Michigan Right to Farm Law, what does it mean?

[wingless]

I no longer live on the farm, nor have I in decade. But I was there when the original was drafted.

Got a question for all the "chicken rebels"

I buy contiguous property upwind of you. I raise hogs. Alot of them.
How would you feel? And, hey, it's RTF, right?

We need to remember is what is good for the goose is good for the gander

Or better yet, "do unto others as they would have them do to you" {paraphrase, I'm not real religoous]

Riverdale, RTF is used routinely to protect CAFOs in Michigan. There is one old family farm that I know of in Lenawee County that is now surrounded by CAFOs, and is expected to tolerate the smell of 90 million gallons of liquid manure on any given day. That is what RTF has done in Michigan. If I could personally change RTF to change that, I would, even if it meant that my own rights were also weakened.

But this is what our law currently protects. In that context, if I use that same law to raise a small number of chickens to provide my family with meat and eggs that is NOT grown on a factory farm, and if I do it with respect for my neighbor's rights to also enjoy their property, then where is the harm? It is literally impossible for me to create the level of nuisance to any one of my neighbors that the CAFOs create to theirs. So why should the law protect the great CAFO nuisance, and not the miniscule (or non-existant) backyard chicken nuisance?

Is there a place for greater regulations in more dense areas, such that large hog farms cannot be built there? Absolutely. The Site Selection GAAMP currently only really deals with large farms of 50 animal units or more, but it could be developed to deal with smaller operations in more dense areas to deal with these kinds of issues. Instead, MDARD is trying to avoid the entire matter by creating a new Category 4 in the 2014 Site Selection GAAMP, and then making it impossible to meet Siting requirements under any circumstances. This is another discussion, but my point is that we have the framework to reasonably regulate agriculture in dense areas, so that folks who are willing to engage in reasonable practices can engage in agriculture wherever they live - but that folks unwilling to meet those requirements instead have to accept local regulations. What we don't have is an agricultural agency willing to do the work to keep these opportunities open - despite the fact that our state RTF law protects those rights.

 

[VikkiP]

CaraBear, it sounds as if your city, like my township, feel that they are not required to abide by state law. They ought to talk to Rob Huth, our township attorney, and see if he thinks it is worth the battle for the city to fight you. The law is on your side if you do things right.

Point by point:

...The raising of chickens for egg production and sale in an area zoned residential is a clear violation of the City of Midland Code of Ordinances, specifically Section 3-40. (See Attachment 1) A violation of this ordinance is a misdemeanor offense that has a maximum penalty of 90 days in jail and/or $500.00 in fines that is charged against the property owner...

Response:
State law preempts a municipal ordinance where the ordinance directly conflicts with a state statute or the statute completely occupies the field that the ordinance attempts to regulate.  Rental Prop. Owners ***'n of Kent Co. v. Grand Rapids, 455 Mich. 246, 257, 566 N.W.2d 514 (1997).   A direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits.  People v. Llewellyn, 401 Mich. 314, 322 n. 4, 257 N.W.2d 902 (1977).
The RTFA, specifically MCL 286.474(6), provides:
Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any manner the provisions of this act or generally accepted agricultural and management practices developed under this act.   Except as otherwise provided in this section, a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.  http://legislature.mi.gov/doc.aspx?mcl-286-474

That is where our case started, with an ordinance violation ticket. It changed from a zoning ordinance violation to a nuisance complaint on its path through circuit court before going to Court of Appeals. They were grasping at straws.

Footnote 3 from our case: "At oral argument, plaintiff conceded that its nuisance argument was limited to a “nuisance per se” theory.   Use of land in violation of an ordinance is a nuisance per se.  MCL 125.587;  High v. Cascade Hills Country Club, 173 Mich.App. 622, 629, 434 N.W.2d 199 (1988)."

...Further, the Right to Farm Act is intended, in large part, to protect "pre-existing agricultural uses" from violating local zoning laws...

Response:
This is irrelevant to the matter at hand.

...Simply put, the property at **** K******* is zoned residential. (See Attachment 2) It has never been zoned agricultural. It has never been a commercial operation of raising chickens for egg production. Therefore, the Michigan Right to Farm Act does not apply. Further, the GAAMP (Generally Accepted Agricultural Management Practices) clearly describes excepted site selection practices for new and expanding uses to be zoned agricultural. Again, your home is zoned residential and therefore, the GAAMP does not apply...

