Michigan Right to Farm Law, what does it mean?

[wingless]

Raz, blackswan, and thewannonerfami, have you thought about contacting the Farm to Consumer Legal Defense Fund, which is funding the MRTFA case for shadygrovefarm? One of the attorneys, Stephen Bemis, is from Ann Arbor. I wonder how that shadygrovefarm case is going...

VikkiP, are you thinking that you would draft that letter to Jamie Clover Adams? I would certainly be glad to add my signature.

Has anyone considered contacting Patricia Norris from MSU, and asking whether she would testify as an expert witness? Could VikkiP testify as an expert witness?

 

[blackswan]

http://lu.msue.msu.edu/pamphlet/Blaw/RightToFarmAct LocalRegulationPreemptionTable.pdf
This document was sent to me today by  
Brad Neumann, AICP
Government & Public Policy Educator
Michigan State University Extension
 
As Ms. Norris is on a temporary leave

This is the letter he wrote to me
Ms. Brejnak,
 
It is true that case law on the Michigan Right to Farm Act (RTFA) and a recent Michigan State Law Review* article suggest that a local regulation restricting farms to only certain zoning districts contravenes the RTFA, so the local regulation is preempted. 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 sitting, farm markets), so local regulation to allow farms in only certain zoning districts is appropriate. In other words, according to the MDARD, the City of New Baltimore can allow for farming in certain districts and ban it in other districts.
 
Following MDARD’s thinking, even if farming was allowed in a residential zoning district, the RTFA only offers protection from nuisance suits and preempts certain local regulations if the following conditions are met:
·         The land use or activity is a “farm” or “farm operation” (Section 2(a) and 2(b) of the RTFA);
·         The farm or farm operation is producing a “farm product” (Section 2(c) of the RTFA); AND
·         The farm is engaged in commercial production (Section 2(a) and 2(b) of the RTFA and Charter Township of Shelby v. Papesh, 704 N.W.2d 92, 102 (Mich. Ct. App. 2005)).
 
I write ‘certain local regulation’ (above) because the only aspects of local regulation that are preempted by the RTFA (after the aforementioned criteria have been met) are those specifically detailed in the RTFA or any of the published Generally Accepted Agricultural Management Practices (GAAMPs). The RTFA reads in part “… 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" (MCL 286.474(6)). In short, if it’s in the RTFA or any of the GAAMPs (www.michigan.gov/gaamps), it cannot be regulated locally. The reverse is true though too – if it’s not detailed in the RTFA or GAAMPs, it can be regulated locally.
 
I recommend reviewing the following decision tree developed by MSU Extension in order to familiarize yourself with the current and varied opinions on RTFA jurisdiction: http://lu.msue.msu.edu/pamphlet/Blaw/RightToFarmAct LocalRegulationPreemptionTable.pdf. Given the MDARD’s opinion on the matter (that is, that local regulations can restrict farming to certain zoning districts), your first approach of showing examples of other Michigan communities that have done this successfully may be the most fruitful.
 
*Norris, Patricia, Gary Taylor and Mark Wyckoff; “When Urban Agriculture Meets Michigan’s Right To Farm Act: The Pig’s in the Parlor”; Michigan State Law Review; 2011 MICH ST. L. REV. 365.


My thoughts: as mentioned before we have opposing arms of government regulation with differing opinions (laws?). I'm afraid that my 'let's work together approach' with the MRTF act as my trump card may not hold up.
The other info that I have about New Baltimore is that the council is aware of an existing chicken coop (and the homeowner is on the school board).
Decisions decisions

 

[Stc-Gromit]

Please place me on the list. I am thinking about presenting the village council with "The Letter Of Intent" of my decesion to raise poultry dispite their voting down the proposal last month.

 

[MI-CHick]

I am not sure the purpose of sending council a letter of intent if they have just voted it down. If you intend on raising hens for the purpose of selling their eggs, do it. If you are later told it is against the bylaws, respond that because the hens are for commercial production and eventual egg sales, you are coved under RTF. My understanding is that RTF will not protect you if you do not sell or intend to sell your eggs. Intent is important because it takes 4-6 months for hens to mature and start laying so if you start with chicks, you will not have eggs for immediate sale.

I don’t know the particulars of your situation but I would expect that if you send a letter of intent you will receive a notice that going ahead with your plans will be a violation and I don’t know what purpose that serves.

