In the Matter of Lewis

In the Matter of Cheryl Lewis, et al., No. 951, September Term 2023. Opinion by Harrell,
J. Filed May 30, 2024.

ADMINISTRATIVE LAW – NUISANCE – RIGHT-TO-FARM LEGISLATION –
STATUTORY INTERPRETATION – LEGISLATIVE HISTORY

Property owners filed complaints with the Talbot County Agricultural Resolution
Board alleging that a nearby farm was causing offensive odors and health concerns. The
farm recently had expanded its nutrient management program from chemical fertilizers to
Class A bio-solids and soil conditioners, stockpiling those materials on-site before land
application on that farm and other farms in the same area that were owned or operated also
by the farmer. After a hearing, the Board determined that the application and stockpiling
of those materials amounted to a generally accepted agricultural practice and, thus, the farm
was immune, under State Code and County ordinances regarding the right-to-farm, from
the property owners’ nuisance claims. The Circuit Court for Talbot County reversed the
Board’s decision.

HELD: Reversed. The legislative history of the state’s right-to-farm legislation revealed
that the farm’s expansion of its nutrient management program was a protected activity
shielded from liability for nuisance claims. Moreover, the plain language of the relevant
section of the Talbot County Code showed that the farmer’s operation of his agricultural
land may expand its nutrient management program without forfeiting liability protections
under these circumstances.
Circuit Court for Talbot County
Case No. C-20-CV-22-000143

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 951

September Term, 2023

IN THE MATTER OF
CHERYL LEWIS, ET AL.

Nazarian,
Zic,
Harrell, Glenn T., Jr.
(Senior Judge, Specially Assigned),

JJ.

Opinion by Harrell, J.

Filed: May 30, 2024

*Kehoe, Stephen, J., did not participate in the
Court’s decision to designate this opinion for
publication pursuant to Md. Rule 8-605.1.
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2024.05.30
14:52:06
-04'00'

Gregory Hilton, Clerk
Although we will supplement later the background of this case, the following

adaptation of the lyrics from an immediately recognizable children’s song tells well the

tale:

Old[1] man Foster had a farm
E-I-E-I-O
And on that farm he had a stockpile of
biosolid fertilizer
E-I-E-I-O
With some odors here
And some midges[2] there
Here a smell
There a swarm
Everywhere a nuisance.

Old man Foster had a farm
E-I-E-I-O
And his neighbors complained about
the odors and midges
E-I-E-I-O
With complaints to the Health
Department
And complaints to the Agricultural
Resolution Board
Here a complaint
There a complaint
Everywhere complaints.

Old man Foster had a farm
E-I-E-I-O
And nonetheless its operation was
approved by the Board
E-I-E-I-O
With judicial review sought by the
neighbors in the circuit court

With apologies to the spirit and family of the late Mr. Foster, whose age we do not
1

know as of the time he passed in 2022, we invoke nonetheless poetic license to describe
him as “old” solely to facilitate faithfully the style and cadence of the context.
2
Midges are gnat-like insect pests.
Here a reversal
There a reversal
Everywhere a reversal.

Old Mr. Foster had a farm
E-I-E-I-O
And he appealed to the Appellate Court
E-I-E-I-O
With arguments here
And arguments there
Everywhere arguments.

This appeal grew from a decision of the Talbot County Agricultural Resolution

Board (the “Board”). Appellees (Cheryl Lewis, et al.) filed complaints with the Board

about odors and swarms of midges emanating purportedly from a farm owned by the

Appellants (the “Foster Farm”), located at 4084 Smiths Mill Road in Trappe, Maryland, on

which organic fertilizers were stored and applied ultimately to the soil. Appellees are

neighbors of the Foster Farm. After a hearing, the Board determined that “the application

and stockpiling of” biosolids and soil conditioners at the Foster Farm “was a generally

accepted agricultural practice[,]” and thus immune, under state and local laws, to

Appellees’ nuisance complaints. The Circuit Court for Talbot County reversed the Board’s

decision. Appellants filed timely this appeal.

QUESTIONS PRESENTED

Appellants present three questions for our consideration, which we rephrase and

reformat as follows: 3

3
Appellants phrased the questions presented as follows:

(continued…)
2
1. Whether the Board erred in interpreting the right-to-farm provisions
in Talbot County Code Chapter 128 and Md. Code, Cts. & Jud. Proc.
§ 5-403?

2. Was there substantial evidence in the record to support the Board’s
decision?

3. Did the Board provide participants with a meaningful opportunity to
participate in the hearing and cross-examine witnesses?

For the reasons to be explained, we shall reverse the judgment of the circuit court and, in

doing so, direct affirmance of the decision of the Board.

