Michigan Right to Farm Law, what does it mean?

[wingless]

I would go even further, and say that MDARD has already moved on to thinking about the next battle, which will be changing MRTF in the legislature. The Dec 2011 minutes of the Ag Commission suggest this, and the urban farming situation in Detroit demands a legislative solution. You can find evidence of this in those same Dec 2011 minutes, and in the article published by Crain's Business this week.

So how is MDARD preparing for this? I would suggest that one way is by responding to citizen and government inquiries about MRTFA with disinformation that MRTF does not apply, to stem the tide of residential farms, and to reduce the number of operations that will be grandfathered-in if they are successful in changing RTF. A second way, clearly, is by changing the GAAMPS to affect the change they want, even if it is beyond the scope of their authority to do so.

Honestly, I think we should be forward-looking as well. Imagine that someone places a bill before the state legislature to add provisions to the MRTF to give local governments more control over who is protected. Would that galvanize you to contact your legislator to protest that RTF change? I think for many of us, the answer is yes. Now the important question: in that case, will you have wanted to have previously contacted your legislator to inform them of the mischief that MDARD is currently engaged in? I think so, because I think we want our legislators to know that there is some question about the legitimacy of recent MDARD actions at the time that that legislation is proposed. And we want them to know that this is an ongoing issue, and not a new one that has arisen when the new legislation is introduced. If that argument makes any sense, or is persuasive, then we should all be contacting our legislators now, before the next move is made.

I'm sure there are other ideas out there. But we should be thinking about how this will likely play out, and what position we want to be in if and when the next legislative change is introduced.

 

[VikkiP]

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.

Let's take a look at this, since this is currently the main argument used against backyard chickens.

2012 Site Selection GAAMP - "New and expanding livestock production facilities should only be constructed in areas where local zoning allows for agriculture uses."

As covered in my earlier post, this GAAMP does not apply to backyard poultry operations of less than 5000 layer hens. WE DO NOT HAVE LIVESTOCK PRODUCTION FACILITIES. Do not let MDARD or your local government try to force you to follow an inapplicable GAAMP.

2012 Farm Market GAAMP - "A farm market may be a physical structure such as a building or tent, or simply an area where a transaction between a customer and a farmer is made. The farm market must be located on property owned or controlled (e.g. leased) by the producer of the products offered for sale at the market. The property on which the farm market is located does not have to be the land on which the products offered for sale are produced. For example, a farmer with a farm located far from normal traffic patterns may acquire control of land near a more heavily travelled road on which to locate the market. However the market must be located on property where local land use zoning allows for agriculture and its related activities."

If the farm market is not on the farm, then the land that the market is on must be zoned to allow agricultural activities. If you have doubts about this one, do your egg sales at work, at a farmer's market, or elsewhere. This will not apply to most backyard chicken farmers, since volumes are typically not so large as to require a market at all. I have a farm market ON my farm. The market is not a building. I would like to see this paragraph clarified as my opinion is that it means that a market on a non-farm site must be on a site that allows for agriculture, as the farm market is an agricultural activity, whereas a market on a farm is by definition on agricultural land since it is a farm.

The GAAMPs are living documents, subject to change to meet evolving conditions. However, neither the MDARD nor the Legislature can simply declare a revision to a GAAMP. An advisory committee exists for each GAAMP, as published at the end of each GAAMP, and is represented by governmental, agricultural, educational and other groups. This is where we have input into the process.

I do think that MDARD should review the MSUE flowchart and comment on each step. The problem is that although the GAAMPs are clear and plain language, as is the MRTFA, there is enough wiggle room in the text that local government attorneys have inappropriately applied GAAMPs where GAAMPs don't apply, and the courts are not reading the text, they are reading the statements.​

 

[laughingclown]

Here is an update on Fentons fight for chickens.

http://www.tctimes.com/news/chicken...cle_bc95402e-c843-11e1-99c7-0019bb2963f4.html

 

[blackswan]

