually operated as a municipality obligated to serve the public

       welfare of residents. The changed conditions were the sensibilities of the residents of the

       Village, or at least the Village board, which provoked it to label defendants’ farm as a nuisance.

       Something provoked the Village, which has been around since the nineteenth century, to pass the

       ordinance months after the farm was purchased by Henry County residents.

¶ 23          We further take issue with the trial court’s finding that "[e]ven accepting that the

       Village’s enforcement of its ordinance can be equated with a private entity’s suit to abate a



                                                         7
       nuisance, the protection of the Act does not extend to a business that locates within a previously

       established residential use.” The defendants’ land has, at all relevant times, been used for

       commercial agricultural/horticultural purposes and has, likewise, been located in the Village next

       to residential land. It did not relocate; the crop raised at the commercial farming operation

       simply changed. Obviously, some nearby residents did not like the new crop and all that goes

       with planting and harvesting it; the Village enacted the ordinance. To, again, apply the rationale

       of Toftoy, defendants’ commercial farming endeavors could not “become a nuisance” to the

       Village until the Village amended the ordinance. That change to the ordinance was a “changed

       condition” that gave rise to the Village’s nuisance action. See Toftoy, 2012 IL 113569, ¶ 21.

¶ 24          Under the Act, the change in legal ownership is not dispositive. We believe that the

       result would have been the same in Toftoy had plaintiffs lived on the property from the beginning

       and then waited six years to file their nuisance action.

¶ 25          The Village also argues that the defendants’ corn/soybean operation was not a mere

       continuation of the prior tree nursery and that there was a substantial gap between the tree

       nursery operation and defendants’ commercial farming operation. According to the Village, a

       change in the type of farming operations occurring after the farm has been in operation for more

       than one year prevents the application of the Act. If the Act was intended to be implicated when

       there is a cessation or interruption of farming operations, it posits, then the Act would expressly

       state the same.

¶ 26          In support, the Village cites to the Michigan Right to Farm Act, which provides a farm

       that is otherwise covered by the Right to Farm Act shall not be found to be a nuisance because of

       temporary cessation or interruption of farming. See Mich. Comp. Laws Ann. § 286.473(3)(b)

       (West 2012). The Village also directs our attention to Kalkman v. Nedved, 2013 IL App (3d)



                                                         8
       120800, explaining that under the maxim expressio unius est exclusio alterius (the “ ‘expression

       of one thing is the exclusion of another’ ”), the court infers that when a statute lists the things to

       which it applies, the omissions should be understood as exclusions. Id. ¶ 22 (quoting Metzger v.

       DaRosa, 209 Ill. 2d 30, 44 (2004)).

¶ 27           We find this unpersuasive. The best indication of the legislature’s intent is the plain

       language of the statute. In re E.B., 231 Ill. 2d 459, 466 (2008). “[W]hen statutory language is

       plain and certain the court is not free to give it a different meaning.” In re Estate of Hoehn, 234

       Ill. App. 3d 627, 629 (1992). Additionally, a court may not depart from the plain statutory

       language by reading into it exceptions, limitations, or conditions not expressed by the

       legislature. In re Estate of Ellis, 236 Ill. 2d 45, 51 (2009).

¶ 28           The plain language states that the purpose of the Act is to protect and conserve the

       development and improvement of agricultural land and limit, not expand the circumstances

       under which farms can be considered nuisances. Unlike the Michigan Right to Farm Act cited

       by the Village, which lists changed circumstances to which the Act applies, our Act does not

       enumerate such a specific set of situations. We, therefore, decline to read the absence of

       language regarding a temporary cessation or interruption of farming as an exclusion, nor do we

       believe the fundamental rules of statutory interpretation allow us to do so. We also note that

       despite the Village’s arguments to the contrary, the trial court did find that defendants’ property

       was in continuous use for commercial agricultural purposes. Public policy further supports such

       a reading of the Act, as allowing a temporary cessation of farming operations to defeat

       application of the Act has the potential to drastically devalue farmland, especially land that might

       be tied up in either bankruptcy or foreclosure proceedings.