BACKGROUND

Appellants are the personal representatives of the estate of Mr. Arthur L. Foster, Sr.,

who passed away on 31 December 2022. Appellees are property owners who reside near

the Foster Farm. Mr. Foster purchased the Foster Farm on 24 March 2020. One of the

Appellees, Ms. Cheryl Lewis, testified before the Board that “even though [the Foster

Farm] was purchased in 2020, it was currently being farmed by an operator who had the

right to farm through the end of that year.” The Foster Farm consists of approximately

423.95 acres, on which corn and cover crops are grown.

1. Was there substantial evidence in the record to support the decision of the
Talbot County Agricultural Resolution Board?

2. Did the Circuit Court err in its application of the Talbot County Right To
Farm Law?

3. Did the Talbot County Agricultural Resolution Board provide
participants with a meaningful opportunity to cross-examine witnesses?
3
In January 2021, Denali Water Solutions (“Denali”) 4 began delivering the Foster

Farm Class A biosolids 5 and soil conditioners, including “a blend of Mountaire Millsboro

(‘Mountaire’), Valley Proteins (‘Valley’) and Seawatch cake (‘Seawatch’).” 6 Those

materials were stored in a designated stockpile site on the Foster Farm until they were

applied to the land, both on the Foster Farm and other farms in the area owned and/or

operated by Appellants.

On 10 September 2021, Appellees began filing complaints with the Talbot County

Office of Planning and Zoning and the Talbot County Health Department. In those

complaints, Appellees alleged that the Foster Farm was causing offensive odors and health

concerns. As a result of the complaints, Health Department officials visited the Foster

Farm and confirmed the presence of “a very odorous smell being carried with the wind,

coming from the direction of the farm[.]”

Two months later, Appellees filed with the Board similar complaints about the odor

emanating from the Foster Farm. The Board scheduled an evidentiary hearing for 28

February 2022, to consider the complaints. Before the hearing, Appellants’ counsel

submitted a memorandum to the Board, presenting the following information:

4
As noted in Appellants’ counsel’s memorandum to the Board in February 2022:
“Denali is an organic residuals management company . . . . [Denali] collects water and
wastewater residuals, as well as other food processing residuals, and converts them to soil
conditioners[.]”
5
To qualify as Class A biosolids, the biosolids must meet the pathogen elimination
standards outlined in 40 C.F.R. § 503.32(a).
6
Previously, only chemical fertilizers were used on the Foster Farm, as well as the
other area farms maintained by Mr. Foster.
4
• The Class A biosolids “are certified by [the Maryland Department of the
Environment (‘MDE’)].”

• “Ocean City received a Sewage Sludge Utilization Permit for the land
application of the Biosolids from MDE on June 1, 2016, and the Permit is
valid through May 31, 2026.”

• “The Biosolids from Ocean City were first land applied to the Farm (as
prescribed by MDE) beginning in 2021. The Biosolids are also stored at the
Farm until the land application takes place.”

• “Denali registers all Soil Conditioners through [the Maryland Department of
Agriculture (‘MDA’)].”

• “The Soil Conditioners were first land applied to the Farm (as prescribed by
MDA) beginning in 2021 and were all stored at the Farm beforehand.”

• “The Biosolids from Ocean City and a blend of the Soil Conditioners are . . .
stored at the Farm in containers called ‘bunkers’ until they can be land
applied to the property. The [Foster] Farm does not store any soil
conditioners other than those intended to be used on farms owned by the
Foster family. The Soil Conditioners were primarily land applied to the
fields surrounding the bunkers.”

• After an investigation, a Health Department official determined that “‘there
has been no health or medical information provided in this case to
substantiate or confirm that these odors are creating or causing a condition
dangerous to health or safety.’”

After the Board hearing, Appellees filed additional complaints about swarms of

flying insect pests, identified as midges. In response, Appellants’ counsel submitted a

memorandum to the Board, outlining three main arguments in that regard. First, “[t]here

is no direct evidence that the midges are caused by the application of the soil amendment

to the Farm, or from any soil amendment stored on-site.” Second, “[r]egardless of the

presence of midges, Mr. Foster is protected under” Talbot County Code (“TCC”) § 128-

1(B), which provides as follows:

5
When conducted within standard and generally accepted agricultural
practices as recommended and/or legally approved by the Maryland
Department of Agriculture, the United States Department of Agriculture or
other state and federal agencies, neighboring property owners shall have no
recourse against the inherent effects of agricultural operations. These
inherent effects include, but are not limited to, . . . pests[.]

Third, there is “no dangerous health or safety condition stemming from the presence of

these midges.”

