The Michigan Small Farmer:

Michigan Small Farm Rights Information

 

 

On May 6, 2014 the Michigan Department of Agriculture and Rural Development issued a set of FAQs related to their controversial April 2014 Site Selection GAAMPs. Scroll down for the FAQs and The Michigan Small Farmer's point-by-point rebuttal.

 

Note: for a pdf version, with more detailed responses to the MDARD FAQs including sources and references, click here.

 

Click on the question you are interested in to see both MDARD's answer and The Michigan Small Farmer's response.

MDARD's Question #1:  What is the Right to Farm Act?

MDARD’s Answer:

The Right to Farm Act is a state law created in 1981. In the past century, people with limited understanding of farming were moving into rural areas. Typical farming conditions (dust, odors, etc.) and activities on nearby farms were unacceptable to new residents and sometimes nuisance suits were filed against the farmer. The Right to Farm Act was created in response to an increase in complaints and lawsuits. The Act calls for the creation of a set of Generally Accepted Agricultural and Management Practices (GAAMPs) and provides an affirmative defense in nuisance lawsuits brought against the farmer by neighbors when the farmer is conforming to GAAMPs or when the farm existed prior to changes in land use in the areas surrounding the farm.

 

The Michigan Small Farmer Responds: MDARD omits important information.

• The Right to Farm Act provides farmers with an affirmative defense when nuisance actions are brought by anyone, including townships and municipalities.

• The April 2014 GAAMP changes, which give local governments authority over livestock raising on thousands of small urban, suburban and rural farms, are in direct conflict with both the Right to Farm Act and relevant judicial decisions.

 The Right to Farm Act trumps any local ordinance, regulation, or resolution that tries to extend or revise any of its provisions (RTFA, Section 3(6). In other words, the Right to Farm Act was written to safeguard against the very changes that MDARD unilaterally put into effect April 28, 2014. The Michigan Court of Appeals has long interpreted the Right to Farm Act to apply to ALL commercial farms, wherever the farms are located, including zoned residential land. Further, said Court’s definition of “commercial” includes very small sales. A few eggs or the intent to sell qualify as “commercial” (a new Christmas tree farm or orchard makes no sales for many years).

• It is up to the legislature to create law, not a governor-appointed Commission. The decision about which farms are eligible for RTFA protection is not the Agriculture Commission’s to make.

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

 

MDARD’s Question #2:  What is a GAAMP?

MDARD’s Answer:

A GAAMP is a Generally Accepted Agricultural and Management Practice that a farmer may voluntarily adopt and, if the practice is followed, the farmer may use the Right to Farm Act as an affirmative defense in a nuisance lawsuit. The Act gives the Michigan Commission of Agriculture and Rural Development the authority to approve GAAMPs.

The Site Selection & Odor Control for New/Expanding Livestock Facilities GAAMP is the only GAAMP required in statute.  The requirement was added in 1999 with the first Site Selection & Odor Control for New/Expanding Livestock Facilities GAAMP approved by the Commission of Agriculture in 2000.    At that time, the law was established to protect commercial farms in rural settings from nuisance lawsuits by non-farm residents who might object to farm practices or push for zoning ordinance changes to restrict farms or squeeze farms out.

 

The Michigan Small Farmer Responds: MDARD omits information, is misleading.

 

• GAAMPs are not regulatory law. They are not law at all.  They are “policy,” at most, per the RTFA itself and  Judge Solka in Forsyth Township  v. Buchler: “The GAAMPS do not carry the rule and force of law…The January 2012 GAAMP…is, at best, a policy.”

• GAAMPs are sets of guidelines for farming practices, subject to annual revision by the Michigan Department of Agriculture and Rural Development, and approval by the Michigan Agriculture Commission.

• The Right to Farm Act gives a farmer who follows the GAAMPs a defense against ANY nuisance action, whether it is a private or a public action, whether brought by a neighbor or by local government. The farm does need to be “commercial,” but case law has held “commercial” to include very small amounts or the intent to sell. And, as the Michigan Court of Appeals has repeatedly ruled, the farm does not need to be zoned agricultural.

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

MDARD’s Question #3: What changes did the Michigan Commission of Agriculture and Rural Development make to the Site Selection & Odor Control for New/Expanding Livestock Facilities GAAMP?

