When the 1995 Swine Farm Siting Act took effect on October 1, 1995, was a swine farm considered 'sited' on that date if the technical site evaluation had already been done? And if water-quality rules forced a farmer to enlarge an existing lagoon into the new setback area, did the new Act block that work?
Plain-English summary
When the General Assembly passed Senate Bill 1080 in July 1995, it created the Swine Farm Siting Act and added Article 67 to Chapter 106 of the General Statutes. The Act set statewide setbacks for swine houses, lagoons and sprayfields: at least 1,500 feet from any occupied residence, more from schools, hospitals and churches, and shorter setbacks from property lines. A neighbor could waive a setback by signing a written consent that the farm owner had to record with the Register of Deeds.
The Act applied only to swine farms "whose operations were sited on or after October 1, 1995." That phrase prompted two questions from Dewey Botts at the Soil and Water Conservation Division and Representative Arlie F. Culp:
- What does "sited" mean, and when in the construction process does a farm count as sited?
- If an existing swine farm's lagoon has to be enlarged to comply with water-quality rules, and the only place to enlarge is into the setback zone, does the new Act block that work?
Senior Deputy Attorney General Daniel C. Oakley and Assistant Attorney General James P. Longest, Jr. answered both questions.
On the meaning of "sited": the Act did not define the term, so the AG used its ordinary meaning. To "site" means to provide with a site, to locate. A swine house, lagoon or sprayfield was therefore "sited" on the date it was located, which the AG read as the date of the technical site evaluation when one was performed. The Act defined "site evaluation" as an investigation to determine whether a site met all federal and state standards. If a technical specialist completed that evaluation before October 1, 1995, and the Division of Environmental Management certified the facility as permittable under 15A NCAC 2H .0217, the farm was sited as of the evaluation date and was grandfathered from the Act's setbacks. If construction was underway but no formal evaluation had been completed before October 1, the new setbacks applied.
On the lagoon-expansion problem: the AG recognized a real tension. Water-quality rules sometimes required older swine farms to enlarge existing lagoons or sprayfields to handle the waste generated by existing swine houses. If an existing lagoon was already close to a property line or a residence, the only available expansion direction might be deeper into the setback area. The Act's setbacks would block that, but the water-quality rules required it. The AG resolved the conflict by reading the Act in light of its stated purpose, which is to promote economic development of pork production while minimizing interference with neighbors' property rights. Enlarging an existing lagoon to handle the same volume of waste did not increase interference. It increased treatment capacity, which directly advanced both the economic-development and the neighbor-protection goals. The AG concluded that an owner of swine houses sited before October 1, 1995, could enlarge existing lagoons or sprayfields when necessary to comply with 15A NCAC 2H .0217, even into the new setback area.
Renovation and reconstruction of existing facilities were also exempt. The Act itself said that renovation and reconstruction did not make a farm a "new" swine farm, so an owner could rebuild a swine house, lagoon or sprayfield that was sited before October 1, 1995, without bringing the rebuilt facility into setback compliance. The AG was careful to distinguish renovation and reconstruction from expansion. Renovating meant restoring to a former state; reconstructing meant rebuilding. Neither was synonymous with expanding, enlarging or adding. Adding new swine houses, even on an existing farm, was subject to the Act because those new houses were operations sited after October 1, 1995. New houses also did not get the benefit of the water-quality-conflict argument: adding more swine produced more waste, which by definition increased the interference with neighbors, contrary to the Act's purpose.
The AG ended the opinion with a note about legislative intent. One of the Act's sponsors had publicly said that the Act was meant to allow expansion on existing farms, including new lagoons, sprayfields and swine houses. The AG declined to give the sponsor's stated intent any weight beyond the statutory text. The Supreme Court of North Carolina has held that a statute's purpose comes from the statute's words, not from individual legislators' descriptions of what they hoped to achieve.
Currency note
This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The regulatory framework for swine operations in North Carolina has been overhauled multiple times since 1996. In 1997 the General Assembly imposed a moratorium on new and expanded swine farms while it studied the industry's environmental effects. The moratorium has been extended, modified and made permanent for certain operations. The animal-waste management permit system has been updated. The Smithfield Agreement (2000) committed the largest producer in the state to develop environmentally superior technology in place of anaerobic lagoons. Subsequent litigation under the federal Clean Water Act and nuisance law has reshaped how swine waste is treated, stored and applied. The basic setback architecture of the 1995 Act remains the starting point for facilities not subject to later, stricter rules, but anyone evaluating a swine operation today must work through the current statute, current DEQ rules, and any operation-specific consent decrees or moratorium status.
Background and statutory framework
By 1995 North Carolina had become the second-largest pork producer in the United States, with the bulk of the growth concentrated in Duplin, Sampson and surrounding counties in the southeast coastal plain. The growth had outpaced the state's regulatory framework. Before the Swine Farm Siting Act, there was no statewide rule on how close a swine house could be to a neighbor's home. Cities had limited authority to exclude swine herds within their boundaries under separate statutes, and the North Carolina Supreme Court had recognized that private parties could enforce a city ordinance against a hog farm by injunction. But in rural areas, conflict between large swine operations and adjoining property owners was a growing problem.