On 15 November 2022, the Board reconvened “to deliberate, to talk about the

evidence that’s been received . . . and come to a conclusion[.]” On 14 December 2022, the

Board issued its written “Findings of Fact and Decision[,]” ruling as follows:

• “[T]he application and stockpiling of” the Class A biosolids and soil
conditioners are generally accepted agricultural practices.

• The Class A biosolids and soil conditioners at issue are regulated by MDE
and MDA, and “[t]he practices employed were in compliance with MDA’s
nutrient management program.”

• The Foster Farm is an “agricultural land” under TCC § 128-2, which defines
“agricultural land” as “land that has been used as an agricultural operation
continuously for one year.”

• “While there is no concrete evidence that the materials are linked to an
increase in midge insects in the area, the anecdotal witness testimony
suggests that there may have been a connection.”

In addition, the Board recognized that Denali and the Foster Farm agreed to take

steps to mitigate the odor caused by the biosolids and soil conditioners:

Denali and the Foster Farm have conceded that the Sea Watch product
was particularly noxious and that deeper tilling would generally alleviate
strong odors from nutrient applications in the future. They have agreed to
not use the Sea Watch product on the Foster [F]arm in the future and also to
utilize discing methodology when applying substances of this nature. In this
respect, the Board is satisfied that this process has resulted in steps being
taken to resolve the dispute between the Foster Farm and its neighbors.
6
On 14 December 2022, Appellees filed a petition for judicial review in the circuit

court. After a hearing, the court determined that the agricultural operation on the Foster

Farm had not been ongoing “for more than a year before [Appellees] began to complain[,]”

thus, the change in the type of fertilizer being used did not qualify for the protection of the

statutory scheme regarding the right to farm.

Additional facts will be included as they are relevant to the issues.

STANDARD OF REVIEW

“When an administrative agency’s decision is before this Court, we review the

agency’s decision; we do not review the circuit court’s decision.” J.H. v. TidalHealth

Peninsula Reg’l, Inc., 253 Md. App. 111, 119 (2021). Our review is “limited to evaluating

whether there is substantial evidence in the record as a whole to support the agency’s

findings and conclusions and to determining whether the administrative decision is

premised upon an erroneous conclusion of law.” Brandywine Senior Living at Potomac

LLC v. Paul, 237 Md. App. 195, 210 (2018).

We review administrative agencies’ factual findings for substantial evidence, which

“‘has been defined as such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.’” Piney Orchard Cmty. Ass’n v. Md. Dep’t of Env’t, 231 Md. App.

80, 92 (2016) (quoting Tomlinson v. BKL York LLC, 219 Md. App. 606, 614 (2014)). When

“applying the substantial evidence test” we view the decision “in the light most favorable

to the agency, [because] decisions of administrative agencies are prima facie correct and

7
carry with them the presumption of validity.” Paul, 237 Md. App. at 210-11 (quotation

marks and citation omitted).

By contrast, ‘“[a]n agency decision based on regulatory and statutory interpretation

is a conclusion of law.’” Md. Dep’t of Env’t v. Assateague Coastal Tr., 484 Md. 399, 450

(2023) (quoting Kor-Ko Ltd. v. Md. Dep’t of the Env’t, 451 Md. 401, 412 (2017)).

Accordingly, as to the Board’s legal conclusions, our review is undertaken without

deference to the agency’s conclusions. Comptroller of Md. v. FC-GEN Operations Invs.

LLC, 482 Md. 343, 360 (2022). “When a party challenges the agency’s[7] interpretation of

7
TCC §§ 128-4(A)-(C) establish the Board’s existence, purpose, and composition.

A. There is hereby established the Talbot County Agricultural Resolution
Board (“Board”). The Board shall arbitrate and mediate disputes
involving agricultural operations conducted on agricultural lands and
issue findings concerning whether or not such agricultural operations are
conducted in a manner consistent with generally accepted agricultural
practices.

B. The Board shall be composed of five voting and two nonvoting members
appointed by the Talbot County Council. . . . The Board shall convene
annually to elect a Chairperson and Vice Chairperson, one of whom shall
be from the agricultural community and the other of whom shall not be
from the agricultural community. The Board shall establish rules of
procedure, which shall be submitted to the Talbot County Council for
review and approval. . . . Board members shall serve without monetary
compensation. The voting members of the Board shall be composed of:

(1) Two members from the agricultural community;
(2) One member from the business community; and
(3) Two members at large.

