Michigan Right to Farm Law, what does it mean?

[DReyRose]

Ok, VikkiP and others. I talked to my State Senators office again today. They said that their interpretation of the law and rulings, in regard to Shelby Twp. -vs- Papesh, AND in agreement with Wayne Whitman, that it would NOT apply to me because our city is zoned strictly residential and does NOT allow ANYWHERE for agriculture.
I then linked him that MSU extension pdf with the flow chart and asked him exactly where in there, with the other court rulings and cases, does it say my case would fall. I was very specific about where, not just saying it doesn't apply. After perusing it briefly on the phone with me he said he would have to call me back because he would need to talk to the MSU extensions office directly regarding this.
SOOOOOoooooo. My question to you all is, IF my city is zoned 100% residential and NOT for agriculture ANYWHERE, can I still, as far as you know, gain protection from MRTFA? If so, do you have the case/ruling/whatever that says so, or was interpreted as so? If so, can you link it or highlight it or explain where on one of the previous links, including the flow chart, that it says such?

VikkiP, thank you for posting on here. Looks like a bunch of garbage they put you through, to say the least. /cheers for you for not backing down from the man!!!

Thank you all so far. I'm hoping to resolve this by the end of this week cause I just want some freaking chickens so I can have some freaking farm fresh freaking eggs!!!! Oh, and some to sell to my family and friends >



Warm Regards



[email protected]

 

[wingless]

Nicely done, DReyRose! Can't wait to hear the response from your Senator's office!

As to your specific question, my understanding is that if you are commercial and become compliant with GAAMPS, MTRFA protects you, period.

As to the specific legal documents that support this view, the link I keep repeating (http://www.animalagteam.msu.edu/uploads/files/20/Tech Bullitin Land Use.pdf) cites both the Papesh case and the Papadelis case as dealing with this issue, and supporting this view. From page 5, with bold added by me:


Question 3: Did the farm or farm operation exist and not constitute a nuisance before any change in the land use or occupancy of land within 1 mile of the boundaries of the farm land?
M.C.L. 286.473(2) presents this third question for determining nuisance protection. The fact that the inquiry does not end with Question 2 (compliance with GAAMPs) is a recent and somewhat unsettling outcome of recent Court of Appeals activity. In earlier articles we have assumed that parts (1) and (2) of M.C.L. 286.473 both must be met for a farm to receive nuisance protection. This assumption was recently addressed by the Michigan Court of Appeals in Papadelis v. City of Troy (2006, unpublished). The court wrote:
“The 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.”
These decisions give farm operations the right to move into areas, including residential areas, and qualify for nuisance protection under RTFA by using GAAMPs. The Court of Appeals acknowledged this in a footnote in the Papadelis case:
“We 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 agri- cultural and management practices. Although we might personally disagree with the wisdom of the policy choice codified under M.C.L. 286.473(1), we are without the authority to override the clearly expressed intent of the legislature. M.C.L. 286.473(1) is simply not ambiguous and, therefore, must be enforced as written.”
Perhaps the more unsettling implication of these decisions is that reading (1) and (2) of M.C.L. 286.473 independently suggests that a farm operation that existed prior to surrounding land use changes and that did not constitute a nuisance prior to these changes need not comply with GAAMPs in order to receive nuisance protection under the RTFA. Right-to-farm laws in most states are codifications of the “coming to the nuisance” defense; that is, most provide farm operations with nuisance immunity if they existed prior to changes in surrounding land uses. However, these right-to-farm laws also specify that the protection does not apply if the nuisance results from negligent or improper operation of the farm or if the farm fails to use prudent generally accepted management practices reasonable for the operation. By severing the connection between parts (1) and (2) of M.C.L. 286.473, the Michigan Court of Appeals may have taken away this important quid pro quo protection provided to neighboring landowners in exchange for their lost ability to bring private rights of action. Whether the court in Papesh and Papadelis correctly extrapolated this to be the “clearly expressed intent” from the language of the RTFA can (or should) be debated.

 

[DReyRose]

Well.....ya' know.... I must apologize as I found those same parts that you just bolded out!

