CaraBear, it sounds as if your city, like my township, feel that they are not required to abide by state law. They ought to talk to Rob Huth, our township attorney, and see if he thinks it is worth the battle for the city to fight you. The law is on your side if you do things right.
Point by point:
...The raising of chickens for egg production and sale in an area zoned residential is a clear violation of the City of Midland Code of Ordinances, specifically Section 3-40. (See Attachment 1) A violation of this ordinance is a misdemeanor offense that has a maximum penalty of 90 days in jail and/or $500.00 in fines that is charged against the property owner...
Response:
State law preempts a municipal ordinance where the ordinance directly conflicts with a state statute or the statute completely occupies the field that the ordinance attempts to regulate. Rental Prop. Owners ***'n of Kent Co. v. Grand Rapids, 455 Mich. 246, 257, 566 N.W.2d 514 (1997). A direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits. People v. Llewellyn, 401 Mich. 314, 322 n. 4, 257 N.W.2d 902 (1977).
The RTFA, specifically MCL 286.474(6), provides:
Beginning June 1, 2000, except as otherwise provided in this section, 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.
http://legislature.mi.gov/doc.aspx?mcl-286-474
That is where our case started, with an ordinance violation ticket. It changed from a zoning ordinance violation to a nuisance complaint on its path through circuit court before going to Court of Appeals. They were grasping at straws.
Footnote 3 from our case: "At oral argument, plaintiff conceded that its nuisance argument was limited to a “nuisance per se” theory. Use of land in violation of an ordinance is a nuisance per se. MCL 125.587; High v. Cascade Hills Country Club, 173 Mich.App. 622, 629, 434 N.W.2d 199 (1988)."
...Further, the Right to Farm Act is intended, in large part, to protect "pre-existing agricultural uses" from violating local zoning laws...
Response:
This is irrelevant to the matter at hand.
...Simply put, the property at **** K******* is zoned residential. (See Attachment 2) It has never been zoned agricultural. It has never been a commercial operation of raising chickens for egg production. Therefore, the Michigan Right to Farm Act does not apply. Further, the GAAMP (Generally Accepted Agricultural Management Practices) clearly describes excepted site selection practices for new and expanding uses to be zoned agricultural. Again, your home is zoned residential and therefore, the GAAMP does not apply...
Response:
As all land in the state of Michigan was open to agriculture before the application of local zoning ordinances, it is irrelevant that the property is not currently zoned agricultural. That the property may or may not have been previously utilized for farming operations is irrelevant. Site selection GAAMPs apply to Livestock Production Facilities, which is defined as over 5000 chickens, and also does not apply. The MRTFA applies to farms and farming operations regardless of location, size, type of farm production, cessation of use, change of ownership, and other factors. This is a farming operation which will engage in commercial operations, all plans are in compliance with GAAMPs, and the poultry operation is therefore protected by law. According to the plain language of the RTFA, a farm or farming operation cannot be found to be a nuisance if it is commercial in nature and conforms to the GAAMPs. MCL 286.472(b); 286.473(1); Belvidere Twp. v. Heinze, 241 Mich.App. 324, 331, 615 N.W.2d 250 (2000). The RTFA describes GAAMPs as “those practices as defined by the Michigan commission of agriculture.” MCL 286.472(d). Whether a farm conforms to the GAAMPs is decided according to policies adopted by the Michigan Commission of Agriculture. Richmond Twp. v. Erbes, 195 Mich.App. 210, 221, 489 N.W.2d 504 (1992); MCL 286.473(1). This position has been upheld by the Michigan Court of Appeals in
Charter Township of Shelby vs. Papesh,
http://caselaw.findlaw.com/mi-court-of-appeals/1102721.html
If you feel my comment doesn't apply because they are planning to cite you for zoning violation, read footnote 3 on our case: At oral argument, plaintiff conceded that its nuisance argument was limited to a “nuisance per se” theory. Use of land in violation of an ordinance is a nuisance per se. MCL 125.587; High v. Cascade Hills Country Club, 173 Mich.App. 622, 629, 434 N.W.2d 199 (1988).
...You have also indicated in your letter the following, "I have several friends and acquaintances who intend to purchase my farm fresh eggs from me, thus making my farm a commercial operation, and I will keep records and file taxes accordingly." The city has a home occupation zoning ordinance, specifically Section 3.06 (A)(4) (Attachment 3) which clearly states, "No such home occupation may be conducted in any accessory structure or attached garage." Therefore, your proposed commercial chicken operations outside of your home would not be allowed in your residential neighborhood even if chickens were to be allowed...
Response:
This one is a little more challenging, as it all comes down to where you will sell the eggs, not where you raise the chickens. We opted for an outdoor refrigerator, rather than a building, for egg sales. In this manner, there are no concerns about building codes for a structure that will be occupied by people other than your immediate family. There is now a farm market GAAMP that replaces and amends building codes for buildings constructed for this purpose that would otherwise be exempt. Others choose to sell eggs at work, church, farmer's markets, etc. Agricultural buildings for housing livestock, feed, crops and equipment are not subject to building codes or home occupation rules as they are covered by the MRTFA but of course should be well constructed and kept clean, vermin free, and in good repair.
Ziggy67, your local government cannot restrict you to your existing 20 birds nor to inspections. It's up to you whether you choose to defend your rights.
LazyJ, why are you on a Backyard Chickens forum if you don't grasp the concept of backyard chickens? I'd love to have my birds roaming 40+ acres, but I don't. Suburban agriculture is absolutely possible, even on a larger scale than those here are attempting. We easily raise 300-350 cage free hens and up to 30 turkeys on a one acre residential parcel and sell 20+ dozen eggs a day, and could sell twice that if we had more space for birds. Manure is picked up within a day of coop cleaning by those who appreciate its values. If we were "out in the country" we wouldn't have the 20,000+ cars a day of drive by traffic that brings our business to our door.
Here is our case as rendered by the Court of Appeals:
http://caselaw.findlaw.com/mi-court-of-appeals/1102721.html. Be sure to see the notes.
Good luck!
