Michigan Right to Farm Law, what does it mean?

[HandsOffMyHens]

It looks that way but from what I understand so did Papesh's decision? and she won her appeal.

 

[shelby chick]

I contacted my local Sen office to see if they had any ideas for my situation, and here is the latest:
Sen Booher's office went above and beyond by arranging a phone conference between them, the township, and MDARD to inquire about our RTF on 59 acres.
MDARD states that RTF does not apply to us since we knew farm animals were not allowed when we purchased and moved our chickens to the property in (in May of this year). The township also made it clear that they will not rezone us to agricultural. They will however consider a "conditional rezoning" which I'm completely unfamiliar with. From what I've read today, conditional rezoning is rezoning with conditions placed on us by the township as to what we are and are not allowed to do on our property regarding farming etc.
so it looks like I'm right back at square one...
I have a message left with my attorney to see what steps to take next.
When the Sen office asked in what way our chickens are bothering anyone ie: smell, noise, etc they had no answer, since they had no complaints about that. Only a report of an "ordinance violation"

 

[shelby chick]

Did you by this property or was it always in your family if it was in your family they should have had some sort of meeting.Michigan is not a farm friendly state.

 

[RTFchickens]

We just purchased this property this year. We did know when we moved our chickens up there that they were not allowed... But the township supervisor took us aside and said to move them up there anyway. He sad "we don't enforce ordinances unless there is a complaint, and on that much property, nobody will comain"
But then, someone trespassed, and complained... And is also ironically facing 5 criminal charges. I think he should worry about himself, and not his neighbor with chickens!

 

[shelby chick]

Well I hope everything goes ok for you I live in Shelby twp and IM trying to get there ordinances changed just to have a few I can't eat store eggs. I personally have seen the egg factories in Ohio the farm is massive they house 3million birds.

 

[MichAttorney]

Success in Shelby Township tonight for HandsOffMyHens. The variance was granted. The most important part of the granting of the variance is that one of the board members indicated that one of the reasons to grant the variance because the restriction was preempted by the RTFA. There were a couple of agitated neighbors that got up to speak against the granting of the variance. Another woman and I got up in support of the variance. The attorney for HandsOffMyHens apparently did an excellent job preparing the petition as one of the board members complimented them on it. The zoning board was very professional I thought and they too appeared to be well prepared and approached the issue of the RTFA in the right way. A very good night in Shelby Township.

 

[mg15]

That is the very same reason I keep chickens.
Good luck to you.

 

[RaZ]

That is great news.
Can we get a copy of what was presented? I think that it might help in other communities.

 

[HandsOffMyHens]

I will paste the entire argument below; however, this was not our total application. We had the dog issue as well under appeal so we had two separate hearings crammed into one with a 75 page packet. We were also fighting to keep our 6 show dogs and our ability to continue to show, breed and raise them. (Shameless plug here: https://www.facebook.com/siberianhuskypuppiesinmichigan?ref=hl)

The attorney told us she spoke with the board prior to the hearing and they already knew their decision and had a great understanding of the law once the twp attorney explained everything to them. They thanked her multiple times for putting together such a detailed packet of evidence. They also openly stated that they had no doubts at all that the initial complaint against us came about exactly as we claimed (i.e. maliciously to get back at us for the property line dispute rather than out of any real nuisance) So while I got the impression that they don't want to see any huge commercial farms moving into Shelby, they at least have an understanding now that existing farms will have to be tolerated, if not welcomed.

