http://lu.msue.msu.edu/pamphlet/Blaw/RightToFarmAct LocalRegulationPreemptionTable.pdf
This document was sent to me today by
Brad Neumann, AICP
Government & Public Policy Educator
Michigan State University Extension
As Ms. Norris is on a temporary leave
This is the letter he wrote to me
Ms. Brejnak,
It is true that case law on the Michigan Right to Farm Act (RTFA) and a recent Michigan State Law Review* article suggest that a local regulation restricting farms to only certain zoning districts contravenes the RTFA, so the local regulation is preempted. 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 sitting, farm markets), so local regulation to allow farms in only certain zoning districts is appropriate. In other words, according to the MDARD, the City of New Baltimore can allow for farming in certain districts and ban it in other districts.
Following MDARD’s thinking, even if farming was allowed in a residential zoning district, the RTFA only offers protection from nuisance suits and preempts certain local regulations if the following conditions are met:
· The land use or activity is a “farm” or “farm operation” (Section 2(a) and 2(b) of the RTFA);
· The farm or farm operation is producing a “farm product” (Section 2(c) of the RTFA); AND
· The farm is engaged in commercial production (Section 2(a) and 2(b) of the RTFA and Charter Township of Shelby v. Papesh, 704 N.W.2d 92, 102 (Mich. Ct. App. 2005)).
I write ‘certain local regulation’ (above) because the only aspects of local regulation that are preempted by the RTFA (after the aforementioned criteria have been met) are those specifically detailed in the RTFA or any of the published Generally Accepted Agricultural Management Practices (GAAMPs). The RTFA reads in part “… 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" (MCL 286.474(6)). In short, if it’s in the RTFA or any of the GAAMPs (
www.michigan.gov/gaamps), it cannot be regulated locally. The reverse is true though too – if it’s not detailed in the RTFA or GAAMPs, it can be regulated locally.
I recommend reviewing the following decision tree developed by MSU Extension in order to familiarize yourself with the current and varied opinions on RTFA jurisdiction:
http://lu.msue.msu.edu/pamphlet/Blaw/RightToFarmAct LocalRegulationPreemptionTable.pdf. Given the MDARD’s opinion on the matter (that is, that local regulations can restrict farming to certain zoning districts), your first approach of showing examples of other Michigan communities that have done this successfully may be the most fruitful.
*Norris, Patricia, Gary Taylor and Mark Wyckoff; “When Urban Agriculture Meets Michigan’s Right To Farm Act: The Pig’s in the Parlor”; Michigan State Law Review; 2011 MICH ST. L. REV. 365.
My thoughts: as mentioned before we have opposing arms of government regulation with differing opinions (laws?). I'm afraid that my 'let's work together approach' with the MRTF act as my trump card may not hold up.
The other info that I have about New Baltimore is that the council is aware of an existing chicken coop (and the homeowner is on the school board).
Decisions decisions
