Our Feed

Michigan enacted the Right to Farm Act more than 30 years ago to protect farmers from lawsuits by neighboring property owners. The law was amended in 1999 to extend this protection to ordinance enforcement actions by local governments. Despite its long history and some general familiarity with the law, many details about the Right to Farm Act are still unknown or misunderstood by township officials and farmers as well. This E-Letter will help you unravel the truths from the myths about this law.

RTFA Protects Farmers from Neighbors and Local Governments

Enacted in 1981 and amended in 1999, the Right to Farm Act (the RTFA or Act 93) is intended to protect farms from claims of nuisance activity by neighbors—like the claim of nuisance caused by odors from the nearby farm. But as amended Act 93 also insulates farmers from certain alleged violations of local zoning ordinance or other land use regulations under some circumstances. This changes the ground rules for ordinance enforcement when agricultural operations are involved.

Consider the typical zoning enforcement action: in its simplest form, it is the township’s claim that a violation of the zoning ordinance constitutes a nuisance per se that must be abated by a court. This straightforward concept can become complicated if the alleged zoning violation stems from agricultural activities on the property. If the property owner demonstrates that he or she satisfies (1) the Act 93 definition of a “farm” or “farming operation” and (2) the state-adopted generally accepted agricultural management practices (the GAAMPs), that property owner is essentially immune from the township’s claim. In other words, the RTFA preempts local zoning if these two criteria are satisfied.

The Facts are Crucial

As the Court of Appeals explained in the most recent RTFA case, decided earlier this month, whether these two criteria are met depends on the facts. In that case, the property owners were using the property by maintaining piles of dirt, rocks, asphalt and large excavation sites, storing commercial vehicles, materials and equipment on the property, and having as many as 500 trucks visit the property.

The township considered these activities to be commercial business operations, none of which were permitted under the zoning ordinance for agriculturally zoned land. But the property owners claimed that they were attempting to start a tree farm so that they could produce and sell trees for a profit. If true, such a tree farm would likely be permitted in an agricultural district and most likely protected under Act 93.

The Court was faced with a number of conflicting reports about the activities on the property from neighbors, township witnesses, and even a representative from the Michigan Department of Agriculture and Rural Development (MDARD) Right to Farm Program. The Court ultimately sent the case back to the trial court for further proceedings to unwind the disputed facts. But its opinion gives an excellent primer about the practical ways to prove or disprove a RTFA defense in an ordinance enforcement proceeding. Lima Township v Bateson, Michigan Court of Appeals (Sept. 19, 2013).

When facing a RTFA defense to an ordinance violation, courts will require the property owner to prove two things: (1) there is a farm or farming operation on the property and (2) the GAAMPs are satisfied.

What is a Farm or Farming Operation?

The RTFA and a long line of court cases define the key terms “farm” or “farming operation.” It is important to understand these terms and a few other Act 93 terms as you consider enforcement actions against potential agricultural uses or activities in your township.

A “farm” is defined as land, plants, animals, buildings, structures, including ponds used for agricultural or aquacultural activities, machinery, equipment, and other accessories that are used in the commercial production of farm products.

“Farm products” means plants and animals useful to human beings produced by agriculture and include a variety of things, like livestock, grains, crops, dairy cows, chickens, fur, and even trees.

A “farm operation” is 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. A farm operation includes things like:

• marketing produce at roadside stands or farm markets
• generating noise, odors, dust, fumes, and other associated conditions
• operating machinery and equipment necessary for a farm (this includes, among other things, irrigation and drainage systems and pumps and on-farm grain dryers and movement of vehicles, machinery, equipment, and farm products)
• field preparation and ground and aerial seeding and spraying
• applying fertilizer, conditioners, liming materials, or pesticides
• using alternative pest management techniques
• fencing, feeding, watering, sheltering, transportation, treatment, use handling and care of farm animals
• managing, storing, transporting, using and applying farm by-products, including manure or agricultural wastes

Courts have consistently interpreted the RTFA to require that the claimed farm or farming operation be engaged in “commercial production.” This means that the property owner must be producing or manufacturing an item with the intent to market and sell it at a profit. There is no bright line rule to explain how much a farmer must sell to be considered engaged in commercial production.

This can be a critical distinction in many ordinance enforcement proceedings, because it means that property owners who desire to keep animals or conduct some sort of agricultural activity for their own benefit alone are not entitled to the protection of the RTFA. For instance, in one recent case, the Court upheld a township’s zoning ordinance that prohibited keeping of horses on property smaller than 1 ½ acres. The key to the successful enforcement in that case was that the property owner did not keep the horses for profit, because she did not breed horses, board horses or sell horse rides. But with a twist of the facts, the case may have turned out differently. Brown v Summerfield Township, Michigan Court of Appeals (August 23, 2012).

How and when are the GAAMPS satisfied?

The MDARD is authorized to develop and adopt the GAAMPs, and it has developed several sets of GAAMPs to date. The GAAMPs are intended to be scientifically based and developed with industry, university and multi-government agency input. They are updated annually, as an acknowledgement that agricultural operations continue to change, and new practices may be developed to address the concerns of the neighboring community. Farms and farming operations that voluntarily follow these GAAMPs are provided protection from public ordinance prosecution or private nuisance litigation under the RTFA, as discussed above.