Vikki (and all)
I sent Mr Neumann specific questions about the GAAMPs/MDRAD/RTFA

Below are his answers
"A local unit of government has the option to submit a proposed local ordinance to the state that the local government can enforce an ordinance which  would otherwise not be allowed under the RTFA"
MY QUESTION
If an ordinance is submitted to MDARD then I would have to put my situation through the decision tree. And said ordinance.
HIS RESPONSE
No, that is not correct. The decision tree applies for local government regulations that have not been approved by MDARD. The RTFA allows for a local government to submit “…a proposed ordinance prescribing standards different from those contained in GAAMPs if adverse effects on the environment or public health will exist…” (MCL 286.474(7)). To my knowledge, no local government in the history of the RTFA in Michigan has done so and had the ordinance approved by the Commission of Agriculture.
--My comment: The keeping of chickens (fowl) is considered farming in the RTFA, so it is allowed under RTFA. Do I have this correct?
HIS RESPONSE
The keeping of chickens would only be protected from nuisance suits and exempt from certain local regulations if it results in commercial production of a farm product (see my initial response).
Meaning his initial response not mine

Then he goes on:
--my comment specific to my situtation: I want to keep 4-6 hens in my backyard with the intent to sell the extra eggs that my family does not consume. This is a farming practice on my farm per the definitions of a farm (per establishing jurisdiction box). AND I would have protection under RTFA.
HIS RESPONSE
Satisfying the three questions in Box 1 of the decision tree is just the beginning. If yes to all three questions, proceed to Box 2, and so forth. I presume you would answer yes to Box 2, no to Box 3, and no to Box 4. Where you may run into trouble is Box 5. As I mentioned, there is a division between the MDARD’s opinion (and practice) and the opinion of legal scholars as to whether local governments can restrict farms to certain zoning districts. MDARD believes it is okay for a local government to do so. Following MDARD’s opinion, New Baltimore is not in violation of the RTFA (this could be debated).
I believe Mr. Neuman is in error. Box 4 would stop this decision tree as states
Preemption:
Does the local ordinance,egulation,or resolution (local regulation) extend,revise, or conflict in any manner (contravene) with the provisions of the RTFA?YES
4.1 Does the local regulation modify the immunity for farmers from public or private nuisance suit? yesby not allowing for BYC and my farm with the ordinance I am subject to public suit (ordinance violation)
4.2 Does the local regulation modify the MDARD enforcement or investigation process, or provide an investigative process for complaints involving a farm or farm operation? NO, New Baltimore is not in the business of inspecting farms

Yes to one or both questions:
4B The local regulation contravenes RTFA, so the local regulation is preempted.
 
Done. This is the newest decision tree.
 
 
In the first sentence of the document decision tree"what sorts of local regulations are preempted by RTFA?" it states:
 
"A local unit of government has the option to submit a proposed local ordinance to the state that the local government can enforce an ordinance which  would otherwise not be allowed under the RTFA" If an ordinance is submitted to MDARD then I would have to put my situation through the decision tree. And said ordinance.

HIS RESPONSE
No, that is not correct. The decision tree applies for local government regulations that have not been approved by MDARD. The RTFA allows for a local government to submit “…a proposed ordinance prescribing standards different from those contained in GAAMPs if adverse effects on the environment or public health will exist…” (MCL 286.474(7)). To my knowledge, no local government in the history of the RTFA in Michigan has done so and had the ordinance approved by the Commission of Agriculture.
 
-.
 MY QUESTIONS
This is the exact wording of the current ordinance in our city related to chickens:
No person shall keep or house any animals or domestic fowl within the city except dogs, cats, birds, fowl or animals commonly classified as pets.
  The wording of this ordinance is confusing in my opinion. Are chickens domestic fowl (YES)?
I went on to make a case that chickens are pets to many people,common? Maybe, but I could argue that trachula spiders are sold at pet stores but are not tame and not common.

HIS RESPONSE
I agree that the wording of the ordinance could be clearer, but the key word between what is not allowed and what is allowed is ‘domestic’. Domestication is different than taming (of an animal as a pet) and involves the changing of a population of animals at the genetic level, not just the process by which animals become accustomed to a human presence (i.e. taming). Chickens, being poultry (a kind of domesticated bird raised for meat, eggs, or feathers), are domesticated and therefore not allowed, according to the New Baltimore zoning ordinance

ME THINKING OUTLOUD
Since BYC keeping does not meet the requirement for a livestock facility does this null and void GAAMPS for site selection only? or all GAAMPS. But then RTFA act states that the farm and farm operation must comply with GAAMPS and I understand that caring for a few chickens or 5000 will have the same needs on different scales.

