Michigan Right to Farm Law, what does it mean?

[eldenbrady]

We had the goats for more than 7 months with no problem then suddenly one day they decided to make a fuss over it. We have a local ordinance that requires that you register your business before you sell anything and as an attorney (who has registered my business as such) there is no way I could plead ignorance. The case law indicates that you still have to comply with local application and registration ordinances even under right to farm. So right now we are stockpiling what we can for when we get through appeals and what will not keep we are using personally (I have canned so many potatoes this year). Unfortunately there are a lot of small projects with our property (irrigation and beautification among them) that we had hoped to pay for this year with the small income from selling that have had to be put off for another year.

Once we get our market up and running maybe I will try to get some chickens since I know eggs will sell well, I just have to figure out how to clean and store the eggs since they cannot come in our kitchen.

 

[RTFchickens]

Eldenbrady, just curious if you have ever tried farm fresh BYC eggs?
On another forum I was on people were talking about how they cannot eat store eggs due to allergies, but natural BYC eggs did not cause them to react. Milk was another product they said some who are allergic to store milk can drink fresh unpasturized milk without reacting.
I'm no professional, and have no allergies, so don't take my advise, I just wondered...

 

[eldenbrady]

I had a reaction to store bought milk as well (migraines) and I do fine with our goats milk as well as with the un-homogonized organic stuff when we buy it. Eggs are a covered in hives, throat closes up, and can't breath kind of reaction so I doubt that a different type of raising would make a difference. I have wondered though if a different type of bird might be different.

Just found a new case, lays out exactly what you need to do to establish RTFA protection very well. http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20130919_C306575_62_306575.OPN.PDF

 

[RTFchickens]

Wow, that was a long 13 pages! Did you say earlier that you are a lawyer? I thought I had read that, but I might be mistaking. That is a great reference to the equal protection argument.
This resembles your situation in some ways based on the equal protection, but this is using a case where he was already zoned ag. There is another case that may help you. It's the Buchler case in the UP where it shows that agricultural practices in Res zoned lots are also covered under RTF. PM me if you would like me to send you that case.
Good luck in your fight! Remember that the squeaky wheel gets the oil ;-)

 

[eldenbrady]

I have a copy of the Buchler case and it is almost entirely on point but it is a circuit court case not an appeals one so it is not binding on any other court.

The important thing with this new case is that it lays out precisely what the standard for using mrtf as a defense so it is helpful no matter what the facts. It means that it is now laid out precisely what anyone using mrtf as a defense must do no matter what the factual situation.

 

[HandsOffMyHens]

You would think that having lost the Papesh case, Shelby Township would be less aggressive about trying to enforce their livestock ordinance banning chickens. It only seems to have made them ornery.
We bought our first house here in Shelby Township 13 years ago, back when the intersections at Van Dyke Road and 24 Mile/25 Mile roads were just 4 way stop signs. Jewell and Schoenherr were gravel roads north of 25. The Target/Kohls/Home Depot strip mall at 26 Mile didn't exist. It was all field.
The people who owned this house prior to us had chickens, horses and goats. We currently have a very modest flock including a rooster on our property. We've sold eggs as long as we have had the chickens (once they were laying of course). We have also sold trivial amounts of manure and some rooster feathers. We have close to 2 acres. We live next to the M53 freeway and the rooster is kind of smallish so his noise gets drowned out by the freeway noise. The neighbors don't hear him or complain. Many had no idea we even had chickens until the brewhaha began with a problem neighbor. I won't go into the 9 years of grief he has caused us, as it isn't relevant. Suffice it to say, he wore out his welcome infringing on our property. Asking nicely wasn't doing the trick. When we put up a "Posted: No trespassing. Violators will be prosecuted." sign to get the point across, he had his family screaming at us from the property line that the sign would be removed immediately or we would have the city on our doorsteps the next day. True to his word, he reported us for multiple "violations" within 12 hours. All were ultimately dismissed except the animal complaints.
When I received the letter from the city, I called my husband, crying, to tell him we were told we had 5 days to remove all animals (specifically including the chickens and ALL of our dogs) from the property. We have six purebred show dogs. We license them responsibly with Macomb every single year. There has never been a limit on the number of dogs you can have in Shelby. We asked both Macomb County Animal Control and Shelby Municipal Offices to make sure. They just passed an ordinance last fall limiting Shelby residents to 2 dogs. They tried to play that down to residents by saying they won't enforce that unless there is a complaint. Unfortunately, even if you have the best behaved dogs in the world and they are debarked, you can still get in trouble if your neighbor hates you for some other reason. Interestingly enough, Shelby didn't order us to remove the excess 4 dogs and all the chickens. They ordered us to remove ALL animals from our property within 5 days. For some reason they felt we are not entitled to own two pet dogs like the rest of the residents. My husband, God bless his rugged heart, told me not to worry about it. He hung up and called an attorney. All these years, while I felt we were grandfathered in with our chickens, I kept an eye on all the legislature and various cases including the Papesh case. I had all the information readily pulled together. Did I mention I am a paralegal? So our attorney was pretty happy to have this nice tidy package citing state law and showing cases that are specifically on-point with ours.
She took it to the ordinance officer along with a letter signed by all of our neighbors except the problem neighbor. The letter from the neighbors (nine of the ten who share a property line with us) states that they have never had an issue with any of our dogs or chickens and that the animals are not a nuisance. The ordinance officer told us we would just have to ask the ordinance board for a variance at an appeals hearing. That was scheduled for last Thursday evening at 630. Public comment was supposed to be allowed and they would let us know that night of their decision.
At 530 pm, just an hour before the meeting, one of the board members knocked on my door and asked if he could see where we keep the chickens and the property lines. I showed him the entire back yard. He counted out the chickens (down to 5 currently) looked at the property lines and thanked me for my time. On his way back to the car, he stated that one of his neighbors (in Shelby) has chickens too. He didn't say anything else about it. I was a little surprised he volunteered that information considering that I am fighting to keep mine and he is on the board.
As soon as the attorney identified us at the meeting and what we were there for, the board advised her that we would not be able to get a decision that night and they would not be hearing any arguments either for or against our application for variance. He said that due to the extremely thick and thorough packet of evidence and the case law citations that it contained, he and the rest of the board did not feel comfortable ruling on it without the township attorney having a chance to view it first. Of course the problem neighbor was there with two people I don't know, champing at the bit for a chance to complain. There were also four other residents who live over 500 feet from my property who saw the hearing advertised in the paper and came to say they don't want me to get chickens because they don't want to be woken up by roosters. I think they assume I am asking for permission to acquire them and don't realize that the chickens have been there for years. Nothing will change for them.
Too late to make a long story short, but in the end, the board said that we would be called back for a hearing in November and that they will make sure that the city attorney goes over everything and will even request him to be there specifically.
I am sure there are other people in Shelby who want to get the ordinance changed to allow chickens but don't want to risk their own chickens by calling attention to themselves. And of course nobody wants to hire a lawyer over a bunch of five dollar hens. The city banks on that. So here is your chance to be collectively heard on the issue without actually calling attention to your own chickens and without hiring a lawyer. Are there any other Shelby Township residents who would be willing to come to the hearing in support of us keeping our chickens and as pressure to request a change in the ordinance to allow small flocks regardless of whether or not you sell eggs? This may be the best opportunity you will ever get. Maybe in the face of our attorney and the existing state laws, and a very crowded room full of people, the board will consider a change. Even if we can just get them to agree to allow a local vote to see if the majority of the residents want them here, it would be enough. I think they would be very surprised at how many do want chickens. Some of my current neighbors (I won't say who) have them and others say they wish they could.
Also, I was told that Mrs Papesh herself is on these boards. Vicki, if you could contact me regarding this mess, I would love any tips you can provide.