MDARD’s Answer:

The Commission approved the addition of a Category 4 for site selection within the GAAMPs. Category 4 sites, defined by the GAAMPs, are locations that are primarily residential and don’t allow agricultural uses by right.  Under the Site Selection GAAMP MDARD still will determine whether a site is primarily residential, which by definition are sites with more than 13 non-farm homes within an eighth of a mile of the livestock facility or a non-farm home within 250 feet of the livestock facility.

 

The Michigan Small Farmer Responds: MDARD omits important information, misleads.

• The GAAMP contains several important changes, not just one.

• Regulation and inspection of large factory livestock farms is greatly reduced.

• MDARD says Category 4 sites lost RTF protection. But farms on Category 3 land, which are generally larger rural parcels and often zoned agricultural, lost Right to Farm protection for new or expanding facilities too.

• A new trigger was added for site review compliance, which threatens even existing farms that are not expanding.  An existing farm operation that is now designated as a Category 4 site can lose its Right to Farm GAAMPs protection, even if it qualified for that protection under previous GAAMP versions.

• Under previous versions of the Site Selection GAAMPs, farms with fewer than 50 animal units were exempt from having to comply with setbacks of hundreds of feet from property lines that were appropriately required for larger numbers of animals in order to qualify for RTF protection. That is no longer the case.

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

MDARD’s Question #4: Why did the Michigan Commission of Agriculture and Rural Development make changes to the Site Selection & Odor Control for New/Expanding Livestock Facilities GAAMP?

MDARD’s Answer:

In recent years, there has been increased interest in having small numbers of livestock in non-rural residential areas.  While a number of communities have ordinances allowing for the keeping of livestock in non-rural residential areas, many did not, resulting in increased conflict between municipalities and livestock owners in these primarily residential areas.  The changes clarify those situations when decisions regarding the keeping of farm animals in primarily residential areas should be made by local communities.  Sites that are primarily residential – more than 13 non-farm homes within an eighth of a mile of the livestock facility or a non-farm home within 250 feet of the livestock facility – and where zoning does NOT allow agriculture by right are Category 4 sites.  For purposes of the Right to Farm Act these areas are not suitable for siting farm animals.  However, local communities can decide to allow farm animals under these circumstances.  In fact, at least 40 municipalities have ordinances that allow residents to keep backyard poultry and many townships allow for agricultural activity in residential areas.

 

The Michigan Small Farmer Responds:  MDARD is misleading and mistaken.

• Confusion, not clarity, is the result of the Agriculture Commission’s approval of a GAAMPs that conflicts with both legislation and case law.

• Farmers depend on stable, rational regulatory policies; the GAAMPs is ambiguous, difficult to use, and internally contradictory.

• Michigan lost nearly 4,000 farms and 83,000 acres of farmland between 2007 and 2012. Any policy discouraging farming—urban, suburban or rural—should be viewed with skepticism.

• The real reason for the changes: MDARD wants to focus on the large commercial farms. MDARD is uninterested in providing Right to Farm protection for urban, suburban and “transitional agricultural” land.

• MDARD is not overwhelmed by nuisance complaints, as some have suggested.  MDARD has received 960 nuisance complaints in the last ten years, 1.8 complaints per week, in a state with over 52,000 farms. It’s MDARD’s job to deal with and resolve those complaints—a job that is statutorily required (RTFA Section 4 (1)).

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

 

MDARD’s Question #5:  Do the changes made by the Commission last week impact people raising food for themselves?

MDARD’s Answer:

No.  The Right to Farm Act has always applied and continues to apply to farms which are defined by the Act 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 (MCL 286.472(a)).  However, local communities can decide to allow farm animals under these circumstances.  In fact, at least 40 municipalities have ordinances that allow residents to keep backyard poultry and many townships allow for agricultural activity in residential areas.

 

The Michigan Small Farmer Responds: MDARD is misleading and omits information.

• Yes, the changes impact people raising food for themselves, if they are doing so as part of a commercial farming operation. Many people produce food both for themselves and commercially. If they lose RTFA protection for the commercial part of their farm, they lose RTFA protection for the personal part as well.