                                                          9
¶ 29          We find that the construction of the Act promoted by the Village would lead to an

       absurdity. Illinois is an agricultural state. The stated purpose of the Act is to “conserve and

       protect and encourage the development and improvement of its agricultural land for the

       production of food and other agricultural products” and “to reduce the loss to the State of its

       agricultural resources by limiting the circumstances under which farming operations may be

       deemed to be a nuisance.” (Emphasis added.) 740 ILCS 70/1 (West 2012). The Village argues

       that while the statute bars declaring a farm a nuisance in the face of encroaching residential use

       of land, it does not bar declaring a farm a nuisance “just because we can.” That is (under the

       Village's construction), the Act would bar enforcement of the ordinance if it was passed so that

       someone would build a house or two on a vacant lot across the road from the farm, but the Act

       would not protect the farm if no one wants to build a house on a vacant lot across the road from

       the farm. This would be an absurd result. As discussed below, the only change in conditions in

       Toftoy was the sensibilities of the occupant of the residential property across the road from the

       farm. It was residential property before the cattle farm began operation, and it was residential

       property when the suit to enjoin the farming operation was filed. The “change in circumstances”

       was that whoever owned the residential property at the time the farm started operation, and

       during its first year, did not object to the farm. More than one year later, the farm became

       occupied by a new owner who was not too keen on living across the road from a cattle farm.

¶ 30          Somehow the trial court thought it important that the Village had been a municipal

       corporation far longer than the farm had been in operation. First of all, we see nothing in the

       record that tells us what the property in question was used for prior to 1979, or what it was being

       used for at whatever time the Village incorporated. Most importantly, we find the trial court’s

       observation regarding the relative longevity of the Village and the farm as totally irrelevant to



                                                        10
       the issue. There is nothing on the face of the statute nor could we conjure up any logical reason

       to believe that the Act only protects farms from nuisance ordinances if the existence of the farm

       predated the municipality’s incorporation. Under the Act, there are two relevant questions with

       respect to time: (1) was the farm a nuisance at the time it began operation? and (2) if not, and

       assuming it was properly operated, had it been in operation for more than one year when

       someone, either private or public, tried to shut it down using nuisance law? 740 ILCS 70/3

       (West 2012).

¶ 31          The reality of life in downstate Illinois is that many, if not most, cities, towns, and

       villages have farms operating within their boundaries. We suspect that they continue to operate

       as farms because the owners have decided that crop production is the highest and best use of the

       land. Whether it is or not is not important. What is important is that the Act limits the ability of

       either an individual through private suit or a municipality through an ordinance to deprive the

       owner of the right to use the land to grow crops, either agricultural or horticultural.

¶ 32          The dissent argues that “the farm” in the statute refers to a farm operated by the same

       owner and growing the exact same crops. Infra ¶¶ 47-49. If this is so, what rational person

       would purchase a farm located within municipal limits, knowing that the village had one year to

       put the farm out of operation at its whim? Everyone knows what farm is at issue. By changing

       ownership and crop, it does not stop being “the” farm and become some other farm. This is not a

       situation where someone went from growing crops to creating a feedlot. As the special

       concurrence points out, the ordinance bars all farming.

¶ 33          The ordinance is preempted by the Act. “It is well established that municipalities may

       not adopt ordinances which infringe upon the spirit of the state law or are repugnant to the

       general policy of the state.” Village of Northfield v. BP America, Inc., 403 Ill. App. 3d 55, 58



                                                        11
       (2010). A local ordinance which infringes upon the legislative intent of a state statute is

       preempted. The Act mandates that a farm shall not be deemed a nuisance if it satisfies the

       requirements of the Act. However, the ordinance labels all commercial farming a nuisance. The

       ordinance has no exception for farm operations that satisfy the elements of the Act. It is,

       therefore, preempted.

¶ 34          There may be ways to stop farming within the Village of LaFayette. Labeling an existing

       farm as a nuisance is not one of them. Accordingly, we find that the Farm Nuisance Suit Act

       applies and bars application of the ordinance to defendants’ farming operations.

¶ 35                                             CONCLUSION

¶ 36          For the foregoing reasons, the judgment of the circuit court of Stark County is reversed

       and the injunction is vacated.

¶ 37          Reversed; injunction vacated.

¶ 38          JUSTICE HOLDRIDGE, specially concurring.

¶ 39          I agree that the Farm Nuisance Suit Act (the Act) (740 ILCS 70/1 et seq. (West 2012))

       preempts the Village's ordinance No. 420. I write separately to clarify one aspect of the analysis

       that reviewing courts should apply in determining whether a particular agricultural or

       horticultural operation is protected under the Act. In my view, a change in the type or character

       of farming operations may be relevant to this determination. As I interpret the statute, a plaintiff

       may state a claim for nuisance against a farm even if that farm has been in existence for more

       than one year so long as the alleged nuisance is caused by a change in the farming operations

       rather than any changed conditions in the area surrounding the farm. For example, if a plaintiff

       lives across the street from a row crop farm for 10 years without incident but the farm

       subsequently changes to a hog farm, the plaintiff may state a nuisance claim against the hog farm



                                                        12
       so long as the alleged nuisance stems from the hog farming operations and not from any change

       in the plaintiff's ownership or use of his land.