Thank you all for letting me vent. If anyone is interested in the nitty gritty details, our entire application packet (some 75 pages or so) is available at the zoning desk at the Shelby Township offices and is considered public information. You can get a copy there.

Kindest regards,
Melissa

 

[HandsOffMyHens]

Considering this is now public knowledge and already in the hands of the township appeals board, I am posting here. I hope the information is useful to anyone in a similar position. I don't have any of the exhibits scanned or saved into my computer but they are available at the Township Offices.


CHARTER TOWNSHIP OF SHELBY

ZONING BOARD OF APPEALS
​

IN RE:
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, 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 Brockert. During their occupancy, the Brockerts raised horses, goats, and chickens. (See Exhibit A).
4. The Petitioners continued to raise chickens after they moved in. The raising of chickens has continued on the property without interruption. (See Exhibit A).
5. Petitioners 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 out of 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. 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 his property. Mr. Giuseppe falsely advertises the property for sale by showing a picture of Petitioner’s 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 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 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 notices for zoning violations that were reported from an anonymous source.
15. After receiving notice of this ordinance violation Petitioners asked neighbors to fill out a form that their dog and chickens were not a nuisance. All the neighbors filled it out except for 11145 25 Mile Road, and indicated they had no issue with Petitioners property or chickens. (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 that stated there was no nuisance. (See Exhibit G).
17. Attached is an affidavit from Petitioners describing their ownership of chickens. (See Exhibit H).

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 preempts 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].
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 under GAAMP 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 Petitioners 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 it pertains to the facts in this case. Because Petitioners 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 Petitioners were to 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 is sold for a profit.
GAAMP only applies to new and expanding farms, and it requires, at a minimum, 50 animal units. Petitioners only have 10 Chickens. Chickens have been raised on this property before the year 2000. This makes the property an old farm, and 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 complaint is not based on any validity that the chickens are a nuisance, but is in fact a boundary dispute. No other neighbors have an issue with the chickens, and even the previous tenant did not have a problem with the chickens.
In light of the facts in this case, this ordinance violation is unenforceable against Petitioners. Therefore, we are asking 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
Dated: 09/10/2012

 

[Broad St Farm]

:/

 

[wingless]

GAAMP only applies to new and expanding farms, and it requires, at a minimum, 50 animal units. Petitioners only have 10 Chickens. Chickens have been raised on this property before the year 2000. This makes the property an old farm, and therefore GAAMP does not apply.

This is a great synopsis. Thanks so much for posting this.

I think the part in bold above isn't quite right - I think what your lawyers says here is correct about the Site Selection GAAMPs only, and not all of the GAAMPs. So the important point is that the GAAMP for Site Selection and Odor Control for Livestock Production Facilities do NOT apply unless you have 50 animal units or more (which, in chicken units, is 5,000 chickens).

 

[RTFchickens]

Melissa, have you looked into getting MAEAP verified? There is a deposition floating around (which I have and would be happy to share) of the MAEAP comparison to GAAMPS.
I am going through a similar battle with my township as well, and advised by lawyer to get MAEAP verified. It was fast and easy. It also should greatly help your battle.
Good luck!!!