Overall I felt that the township had no interest in fighting another legal battle over chickens. Yes they did concede and include in the decision a statement that the MRTFA precluded their ordinance and therefore the chickens could stay; however, they also asked me if I would agree to keep things at the status quo of 7-18 chickens and not turn up with a chicken ranch and 100 chickens next week. I could have waved a giant stick and shouted "You have no right to limit me to 18 chickens! I can have as many **** chickens as I want per the MRTFA and you know it!" But lets be perfectly honest here. They already conceded that MRTFA trumps their ordinance and they were just holding their breath and hoping to reassure the neighbors that all those chickens they hadn't known about for the last 14 years would be just as problem-free in the future. Also, as I told the twp., I have three teens, 6 show dogs, and a full time job. I am not out to supply the grocery store with eggs and have no need to go buy 100 chickens. I want to be left alone with the chickens (AND ROOS) that I have to seel eggs to my regulars and yes the numbers fluctuate from 7-18. They were okay with that.

I was 99.9% confident we would win with the chickens. The dog were another issue and I was happy to hear they had no trouble with our show dogs or with the fact that we produce and sell puppies occasionally.

I won't post the argument for the dogs as it had different case law behind it and does not apply here. Unfortunately I don't have all the exhibits scanned but here is the argument. Our chicken exhibits were basically letters from neighbors stating we have had chickens and sold eggs since 2000, letters from regular buyers, printed emails from 2011 and a craigslist ad from 2011 showing selling and price of eggs, a signed affidavit stating there was no problem with our dogs or chickens which 9 of my ten neighbors signed and I also had a letter from the jerk neighbor's previous tenant stating jerk neighbor claimed our property was his and was constantly trying to convert it to his own.

I also want to say, before I forget, a tremendous thank you to everyone who came to the meeting and spoke up in favor of chickens. We think they already had their minds made up anyway but I think they learned a lot from all of you. I greatly appreciate the gesture. I apologize if I did not thank you personally there. I have been biting my nails since August and by the end of the hearing my head was reeling. I think I can finally get some sleep tonight.

Please all of you consider joining the Farm to Consumer Legal Defense Fund. We spent thousands of dollars defending our rights in this case with an attorney that generally just does criminal law. I had to collect all the appropriate cases and school her in the RTFA a bit to help her see we really did have a right to keep our chickens. It would have been much easier (and quicker and cheaper) to use an attorney that knows MRTFA inside and out. FTCLDF would have represented us for free as a member if we had known about them. We joined recently even though we already had an attorney because what they are doing is great for all of us. Don't wait until you need them. They need your support now.

Anyway, here is our attorney's argument: (Please keep in mind this was only in front of the Zoning Board of Appeals and NOT the Shelby Township Board of Trustees)


CHARTER TOWNSHIP OF SHELBY
ZONING BOARD OF APPEALS

IN RE: TARIK ARAB AND MELISSA ARAB
ADDRESS: 11111 25 MILE ROAD
SHELBY TWP., MI 48315

Petitioners,
/
CRUM & CRUM, PLLC
LINDA A. CRUM (P74113)
Attorney for Petitioners
7830 Summers St.
Utica, MI 48317
Office (586) 453-3429
Fax (586) 254-0098
/


REQUEST FOR APPEAL AND
MOTION TO APPROVE VARIANCE

Now comes petitioners, Tarik and Melissa Arab who through their attorney, Linda A. Crum, moves to appeal the ordinance violation under section 3.02 of the Shelby Township Zoning Ordinance, and/or that a variance be granted. Further, we are requesting that the Petitioners at 11111 25 Mile Road be allowed to keep their chickens on this property, based on the following:

FACTS

1. In the year 2000 Petitioners purchase the property at 11111 25 Mile Road.
2. This property was split in 1999, but the current size is 1.55 acres.
3. Prior to Petitioners buying the property, this lot was owned by Barry and Linda Brocket. During their occupancy the Brockets raised horses, goats, and chickens. (See Exhibit A).
4. The Petitioners continued to raised chickens after they moved in. The raising of chickens has continued on the property without interruption.(See Exhibit A).
5. Petitioners own ten chickens, one of which is a rooster. They raise the chickens to sell their eggs, chicks, and feathers for extra income, as well as to eat free organic eggs and meat for their family. (See Exhibit B & C & D).
6. The chickens are raised organically, and are treated humanely. They are sheltered from the weather, protected from predators, and allowed to free-range during the day within a fenced and secured area of the property. They do not roam onto neighbors properties. They are housed in a ten by five by six welded wire aviary type shelter with a roof and laying boxes.
7. Petitioners have even placed privacy screening on the fence in consideration for neighbors who may not want to see the chickens wandering in the yard.
8. Petitioners keep the chicken coop clean and use the minimal amount of manure produced by their chickens in their own yard and garden as fertilizer for their vegetables, raspberries, flowers, shrubs, and trees. Additionally, they have also sold aged chicken manure in the past as natural fertilizer when someone requested it.
9. Petitioners have had a dispute with their next door neighbor at 11145 25 Mile Road for many years. The owners name is Giordano Giuseppe. He was renting out this property for many years, but has recently put the residence up for sale.
10. Petitioners own the land behind Mr. Giuseppe's property. He falsely advertises the property for sale by showing a picture of Petitioners property on the Century 21 website.
11. Renters in the past believed that they had use of this land. I have included a letter from a past renter who was told that Petitioners property was Mr. Giuseppe's, and that he had full use of it. (See Exhibit E).
12. Because the neighbor next door was showing the land behind his property to potential buyers, Petitioners put up a sign that stated "No Trespassing, Violators Will be Prosecuted, [and] This Property is Not for Sale".
13. About the same time, a man at this property believed to be the owners brother in-law, started yelling at Melissa Arab that she was trying to keep the house from being sold. He also demanded that she take the sign down or he would have the city at her front door by morning to take away the dogs, chickens, and pole barn.
14. Within 12 hours after this incident Petitioners received several zoning violations notices that were reported from an anonymous source.
15. After receiving notice of this ordinance violation, Petitioners asked all neighbors whose property touches theirs to fill out a form that their dog and chickens were not a nuisance, and indicated they had no issue with Petitioners property or chickens. All the neighbors filled it out except for 11145 25 Mile Road. (See Exhibit F).
16. In August of 2007 Petitioners received a zoning violation for habitual barking and odor from droppings. There was no complaint about the chickens, which were present on the property. Petitioners had all of the neighbors around them, except for 11145 25 Mile Road fill out a form stated that there was no nuisance. (See Exhibit G).
17. Attached is an affidavit from Petitioners describing their ownership of chickens. (See Exhibit H).
18. After the original filing of this petition, a Century 21 agent called Melissa Arab to apologized for the trespassing on her land and asked for the sign to be removed.
19. Melissa removed the sign. But shortly after removing the sign another Century 21 agent trespassed on the Petitioners land with potential buyers. Therefore, Melissa put the No Trespassing sign back on her property.
20. Dennis Polizzi, who sent an email on this case, lives at 55262 Ester. The nearest points between the two properties is approximately 490 ft. 55262 Ester does not touch Petitioner's property, and it is on the other side of Ester street. The nearest chicken is at least another 250 ft. away from the northeast corner of Petitioner's property.
21. Petitioners live two houses away from M-53. Petitioners property is extremely noisy from the traffic of both M-53 and from 25 Mile Rd. In fact the traffic is as loud or louder than the rooster.