There are currently eight sets of GAAMPs:

1. Manure Management and Utilization
2. Pesticide Utilization and Pest Control
3. Nutrient Utilization
4. Care of Farm Animals
5. Cranberry Production
6. Site Selection & Odor Control for New and Expanding Livestock Production Facilities
7. Irrigation Water Use
8. Farm Markets (including Roadside Stands)

You can review copies of the GAAMPs and other RTFA information on the MDARD website at this link: http://www.michigan.gov/mdard/0,4610,7-125-1599_1605—,00.html.

The MDARD’s Right to Farm Act Program, on request, will send representatives to review activities on a parcel for an initial determination of compliance with the GAAMPs. The property owner should also maintain records or evidence of compliance with the standards. If your township has questions about whether a particular parcel has complied with the GAAMPs, you may consider contacting the MDARD to discuss it, or you may submit a Freedom of Information Act request for the MDARD’s public records related to that particular property. You may learn important information that will reduce or eliminate the “surprise” defense that the property owner is immune from prosecution under the RTFA.

MDARD Complaint Investigation

It is not uncommon for townships to receive neighbors’ complaints about farms or farm operations, for things ranging from the use of manure to dust, noise, odors, water pollution, keeping of numerous farm “pets” and the like. The MDARD investigates those types of complaints on request. The RTFA requires the MDARD to conduct an on-site inspection of the farm or farm operation within seven (7) business days of receiving any complaint. The MDARD must also notify the township of any complaints received.

If the MDARD finds the farm or farm operation in compliance with the GAAMPs, the property owner and township will receive notice of that finding. If there is a potential problem, however, the MDARD will engage in a corrective action plan with the property owner, and the problem typically must be resolved or corrected within 30 days. The MDARD will then conduct an on-site inspection to review the status of the farm or farm operation. The township will not only get notice of the follow-up visit, but will have an opportunity to send a representative to the inspection. If the problems persist, the township may ask for a copy of any subsequent implementation plans.

MDARD Assistance with Local Ordinances

If your township is considering a proposed ordinance that might contain standards different than the GAAMPs, consider submitting a copy of the proposed ordinance to the Director of the MDARD for review. The submission must be accomplished at least 45 days before the township would approve and enact the ordinance. The Director would hold a public meeting in the township to review the ordinance, consult with various agencies regarding the standards, and, within 30 days of the meeting, make a recommendation as to whether it should be approved. If an ordinance receives that stamp of approval, the township is in a much better position when enforcing the ordinance’s provisions.

Zoning Can Prevent Agricultural Activities under Some Circumstances

There are instances where farming may be prohibited or restricted by local zoning, despite the protection of the RTFA. A prime example are the GAAMPs for Site Selection and Odor Control for New and Expanding Livestock Production Facilities, which exclude the development of new livestock facilities and the expansion of existing livestock facilities in areas where zoning does not permit agriculture.

If land is zoned for residential use—not for agricultural use—the siting of livestock facilities and the expansion of livestock facilities would not be approved under the Site Selection GAAMPs. If a property owner attempted to develop a new livestock facility (or expand an existing one) in a residential district that does not permit any agricultural activities, the property owner would be unable to comply with the GAAMPs and therefore would not be entitled to the RTFA defense.

But if the zoning ordinance allows any agricultural activities in a residential zoning district, that potentially opens the district for other types of agricultural activities, even those that may not be expressly allowed by the zoning ordinance. For example, if horses are allowed in a residential district, that may expose that entire district to the location of a new animal feeding operation. In other words, care must be taken not to allow the “camel’s nose in the tent,” if you don’t want to invite in the whole camel!

New Legislative Developments

The Legislature recently approved House Bill 4732 to exempt certain roadside farm stands from plumbing fixture requirements of the State Construction Code Act and the construction code standards and the requirement to have electric power. The bill applies to farm stands that are:

• Used seasonally
• Smaller than 400 square feet in size, and
• Anchored securely to the ground.

The bill does not change the current requirement that at least 50% of the product sold on these stands must generally come from the property on which the stand is located or other land owned by the roadside stand owner. It also does not change townships’ ability to require a building permit for construction of a structure to house the stand. Any roadside stand that does have electrical power still must comply with the Electrical Code. The bill was presented to Governor Snyder for signature on Tuesday, September 24, 2013.

Conclusion

The RTFA is something to consider if your township is contemplating ordinance enforcement actions against agricultural properties, or other properties where purported farming operations are taking place. The RTFA protections are afforded only to those property owners who can prove both: (1) a qualifying farm or farming operation, and (2) compliance with the GAAMPs. If the property owner cannot prove those things and the township can prove a zoning ordinance or nuisance ordinance violation, it may still be a typical ordinance prosecution case, despite any purported defense under the RTFA.

There is no one-size-fits-all answer or path to success when RTFA issues are presented. Because of that, it is important for township officials to educate themselves on the basics of Act 93 to enhance their ability to spot and assess potential issues for any upcoming ordinance enforcement actions. Please contact us if you have any questions or need assistance in enforcing ordinances where a RTFA defense may be involved.

–Helen (“Lizzie”) Mills hmills@fsbrlaw.com

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 130 years of experience in township law, and have represented more than 130 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.