As a side note, someone linked a case on my FB page about some girl in Ypsilanti Twp. that was made to get rid of her chickens that she's had over a year. So, tonight, armed with this information, I went to the Ypsilanti Twp. city hall meeting tonight as they were hearing that young lady's plea for her chickens. So, with copies of that pdf, I highlighted those parts and others and gave a copy to their city representatives. I also read out loud the supporting facts and cases and rulings pertaining to the 5 acres zoning and how those are not enforceable and stated that she should be allowed her chickens. They looked and sounded genuinely shocked as I read this while they looked at their copy. They then said that they would send it over to the city attorney for review.

Now, I came into this fight late and don't know where it has been or where it is going. However, I gave this young lady a copy with the parts highlighted for her to use going forward. They commented that because they currently have an ordinance in place that does restrict, that they will have to repeal the ordinance in place at this time. It sounded to me like they are very chicken friendly and were going to allow her the chickens and are going to adjust their codes. They mentioned some feedback from the local neighborhood watch people and a rep from them was there that voiced her support of the chickens also. So, we'll see but it looks very promising in Ypsilanti Twp.

Go chickens go!!!! I can't believe I can probably now be labeled a 'chicken advocate'. LoL!!!


Warm Regards,


[email protected]

 

[RaZ]

My appearance date is May 15 at 10:00am in 21st. District Court in Garden City.

After having chickens for over a year a neighbor got mad am me for a completely different reason and decided to turn me in. The ordinance officer visited my yard and did not see or hear a single chicken. I don't have a structure that could be identified a coop. There was no sign animal life at all except for my dogs. I still got a ticket.

My first step is to have the ticket dismissed because there no physical evidence. This may not fly because the officer talked to the neighbor first and she signed a blank ticket as a complainant. I'm not sure if that will fly or not. Ordinances are not enforced or acted upon until someone complains. The trouble is the complaint does not need to be based on fact or evidence, according to the officer. Now if that is the case, then anyone with an axe to grind can call on someone for any reason.

We will see where this goes.

 

[stormysar]

I have a question about that flow chart. I printed it out and began highlighting the answers that applied to our situation and got stuck at #4.

The initial question asked woudl be yes - the ordinance (non household pets must be kept 500 ft. from any dwelling, but under the animal section there are commongsense ordinances for poultry such as no overcrowding or neglecting - extremely reasonable only issue is our coop isnt 500 ft. from another dwelling) and the zoning (residential - no agricultural section in our city, commercial uses are prohibited in residential areas)

Our R-1 zoning's purpose is defined as: The R-1, one-family residential district, is established as a district in which the principal use of land is for single-family dwellings. For the R-1 residential district, in promoting the general purpose of this chapter, the specific intent of this section is: to encourage the construction of, and the continued use of the land for single-family dwellings; to prohibit business, commercial or industrial use of the land, and to prohibit any other use which would substantially interfere with development or continuation of single-family dwellings in the district; to encourage the discontinuance of existing uses that would not be permitted as new uses under the provisions of this chapter; to discourage any land use which would generate traffic on minor or local streets other than normal traffic generated by the residences on those streets.

It does not specifically say anything against farming or agricultural use - but it prohibits business (which would interfere with the commercial intent of my farm). That and the 500 ft. from any dwelling makes it impossible to farm in my city backyard. In fact I am not sure where a single property is in my city that is not city-owned or public property that has space allowances of 500 ft. between dwellings.

Either way - back to the original question - the initial question in #4 is YES - the zoning and ordinance both conflict with the provisions in the RFTA - but if then offers two options under that to answer - does the local regulation MODIFY the immunity for farmers from public or private nusiance suit? and 2 - does the local regulation MODIFY the MDARD enforcement or investiation process, or provide an investigative process for complaints involving a farm or farm operation?

For starters, my ordinance and zoning laws haven't changed... So how do I interpret 'modify' in those questions? Should I interpret as the ordinances, as written, are overriding my rights with the RTFA (but I dont understand the word modify in this instance)... Or does the word 'modify' imply that something has to change with the local regulations before I can answer the question?