C. A representative of the University of Maryland Cooperative Extension
and a member of the Talbot Soil Conservation District shall be appointed
by the Talbot County Council to serve as nonvoting members of the
(continued…)
8
a statute it administers, the court must determine ‘how much weight to accord that

interpretation, keeping in mind that it is always within the court’s prerogative to determine

whether an agency’s conclusions of law are correct.’” Assateague Coastal Tr., 484 Md. at

451 (quoting Md. Dep’t of Env’t v. Cnty. Comm’rs of Carroll Cnty., 465 Md. 169, 203-04

(2019)). Applying a sliding-scale approach, ‘“[w]e give more weight when the

interpretation resulted from a process of reasoned elaboration by the agency, when the

agency has applied that interpretation consistently over time,[8] or when the interpretation

Board. In any dispute, they may present facts and information and expert
opinions to the Board based on generally accepted scientific research and
best management agricultural practices as they pertain to a particular
dispute. The Board shall consider their opinions in any final
recommendations.

For more context, Md. Code, Cts. & Jud. Proc. § 5-403(e)(2) recognizes that a local
agency may hear nuisance complaints brought against an agricultural operation:

(2) If a local agency is authorized to hear a nuisance complaint against an
agricultural . . . operation, a person may not bring a nuisance action against
an agricultural . . . operation in any court until:

(i) The person has filed a complaint with the local agency; and
(ii) The local agency has made a decision or recommendation on the
complaint.

TCC § 128-3(B) contains a parallel provision:

Notwithstanding any provision of this section, no action alleging that an
agricultural operation has interfered with the reasonable use or enjoyment of
real property or personal well-being may be filed in the Circuit Court if the
plaintiff has not sought and obtained a final judgment of the Talbot County
Agricultural Resolution Board.
8
We recognize that, during oral argument in this Court, Appellants’ counsel
conceded that, to his knowledge, this dispute caused the Board to convene for the first time
in its history.
9
is the product of contested adversarial proceedings or formal rule making.”’ In re Md. Off.

of People’s Couns., 486 Md. 408, 441 (2024) (quoting Assateague Coastal Tr., 484 Md. at

451-52).

In addition, statutory interpretation is a question of law that this Court reviews de

novo. E.g., Johnson v. State, 467 Md. 362, 371 (2020). “To ascertain the meaning of a

statute, we follow the familiar rules of statutory construction.” MCB Woodberry Dev., LLC

v. Council of Owners of Millrace Condo., Inc., 253 Md. App. 279, 305-06 (2021). As the

Supreme Court of Maryland explains:

[W]e begin with the plain language of the statute, and ordinary, popular
understanding of the English language dictates interpretation of its
terminology. When the words of a statute are ambiguous and subject to more
than one reasonable interpretation, or where the words are clear and
unambiguous when viewed in isolation, but become ambiguous when read
as part of a larger statutory scheme, a court must resolve the ambiguity by
searching for legislative intent in other indicia. Moreover, after determining
a statute is ambiguous, we consider the common meaning and effect of
statutory language in light of the objectives and purpose of the statute and
Legislative intent.

Even in instances when the language is unambiguous, it is useful to
review legislative history of the statute to confirm that interpretation and to
eliminate another version of legislative intent alleged to be latent in the
language.

***

In the event the language of a statute is ambiguous, we will often apply
rules of statutory construction to ascertain the intent of the legislature. One
such rule is to read the language of a statute in such a way that will carry out
its object and purpose. This Court will also consider the consequences
resulting from one meaning rather than another, and adopt that construction
which avoids an illogical or unreasonable result, or one which is inconsistent
with common sense.

Blackstone v. Sharma, 461 Md. 87, 113-14 (2018) (cleaned up).

10
DISCUSSION

I.

Appellants argue that the Board determined properly that an agricultural operation

“ha[d] been under way for a period of 1 year or more” at the Foster Farm, and the Foster

Farm was thus shielded from liability for nuisance claims under Maryland’s and Talbot

County’s right-to-farm statute and ordinance, respectively. See Md. Code, Cts. & Jud.

Proc. (“CJP”) § 5-403(c) and TCC § 128. 9 Appellees counter that the transition to and

expansive use of biosolid materials at the Foster Farm changed substantially the

agricultural operation, which had used previously only chemical fertilizer. Thus, according

to Appellees, the Foster Farm was not shielded from liability flowing from the one-year

requirements in CJP § 5-403(c) and TCC § 128.

The current version of CJP § 5-403(c), which applies to the time of the conduct at

issue in this case, provides in relevant part as follows:

(c) Operation continued for 1 year or more. — If an agricultural . . . operation
has been under way for a period of 1 year or more and if the operation is in
compliance with applicable federal, State, and local health, environmental,
zoning, and permit requirements relating to any nuisance claim and is not
conducted in a negligent manner:

(1) The operation, including any sight, noise, odors, dust, or insects
resulting from the operation, may not be deemed to be a public or
private nuisance; and

(2) A private action may not be sustained on the grounds that the
operation interferes or has interfered with the use or enjoyment of
other property, whether public or private.