¶ 40           Courts in other jurisdictions have construed similar farm nuisance statutes in this manner.

       See, e.g., Flansburgh v. Coffey, 370 N.W.2d 127, 130-31 (Neb. 1985) (holding that the Nebraska

       Right to Farm Act did not apply where the change at issue occurred on the defendant's farm

       rather than on other land in the vicinity of the farm); Crea v. Crea, 16 P.3d 922, 925 (Idaho

       2000) (holding that defendant's expanded hog farm operations were not protected by the Idaho

       Right to Farm Act because the hog operation was alleged to be a nuisance "not because of

       changes in surrounding non-agricultural uses, but because of an expansion of the [farm]

       operation itself"); Durham v. Britt, 451 S.E.2d 1, 3-4 (N.C. Ct. App. 1994) (ruling that North

       Carolina's "right to farm" law did not apply to "situations in which a party fundamentally

       changes the nature of the agricultural activity which had theretofore been covered under the

       statute," and holding that a "fundamental change" occurred where the defendant, who previously

       operated turkey houses, changed his farming operation to a hog production facility (emphasis in

       original)).

¶ 41           This is not such a case. Although the farm at issue in this case changed from a tree

       nursery to a row crop farm, the Village does not allege that the nuisance was caused by this

       change in farming operations. Rather, the Village claims that the farm is a nuisance because it

       has passed ordinance No. 420, which declares all commercial farming within the Village to be a

       nuisance (regardless of the type or character of the farming). Thus, the Village alleges that the

       farm became a nuisance because of a change that occurred to the area surrounding the farm.

       Moreover, as Justice Schmidt notes, ordinance No. 420 labels all commercial farming a nuisance

       without including an exception for farming operations that are protected by the Act.



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       Accordingly, the Act applies in this case, and ordinance No. 420 conflicts with and is preempted

       by the Act.

¶ 42          JUSTICE LYTTON, dissenting.

¶ 43          I disagree with the majority’s conclusion that the Farm Nuisance Act preempts the

       Village’s ordinance. The Act does not apply in this case.

¶ 44          In interpreting statutes, like the Act, the cardinal rule is to ascertain and give effect to the

       legislature’s intent, which is best indicated by the statute’s plain language. People v. Martin,

       2011 IL 109102, ¶ 21. Words and phrases that have well-defined meanings in common law are

       interpreted to have the same meanings when used in statutes. CNB Bank & Trust, N.A. v.

       Rosentreter, 2014 IL App (4th) 140141, ¶ 40.

¶ 45          Almost all states have right-to-farm laws similar to the Act. See Guth v. Tazewell

       County, 698 F.3d 580, 584 (7th Cir. 2012); Tricket v. Ochs, 2003 VT 91, ¶ 21, 176 Vt. 89, 838

       A.2d 66. The purpose of such laws is to protect farmers from nuisance suits caused by the

       encroachment of nonagricultural neighbors moving to traditionally rural areas. Tricket, 2003 VT

       91, ¶ 23, 176 Vt. 89, 838 A.2d 66 (citing 13 Neil E. Harl, Agricultural Law § 124.01, at 124-2

       (1993)).

¶ 46          The Act codifies the “coming to the nuisance doctrine.” Toftoy v. Rosenwinkel, 2012 IL

       113569, ¶ 21. For the Act to apply, three requirements must be met: (1) the farm must be in

       operation for more than one year, (2) the farm must not have changed its operations, and (3)

       there must be changed conditions occurring in the area surrounding the farm. See 740 ILCS 70/3

       (West 2012); Herrin v. Opatut, 281 S.E.2d 575, 578 (Ga. 1981); Finlay v. Finlay, 856 P.2d 183,

       188 (Kan. Ct. App. 1993). All three requirements are necessary for application of the Act. See

       740 ILCS 70/3 (West 2012); Herrin, 281 S.E.2d at 578; Finlay, 856 P.2d at 188.


                                                         14
¶ 47          None of the Act’s requirements are met in this case. First, defendants owned the farm in

       question and operated it as a corn and soybean farm for less than 10 months before the Village

       filed its nuisance suit. Therefore, the one-year requirement is not met. The majority interprets

       the one-year requirement very loosely and finds that it is met as long as the land is used for

       commercial agricultural/horticultural purposes for more than one year. Supra ¶ 23. Such an

       interpretation of the Act ignores its plain language, which requires that “the farm has been in

       operation for more than one year.” (Emphasis added.) 740 ILCS 70/3 (West 2012).

