Defenses To Nuisance Actions

Utah Code tit. 78B, ch. 78B-6a, pt. 78B-6a-P4

in effect

Utah Code § 78B-6a-401 Definitions for part.

78B-6a-401. Definitions for part. As used in this part, "fundamental change" does not include: (1) a change in ownership or size; (2) an interruption of farming for a period of no more than three years; (3) participation in a government-sponsored agricultural program; (4) employment of new technology; or (5) a change in the type of agricultural product produced. Enacted by Chapter 401, 2026 General Session

Utah Code § 78B-6a-402 Defense in private nuisance action for manufacturing facility in operation over three years.

78B-6a-402. Defense in private nuisance action for manufacturing facility in operation over three years. (1) (a) A person or government entity does not have a right of action for a private nuisance under this chapter for any changed circumstance in land uses near a manufacturing facility if: (i) the manufacturing facility has been in operation for more than three years; and (ii) the manufacturing facility was not a private nuisance at the time the manufacturing facility began operation. (b) The manufacturing facility may not increase the condition asserted to be a private nuisance. (c) The provisions of this Subsection (1) do not apply if a private nuisance results from the negligent or improper operation of a manufacturing facility. (2) Nothing in this section affects the right of a person in an action other than an action for a private or public nuisance to recover damages for injuries or damage sustained as a result of the pollution or change in the conditions of the waters of a stream or overflow of the lands of any person. (3) (a) Any and all ordinances adopted by any county or municipal corporation in which a manufacturing facility is located that makes the manufacturing facility's operation a private nuisance or providing for an abatement as a private nuisance in the circumstances set forth in this section are null and void. (b) The provisions of this Subsection (3) may not apply whenever a private nuisance results from the negligent or improper operation of a manufacturing facility. (4) This section does not apply to an action under Part 2, Public Nuisance. Renumbered and Amended by Chapter 401, 2026 General Session

Utah Code § 78B-6a-403 Defense in private nuisance action for critical infrastructure materials operations.

78B-6a-403. Defense in private nuisance action for critical infrastructure materials operations. (1) A person or government entity does not have a right of action for a private nuisance under this chapter for an activity conducted in the normal and ordinary course of a critical infrastructure materials operation or conducted in accordance with sound practices presumed to be reasonable. (2) A critical infrastructure materials operation undertaken in conformity with federal, state, and local laws and regulations, including zoning ordinances, is presumed to be operating within sound critical infrastructure materials practices. (3) This section does not apply to an action under Part 2, Public Nuisance. Renumbered and Amended by Chapter 401, 2026 General Session

Utah Code § 78B-6a-404 Defense in nuisance action for agricultural operations.

78B-6a-404. Defense in nuisance action for agricultural operations. (1) (a) A person or government entity does not have a right of action under this chapter for a private nuisance that is an agricultural operation if: (i) the plaintiff is not a legal possessor of the real property affected by the conditions alleged to be the public nuisance or private nuisance; (ii) the real property affected by the conditions alleged to be the public nuisance or private nuisance is located outside one-half mile of the source of the activity or structure alleged to be the public nuisance or private nuisance; or (iii) the action is filed more than one year after: (A) the establishment of the agricultural operation; or (B) the agricultural operation undergoes a fundamental change. (b) Subsection (1)(a) may not be construed to invalidate any contract made before May 14, 2019. (2) (a) A person or government entity does not have a right of action under this chapter for a private nuisance that is an agricultural operation if the agricultural operation is conducted in the normal and ordinary course of an agricultural operation or conducted in accordance with sound agricultural practices. (b) An agricultural operation undertaken in conformity with federal, state, and local laws and regulations, including zoning ordinances, is presumed to be operating within sound agricultural practices. (3) A person or government entity has no right of action for a public nuisance or private nuisance if the action involves an agricultural activity and the agricultural activity is: (a) conducted within an agriculture protection area; and (b) not in violation of any federal, state, or local law or regulation relating to the alleged nuisance or was conducted according to sound agricultural practices. (4) In a public nuisance or private nuisance action for an agricultural operation, the court shall award costs and expenses, including reasonable attorney fees, to: (a) the defendant when the court finds the agricultural operation is not a public nuisance or private nuisance and the action is frivolous or malicious; or (b) the plaintiff when the court finds the agricultural operation is a public nuisance or private nuisance and the defendant asserts an affirmative defense in the action that is frivolous and malicious. Renumbered and Amended by Chapter 401, 2026 General Session

Utah Code § 78B-6a-405 Limitations on tobacco and drug nuisance actions.