This ia all about establishing jurisdiction. The ordinance is about animals not ZONES
I cannot find where my city regulates/limits farming EXCEPT in the animal ordinance and is therfore in violation of RTFA.

I'll be at the meeting tomorrow @7:00
I really do not want to get in the RTFA debate, but I feel confident.
Sorry for the length of this post.

 

[VikkiP]

All GAAMPS must be considered when establishing, modifying, or maintaining a farm. However, it is evident that some GAAMPS will not be applicable to a particular farm. For example, though there is a GAAMP for cranberry production, I am not required to adhere to its standards, as I don't grow cranberries. If a GAAMP has a threshold level, such as site selection, if you do not meet the threshold, the GAAMP does not apply. Other applicable GAAMPs will still apply. Each is considered for its own merit.

It's good to hear that no exemptions have been approved yet. If, at some point, some succeed, I wonder if they will make them readily available on the GAAMP site.

Good luck.

 

[wingless]

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.

Let's take a look at this, since this is currently the main argument used against backyard chickens.

2012 Site Selection GAAMP - "New and expanding livestock production facilities should only be constructed in areas where local zoning allows for agriculture uses."

As covered in my earlier post, this GAAMP does not apply to backyard poultry operations of less than 5000 layer hens. WE DO NOT HAVE LIVESTOCK PRODUCTION FACILITIES. Do not let MDARD or your local government try to force you to follow an inapplicable GAAMP.​

Thanks, VikkiP. I should have gone back to the language in the GAAMPS instead of the summary provided by Brad Neumann, because the devil is definitely in the details. I certainly agree that whenever the subject is "livestock production facilities", the immediate interpretation is that it does not apply to us, but rather to huge commercial farming operations. So, now that I'm in there, let's take a look at each of the 8 cases in which the word "zoning" appears in the 2012 Site Selection GAAMPS document.
http://www.michigan.gov/documents/mdard/2012_FINAL_SITE_SELECTION_GAAMP_378548_7.pdf

Here they are:

1. 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 nonconforming uses as identified by the Right to Farm Act for purposes of scale and type of agricultural use.

2. New and expanding livestock production facilities should only be constructed in areas where local zoning allows for agriculture uses. (p. iii, preface).

3. Local land use zoning maps will be considered by MDARD in granting setback reductions. (p. 5)

4. Local land use zoning maps will be considered by MDARD in granting setback reductions. (p. 6)

5. New and expanding livestock production facilities should only be constructed in areas where local zoning allows for agriculture uses. (p. 7)

6. Local land use zoning maps will be considered by MDARD in granting setback reductions. (p. 7)

7. Local land use zoning maps will be considered by MDARD in granting setback reductions. (p. 8)

8. New and expanding livestock production facilities should not be constructed in areas where local zoning does not allow for agriculture uses. (p. 9)


So I agree with you, VikkiP, that numbers 2-8 do not apply to any of us - although I certainly can't claim to understand exactly what MDARD is doing with respect to setback reduction.

However, that new language added in the preface is problematic to folks like me who live in a city of over 100,000. One argument is that this just means that this GAAMPS is not applicable to cities over 100,000, just as it is not applicable to farms that do not meet the requirements of a "livestock production facility". But I know from reading the December 2011 Ag Commission minutes that MDARD considers this language to be sufficient to remove cities with over 100,000 from RTF protection, because it was specifically written - and approved by the Ag Commission at that meeting - to prevent RTF protection for urban farms in Detroit.

I don't think MDARD has the authority to do this, and that it would not stand up to a legal challenge. Neither does the City of Detroit, which is refusing to go forward with local ordinances that would allow the large Hantz farm operation to go forward until the language is changed in the RTF law itself. But my point is that we have now exhausted what the legislation says, how the courts interpreted, and how MSU/MSUE interpreted those events. That is all clear, and all tells the same story: since the last legislative change in 1999, the MRTF protects everyone in Michigan who has a commercial farming operation and complies with GAAMPS, regardless of local ordinances.