Senate Bill 1080 was the legislature's first statewide response. It set distance requirements, defined key terms ("siting," "site evaluation"), provided a waiver mechanism with a recording requirement, and grandfathered existing operations. The Act's framing as a "siting" law (rather than a comprehensive nuisance or permitting law) reflected the legislature's effort to balance economic development against neighbor protection without restructuring the industry's entire regulatory architecture.
The AG opinion's careful work on "sited" reflects the practical importance of the grandfather line. Operations under construction on October 1, 1995, were not uncommon in 1995, and the question of which side of the line they fell on had real money attached: a farm whose location did not meet the new setbacks would have to negotiate waivers from neighbors, sometimes paying for them, to proceed.
The water-quality-conflict ruling reflects the harder reality of older operations. A lagoon built in the 1970s to handle a small herd might be undersized for a herd that had grown over twenty years. Water-quality permitting could force expansion. If the expansion direction was constrained by topography, by property lines or by neighbor proximity, the new setback law could be impossible to satisfy. The AG's reading kept the water-quality rules workable for existing operations while still applying the Act's setbacks to any genuinely new construction.
Common questions
What counted as a "site evaluation" under the 1995 Act?
The Act defined "site evaluation" as an investigation to determine whether a site met all federal and state standards. The AG opinion treated a completed evaluation, paired with DEM certification that the facility was permittable under 15A NCAC 2H .0217, as evidence that the operation was "sited" on the evaluation date.
Who bore the burden of proof on the siting date?
The owner. The AG opinion said expressly that whether an operation was sited after October 1, 1995, would be determined case by case, and the owner bore the burden of showing that the operation was sited before that date.
Could a farm built but unfinished on October 1, 1995, still be grandfathered?
If a technical specialist had completed a site evaluation and DEM had certified the facility as permittable before that date, yes. If construction was underway with no formal evaluation, the AG opinion read the Act as applying.
Could neighbors waive the setbacks?
Yes. A neighbor could sign a written consent that the farm owner had to record with the Register of Deeds. The Act treated the waiver as running with the land, meaning subsequent purchasers of the neighbor's property were also bound by the consent.
Did this opinion address public-health concerns about swine waste?
Not directly. The opinion was confined to siting and setback questions under the 1995 Act. Public-health and environmental concerns about anaerobic lagoons, ammonia emissions, groundwater contamination and downstream nutrient pollution were addressed through other regulatory channels, including the water-quality permitting rules, the eventual 1997 moratorium, and later environmental-justice litigation.
Source
Citations
- N.C.G.S. § 106-800 et seq. (Swine Farm Siting Act, Article 67 of Chapter 106)
- N.C.G.S. § 106-801 (purpose: promote pork production while minimizing interference with neighbors)
- N.C.G.S. § 106-802 (definitions, including "siting" and "site evaluation")
- 15A NCAC 2H .0217 (animal-waste management permitting standards)
Original opinion text
March 11, 1996
The Honorable Arlie F. Culp North Carolina House of Representatives 8521 U.S. Highway 64 East Ramseur, N.C. 27316
RE: Advisory Opinion: Meaning and Applicability of the Swine Farm Siting Act; G.S. § 106-800 et seq.
Dear Representative Culp:
Dewey Botts, Director of the Soil and Water Conservation Division, has written this office two memoranda requesting our opinion on aspects of G.S. § 106-800, the Swine Farm Siting Act. Copies of the memoranda are attached. We answered those questions with three advisory memoranda, each attempting to address different aspects of the Act applicable to the work of the Soil and Water Conservation Division. You requested by phone call that we render our advice on these matters in an advisory opinion, particularly concerning the definition of "sited." The following day, the Technical Review Committee, which advises the Division of Soil and Water Conservation suggested that we incorporate categorizations regarding "retrofitted" lagoons into this opinion for clarification purposes.
On July 11, 1995, the General Assembly enacted Senate Bill 1080 entitled "An Act to Place Certain Restrictions on the Siting of Swine Houses and Lagoons." This Act added Article 67 to Chapter 106 of the General Statutes, the Chapter dealing with Agriculture. The popular title assigned to this Article is the "Swine Farm Siting Act." The stated purpose reads as follows:
"The General Assembly finds that the siting of swine houses and lagoons for larger farms can assist in the development of pork production to contribute to the economic development of the State while minimizing any interference with the use and enjoyment of adjoining property." G.S. § 106-801
This Act was intended to restrict the siting of swine houses and lagoons to minimize interference with neighbors' property rights. There was no North Carolina General Statute restricting the siting of swine houses and lagoons before this Act. Previous General Assemblies had addressed siting issues by empowering incorporated cities to make and enforce ordinances excluding swine herds or farms. In addition, the Supreme Court of North Carolina has held that private parties may enforce a city ordinance against a hog farm through injunction.