78B-6a-405. Limitations on tobacco and drug nuisance actions. (1) There is no right of action under this chapter for a tobacco nuisance if the rental, lease, restrictive covenant, or purchase agreement for the unit states in writing that: (a) tobacco smoking is allowed in other units, either residential or commercial, and that tobacco smoke from those units may drift into the unit that is subject to the agreement; and (b) by signing the agreement the renter, lessee, or buyer acknowledges they have been informed that tobacco smoke may drift into the unit they are renting, leasing, or purchasing, and they waive any right to a cause of action for a tobacco nuisance. (2) A cause of action for a tobacco nuisance may be brought against: (a) the individual generating the tobacco smoke; (b) the renter or lessee who permits or fails to control the generation of tobacco smoke, in violation of the terms of the rental or lease agreement, on the premises the renter or lessee rents or leases; or (c) the landlord, but only if: (i) the terms of the renter's or lessee's contract provide the unit will not be subject to the nuisance of drifting tobacco smoke; (ii) the complaining renter or lessee has provided to the landlord a statement in writing indicating that tobacco smoke is creating a nuisance in the renter's or lessee's unit; and (iii) the landlord knowingly allows the continuation of a tobacco nuisance after receipt of written notice under Subsection (2)(c)(ii), and in violation of the terms of the rental or lease agreement under Subsection (2)(b). (3) A cause of action for a drug nuisance may be brought against: (a) an individual who generates fumes by the unlawful manufacturing or the unlawful possession or use of a controlled substance; (b) a renter or lessee who permits or fails to control the generation of fumes from the unlawful manufacturing or the unlawful possession or use of a controlled substance on the premises the renter or lessee rents or leases; or (c) a landlord, but only if: (i) the complaining renter or lessee has provided to the landlord a statement in writing indicating that fumes from the unlawful manufacturing or the unlawful possession or use of a controlled substance are creating a nuisance in the renter's or lessee's unit; and (ii) the landlord knowingly allows the continuation of a drug nuisance after receipt of written notice under Subsection (3)(c)(i). (4) It is a defense to a drug nuisance if the defendant can prove that the defendant is lawfully entitled to the possession or use of a controlled substance. Renumbered and Amended by Chapter 401, 2026 General Session

Utah Code § 78B-6a-407 Defense in nuisance action for shooting range.

78B-6a-407. Defense in nuisance action for shooting range. (1) A person or government entity does not have a right of action under this chapter against a person who operates or uses a shooting range in this state for noise or noise pollution resulting from the operation or use of the shooting range if the shooting range: (a) (i) was established, constructed, or operated before the implementation of any noise ordinances, rules, or regulations; and (ii) does not substantially and adversely affect public health or safety; or (b) (i) is in compliance with any noise control laws, ordinances, rules, or regulations that applied to the shooting range and the shooting range's operation at the time of establishment, construction, or initial operation of the shooting range; and (ii) does not substantially and adversely affect public health or safety. (2) For purposes of this section, noise generated by a shooting range that is operated in accordance with nationally recognized standards and operating practices does not constitute a public nuisance or a private nuisance. Enacted by Chapter 401, 2026 General Session

Utah Code § 78B-6a-408 Defense for migratory bird production area.

78B-6a-408. Defense for migratory bird production area. A person or government entity does not have a right of action under this chapter if the public nuisance or private nuisance is: (1) normally associated with a migratory bird production area; (2) conducted within a migratory bird production area; and (3) not in violation of federal or state law. Enacted by Chapter 401, 2026 General Session

Source: Utah Office of Legislative Research and General Counsel (le.utah.gov)URL: https://le.utah.gov/xcode/Title78B/Chapter6A/78B-6a-P4.html?v=C78B-6a-P4_2026050620260506Fetched: 10/26/2026