APPLICABLE LAW
Under section 3.02 of the Shelby Township Zoning Ordinance " [n]o animals, livestock, or poultry of any kind shall be raised, bred or kept on any lot, except that non-vicious dogs, cats or other household pets may be kept...".
The Michigan Right to Farm Act (RTFA) was drafted by the Michigan legislature "to protect farmers from nuisance lawsuits". Travis v Preston (On Rehearing), 249 Mich. App. 338, 342, 643 N.W.2d 235 (2002). MCL 286.474(6) clearly shows the legislative intent of RTFA, " 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". Hereafter generally accepted agricultural and management practices is designated as GAAMP. Therefore, RFTA preempts section 3.02 of the Shelby Township Zoning Ordinance.
RFTA give the definition of a farm to "mean the land, plants, animals, buildings, structures, including ponds used for agricultural or aquacultural activities, machinery, equipment, and other appurtenances used in the commercial production of farm products". [MCL 286.472(a)]. And the term "[f]arm product” means those plants and animals useful to human beings produced by agriculture and includes, but is not limited to... poultry and poultry products...". [MCL 286.472(c)].
Chickens are considered poultry and are therefore a farm product under RFTA, as are the products of chickens. Therefore, the eggs, feathers, and chicken waste sold by petitioners are also farm products. Further, Petitioners are running a "farm" as they are selling eggs and chicken droppings that they produce on their farm.
In the case of Shelby Township v Papesh, (267 Mich. App. 92, 704 N.W.2d 92 [2005]), the Papesh's raised chickens on 1.074 acres. There was a preexisting chicken coop on the property. Id. at 95. Unlike the current case, several neighbors filed a petition against Papesh's. Id. The Court Of Appeals defined "commercial production" as “the act of producing or manufacturing an item intended to be marketed and sold at a profit” while stating in footnote 4, that "there is no minimum level of sales that must be reached before the RTFA is applicable". Id. at 100-101. The Court also held that "RTFA does preempt the enforcement of zoning ordinances that conflict with the RFTA...". Id. at 106.
The Court in Papesh also held that the chickens were' "farm products" under RFTA because they are useful to human beings and produced by agriculture." Id. at 101.
Under RTFA " (1) A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture... .(2) A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation existed before a change in the land use or occupancy of land within 1 mile of the boundaries of the farm land, and if before that change in land use or occupancy of land, the farm or farm operation would not have been a nuisance". [MCL 286.473].
Petitioner's land has been used as a farm without interruption, and is therefore not a nuisance under RTFA.
Further, the Court of Appeals in Papesh found that GAAMPs was initiated in 2000 "and only applies to new and expanding farms". Id. at 104. Chickens have been raised on Petitioners property before the year 2000, and continues uninterrupted to this day. This makes Petitioners property an old farm, and GAAMP does not apply.
According to the manual on Generally Accepted Agricultural and Management Practices for Site Selection and Odor Control for New and Expanding Livestock Production Facilities Livestock, 2012 page 3, "'production facilities" - ncludes 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'.
Like the Papesh case, Petitioners own property where chickens have been sold since before GAAMP, and they sell eggs for a profit. Therefore, RTFA also applies to Petitioners.

Petitioners only have 10 chickens. This does not constitute an animal unit and is not "livestock production" under GAAMP. Therefore, Petitioners do not have to meet the standards of GAAMP, and MCL 286.473(1). This was affirmed by the Court of Appeals in Papesh. supra.
Further, the Court in Papesh failed to locate a GAAMP that limited the raising of chickens to property of a certain acreage amount. Id at 106. Therefore, the size of Petitioner's property is irrelevant.
In Papesh the Court of Appeals stated that "... the RTFA no longer allows township zoning ordinances to preclude farming activity that would otherwise be protected by the RTFA. Rather, any township ordinance, including a zoning ordinance, is unenforceable to the extent that it would prohibit conduct protected by the RTFA". Id.
Section 3-02 which forbids animals, livestock or poultry of any kind on a residential lot is in direct violation of Michigan State Law under RTFA as pertains to the facts in this case. Because Petitioner are protected by RFTA, Shelby Township is precluded from enforcing the zoning ordinance 3.02 against them.
In an unpublished case from the Michigan Court of Appeals, the Court addresses sections (1) and (2) of MCL 286.473. Papadelis v. City of Troy (2006, unpublished). The Court stated that “[t]he legislature did not require both subsections to be met in order for a farm or farming operation to qualify for protection under the RTFA…. A farm or farm operation that conforms to generally accepted agricultural and management practices is entitled to the protection provided by the RTFA without regard to the historic use of
the property in question.” The Court also stated in a footnote “[w]e are aware that, under M.C.L. 286.473(1), a business could conceivably move into an established residential neighborhood and start a farm or farm operation in contravention of local zoning ordinances as long as the farm or farm operation conforms to generally accepted agricultural and management practices". This case suggests that petitioners only have to meet one of the sections of MCL 286.473 for RFTA to apply. Therefore if Petitioners were to fail the test under MCL 286.473(2), they could still meet the standards under GAAMP, or vise versa. Under MCL 286.474(1), it is the responsibility of the director of the Michigan Department of Agriculture to "investigate all complaints involving a farm or farm operation...". It is the director's responsibility to notify the Township of his/her findings. MCL 286.474(3). Petitioners raise their chickens organically, dry the chicken waste before they use it, and keep the chicken enclosure clean. The director may find that Petitioners conduct rises to the level of GAAMP, if Petitioners were to fail to meet the test under MCL 286.473(2).
If a farm fails GAAMP it is given time to "modify its farm practices, begin using GAAMP's and become eligible for protection from nuisance suits". MCL 286.474(3).
Even if Petitions were fail under the standards of GAAMP, and were found lacking, they would be given time to cure any deficiencies.