9
This opinion is the first time a Maryland appellate court has been called upon in a
reported opinion to interpret Maryland’s or Talbot County’s right-to-farm enactments.
11
CJP § 5-403(c).

The plain language of the statute is ambiguous as to whether the one-year period

resets when an agricultural operation changes its methodology/approach. As a result, we

must resolve this ambiguity by examining the legislative intent behind the enactment of

CJP § 5-403(c). Based on the legislative history, non-negligent agricultural operations —

those that are compliant with the necessary regulations and that have been under way for

one year or more — are shielded from nuisance claims when expanding a nutrient

management program. Indeed, as evidenced by the bill file for Senate Bill 404 (1998

Session) (“S.B. 404”), the General Assembly contemplated a case like the instant one when

it repealed and re-enacted the one-year requirement for changes in agricultural operations.

Right-to-farm legislation (“RTFs”) is generally a legislative response to urban

sprawl, as traditional agricultural land was under pressure to convert to nonagricultural

uses. See Margaret R. Grossman & Thomas G. Fischer, Protecting the Right to Farm:

Statutory Limits on Nuisance Actions Against the Farmer, 1983 WIS. L. REV. 95, 97-98

(1983). RTFs were enacted in response to conflicts between new residents and agricultural

operations. Id. All fifty states have enacted some type of RTFs, providing agricultural

operations with liability protection from nuisance lawsuits under certain circumstances.

See Rusty Rumley, A Comparison of the General Provisions Found in Right-to-Farm

Statutes, 12 VT. J. ENV’T L. 327, 328 (2011).

12
In 1981, the Maryland General Assembly enacted the predecessor version of

Maryland’s RTFs, now codified as CJP § 5-403. See Acts 1981, ch. 763 § 1. The preamble

to the 1981 Session Law stated as follows:

The General Assembly finds that the protection and encouragement
of agricultural operations which produce food and other agricultural products
is necessary for the maintenance of the public health and welfare and the
continued viability of the economy of this State and is a matter of the highest
public priority.

Since this State is becoming increasingly urban, farm areas and
populations continue to decrease. Often when nonagricultural land uses from
urban or suburban development intrude into existing agricultural areas,
agricultural operations are threatened by nuisance suits.

It is the purpose of this Act to reduce the loss to the State of its
agricultural resources by limiting the circumstances under which agricultural
operations may be deemed to be a nuisance[.]

Id. at pmbl. At that time, the statute noted that “change[s]” in the agricultural operation

were subject to the following:

If an agricultural operation, including any change in the operation, has been
under way for a period of 1 year or more and if the operation or the change
did not constitute a nuisance from the date the operation began or the date
the change in the operation began, it may not be or become a public or
private nuisance.

Id. at § 1(c) (emphasis added).

In 1998, S.B. 404 was introduced to “repeal[] the requirement that an agricultural

operation had to have been in effect for at least one year in order to be protected from a

public or private nuisance action[,]” i.e., the one-year requirement. S.B. 404, Fiscal Note

13
(1998 Session). 10 Moreover, the Fiscal Note recognized that the bill was not intended to

“relieve any agricultural operation from complying with applicable federal, State, and local

laws or from liability due to negligence.” Id.

The House Judiciary Committee’s Bill Analysis and the Senate Judicial Proceedings

Committee’s Floor Report anticipated that eliminating the one-year requirement for

changes in agricultural operations would allow farmers to adjust their farming operations

without losing liability protection (if the operation complies with other requirements in a

non-negligent manner):

[U]nder current law, an agricultural operation or change in the operation
must be under way for at least one year before the statutory protection from
nuisance suits applies. Thus, a dairy farmer who wants to switch to poultry
farming would be vulnerable to a nuisance suit during the poultry farm’s first

10
In our evaluation of the legislative history documents referred to in this opinion,
we are mindful of the principles contained in Logan v. Dietz, 258 Md. App. 629, 669 n.10
(2023). Indeed, “[t]he legislative sources and documents in a bill file that are most
authoritative in any given appeal will vary, depending on the issues presented[.]” Id.

“‘General Assembly documents most likely to reflect actual legislative purpose’ are
‘fiscal notes, committee bill analyses, and floor reports.’” Id. (quoting Jack Schwartz &
Amanda Stakem Conn, The Court of Appeals at the Cocktail Party: the Use and Misuse of
Legislative History, 54 Md. L. Rev. 432, 462 (1995)). In addition, “material provided by
people or organizations at committee hearings are generally advocacy statements that may
have a more limited purpose[,]” but such material “is useful when it addresses controversial
provisions in the legislation and thus provides insights on amendments offered during the
legislative process.” Id.

