I found the information on MRTFA in Detroit that I was looking for - and got much more than I bargained for. This is a long one, but please stay with me.
In December of 2011 the Michigan Commission of Agriculture and Rural Development held their monthly meeting and passed new language for the 2012 GAAMPS which essentially decreed that GAAMPS do not apply to cities with more than 100,000 residents - which means that by definition, no one in those cities can meet the GAAMPS requirements of the MRTFA, and so can't claim protection under the MRTFA. I already knew that, and thought it was a pretty sneaky move, and wondered if it would hold up in court.
But the minutes of that meeting reveal the full extent of what was done, and why. The full document is here http://www.michigan.gov/documents/mdard/Dec_14_2011_MINUTES_373525_7.pdf, with excerpts below; the upshot is that MDARD agrees that MRTFA protects all of us, considers that a problem to be solved, and (I think) is planning to change that legislatively. Oh, and one more thing before you dig in - note that this existing preface to GAAMPS applies to every city in Michigan with over 100,000 residents. I looked it up, and that includes Detroit, Grand Rapids, Warren, Flint, Sterling Heights, Lansing, Ann Arbor, and Livonia, at least. That means that if the language they added to GAAMPS is legal, then those of us who live in those cities are not currently protected by MRTFA.
PUBLIC COMMENT (AGENDA ITEMS ONLY) Laura Buhl, Ron Markoe, and Rory Bolger, Detroit City Planning Commission (DCPC). Mr. Bolger extended DCPC’s thanks and appreciation for the efforts of MDARD to craft language allowing the City of Detroit, and other large municipalities, to facilitate and regulate agriculture as deemed appropriate by the City and citizens of each large municipality.
DCPC supports the proposed amendment to the Generally Accepted Agriculture and Management Practices (GAAMPs) Preface. However, there is concern with one aspect of the wording. That language specifies in part that “...existing agricultural operations present prior to the ordinance’s adoption...” be designated as “legal non-conforming uses for purpose of scale and type of agriculture use...” Because commercial agricultural production is currently not permissible in Detroit, this wording poses a series of problems: 1) it would make what was an illegal use a non-conforming, legal use; 2) if a use is presently illegal, there are no permits to prove that it exists and operates as a commercial operation; 3) if current illegal commercial agricultural uses are operating in a manner that the City and/or the surrounding community finds objectionable, standards that will be developed in the Zoning Ordinance will not apply; and 4) Right to Farm legislation works from the premise of “first in time, first in right” and in Detroit’s case, “first in time” uses are residential, commercial, and industrial. Therefore, DCPC requests that the proposed language be amended to “grandfather-in” only legal, existing agricultural operations.
Ms. Buhl expressed concern over administrative versus statutory exemption to the Right to Farm Act. The Right to Farm Act was passed in order to protect existing farms in rural areas from suburban sprawl. The Act also prevents cities like Detroit from creating zoning regulations that allow commercial agriculture while protecting existing non- agricultural uses. Therefore, we agree with MDARD’s objective of exempting large cities from the Act.
However, DCPC has concerns about the method being pursued, which appears to be an administrative exemption. It is not clear that the Act gives the Michigan Commission of Agriculture and Rural Development the authority to essentially “anoint” zoning ordinances from certain cities into the GAAMPs without following the requirements for review and recommendation as set out in the Act’s definition of GAAMPs. The possible lack of authority to exempt some zoning ordinances through GAAMPs would leave Detroit open to legal challenge. We believe the best way to be allowed to develop regulations in a manner that preserves the public health, safety, and general welfare, while protecting the City from litigation, is to seek a legislative fix by changing the text of the Right to Farm Act in order to exempt large cities.
DCPC recommended the proposed GAAMPs Preface amendment be modified to specify that legal, non-conforming status be accorded only to legal, existing agricultural operations; and that MDARD and its Commission support legislation to statutorily exempt large urban areas from the Right to Farm Act. However, they do agree with the proposed GAAMP Preface language as an initial, intermediate step.
Mr. Markoe reported more than 60,000 parcels of land currently exist in Detroit’s land inventory that need to be put to a productive use and they are looking to agriculture as a new land use option. Two large commercial agricultural applications are currently being reviewed, the Hantz Farms and Shared Recovery projects, which maintain various benefits to the City of Detroit. Detroit is unable to move forward with the projects, in part, because of concerns with the Right to Farm Act.
Commissioner Coe confirmed the department and Commission support the use of agriculture within the City of Detroit, while maintaining Right to Farm in statute. Director Creagh noted the proposed GAAMP Preface language represents considerable progress and we should not obstruct that progress achieved. The department would like to continue working collaboratively and collegially with the City of Detroit to reach DCPC’s goals.