CONCLUSION
Petitioners have been raising chickens since they moved onto the property in 2000. The previous owners had also raised chickens on this property. Petitioners sell products from these chickens, including eggs, feathers, and dried droppings. This constitutes a farm and farm production under RFTA. The products produced by the chickens are partially commercial, because at least some portion of them are sold for a profit.
GAAMPs only applies to new and expanding farms, and it requires at a minimum 50 animal unit. Petitioners only have ten chickens. Chickens have been raised on this property before the year 2000. This makes the property an old farm, therefore GAAMP does not apply.
Where a Township zoning ordinance conflicts with RFTA, the zoning ordinance is unenforceable. Papesh supra. RFTA applies to Petitioners under MCL 286.473(2), because chickens have been on the property since before Petitioners owned the property, and the chickens have continued to be there uninterrupted. Therefore, zoning ordinance 3.02 is unenforceable against Petitioners.
Unlike the Papesh case were several neighbors petitioned against the chickens, there was only one complaint filed in this case. It appears, more likely than not that Giordano Giuseppe is the anonymous complainer and accordingly it appears his compliant is not based on any validity that the chickens are a nuisance, but is in fact a boundary dispute. All other neighbors do not have an issue with the chickens, and even the previous tenants did not have a problem with them. Furthermore, the traffic noise blocks any noise made from the chickens.
In response to the email sent by Denise Polizzi, it is highly unlikely that the Polizzi's can smell the chicken manure from 740 feet away. If these chickens have been an issue for the Polizzi's, why have they never complained before? It is not reasonable that a neighbor from 490 feet away is making a nuisance complaint over animals that are so far away from her/his property. Even Shelby Township only notified neighbors that were within 300 feet of Petitioners.
These chickens have been on this property for many years and have never been a nuisance to neighbors. This complaint is only a retaliation over a No Trespassing sign.
In light of the facts in this case, this ordinance violation is unenforceable against Petitioners. Therefore, we respectfully ask for a finding of law or a variance allowing the chickens to remain at 11111 25 Mile Road, Shelby Township.


Crum & Crum, PLLC
LINDA A. CRUM (P74113)
Attorney for Petitioners
7830 Summers Street
Utica, MI 48317
Office (586) 453-3429 Fax (586) 254-0098

Dated: 10/07/2013

 

[RTFchickens]

Hands off my hens,
That was AWESOME!!!
I love it!!! Your attorney and yourself did a great job! I'm glad that the township found in favor of you and more importantly acknowledged the law, and your right to use that law!!! I'm glad you have the support of Michigan folks as well as others here on BYC.
I joined FTCLDF and I'm very happy with the legal advice. I do hope more join, since what they stand for is so important.
One more chicken victory!!! I'm so happy for you