Like I said the initial introduction question I can answer yes to, but then I'm not sure if either question below works. Then it says if you answer yes to one or both questions that yes the local regulation is preempted, so I guess the initial question doesn't apply to which answer to choose. Help? Pretty please?

And if I am following the RTFA and selling my eggs to myself and neighbors (we are becoming an LLC), how am I affected by the farm market GAAMPs? I didn't read through much of it past the part about transaction between farm and customer have to be done on land zoned for agricultural uses. My land isn't agricultural so could I not sell eggs locally? How does a farm in a residential zone sell its products to comply with the GAAMPs?

 

[VikkiP]

Lots of questions...

Don't build an indoor market, sell outdoors from a portable stand, refrigerator or cooler. That solves the "market" issue. Signs are permitted once you are a farm, keep them on your land, not on the right of way, and buildings used exclusively for ag don't need building permits (coops and sheds...markets are not exempt).

Shelby Township has zero ag zoned property since 1963. Just remember that all nearly all land in SE Michigan was once ag land. We now have 400 chickens on our one acre and are surrounded by upscale homes. RTFA is for real. Just do it by the RTFA/GAAMPS and keep things clean and orderly.

 

[wingless]

Stormysar, it looks to me like the document you're referring to is this one: http://lu.msue.msu.edu/pamphlet/Blaw/RightToFarmAct LocalRegulationPreemptionTable.pdf, rather than the earlier, and simpler one here:http://www.animalagteam.msu.edu/uploads/files/20/Tech Bullitin Land Use.pdf.

I haven't read later document carefully, but it looks as though it is an attempt to articulate opposing interpretations of MRTFA. In question 4, where you got stuck, they discuss the role of MDARD and the investigative process as part of the determination of whether MRTFA applies. I don't recall ever seeing language like this in the legal documents that I have read. Perhaps MDARD is the group that actually does the GAAMPS inspections, and this language refers to that process? I don't know.

If you move down to question 5 you get the very clear language that specifically states that MDARD disagrees with the Michigan Court of Appeals Opinions (see the language right next to the arrow and the YES, which states: (The outcome, here is uncertain because there is disagreement between MDARD and Michigan Court of Appeals Opinions. Pick which reflects level of risk or safety your community finds acceptable).

So perhaps this is the actual source of the confusion that abounds around MRTFA: MDARD disagrees with the Michigan Court of Appeals opinions, and instead of deferring to the court - which is acting to interpret and protect the law as written by the Michigan legislature - continues to act as if its contrary interpretation is the correct one. Yikes. I don't think MDARD has the authority to ignore court decisions, or to interpret the law independently of the courts.

VikkiP, does any of this sound right, based on your experience?

 

[hopingforchicks]

Pardon me for the lack of time to read through 53 pages of posts This is my first post and am trying to just get an answer to the restraints and details of my local city codes. I live in Bangor, MI (southwest MI). I live in the heart of the city limits. My property measures 117'x77'. Of course my house is in the middle of our lot. Our house is apprx. 26'x38'. I have read a little on MI's Right to Farm. However, if anyone can tell me if the Right to Farm would trump any city guidelines that are in place here. First one is: Resident must apply for a special permit to allow "farm" animals (yes, a permit fee is required to apply). The second one is: Animal enclosure must be no less than 50' from any property lines.

My intent is to have fewer than 6 laying hens for fresh eggs. They would be in a coop with a fenced in area to move around (not entire fence yard, just a special fenced area just for the hens to peck around and do some dirt scratchin' lol). The City does allow for hens... However, with the detail of "must be 50' from any property lines' makes it nearly impossible (unless I stick the coop on my roof! Ha ha). I actually have a slightly bigger lot than the norm here. My question: can a City charge a fee for a permit? And are they able to make demands to how far a coop can be from property lines?

 

[wingless]

Hi hopingforchicks, and welcome to MRTFA on BYC.