¶ 48          It is a principle of statutory construction that “ ‘the definite article “the” particularizes the

       subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing

       force of “a” or “an.” ’ ” (Emphasis in original.) Sibenaller v. Milschewski, 379 Ill. App. 3d

       717, 722 (2008) (quoting Brooks v. Zabka, 450 P.2d 653, 655 (Colo. 1969)). “‘The’” is a

       restrictive term. Id. It is not synonymous with “any” and “is more nearly its antithesis.” Id. at

       721-22. Here, the Act requires that “the farm” be “in operation for more than one year.” 740

       ILCS 70/3 (West 2012). The majority’s interpretation of the Act ignores the word “the” and

       replaces it with “a” or “any.” I reject this construction of the statute. To satisfy the first

       requirement of the Act, the specific farm at issue, which in this case is defendants' corn and

       soybean farm, must be in operation for at least a year. See Davis v. Taylor, 132 P.3d 783, 785

       (Wash. Ct. App. 2006) (state right-to-farm statute did not apply to cherry orchard even though

       property had been operated as a farm for many years where farm recently changed from apple

       orchard to cherry orchard). Because defendants' farm was in operation for less than a year when

       the Village passed its ordinance, the Act does not apply.

¶ 49          Similarly, the second requirement is not met because defendants' farm has changed

       operations. A right-to-farm statute is inapplicable where a change in use or operations has


                                                         15
       occurred on the agricultural land. See Payne v. Skaar, 900 P.2d 1352, 1355 (Idaho 1995) (cattle

       feedlot operation expanded); Finlay, 856 P.2d at 188 (hog operation expanded); Davis, 132 P.3d

       at 786 (apple orchard became cherry orchard); Durham v. Britt, 451 S.E.2d 1, 4 (N.C. Ct. App.

       1994) (turkey housing operation became hog production facility). Here, before defendants

       purchased the property in question, it was operated as a nursery and tree farm. Defendants

       removed the trees, leveled the land, and now use the property as a corn and soybean farm.

       Because defendants have changed the use of the farm, the Act does not apply. See Payne, 900

       P.2d at 1355; Finlay, 856 P.2d at 188; Davis, 132 P.3d at 786; Durham, 451 S.E.2d at 4.

¶ 50          Finally, there are no changed conditions in the area surrounding the farm, as required by

       the Act. The majority finds that the Village’s change to the ordinance was a “changed

       condition” under the Act. Supra ¶ 23. I disagree. The plain language of the Act requires that

       the changed condition occur in the “surrounding area.” 740 ILCS 70/3 (West 2012). Where the

       neighborhood surrounding the farm has remained substantially unchanged, a right-to-farm law

       does not apply. See McVicars v. Christensen, 320 P.3d 948, 953 (Idaho 2014); Crea v. Crea, 16

       P.3d 922, 925 (Idaho 2000); Payne, 900 P.2d at 1355. Right-to-farm laws, including the Act,

       only apply where there has been a change in land use, ownership or occupancy in the area

       surrounding the farm. See Toftoy, 2012 IL 113569, ¶ 21; Flansburgh v. Coffey, 370 N.W.2d

       127, 131 (Neb. 1985); Cline v. Franklin Pork, Inc., 361 N.W.2d 566, 572 (Neb. 1985). Here,

       there was no such change. The only change that has occurred is the enactment of the ordinance;

       the land surrounding defendants’ property has not changed.

¶ 51          The intent of the Act and other right-to-farm laws supports my conclusion that the Act

       does not apply in this case. The purpose of right-to-farm laws, like the Act, is to protect

       agricultural areas from nuisance suits arising out of “urban sprawl.” Buchanan v. Simplot


                                                        16
       Feeders Ltd. Partnership, 952 P.2d 610, 612 (Wash. 1998); Herrin, 281 S.E.2d at 577. Thus,

       right-to-farm laws are not triggered unless there is an extension of nonagricultural land uses into

       existing agricultural areas. Herrin, 281 S.E.2d at 577; see also Trickett, 2003 VT 91, ¶ 32, 176

       Vt. 89, 838 A.2d 66 (right-to-farm statute inapplicable where there is no “urban encroachment”).

       Here, where no new nonagricultural neighbor has moved to a traditionally agricultural area and

       attempted to put the surrounding farms out of business, the purpose of the Act is not

       accomplished. See Toftoy, 2012 IL 113569, ¶ 21.

¶ 52          I would find that the Act does not apply and does not preempt the Village’s ordinance.




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