Here, we give great weight in our analysis to the House Judiciary Committee’s Bill
Analysis, the Senate Judicial Proceedings Committee’s Floor Report, and Chair Vallario’s
amendment as the best indicators of the General Assembly’s intent. To be sure, the
probative value of the Maryland Farm Bureau’s letter to Chair Vallario is limited, at best.
It sheds light, however, on the likely origin of the relevant amendment to the bill as
introduced. The House’s adoption of Chair Vallario’s amendment, as outlined in this
opinion, constitutes strong evidence of the General Assembly’s intent to eliminate the one-
year requirement for changes in otherwise compliant agricultural operations.
14
year of operation. This bill eliminates this one-year period as long as the
agricultural operation conforms to applicable health and zoning requirements
and is not operated in a negligent manner.

House Judiciary Committee, S.B. 404, Bill Analysis, at 2 (1998 Session); Senate Judicial

Proceedings Committee, S.B. 404, Floor Report, at 2-3 (1998 Session).

The then Chair of the House Judiciary Committee, the Hon. Joseph F. Vallario, Jr.,

received a letter from the Maryland Farm Bureau, Inc., which supported S.B. 404 and

explained the importance of repealing the one-year requirement for changes in agricultural

operations:

The elimination of the one-year exemption is critically important now as we
move towards a mandated nutrient management system. Under this system,
the state will ask farmers who have not previously used manure on their fields
to do so to help move poultry litter out of the lower eastern shore counties
and away from the Bay. Farmers who agree to help in this effort need the
protection of the right to farm law immediately, not one year (and possibly
several lawsuits) later.

Letter of Stephen L. Weber, President of the Maryland Farm Bureau, Inc., to Joseph F.

Vallario, Jr., Chairman of the House Judiciary Committee in the legislative bill file for S.B.

404.

During the Third Reading of S.B. 404, the House adopted Chair Vallario’s

amendment, which accomplished two goals. First, the amendment retained generally the

one-year requirement for agricultural operations, but with one exception material to the

case at hand. The amendment repealed the one-year requirement for changes in

agricultural operations. Compare Bill Text of Third Reading of S.B. 404 (1998 Session)

(available at https://mgaleg.maryland.gov/1998rs/bills/sb/sb0404t.PDF) with Chairman

15
Vallario’s Amendment to Third Reading of S.B. 404 (1998 Session) (available at

https://mgaleg.maryland.gov/1998rs/amds/bil_0004/sb0404_42320101.pdf).

The enacted legislation stated as follows:

(c) Operation continued for 1 year or more. — If an agricultural operation
has been under way for a period of 1 year or more and if the operation is in
compliance with applicable federal, State, and local health, environmental,
zoning, and permit requirements relating to any nuisance claim and is not
conducted in a negligent manner:

(1) The operation, including any noise, odors, dust, or insects resulting
from the operation, may not be deemed to be a public or private
nuisance; and

(2) A private action may not be sustained on the grounds that the
operation interferes or has interfered with the use or enjoyment of
other property, whether public or private.

CJP § 5-403(c) (1998 Repl. Vol.). The current version of CJP § 5-403(c), applicable here,

still lacks a one-year requirement as to changes in agricultural operations. When the

General Assembly repealed the one-year requirement for changes in otherwise compliant

agricultural operations, the General Assembly contemplated a scenario like the one at issue

here: an expanded nutrient management system.

Parallel to CJP § 5-403(c), TCC §§ 128-2 and 128-3 provide a more inclusive

liability shield for agricultural operations. TCC § 128-2 defines “agricultural land” as

follows:

As used in this chapter, the following terms shall have the meanings
indicated:

AGRICULTURAL LAND — Real property within the boundaries of Talbot
County within any zoning classification that is carried on the tax rolls of the
State Department of Assessments and Taxation as agricultural land and all

16
other land that has been used as an agricultural operation[11] continuously for
one year.

TCC § 128-3 provides “agricultural land[s]” with a liability shield for “agricultural

operation[s]” “conducted substantially in accordance with generally accepted agricultural

practices”:

A. A private action may not be sustained with respect to an agricultural
operation conducted on agricultural land on the grounds that the agricultural
operation interferes or has interfered with the use and enjoyment of property,
whether public or private, if the agricultural operation was, at the time the
interference is alleged to arise, conducted substantially in accordance with
generally accepted agricultural practices.