My understanding is that Bangor city ordinances cannot prevent you from keeping chickens if you establish your efforts as a commercial operation, and if you follow good management practices. The perfect place to engage with the subtleties of MRTFA is to read this simple document, which was written by folks from MSU and MSU Extension: http://www.animalagteam.msu.edu/uploads/files/20/Tech Bullitin Land Use.pdf I think the flow chart on page 2 is especially useful.

However, it is also true that some cities in Michigan have prevented residents from keeping chickens, so I don't think anyone can predict exactly what will happen if you push the issue in Bangor. I think the fact that the attached document was written by professors at Michigan's premier agricultural university gives it a lot of credibility, and I would personally begin by handing any interested parties a copy of that document.

 

[DReyRose]

Well....today the State Senators office called me again. They have NOT heard back from the MSU Extension however, he said that the place where he sees a sticking point (based on his conversation with Wayne Whitman & the Attorney Generals office) is on Site Selection. Now, I was working and didn't have the information readily available to respond but I did point out that it says specifically for 50 units (5000 chickens). They responded that it "could be interpreted for NEW locations, not just 50 units or expanding". So, I said that I felt it was explicit about MRTFA defining a farm. Anyway, he then said, and this I find funny, that "Just yesterday in Ypsilanti Twp. http://www.annarbor.com/news/ypsilanti-township-to-begin-developing-backyard-chicken-ordinacne/ So funny because this was the place I mentioned in post 523 where I presented the linked forms from this forum at. What is crazy is they don't mention ANYTHING about the legal part presented nor my name, which is ok, except I look like a wierdo now, LoL! Anyway, the important thing is this is a step towards chicken love!!! Ok, back to the topic at hand, he mentioned this as his advice to go to my city council and mayor and let them know that I've been in touch with the State Senator's office. To try to seek their partnership, as in Ypsilanti Twp. before going the legal route. SOOooooo, I've made copies for my usage now and will be going to the city at my next availability.

As this pertains to my plight in Lincoln Park or your fight in Garden City, Melvindale, Bangor, etc. etc. I must say, this is what I would advise based on what I've learned so far....

1.) Set up and do business as an LLC. It appears the simple $125.00 or so it takes to do so, is worth more than it's weight in gold to be legitimately established as a business.

2.) Set up two binders. One for you, one for your ordinance officers or local officials. In that binder, create the following:
a.) Plan for excrement (manure) as the "odor" issues seems to be the biggest issue really. Explain in there how chicken poo can be composted as dog poo, can't. Plan to use this in your garden, or in the event you don't have one, find a neighbor that has a garden that will accept your poo and have them sign a paper saying so.
b.) Receipts of transactions for some of your eggs. (Validates the business portion.) Though, as a business you can sell to yourself, I wouldn't insult the judge, mayor, city council, etc. have a legitimate customer or two. Neighbors, friends, relatives are fine.
c.) Have a written plan for cleaning AND a sign off sheet with when you perform(ed) regularly scheduled maintenance.
d.) Have a written plan for feeding and watering your chickens.
e.) Have a copy of each GAAMP's that may pertain to you. These are located here http://www.michigan.gov/mdard/0,4610,7-125-1567_1599_1605---,00.html
f.) Have a copy of GAAMP (Site Selection and have it highlighted where it says LIVESTOCK PRODUCTION FACILITY) Make sure you understand you are NOT a Livestock Production facility, YOU ARE A FARM and a FARM OPERATION. There is a HUGE difference as GAAMP's Site Selection DOES NOT APPLY TO FARMS AND FARM OPERATIONS.
g.) Have a copy of this file http://www.animalagteam.msu.edu/uploads/files/20/Tech Bullitin Land Use.pdf and highlight the paragraphs on page 1
After the passage of Public Act 261 in 1999, two substantial changes were made in Michigan’s Right-to-Farm Act:
1. The preemption of local zoning regulations that conflict with the Right-to-Farm Act or associated generally accepted agricultural and management practices (GAAMPs).