Danielle Allison-Yokum, from the Attorney General’s Office, advised she has been working with the department on this issue to meet the policy goals while staying within the confines of the Right to Farm Act. The language proposed would exempt the City of Detroit and other municipalities of 100,000 or more in population from the GAAMPs. It does not, nor does the Commission have the authority, to exempt them from the Right to Farm Act which applies more broadly as a statute. The Attorney General’s Office believes what has been proposed is within the confines of the Right to Farm Act and does accomplish the goals being sought.
Tonia Ritter, Michigan Farm Bureau (MFB), expressed appreciation to MDARD for working with Detroit to address their concerns. MBF supports all agriculture, regardless of size or location and recognizes there have been some conflicts within the City of Detroit as it pertains to some of the entrepreneurial efforts trying to expand urban agriculture. MFB supports the Commission’s approval of the proposed language being incorporated into the GAAMPs Preface. MFB also urges the Commission to call upon the respective GAAMP Task Force Committees to review this change at their earliest convenience. They also encourage cities to adopt ordinances that will help those wanting to grow food in urban centers in creating fresh food resources. Also, MFB stands available to provide support, opportunity, and input into any of those ordinances..
COMMISSION POLICY MANUAL – RIGHT TO FARM POLICY APPENDIX: Jim Johnson, Director, and Wayne Whitman, Right to Farm Program Manager, Environmental Stewardship Division
Mr. Johnson reported the Right to Farm (RTF) Appendix is a revision of what used to be two appendices within the Commission Policy Manual. They delineate the process for the establishment of new GAAMPs, as well as the annual review of existing GAAMPs. The procedures have been combined and expanded to clearly identify those processes.
MOTION: COMMISSIONER FIKE MOVED THE APPENDIX TO THE RIGHT TO FARM COMMISSION POLICY BE APPROVED AND INCORPORATED INTO THE MICHIGAN COMMISSION OF AGRICULTURE AND RURAL DEVELOPMENT POLICY MANUAL. COMMISSIONER KENNEDY SECONDED. MOTION CARRIED.
GENERALLY ACCEPTED AGRICULTURE AND MANAGEMENT PRACTICES PREFACE LANGUAGE – URBAN AGRICULTURE: Jim Johnson, Director, Environmental Stewardship Division
Mr. Johnson advised what has been heard today provides a summary of where the department has been over the last two years regarding the RTF Act and its application in an urban setting. Clearly, we need to provide an opportunity for urban areas to move forward with governing agricultural development within their boundaries. The Governor and the department are very interested in determining how we can be part of moving that opportunity forward. It follows the general trend across the country where people are very interested in growing their own food, or sourcing their food locally. Questions posed here are no different than what is going on in large cities in other states.
The difficulty of the issue, in terms of legal versus non-legal uses, is that the RTF Act itself does not place a restriction in any way on land use or land zoning. It has been very clear from the beginning the RTF Act applies across the entire state. When the City of Detroit refers to illegal and non-conforming uses, the issue for MDARD is to determine if those actually are illegal uses for that piece of property – this has been the center of the ongoing discussions. What we have accomplished in this particular case is to determine how the department can still play a significant role in the movement of agriculture within an urban setting, but not have the RTF Act be integrally involved in how that actually moves forward. After working through several different approaches, the proposed GAAMPs Preface language was determined to be the best option.
It is the Commission’s responsibility to approve the GAAMPs and policies regarding the operation of those GAAMPs. That language allows the Commission to state that in certain situations, the GAAMPs do not apply and that is being used as the basis for the GAAMPs Preface. This allows the municipality to create an ordinance which covers agriculture within that jurisdiction. The 100,000 population level identifies seven cities that are strong urban centers and in which the department could continue to provide resources to assist those communities move forward in creating ordinances that allow for the expansion of agriculture within their boundaries in a way that actually makes sense for agriculture itself. He reviewed the proposed Preface with the following language added:
This GAAMP does not apply in municipalities with a population of 100,000 or more in which a zoning ordinance has been enacted to allow for agriculture provided that the ordinance designates existing agricultural operations present prior to the ordinance’s adoption as legal non-conforming uses as identified by the Right to Farm Act for purposes of scale and type of agricultural use.
Commissioner Fike expressed her appreciation for the department collaborating with the City of Detroit to work through these difficult issues, because urban agriculture actually constitutes economic development for these urban areas.
Based on advice from the Attorney General’s Office and the department, Commissioner Coe recommended moving forward with adoption of this proposed language to provide a mechanism for progressing toward developing policies for urban agriculture without inhibiting the RTF Act.
MOTION: COMMISSIONER GREEN MOVED THE AMENDMENT TO THE GENERALLY ACCEPTED AGRICULTURE AND MANAGEMENT PRACTICES (GAAMPs) PREFACE LANGUAGE BE APPROVED AND INCORPORATED INTO THE EACH OF THE 2012 GAAMPs. COMMISSIONER FIKE SECONDED. MOTION CARRIED.