The plain language of TCC §§ 128-2 and 128-3 demonstrates that agricultural land may

change the modality of its operations without losing liability protection. Indeed, TCC §

128-2 requires the “land” to be “used as an agricultural operation continuously for one

11
TCC § 128-2 defines “agricultural operation[,]” in relevant part, as follows:

The cultivation and tillage of the soil; composting; spaying;
production, harvesting and processing of agricultural crops; use of
irrigation and spreading of manure, lime, fertilizer, and other soil
nutrients and/or improvements; raising poultry and other fowl;
production of eggs; production of milk and dairy products; production
of fruit, vegetables, ornamentals, and other horticultural crops;
aquaculture; production of timber and any commercial agricultural
procedure performed as incident to or in conjunction with such
operations, including preparation for market, delivery to storage or to
market. Also, the use of land for the furtherance of educational and
social goals, including but not limited to 4-H clubs, Future Farmers of
America (FFA), agritourism and alternative agricultural enterprises,
and the like. The term also includes, but is not limited to, all matters
set forth in the definition of “agricultural operation” in Courts and
Judicial Proceedings Article, § 5-403(a), of the Annotated Code, as
amended from time to time; and the production of all matters
encompassed within the definition of “farm product” in Md. Code
Ann., Agriculture Art., § 10-601(c), as amended from time to time.
17
year.” (Emphasis added.) That regulation does not require a particular agricultural

operation to exist for one year in order to enjoy liability protection. Instead, it requires the

agricultural land to be used continuously for some type of agricultural operation for one

year. Moreover, TCC § 128-3(A) is consistent with this interpretation, noting that the

agricultural operation has liability protection “at the time the interference is alleged to

arise” (if the agricultural operation was conducted on “agricultural land” and was

“conducted substantially in accordance with generally accepted agricultural practices”).

TCC § 128-3(A).

For these reasons, the expanded use of soil conditioners and Class A biosolids at the

Foster Farm was a protected activity under CJP § 5-403(c) and TCC § 128. 12

II.

Appellants argue that there was substantial evidence to support the Board’s decision

that an agricultural operation “ha[d] been under way for a period of 1 year or more” at the

Foster Farm. CJP § 5-403(c). Moreover, Appellants contend that the Board determined

properly that the storage and land application of the biosolids and soil conditioners on the

12
We do not foreclose the possibility that more drastic changes in an agricultural
operation could amount to a waiver of liability protection under CJP § 5-403 and TCC §
128. Cf. 4 Am. Law. Zoning § 33:5 (5th ed.) (“Determining when expanded operations are
so substantially changed as to bar application of a right to farm requires a fact intensive
inquiry.”). Here, given the legislative history of CJP § 5-403(c) and the plain language of
TCC § 128, the expansion of the nutrient management system on the Foster Farm did not
constitute a waiver of the statutory or local code liability shields.
18
Foster Farm and related farms in the area was “a generally accepted agricultural practice”

under TCC § 128-2.

Appellees counter that “[t]he long-term storage of materials for application at other

locations is not an agricultural activity protected under [TCC §] 128[.]” Moreover,

Appellees claim that “[t]he practices at the Foster Farm are not generally accepted

agricultural practices because these practices violate the public health, safety, and welfare

of citizens and the environment.” According to Appellees, the practices at the Foster Farm

violate state laws, and thus the practices are not generally accepted agricultural practices.

Lastly, Appellees maintain that the Board erred in determining that there was substantial

evidence that the agricultural operation had been established for at least one year.

There was substantial evidence to support the Board’s decision that the storage of

the biosolids and soil conditioners on the Foster Farm amounted to a protected agricultural

operation under TCC § 128. TCC § 128-2 defines an agricultural operation, in relevant

part, as the “spreading of manure, lime, fertilizer, and other soil nutrients[.]” TCC § 128-

2 (emphasis added). At the Board hearing, Mr. Howard Callahan, an MDA representative,

testified as follows:

Based on my visits to the [Foster Farm] and I’ll say the review of the nutrient
management plan that included the products and a review of the application
records of what was applied last fall and the situation at [sic] happened,
nothing threw up any red flags to me out of context of what’s required under
the nutrient management regulations.

Also, Mr. Dwight Dotterer, an MDA representative “in charge of the nutrient management

program[,]” testified that “[t]he nutrient management program allows temporary storage of

manures, animal manures, class A biosolids, and stackable materials.” Appellees note that

19
these materials were stored for application on the Foster Farm and other off-site farms

owned or operated by Appellants. That fact does not change our analysis. The outcome is

that there was substantial evidence to support the Board’s decision based on the testimony

of Mr. Callahan and Mr. Dotterer.

There was substantial evidence that the practices at the Foster Farm did not violate

the public health, safety, and welfare of the neighbors. TCC § 128-1 includes “odors” and

“pests” as inherent agricultural effects that are shielded from liability:

When conducted within standard and generally accepted agricultural
practices as recommended and/or legally approved by the [MDA] or other
state and federal agencies, neighboring property owners shall have no
recourse against the inherent effects of agricultural operations. These
inherent effects include, but are not limited to, smoke, noise, vibration, odors,
fumes, dust, pests, glare, runoff, the operation of machinery of any kind
during any twenty-four-hour period (including aircraft), the use of irrigation,
the storage and disposal of manure, application of fertilizer, pesticides, and
other agricultural chemicals. This chapter shall not in any way restrict or
impede the authority of the state or County to protect the public health,
safety, or welfare.