Response:
As all land in the state of Michigan was open to agriculture before the application of local zoning ordinances, it is irrelevant that the property is not currently zoned agricultural. That the property may or may not have been previously utilized for farming operations is irrelevant. Site selection GAAMPs apply to Livestock Production Facilities, which is defined as over 5000 chickens, and also does not apply. The MRTFA applies to farms and farming operations regardless of location, size, type of farm production, cessation of use, change of ownership, and other factors. This is a farming operation which will engage in commercial operations, all plans are in compliance with GAAMPs, and the poultry operation is therefore protected by law. According to the plain language of the RTFA, a farm or farming operation cannot be found to be a nuisance if it is commercial in nature and conforms to the GAAMPs.  MCL 286.472(b);  286.473(1);  Belvidere Twp. v. Heinze, 241 Mich.App. 324, 331, 615 N.W.2d 250 (2000).   The RTFA describes GAAMPs as “those practices as defined by the Michigan commission of agriculture.”  MCL 286.472(d).  Whether a farm conforms to the GAAMPs is decided according to policies adopted by the Michigan Commission of Agriculture.  Richmond Twp. v. Erbes, 195 Mich.App. 210, 221, 489 N.W.2d 504 (1992);  MCL 286.473(1). This position has been upheld by the Michigan Court of Appeals in Charter Township of Shelby vs. Papesh, http://caselaw.findlaw.com/mi-court-of-appeals/1102721.html

If you feel my comment doesn't apply because they are planning to cite you for zoning violation, read footnote 3 on our case: At oral argument, plaintiff conceded that its nuisance argument was limited to a “nuisance per se” theory.   Use of land in violation of an ordinance is a nuisance per se.  MCL 125.587;  High v. Cascade Hills Country Club, 173 Mich.App. 622, 629, 434 N.W.2d 199 (1988).

...You have also indicated in your letter the following, "I have several friends and acquaintances who intend to purchase my farm fresh eggs from me, thus making my farm a commercial operation, and I will keep records and file taxes accordingly." The city has a home occupation zoning ordinance, specifically Section 3.06 (A)(4) (Attachment 3) which clearly states, "No such home occupation may be conducted in any accessory structure or attached garage." Therefore, your proposed commercial chicken operations outside of your home would not be allowed in your residential neighborhood even if chickens were to be allowed...

Response:
This one is a little more challenging, as it all comes down to where you will sell the eggs, not where you raise the chickens. We opted for an outdoor refrigerator, rather than a building, for egg sales. In this manner, there are no concerns about building codes for a structure that will be occupied by people other than your immediate family. There is now a farm market GAAMP that replaces and amends building codes for buildings constructed for this purpose that would otherwise be exempt. Others choose to sell eggs at work, church, farmer's markets, etc. Agricultural buildings for housing livestock, feed, crops and equipment are not subject to building codes or home occupation rules as they are covered by the MRTFA but of course should be well constructed and kept clean, vermin free, and in good repair.

Ziggy67, your local government cannot restrict you to your existing 20 birds nor to inspections. It's up to you whether you choose to defend your rights.

LazyJ, why are you on a Backyard Chickens forum if you don't grasp the concept of backyard chickens? I'd love to have my birds roaming 40+ acres, but I don't. Suburban agriculture is absolutely possible, even on a larger scale than those here are attempting. We easily raise 300-350 cage free hens and up to 30 turkeys on a one acre residential parcel and sell 20+ dozen eggs a day, and could sell twice that if we had more space for birds. Manure is picked up within a day of coop cleaning by those who appreciate its values. If we were "out in the country" we wouldn't have the 20,000+ cars a day of drive by traffic that brings our business to our door.

Here is our case as rendered by the Court of Appeals:
http://caselaw.findlaw.com/mi-court-of-appeals/1102721.html. Be sure to see the notes.


Good luck!

 

[VikkiP]

"Where does it specifically say that livestock production facilities are ONLY more than 5000 laying hens (or 50 animal units, right?) because the MDARD guy specifically said ALL animal farms NO MATTER THE SIZE are considered livestock production facilities. So the site selection GAAMP applies to EVERYONE. I specifically argued this with him (or tried to...) and he was very clear on that.

<And to be clear, I am not arguing with you because I disagree...I WANT you to be right, I am just pointing out what I was told.>
This:
However, according to the Michigan Department of Agriculture and Rural Development, RTFA jurisdiction does not apply because a farm being allowed in a zoning district is specifically mentioned as a prerequisite in certain Generally Accepted Agricultural Management Practices (e.g. livestock siting, farm markets), so local regulation to allow farms in only certain zoning districts is appropriate.

is what both the MDARD guy and the guy at my Michigan senators office told me, and the senator's guy said that he was very familiar with GAAMP."