The Act placed statewide setback requirements on swine houses, lagoons and sprayfields. The Act requires that a swine house be located at least 1,500 feet from any occupied residence. Larger setbacks apply near schools, hospitals and churches. Shorter setbacks apply to property boundaries. The setbacks can be waived. A swine farm owner can site a swine house or lagoon inside the setback by obtaining written permission from the neighbor encroached. The Act requires the owner to record this written permission with the Register of Deeds.
The question posed by Mr. Botts' letter of January 18, 1996 concerned how to interpret the term "sited" as used in the Act. The Act only applies to swine farms "whose operations were sited on or after October 1, 1995." The term "sited" is not defined in the Act, although "siting" and "site evaluation" are defined in G.S. § 106-802(4). When a statute uses a term but does not specifically define that term, the term's common definition applies. "Sited" is the past tense of the transitive verb "site." The verb "site" means to provide with a site or to locate. The Act thus applies to operations located on or after October 1, 1995. The word "operation" is not defined in the Act. Read in context, operation means the raising of swine and the related use of swine houses, lagoons and sprayfields. Swine houses, lagoons or sprayfields in existence on October 1, 1995 are not unlawful as they stand even if they are inside the setbacks.
When a statute provides for an exception, that exception must be strictly construed. The siting date provides one exception to the Act's requirements. Whether an operation is sited after October 1, 1995, will have to be determined on a case by case basis, and the owner bears the burden of proof. If construction on the lagoon, swine house or sprayfield had not been completed on site by October 1, 1995, the owner will have to comply with the Act's location requirements except as noted below.
In some cases, an owner may have had a site evaluation done before initiating construction, and construction may not be completed until after October 1, 1995. The Act defines "siting" as equivalent to "site evaluation." A swine farm, lagoon or spray field that had a site evaluation could therefore be considered "sited" on the day that the site evaluation is completed. Such a site evaluation includes an "investigation to determine if a site meets all federal and State standards" and is not a cursory review. The Act became a State standard on the date of its passage since it applies statewide. To determine whether a site complies with the Act, the technical specialist would stake the corners and measure the setback distances for any lagoons, swine houses or sprayfields. It is our opinion that where an owner can show that a technical specialist completed a site evaluation before October 1, 1995 and the Division of Environmental Management certified that the facility is permitted under 15A NCAC 2H .0217; then that facility may be considered "sited" on the date the site evaluation was completed.
The second concern raised is based upon the potential conflict between the Act and the statutes and rules providing for protection of water quality. Mr. Botts' letter of January 4, 1996 referred to this situation as "retrofitting." The rules governing the permitting of animal waste management systems require some older swine farms to increase the treatment capacity of their associated lagoons or sprayfields. In some cases, an owner must expand the size of his lagoon or sprayfield to dispose of waste generated by existing swine houses without violating water quality statutes and rules. In some of those cases, the owner may have no choice but to enlarge an existing lagoon or sprayfield into the setback area. The Act's purpose is stated to be promoting economic development and minimizing interference with neighbors' property rights. The "retrofitting" described in Mr. Botts' letter advances these interests, because it provides greater treatment capacity for the same waste produced. Preventing a landowner from complying with animal waste management rules based upon this setback law creates the potential conflict that Mr. Botts described. Interpretations of acts in apparent conflict must be reconciled so as to give effect to each, where possible. It is our opinion that an owner of swine houses sited before October 1, 1995, may expand existing lagoons or sprayfields as needed to treat the waste generated by those houses according to the rules. What is required is that the owner show that a swine house was sited before October 1, 1995, and that the enlargement of a lagoon or spray field is necessary for that swine house's discharge to be permitted under 15A NCAC 2H .0217.
Indeed, the Act provides additional support for this interpretation by noting that renovation and reconstruction do not make a farm a "new" swine farm.
The provision on renovation and reconstruction does not apply to the addition of new swine houses. Renovate means to restore to a former state or to make new again. Reconstruct means to rebuild. Neither of these terms is synonymous with expansion, enlargement or addition. It is our opinion that an owner may reconstruct or renovate a swine house, lagoon or sprayfield that was sited before October 1, 1995 without the reconstruction or renovation having to comply with the Act. If the owner is expanding or adding swine houses, lagoons or sprayfields, the Act applies to the expansions or additions, because the expansions are operations which were sited after October 1, 1995. If the expansions or additions are to the lagoons or sprayfields the owner may be able to show the conflict with water quality rules and statutes mentioned previously. Adding more swine houses cannot be fairly characterized as minimizing interference with the use and enjoyment of adjoining property, and expansion does not raise the conflict with the water quality rules previously noted. Expansion or addition of swine house operations after October 1, 1995 requires compliance with both the water quality rules and the Act. The same holds true for expanded lagoons or sprayfields needed to accommodate the increased waste associated with new swine houses.
Lastly, it has been noted that a sponsor of this legislation has expressed that he intended the Act to allow for expansion on existing farms, including adding new lagoons, sprayfields and swine houses. Our Supreme Court has consistently held that a statute's purpose is to be gleaned from the statute's words and not from the statute's sponsor.
We trust this answer has been responsive to your inquiries.
Daniel C. Oakley Senior Deputy Attorney General
James P. Longest, Jr. Assistant Attorney General