TCC § 128-1(B). As explained previously, the Board determined properly that the

“application and stockpiling of materials on the Foster Farm” were generally accepted

agricultural practices. Thus, there was substantial evidence that the odors and pests were

inherent effects of agricultural operations under TCC § 128-1 and, thus, not actionable

bases for complaint.

There was also substantial evidence that the practices at the Foster Farm did not

violate state law. To be sure, a report produced by Mr. Brian Baumgartner, an

Environmental Compliance Specialist at the Maryland Department of the Environment,

stated as follows:

20
Reviewing the Maryland Nutrient Management Manual, it appears all
requirements are being met in regards to the [Ocean City Class A sludge
(“OCCA”)], with the possible exception of “Section IV. TEMPORARY
FIELD STOCKPILING (STAGING) FOR STACKABLE ORGANIC
NUTRIENT SOURCES[.”] It states “Any material staged in a temporary
field stockpile shall be land applied in the first spring season following the
placement of the stockpile.” After reviewing Ocean City’s distribution logs,
the OCCA was delivered from February through May 2021, prior to the
spring planting period. This would likely be a violation of this provision.

Mr. Callahan testified, however, that Appellants were in compliance with the MDA

nutrient management regulations. The Board was not obliged to credit Mr. Baumgartner’s

opinion more than Mr. Callahan’s testimony.

Lastly, there was substantial evidence that the agricultural operation, under CJP §

5-403(c), had been under way for one year or more when the first complaints were received.

On 10 September 2021, Appellees began filing complaints with the Talbot County Office

of Planning and Zoning and the Talbot County Health Department. The evidence

established that Mr. Foster purchased the Foster Farm on 24 March 2020. Indeed, one of

the Appellees, Ms. Lewis, testified before the Board that “even though [the Foster Farm]

was purchased in 2020, it was currently being farmed by an operator who had the right to

farm through the end of that year.” Thus, there was ample evidence for the Board to

conclude that the farming operation had been ongoing for more than one year. 13

III.

13
Appellees argue that the Board “focused [incorrectly] on the length of time the
operator had been in agriculture and the length of time the operator had been using the
application of materials on other properties before purchasing the Foster Farm.” We
disagree. The Board noted that Mr. Foster owned the Foster Farm since 2020. It was
proper for the Board to recognize also that Mr. Foster “owned and operated a larger
agricultural operation[.]”
21
Appellants argue that the Board provided Appellees with a meaningful opportunity

to cross-examine witnesses. Appellees counter by asserting that “the Board did not ask if

other complainants wanted to cross-examine witnesses.” Appellees contend further that

the Board erred by limiting certain individuals to five minutes of testimony and by

prohibiting the introduction of evidence related to the midge swarms at the second hearing.

According to Appellees, the “restriction on participation wrongfully stifled the

complainants and impacted their ability to present their argument and was an error of law.”

TCC § 128-5(C)(2) provides, in relevant part: “All parties involved in the complaint

shall have an opportunity to present pertinent facts, be represented by counsel, examine

and cross-examine witnesses, and present oral and written information to the Board. The

formal rules of evidence shall not apply.” Moreover, “the right of reasonable cross-

examination attaches to adjudicatory administrative hearings.” Mayor & Council of

Rockville v. Woodmont Country Club, 348 Md. 572, 582 (1998) (emphasis added).

The Board was not required to ask whether any additional complainants wanted to

cross-examine witnesses. The record demonstrates that Appellees were given a reasonable

opportunity to testify and cross-examine witnesses at the February 2022 hearing when the

record was still open. Indeed, Ms. Lewis cross-examined two Denali employees: Mr. Chris

Banks and Mr. Jimmy Mardis. After the evidence was closed following the February 2022

hearing, the Board allowed properly the submission of additional documentary evidence

from Appellees regarding the presence of midges around the Foster Farm and Appellant’s

reply. The Board, however, was not required to hear additional testimonial evidence about

22
the midges at the second hearing. The purpose of the second hearing was “to deliberate in

public and come to a conclusion based on the evidence that has been received.”

JUDGMENT OF THE CIRCUIT COURT
FOR TALBOT COUNTY REVERSED;
CASE REMANDED TO THE CIRCUIT
COURT WITH DIRECTIONS TO AFFIRM
THE DECISION OF THE TALBOT
COUNTY AGRICULTURAL
RESOLUTION BOARD. COSTS TO BE
PAID BY APPELLEES.

23
The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/0951s23cn.pdf