also on page 1
Michigan’s Right-to-Farm Act (RTFA) was passed in 1981 (Public Act 93 of 1981) and codified in Chapter 286 of Michigan Compiled Laws (M.C.L.). M.C.L. 286.473 is the provision of Michigan’s RTFA that gives farmers protection from nuisance suits. It provides:
1. A farm or farm operation shall not be found to be a pub- lic or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to pol- icy determined by the Michigan Commission of Agriculture. Generally accepted agricultural and
management practices shall be reviewed annually by the Michigan Commission of Agriculture and revised as con- sidered necessary.

paragraphs on page 2
Who is eligible for protection from nuisance suits under the Right to Farm Act?
(1) Is the activity a “farm or farm operation”?
“Farm” defined as: 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. “Farm operation” defined as: the operation and management of a farm or a condition or activity that occurs at any time as necessary on a farm in connection with the commercial production, harvesting and storage of farm products....
(1a) Is it producing a “farm product”

paragraphs on page 5


These decisions give farm operations the right to move into areas, including residential areas, and qualify for nuisance protection under RTFA by using GAAMPs. The Court of Appeals acknowledged this in a footnote in the Papadelis case:
“We 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 con- travention of local zoning ordinances as long as the farm or farm operation conforms to generally accepted agri- cultural and management practices. Although we might personally disagree with the wisdom of the policy choice codified under M.C.L. 286.473(1), we are without the authority to override the clearly expressed intent of the legislature. M.C.L. 286.473(1) is simply not ambiguous and, therefore, must be enforced as written.”

finally, paragraphs on page 6


To what extent does local zoning retain any control over agricultural land uses?

The statutory provisions we have been discussing (M.C.L. 286.473, 286.474[1] and 286.474[3]) address only eligibil- ity for nuisance immunity. Following considerable debate and several legal challenges addressing the extent to which local zoning could or should be used to restrict both the location and operation of agricultural operations – espe- cially large livestock operations – the RTFA was amended in 1999 to include new language preempting local zoning. M.C.L. 286.474(6) and (7) now provide:
(6) Beginning June 1, 2000, except as otherwise provid- ed in this section, it is the express legislative intent that this act preempt any local ordinance, regulation, or reso- lution that purports to extend or revise in any manner the provisions of this act or generally accepted agricul- tural 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.

and these closing paragraphs on page 6


“Hence, because an ordinance provision that only permits single family dwellings, playgrounds, and parks would prohibit farming operations, the ordinance provi- sion conflicts with the RTFA and is unenforceable.”
In Papesh, the Court of Appeals wrote:
“... the RTFA no longer allows township zoning ordi- nances to preclude farming activity that would otherwise be protected by the RTFA. Rather, any township ordi- nance, including a zoning ordinance, is unenforceable to the extent that it would prohibit conduct protected by the RTFA.”
Most recently, in Papadelis, the Court of Appeals wrote:
“As this Court determined in Papesh, a zoning ordinance restricting agricultural activity to parcels containing a minimum number of acres conflicts with the RTFA. Thus, defendants’ ordinance limiting such activity to parcels with an area no less than five acres is preempted by the RTFA and is not enforceable.”
Judicial precedent, then, suggests that farms and farm operations that qualify for nuisance immunity may be undertaken in any location. Zoning ordinances that restrict agricultural activity, even in areas designated solely for res- idential use, are unenforceable.

3.) Have a compost bin with a lid.


In summation, I can NOT say with any degree of certainty that this will work for me, or for you. (As Vikki P said as well but after a long fight for her.) I can say, I bet it gives us the best chance possible. I will post as to how my situation goes. Please do the same.

Learn the information on http://www.animalagteam.msu.edu/uploads/files/20/Tech Bullitin Land Use.pdf inside and out because this really is an amazing piece of paper.

If you are still needing more assistance than this, or can't relate it to your case directly, I don't know that I can help you but I'll try. Send me an email.

*melodramatic ending* Now go...go and make your chicken farms. From those chicken farms make chicken eggs. From those chicken eggs make chicken friends. From those chicken friends make chicken lovers. With enough chicken lovers...we can change the world!!!!!!



Warm Regards,


[email protected]