Providing that an animal feeding operation constitutes a per se interference with the comfortable use and enjoyment of life or property of a person residing in proximity to the animal feeding operation

Under both sources of law, a cause of action may be brought by a plaintiff based on an allegation that the defendant is interfering with the plaintiff’s comfortable use and enjoyment of life or property. The Code chapter includes two special provisions applicable to that cause of action involving an AFO.11).11A). BILL’S PROVISIONS. The bill carves out an exception from those statutory protections afforded to an AFO when the cause of action is based on odor. The bill provides that in such a case, an AFO constitutes a per se nuisance if the plaintiff proves four elements. First, the plaintiff’s residence must be located within one mile of the AFO. Second, it must be more likely than not that the AFO is the source of odor. Third, an official from the department of natural resources (DNR) must take an odor measurement using standardized equipment and procedures at a specific location near the plaintiff’s residence at a point closest to the AFO. Finally, the DNR official must measure seven concentration units or higher of the odor on five different occasions during normal seasonal conditions during a 2-month period from May until September 30. The DNR cannot conduct an odor measurement at the same property more than times in any 24-month period. The DNR must report the finding and results of any odor measurement to the person residing at the residence and the owner or operator of the AFO. The owner or operator may contest the certification as a contested case proceeding under Code chapter 17A.