I think the future is also clear: Because the City of Detroit does not accept the change in GAAMPS language as a solution to their problem, and requires instead a change in the MRTF law by the state legislature, this will end up in the state legislature.

What is less clear is the present situation, because scholars have not yet done their research and written the clear summary. Instead - at best - it lives in the minutes of obscure meetings, and in random news articles. Sometimes it shows up here, when people post their interactions with various officials. Normally, it wouldn't be worth the time of any of us to try to puzzle out what is actually going on - but if RTF really is headed to the legislature then this is a good time to pay attention. I certainly wish I had been paying attention 6 months ago, when the Ag Commission passed that new language, written by MDARD, that aims to exempt me and other residents of cities of over 100,000 from RTF protection.

The next Ag Commission meeting is Tuesday, July 17th, in Lansing. It seems likely that the new MDARD director will be introduced at that meeting. It begins at 9 am, which is inconvenient, but I am hoping to be there. http://www.michigan.gov/documents/mdard/July_17_NOTICE_390955_7.pdf

 

[VikkiP]

I agree, it would have been better to have nipped this exclusion paragraph in the bud. But let's take a look at it in its entirety:

'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 nonconforming uses as identified by the Right to Farm Act for
purposes of scale and type of agricultural use."

Now, does Ann Arbor have a zoning ordinance that allows for agriculture somewhere in the community? Shelby Township does not (we're not at 100,000 residents, but I've studied this anyhow) have any Agricultural zoning, and limits agricultural usage to residential properties of greater than 3 acres, but chickens are always prohibited. I find this to be in violation of the RTFA because agriculture is agriculture, be it horses, corn, cattle, hogs, goats, wheat, chickens or sheep. If they are raised as livestock for commercial purposes, they are protected under the RTFA.

 

[thewaggonerfami]

I think Wingless definitely has the right approach with getting MDARD back in line with the law. And that we as a group have the best chance of that.

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.

Does anyone have contact info for that Rural legal aid group that someone posted earlier?

And in sad chicken news, one of my pullets died from the heat at her temporary home. They lost a few of their chickens, and are a great and very experienced 4H farming family, so it was not from lack of care, it was just so dang hot. Good news is I have found a foster home for my Black Copper Maran Rooster where he can be out and about. Where he is now, he is caged as they have another Roo already.

 

[thewaggonerfami]

Oh and I was told I had to pay $125 for an appeal to the village. That just doesn't seem right to me.

 

[Stc-Gromit]

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.

I may go under the radar? I may give up on this for now? For me, and I've been told it's silly, I had this idea of doing something grand. Raising chicks (at first. From eggs later) into egg laying, meat producing garden loving pooping chickens with my boys. I wanted to watch them learn (even if it were a very small part of it) what my father did as a farmer in the thumb as a child. what my brother and I learnerd from raising chickens and rabbits as children. We go through about 2 - 3 dozen eggs a week and the boys love eating the healthy eggs from their cousins coop.
I tried to incorporate gardening into my Bear Cub Scouts this year. Planting seeds, feeding and watering and then transplanting the seedlings outside to reep the bounty in the summer. The chickens were going to take this to the next step. The ethics of cleaning, feeding and general care for an animal. The morality of possibly slaughtering an animal for nurishment. The love for a pet!!! Compassion! Responsibility!
Then there was my secret business idea. To build small tractors and lease/rent the to Villagers. I would provide laying hens for the season or year. I could deliver food and water, "coop sit" while the owners were away. I would clean the coops for a small fee. All the micro farming locavores would have to do is collect eggs and call me, my boys and scouts for assistance when needed. This would play right into the raised bed garden business model. Same thing. Fresh composted manure, I build, maintain, plant and weed. All the microfarming locavoreswould need to do is pick fresh tasty veggies. And pay their rent!!
Small start buisness at it's best. Feeding the villagers and economy. Small business that has the potential to be franchised nationwide.
But,,, To do this and look my boys and scouts in the eye I would have to hit it head on, stay within the law, use the system to assist my fight. I could not fly under the radar and hide chickens in my back yard. It's just not my way.
Silly!!!! I know.