• According to MDARD, only 40 local governments out of over 1700 allow livestock. Local municipalities “can” decide to have ordinances, but very few have done so. Such ordinances take months, even years, to craft. And local government officials generally lack the degrees or job experience in animal science, environmental science, and public health associated with crafting a farm animal ordinance.

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

MDARD’s Question #6:  Do the 2014 changes to the Livestock Siting GAAMP impact agricultural land?

MDARD’s Answer:

The Commission approved the addition of a Category 4 for site selection within the GAAMPs. Category 4 sites, defined by the GAAMPs, are locations that are primarily residential and don’t allow agricultural uses by right. Under the Site Selection GAAMP MDARD still will determine whether a site is primarily residential, which by definition are sites with more than 13 non-farm homes within an eighth of a mile of the livestock facility or a non-farm home within 250 feet of the livestock facility.

 

The Michigan Small Farmer Responds: MDARD does not answer the question.

• Yes, agricultural land is impacted, including in rural areas. Thousands of farms in urban, suburban and rural areas, including zoned agricultural land, have lost RTFA protection.

• The GAAMPs newly allows an “environmental complaint” to trigger a review of an existing farm:  an existing farm operation in an agricultural area can lose its Right to Farm GAAMPs protection even if it qualified for that protection under previous GAAMPs versions.

• Category 4 sites, including those on zoned agricultural, or rural but zoned residential land, have lost all Right to Farm protection.

• Category 3 sites, which may be zoned for agriculture, have lost definite Right to Farm protection. Previous GAAMPs allowed up to 50 animal units on Category 3 land. Now, Category 3 is described by the GAAMPs as only “maybe” suitable for livestock, and elsewhere in the GAAMPs as “not acceptable.”

• Many larger (50 to 200 acre) farms are now wholly or partially in Category 3 and/or 4, have lost RTF GAAMPs protection for animals, and are unaware of it.

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

MDARD’s Question #7:  Do the 2014 changes to the Livestock Siting GAAMP impact 4-H animals?

MDARD’s Answer:

Kids with 4-H livestock projects housed on land where agricultural activities are allowed will continue to be exempt from the Site Selection & Odor Control for New/Expanding Livestock Facilities GAAMP unless they keep more than 50 animal units.  This has not changed.

 

The Michigan Small Farmer Responds:  MDARD fails to answer the question and is misleading.

Yes, many children lost Right to Farm Protection for raising 4-H animals due to the Ag Commission’s vote.  Children who live on Category 4 land have lost Right to Farm protection to raise even a single 4-H rabbit or hen. Children on Category 3 land have lost definite protection and are left in regulatory limbo.  [Updated 5/21/14]

For more detailed responses to the MDARD FAQs, including sources and responses, click here.

MDARD’s Question #8:  Are bees included in the Siting GAAMP?

MDARD’s Answer:

No.  Bees are not included in the Site Selection & Odor Control for New/Expanding Livestock Facilities GAAMP. However, bees are included in the Care of Farm Animals GAAMP.

 

The Michigan Small Farmer Responds:  MDARD has released conflicting information

Unclear. The day the GAAMPs changes were approved, MDARD Director Jamie Clover Adam told Michigan Public Radio that due to the GAAMPs’ passage, 100 Michigan communities could move ahead with ordinances against bees and poultry. Since then, MDARD has stated on its website that bees are not livestock and are not affected by the GAAMPs changes. Yet bees are defined as farm animals in the Right to Farm Act, and the Siting GAAMPs states that it regulates "farm animals as defined in the Right to Farm Act."

It's unclear, but MDARD may originally have meant to include bees in the new regulations, only retreating from that position after meeting significant pushback, given hive colony collapse disorder, which poses a threat to all North American agriculture. What is clear is that in this case, at least, MDARD seems to feel free to interpret its own GAAMPs in a way that plainly contradict the actual language of the GAAMPs. And that is very troubling for farmers looking for an unambiguous, stable regulatory policy environment. [Updated 5/21/14]

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

MDARD’s Question #9:  Can local units of government allow farm animals in areas that are not suitable for livestock under the Site Selection GAAMP?