In December of 2011 the Michigan Commission of Agriculture and Rural Development held their monthly meeting and passed new language for the 2012 GAAMPS which essentially decreed that GAAMPS do not apply to cities with more than 100,000 residents - which means that by definition, no one in those cities can meet the GAAMPS requirements of the MRTFA, and so can't claim protection under the MRTFA. I already knew that, and thought it was a pretty sneaky move, and wondered if it would hold up in court.
But the minutes of that meeting reveal the full extent of what was done, and why. The full document is here http://www.michigan.gov/documents/mdard/Dec_14_2011_MINUTES_373525_7.pdf, with excerpts below; the upshot is that MDARD agrees that MRTFA protects all of us, considers that a problem to be solved, and (I think) is planning to change that legislatively. Oh, and one more thing before you dig in - note that this existing preface to GAAMPS applies to every city in Michigan with over 100,000 residents. I looked it up, and that includes Detroit, Grand Rapids, Warren, Flint, Sterling Heights, Lansing, Ann Arbor, and Livonia, at least. That means that if the language they added to GAAMPS is legal, then those of us who live in those cities are not currently protected by MRTFA.
PUBLIC COMMENT (AGENDA ITEMS ONLY) Laura Buhl, Ron Markoe, and Rory Bolger, Detroit City Planning Commission (DCPC). Mr. Bolger extended DCPC’s thanks and appreciation for the efforts of MDARD to craft language allowing the City of Detroit, and other large municipalities, to facilitate and regulate agriculture as deemed appropriate by the City and citizens of each large municipality.
DCPC supports the proposed amendment to the Generally Accepted Agriculture and Management Practices (GAAMPs) Preface. However, there is concern with one aspect of the wording. That language specifies in part that “...existing agricultural operations present prior to the ordinance’s adoption...” be designated as “legal non-conforming uses for purpose of scale and type of agriculture use...” Because commercial agricultural production is currently not permissible in Detroit, this wording poses a series of problems: 1) it would make what was an illegal use a non-conforming, legal use; 2) if a use is presently illegal, there are no permits to prove that it exists and operates as a commercial operation; 3) if current illegal commercial agricultural uses are operating in a manner that the City and/or the surrounding community finds objectionable, standards that will be developed in the Zoning Ordinance will not apply; and 4) Right to Farm legislation works from the premise of “first in time, first in right” and in Detroit’s case, “first in time” uses are residential, commercial, and industrial. Therefore, DCPC requests that the proposed language be amended to “grandfather-in” only legal, existing agricultural operations.
Ms. Buhl expressed concern over administrative versus statutory exemption to the Right to Farm Act. The Right to Farm Act was passed in order to protect existing farms in rural areas from suburban sprawl. The Act also prevents cities like Detroit from creating zoning regulations that allow commercial agriculture while protecting existing non- agricultural uses. Therefore, we agree with MDARD’s objective of exempting large cities from the Act.
However, DCPC has concerns about the method being pursued, which appears to be an administrative exemption. It is not clear that the Act gives the Michigan Commission of Agriculture and Rural Development the authority to essentially “anoint” zoning ordinances from certain cities into the GAAMPs without following the requirements for review and recommendation as set out in the Act’s definition of GAAMPs. The possible lack of authority to exempt some zoning ordinances through GAAMPs would leave Detroit open to legal challenge. We believe the best way to be allowed to develop regulations in a manner that preserves the public health, safety, and general welfare, while protecting the City from litigation, is to seek a legislative fix by changing the text of the Right to Farm Act in order to exempt large cities.
DCPC recommended the proposed GAAMPs Preface amendment be modified to specify that legal, non-conforming status be accorded only to legal, existing agricultural operations; and that MDARD and its Commission support legislation to statutorily exempt large urban areas from the Right to Farm Act. However, they do agree with the proposed GAAMP Preface language as an initial, intermediate step.
Mr. Markoe reported more than 60,000 parcels of land currently exist in Detroit’s land inventory that need to be put to a productive use and they are looking to agriculture as a new land use option. Two large commercial agricultural applications are currently being reviewed, the Hantz Farms and Shared Recovery projects, which maintain various benefits to the City of Detroit. Detroit is unable to move forward with the projects, in part, because of concerns with the Right to Farm Act.
Commissioner Coe confirmed the department and Commission support the use of agriculture within the City of Detroit, while maintaining Right to Farm in statute. Director Creagh noted the proposed GAAMP Preface language represents considerable progress and we should not obstruct that progress achieved. The department would like to continue working collaboratively and collegially with the City of Detroit to reach DCPC’s goals.