 

[Stc-Gromit]

Wasn't there also a parenthetical footnote on one of the court cases where the judge basically said, "We don't like it, and we think it needs to be changes legislatively, but the way the law is currently written the urban chicken folks are protected under the RTFA." (totally my paraphrase there...) Also Wayne Whitman was very dismissiive of the non-published cases.

I think Judge Richard Lamb said something like this in the richardson case. http://www.michiganfarmbureau.com/farmnews/transform.php?xml=20010830/cover.xml

 

[Stc-Gromit]

I am not sure the purpose of sending council a letter of intent if they have just voted it down. If you intend on raising hens for the purpose of selling their eggs, do it. If you are later told it is against the bylaws, respond that because the hens are for commercial production and eventual egg sales, you are coved under RTF. My understanding is that RTF will not protect you if you do not sell or intend to sell your eggs. Intent is important because it takes 4-6 months for hens to mature and start laying so if you start with chicks, you will not have eggs for immediate sale.

I don’t know the particulars of your situation but I would expect that if you send a letter of intent you will receive a notice that going ahead with your plans will be a violation and I don’t know what purpose that serves.

Good thinking. Bad Idea.
I had another idea. I could borrow mature chickens from my brothers flock and have laying hens on site with eggs for sale. I was also thinking outside the box and selling small quantities of composted chicken and rabbit manure (thats 2 ag products).
The council told me I cannot sell veggies or eggs so I was pondering putting up an empty veggie stand with signage saying "No Cukes By Order Of The Village Council", "No Fresh Eggs By Order Of The Village Council", No Local Foods By Order Of The Village Council"? Can they fine me for not selling a product?
Why can you put out sinage selling golf balls, tupperware, Amway, Kittens and old tires but not fresh eggs and vegitables (Question for the council Tuesday).

 

[blackswan]

Good thinking. Bad Idea.
I had another idea. I could borrow mature chickens from my brothers flock and have laying hens on site with eggs for sale. I was also thinking outside the box and selling small quantities of composted chicken and rabbit manure (thats 2 ag products).
The council told me I cannot sell veggies or eggs so I was pondering putting up an empty veggie stand with signage saying "No Cukes By Order Of The Village Council", "No Fresh Eggs By Order Of The Village Council", No Local Foods By Order Of The Village Council"? Can they fine me for not selling a product?
Why can you put out sinage selling golf balls, tupperware, Amway, Kittens and old tires but not fresh eggs and vegitables (Question for the council Tuesday).

You don't HAVE to sell them from your residence. You 'could' sell them at work. A simple receipt to show the bill of sale. You don't have to advertise (and face signage legislation from the city/township). Think of it as an Avon type of business. Don't stoop to those tactics (as funny as they seem). Be and appear serious about your business. You need only to prove INTENT and a SALE.

 

[wingless]

I think each person should fight this in the way that seems right to them. For me it is to take it to MDARD. For Stc-Gromit it could be to make the rational argument publicly to the village council, and to trust them to do the right thing. For others it is to fly under the radar, and for others to go to court. It's a great thing that there are so many of us trying to address the problem in different ways. (However, I do agree with MI-Chick and blackswan that the rational argument is unlikely to end with chickens in the backyard!)

blackswan, thanks for posting that letter from Brad Neumann. I wasn't aware of this part:
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 sitting, farm markets), so local regulation to allow farms in only certain zoning districts is appropriate.

I am trying to figure out if that language is new with the 2012 GAAMPS or if it has been around for awhile. Unfortunately, I can't find GAAMPS from 2011 or before on the web. I'll keep searching, but if anyone has them, please either post the link or send them to me. Many thanks!

 

[DReyRose]

So yeah, I agree in most cases it is better to ask for forgiveness rather than beg for permission. I have been selling my eggs now, overflow of my family use, for about two months. I have a receipt book as well with my customer contact info on it as well. I've only sold like 4 dozen so far but I have documented proof with legitimate sales. I do NOT have a sign out front because I dod NOT want to draw attention to my farm unnecessarily. If you are looking for a fight, well, then throw stones, I'd recommend fortifying your defense first though.


Warm Regards,


[email protected]

 

[DReyRose]

May I also add, I feel Wingless is right, the problem needs to be fixed at the crux of it all, the MDARD. They are the ones defining MRTFA to our Senators and Representatives office as well as the Attorney General. What is so frustrating is that, in the RTFA it clearly outlines the definitions of "commercial operation", "farm operation", etc. it is very concerning that the unit in place that should be our advocate, MDARD, is really, up to this point, our adversary. This MUST be changed!!!


Warm Regards,


[email protected]