Michigan Right to Farm Law, what does it mean?

[ziggy67]

My local township gave me a ticket(notice) for haveing my birds in a sub-divsion,(which is the only way they can give you the 30 day notice of eviction notice for them).
So I checked into how to use the RTFA from the governors office, and they let me know my best option was probably to turn it into a farm,(there are no property restictions I only have 3 acres) but they let me know all the paperwork I have to have in place, how everything had to be setup, and that everything had to be closely inspected by someone from the department of the State Department of Agriculture.
Before the State of Michigan could step in though I had to handle the notice(TIcket) with my township, which I did take a copy of the RTFA to the Magistrates office and he decided that he was going to not listen to that, and he did not care that I was getting to be turned into a farm. I told him I was selling eggs, and keeping geese for pets. So I had to get a lawyer just to be able to keep the 20 birds that I have now, and I am subject to inspection to count at any time. Our township decided they where going disregard the RTFA because they thought it was not in the courts best interest in defending the county, township.

 

[wingless]

Hi ziggy67 -

My understanding of the MRTFA is that to be a farm you just need to have chickens (or other plants or animals) used in the commercial production of farm products. Having chickens and selling eggs - even just a few to friends and neighbors - qualifies. 3 acres is very nice, but unnecessary. Anyone, on any lot size qualifies as farm in Michigan if they have chickens and sell eggs.

It is nice that they told you about all the paperwork you need, but as far as I can tell the law doesn't actually stipulate much in that respect.

As far as needing to be inspected by the State Department of Agriculture, I don't think the state will come out, even if you request an inspection. I tried to get them to inspect my operation last summer and they refused.

Finally, your township cannot disregard the MRTFA. The MRTFA specifically forbids them from limiting your rights to run a commercial farming operation.

I've read a lot about this, and now post the best information I've found as links in my signature line. I especially recommend the first one. I would read it, and check to make sure that everything that I stated above is true (I think it is all in there) - and then make a copy and give it to your township official. Make sure they don't miss the part below, from page 6, since it tells them what they are not allowed to do:

(6) 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.

Here's that link again:
http://www.animalagteam.msu.edu/uploads/files/20/Tech Bullitin Land Use.pdf

 

[CaraBear]

GRRR -

Okay, got a letter back from the City Attorney today....here's what it reads:

This letter will acknowledge receipt of your letter dated May 21, 2012.

I appreciate your proactive stance and fully understand that your letter is not written with the intent of asking permission, but more in line with telling the City of Midland (City) what you're oging to do about chickens in a residential area.

It is not my intent to address each paragraph of your letter or debate cases or statutory citations that are included in your correspondence. My response represents the City's position and will be made very clear in the following.

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, The listed property owner is J**** B*****.

Further, the Right to Farm Acti is intended, in large part, to protect "pre-existing agricultural uses" from violating local zoning laws.

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.

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.

Also keep in mind that the Planning Commission, which is an advisory commission only to the Midland City Council, proposed an amendment to the City of Midland Zoning Ordinance regarding chickens and it was voted down by the City Council with a 5-0 vote on October 24, 2011.

In summary, chickens are not allowed to be kept in a residentially zoned area within the City. Violations subject the home owner to court related actions and penalties as found in our local ordinances.

This reply has nothing to do with your statements in your letter of growing a garden. This deals only with the issue of chickens.

I do appreciate you proactive approach and hope you fully understand the City's position as well as the penalties associated with zoning and ordinance violations.

Sincerely,

*City Attorney*


So - there you have it.....so many responses...care you add your thoughts!?!?!?

 

[Lazy J Farms Feed & Hay]

So - there you have it.....so many responses...care you add your thoughts!?!?!?

That seems like a reasonable response. I am in the camp that believes that chickens are livestock and simply saying "I'm a Farm" does not allow one to have livestock in a urban/suburban/subdivision setting.

Jim

 

[MaryLang]

Time to try the ordinance amendment again. I've tried using both tactics at the same time. Using MRTFA and/ordinance amendment, and MRTFA was shot down pretty fast, and the attorney I found to work pro-bono would not fight for me on this Act. But ordinance change seems to be the better way in my village. Find out what you can about the previous attempt. Find out what went wrong and try to get it on the table again. I'm lucky my council seems very supportive, I'm amazed your towns previous attempt was shot down 5-0, something certainly didn't sit well.

 

[wingless]

Hi CaraBear -

I think that everything the city attorney said about ordinances in the City of Midland is irrelevant, because you aren't claiming your rights under those local ordinances; presumably you agree that the local ordinances do not protect you.

The only real question on the table is whether you are protected by the MRTFA, despite the city ordinance. I count exactly one sentence that deals with that issue, and it is ambiguous:

"Further, the Right to Farm Act is intended, in large part, to protect "pre-existing agricultural uses" from violating local zoning laws." - note that this sentence in no way asserts that the MRTFA doesn't also cover other cases, including yours.

Does the city attorney understand that if the City of Midland enforces an ordinance against you they are acting in direct conflict with a state law passed by the Michigan State Legislature in 1999? They can't claim ignorance, because you provided them with that information in your letter:

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

Good luck. I'm no lawyer, but I do think the law is on your side.

 

[blackswan]

IMHO
the law and the president setting cases may indeed be on your (our) side, but it sounds like you will have to prepare for more of a fight. I do wonder why the counsel turned down the proposal unanimously. My suspician is that they didn't take the time to educated themselves, but voted it down based on ignorance.
I suppose the question is how much of a fight are you prepared to go forward with?
Would a call to the local paper with your side of the story help? I don't know if it is helping my situation, but our local paper ran a story after I asked for the ordinance to get changed at a city counsel meeting.
Good luck!
Michelle

 

[VikkiP]

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!

 

[RaZ]

You are a font of useful information, VikkiP.
I have been copying and referring to your data (and other sources) for my fight with the city.

There is a city council meeting on June 11, 2012 and a change to the ordinance is on the agenda. I know that there are several of us who will be there to speak on the benefits of having backyard flocks. Myself, a few other chicken owners and several of my egg customers.

Thanks for breaking ground for us.

 

[VikkiP]

Interesting developments that I had not previously seen:

http://www.michigantownships.org/downloads/all_things_ag_johnson.pdf

See specifically slide 18

A thumbnail sketch of some important cases:
http://lu.msue.msu.edu/pamphlet/Blaw/SelectedPlan&ZoneCourt RTFA 1964-2006.pdf

And a very, very important point from City of Troy vs. Papadelis, 2006, unpublished:

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 agricultural
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.”