Danielle Allison-Yokum, from the Attorney General’s Office, advised she has been working with the department on this issue to meet the policy goals while staying within the confines of the Right to Farm Act. The language proposed would exempt the City of Detroit and other municipalities of 100,000 or more in population from the GAAMPs. It does not, nor does the Commission have the authority, to exempt them from the Right to Farm Act which applies more broadly as a statute. The Attorney General’s Office believes what has been proposed is within the confines of the Right to Farm Act and does accomplish the goals being sought.
Tonia Ritter, Michigan Farm Bureau (MFB), expressed appreciation to MDARD for working with Detroit to address their concerns. MBF supports all agriculture, regardless of size or location and recognizes there have been some conflicts within the City of Detroit as it pertains to some of the entrepreneurial efforts trying to expand urban agriculture. MFB supports the Commission’s approval of the proposed language being incorporated into the GAAMPs Preface. MFB also urges the Commission to call upon the respective GAAMP Task Force Committees to review this change at their earliest convenience. They also encourage cities to adopt ordinances that will help those wanting to grow food in urban centers in creating fresh food resources. Also, MFB stands available to provide support, opportunity, and input into any of those ordinances..
COMMISSION POLICY MANUAL – RIGHT TO FARM POLICY APPENDIX: Jim Johnson, Director, and Wayne Whitman, Right to Farm Program Manager, Environmental Stewardship Division
Mr. Johnson reported the Right to Farm (RTF) Appendix is a revision of what used to be two appendices within the Commission Policy Manual. They delineate the process for the establishment of new GAAMPs, as well as the annual review of existing GAAMPs. The procedures have been combined and expanded to clearly identify those processes.
MOTION: COMMISSIONER FIKE MOVED THE APPENDIX TO THE RIGHT TO FARM COMMISSION POLICY BE APPROVED AND INCORPORATED INTO THE MICHIGAN COMMISSION OF AGRICULTURE AND RURAL DEVELOPMENT POLICY MANUAL. COMMISSIONER KENNEDY SECONDED. MOTION CARRIED.
GENERALLY ACCEPTED AGRICULTURE AND MANAGEMENT PRACTICES PREFACE LANGUAGE – URBAN AGRICULTURE: Jim Johnson, Director, Environmental Stewardship Division
Mr. Johnson advised what has been heard today provides a summary of where the department has been over the last two years regarding the RTF Act and its application in an urban setting. Clearly, we need to provide an opportunity for urban areas to move forward with governing agricultural development within their boundaries. The Governor and the department are very interested in determining how we can be part of moving that opportunity forward. It follows the general trend across the country where people are very interested in growing their own food, or sourcing their food locally. Questions posed here are no different than what is going on in large cities in other states.
The difficulty of the issue, in terms of legal versus non-legal uses, is that the RTF Act itself does not place a restriction in any way on land use or land zoning. It has been very clear from the beginning the RTF Act applies across the entire state. When the City of Detroit refers to illegal and non-conforming uses, the issue for MDARD is to determine if those actually are illegal uses for that piece of property – this has been the center of the ongoing discussions. What we have accomplished in this particular case is to determine how the department can still play a significant role in the movement of agriculture within an urban setting, but not have the RTF Act be integrally involved in how that actually moves forward. After working through several different approaches, the proposed GAAMPs Preface language was determined to be the best option.
It is the Commission’s responsibility to approve the GAAMPs and policies regarding the operation of those GAAMPs. That language allows the Commission to state that in certain situations, the GAAMPs do not apply and that is being used as the basis for the GAAMPs Preface. This allows the municipality to create an ordinance which covers agriculture within that jurisdiction. The 100,000 population level identifies seven cities that are strong urban centers and in which the department could continue to provide resources to assist those communities move forward in creating ordinances that allow for the expansion of agriculture within their boundaries in a way that actually makes sense for agriculture itself. He reviewed the proposed Preface with the following language added:
This GAAMP does not apply in municipalities with a population of 100,000 or more in which a zoning ordinance has been enacted to allow for agriculture provided that the ordinance designates existing agricultural operations present prior to the ordinance’s adoption as legal non-conforming uses as identified by the Right to Farm Act for purposes of scale and type of agricultural use.
Commissioner Fike expressed her appreciation for the department collaborating with the City of Detroit to work through these difficult issues, because urban agriculture actually constitutes economic development for these urban areas.
Based on advice from the Attorney General’s Office and the department, Commissioner Coe recommended moving forward with adoption of this proposed language to provide a mechanism for progressing toward developing policies for urban agriculture without inhibiting the RTF Act.
MOTION: COMMISSIONER GREEN MOVED THE AMENDMENT TO THE GENERALLY ACCEPTED AGRICULTURE AND MANAGEMENT PRACTICES (GAAMPs) PREFACE LANGUAGE BE APPROVED AND INCORPORATED INTO THE EACH OF THE 2012 GAAMPs. COMMISSIONER FIKE SECONDED. MOTION CARRIED.