Let's go over this again, step by step (this is where the current MDARD position being officially expressed is contradictory to the legislation):

Full name of document: Generally Accepted Agricultural and Management Practices for Site Selection and Odor Control for New and Expanding Livestock Production Facilities

Definitions:

Livestock Production Facilities - Includes all facilities where farm animals as defined in
the Right to Farm Act are confined with a capacity of 50 animal units or greater and/or
the associated manure storage facilities. Sites such as loafing areas, confinement
areas, or feedlots, which have livestock densities, that preclude a predominance of
desirable forage species, are considered part of a livestock facility. Pasture lands are​

excluded.

Or, given that many have no chickens now, how about this one:

New Livestock Production Facilities - All facilities where animals will be confined and/or
manure storage structures that are built at new sites and are not part of another
livestock production facility, including a site that is expanding greater than 100 percent
of existing production within any three year time period and the resulting number of​

animal units will exceed 749.

Or this one:

Expanding Livestock Production Facility - An addition to a facility to increase the holding
capacity where animals will be confined at a site that presently has livestock production
facilities contiguous to the construction site. A new or expanded manure storage
structure built to accommodate an expansion in animal units within three years from
construction of the manure storage will also be considered an expanding livestock​

production facility.

Step one: Determine if you have a livestock production facility. Do you confine animals in a space with a capacity of 50 animal units or greater? Table 1 defines Laying Hens or Broilers as 5000 birds = 50 animal units.

Not a livestock production facility because you have or want 6 chickens? GAAMP does not apply. Proceed to next GAAMP.

But wait, local official or MDARD says you are creating a new livestock production facilty. Okay, let's look at that definition. Are you starting a livestock production facility (over 50 animal units)? Will the resulting number of animal units exceed 749 for all associated confinement facilities? Will you have 74,900 chickens or more? Could you find your house if you did?

Or say you have 3 chickens and want to expand your coop or run to house 6. Is that an expanding livestock production facility? It would be, if the definition for this GAAMP of livestock production facility did not set the threshold at 50 animal units.

The MRTFA cannot be sliced and diced to yield the results that MDARD and local governments would like them to say. The courts have upheld many aspects of the legality of the law AS WRITTEN and decided in favor of those who actually do consider the GAAMPs. Now if only the MDARD would read the laws...and a word of advice, don't believe everything you are told, do your own research from the original sources. A lot of people who are "experts" have not studied it in full; I spent two and a half years of my life analyzing this single Act and its GAAMPs so I feel I know it better than the average reader.

 

[wingless]

Okay, hear this as coming from someone who is not versed in all the ins and outs, but what about a class action suit against MDARD and the municipalities that refuse to follow the RTFA?

An easier place to start is the Ag Commission meeting; the next one is a week from today, on July 17th at 9 am in Lansing. Anyone can have 3 minutes to speak to the commission on the topic of their choice. As I understand it, this is a citizen (non-governmental) group that oversees the activities of MDARD, and their approval is required for implementation of any changes to GAAMPS proposed by MDARD. I think this commission is sympathetic to MDARD, but should also be interested in any complaints against their activities. http://www.michigan.gov/documents/mdard/July_17_NOTICE_390955_7.pdf

Note that since the last Ag Commission meeting, a new MDARD director has been named. It seems likely that she will be there, and that she would also be interested in the issues that many of us are having with statements coming out of MDARD that appear to conflict quite directly with state law.

Finally, note that ANYONE can apply to Governor Snyder to be appointed to this (or any) state Commission. I submitted my application to be appointed to the Ag Commission a few weeks ago. Chances are small, of course, but if anyone else is interested in engaging at this level I'd be glad to provide information on how to apply.

 

[shadygrovefarm]

Just want to let everyone know that the honorable Judge Solka has ruled in favor of Shady Grove Farm U.P.!!!!!! Another Michigan Right to Farm victory!!!!!!

 

[CaraBear]

I just did an interview with our local paper about my efforts to get the ordinance change back in front of the City Council in Midland again! Gaining momentum!

 

[wingless]

Wow! I have just finished reading this thread with a great deal of interest. We have 23 acres or so in Hillsdale County which we plan to retire on, And I plan on bringing my chickens. I know were the property is so far allows chickens, but the way things are going, I want to stay up to date with this. Thank you everyone for such an informative thread.

Glad you're here, because this effort sure takes a lot of persistence, and if you've read this whole thread then you clearly have what it takes!

Finally getting some press.

https://www.facebook.com/eldenbrady...al_comments=1&ref=notif&notif_t=share_comment

And according to our local paper, apparently urban pollution doesn't effect veggies unless you try to sell them (isn't there any decorum left against taking photos over peoples backyard fences?)-
http://www.mlive.com/news/muskegon/index.ssf/2013/09/eldenbrady_family_plans_for_ur.html

Half of the Mlive facts are wrong (we never applied for a variance for example and the cover photo of the article is another urban farm - one that the city is allowing) but it is at least headed in the right direction.

http://www.mlive.com/news/muskegon/index.ssf/2013/09/recent_urban_farming_movement.html

eldenbrady, I think you also got some very nice press from The Atlantic: (Wow!)
http://www.theatlanticcities.com/po...r-urban-farming-playing-out-small-towns/7097/

Note that I've also started a page on the Michigan Small Farm Forum to track your case; hope you'll feel free to add updates there as well:
http://www.michigansmallfarmforum.com/index.php?/topic/117-ongoing-eldenbrady-in-muskegon-county/

 

[mcbeers]

Andrew, if you are serious about wanting to farm, you should seriously consider FTCLDF for some guidance. Going through Michigan Small Farm Council is the free way to go about that. We all know the municipalities perspective on these things. Just because they are who they are does not mean that their view is the legal view. You may show them every bit of factual, legal information there is, but being that they are spending their citizens' money, and not their own, they will have little problem taking you to court over it. That may very well be what it takes. From what I have seen though, if you meet the proper criteria, there is plenty of precedence to show legal standing to have a farm on any privately owned property in Michigan.

 

[RTFchickens]

@chickwhispers
I agree! The state does indeed seem to be trampling in the rights if all but a few.
As your letter to the Ag commission stated, if this goes through maybe Michigan is not the right place for you to retire...
Michigan is losing residents at alarming numbers! Vacant homes, property with homes being torn down by the city, blight in general does not pay property tax. In fact, blight cost Michigan tons if money! I can't think of any US resident who thinks to themselves we need more laws on the books, we simply don't have enough.
I can't think of anyone who wants less RTF protection. I'm in the same boat as you are, if I can't own my farm animals in Michigan, then maybe Michigan is not the right state for me... I'll take my money, your tax revenue, and my farm animals to another state which is more welcoming...

 

[wingless]

What's strange to me is that with the 800 pages of public comments, we see an outpouring of correspondence and rationale supporting the continuation of the existing protections. Much to most of that correspondence is signed and dated and verifiable as to the integrity and sincerity of the originators. What I have yet to see if the list of supporting contributors for the people trying to institute the proposed changes. Shouldn't some degree of accountability be forthcoming from the "other side"? Unless the side that wants to eliminate the present protections is willing to reveal themselves and their motivations in the full light of public debate, I can't see why the commission should give them any audience at all. I've read the "rules" that talk about the nebulous and varied entities and agencies that all have input to proposed GAAMPS changes and it's just ludicrous that perhaps some single administrator should be able to elicit a response from so many of us while remaining faceless and nameless is an outright abuse of the position to which they were apparently appointed. I call on the Ag Department Commission to reveal who is asking for these changes and why. I can't believe it due to a single letter to the board from a resident opposed to what's being done in a neighbor's yard. Reasonability might suggest there have been about 800 pages of complaints from the other side that are demanding changes to GAAMPS right? I'm tired of conniving bureaucrats continually sniffing around my barnyard and testing the waters in order to move forward with their heinous agendas..

What a terrific post! Thanks!

I am not normally a blogger, but I think the Ag Commission will be voting against us on March 20th despite the 684 small farmers and their supporters who asked them not to, and despite the fact that only 21 folks who responded by the same deadline were in favor of the changes.

So in protest I've decided to put my fingertips to the keyboard and to record as much as I can about what I've learned about MDARD, the GAAMPs, RTF, and the politics that are driving this decision. Some of it is pretty dense, but it is all substantiated with historical documents. Easiest to start with the single blog that I wrote in 2013, and then to go forward using the arrows at the bottom of the page.

http://sustainablefarmpolicy.org/not-about-chickens/its-not-about-chickens