MDARD’s Answer:

Yes.  A local unit of government can decide to allow farm animals in those areas that are not suitable for livestock under the Site Selection GAAMP.  MDARD supports the expansion of agriculture, whether for personal consumption or for local sale/distribution, as it provides an opportunity for people to be closer to local food sources. The department supports the expansion of urban agriculture and livestock production across the state but has consistently said the expansion of agriculture into urban and suburban settings must be done in a way that makes sense for all community residents, as well as the overall care of farm animals and livestock.

 

The Michigan Small Farmer Responds:  MDARD is partly right, partly wrong, and omits important considerations.

Yes and no. Fewer than 2% of local governments in Michigan have ordinances allowing livestock. It takes months, often years, for new ordinances to be crafted at the local level. Meanwhile, farms including large rural parcels and family livelihoods hang in the balance.

The GAAMPs “allows” local government to make ordinances regulating livestock keeping on Category 4 sites, but local governments which do so are in violation of the Right to Farm Act itself.

The GAAMP leaves Category 3 sits in regulatory limbo, denying them Right to Farm protection, but failing to state local governments can regulate farm animals on Category 3 sites.

Finally, MDARD fails to consider whether it is realistic or good public policy to ask local government officials to research and gain the considerable knowledge, experience and training necessary to make good laws about livestock raising. Some townships raised this issue in their letters to MDARD regarding the GAAMP changes.

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

MDARD’s Question #10: Does the Michigan Department of Agriculture & Rural Development enforce the Right to Farm Act?

MDARD’s Answer:

No.  The GAAMPs are a voluntary set of standards which help provide guidelines for using the Right to Farm Act as an affirmative defense in court.  Conformance with the GAAMPs is a voluntary action.  MDARD has no enforcement authority under the Act.   Nuisance protection under the Right to Farm Act is, continues to be, and always has been something that's determined by a judge - not the Commission of Agriculture and Rural Development or MDARD.  This has not changed.

 

The Michigan Small Farmer Responds: MDARD is mistaken.

Yes, the Michigan Department of Agriculture and Rural Development is the entity that determines whether or not a farm is in compliance with the GAAMPs.

• If a farm or farm operation is not in compliance with the GAAMPs, there is no Right to Farm GAAMPs defense.  It is disingenuous for MDARD to argue that it does not “enforce” the Right to Farm Act when it is MDARD that determines whether the RTFA defense is even available to use against a nuisance complaint.

• MDARD routinely informs individuals and townships that small farmers in residential areas are not protected by Right to Farm. (An example is documented in Judge Solka’s ruling in Buchler v Forsyth Township, Michigan Circuit Court, 2012). This encourages local governments to bring nuisance actions and lawsuits against small farmers.

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

MDARD’s Question #11: Was there public input into the changes to the 2014 Site Selection GAAMP?

MDARD’s Answer:

Yes. The Site Selection committee, chaired by a livestock expert from MSU, worked more than two years on the issue of siting livestock in urban and suburban areas. After the committee made formal recommendations to the Commission of Agriculture and Rural Development, a 16 day public comment period opened and a public input meeting was held to accept public comment. In addition, the Commission took nearly three hours of testimony over the course of three meetings before making a decision. The Commission takes public comment at every meeting.

 

The Michigan Small Farmer Responds: MDARD omits information, misleads.

A government-appointed commission voted on a major public policy and regulatory change recommended and formulated by a privately selected committee representing bureaucratic and large agribusiness interests.

Last-minute substantial changes were made at the 4/28 meeting after all opportunity for public input was formally ended. The Commission voted on a GAAMPS version on which no public comment had been made.

No oversight. No checks and balances. Almost no transparency. No policy impact report. No benchmarks.

 

For more detailed responses to the MDARD FAQs, including sources and references, click here.

MDARD’s Question #12: Does Right to Farm give me the right to farm my land?

MDARD’s Answer:

No. The Right to Farm Act provides an affirmative defense to nuisance lawsuits. Although the law is called “Right to Farm, ” it technically does not give the landowner an entitlement or a “right” to conduct commercial farming on any or all property.

 

The Michigan Small Farmer Responds: MDARD is misleading.

The Right to Farm Act trumps all local laws or rules that attempt to ban farming operations that conform to the GAAMPS and are “commercial.” (RTFA Section 4 (6): “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.”

 

For more detailed responses to the MDARD FAQs, including sources and responses, click here.

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The Michigan Small Farmer does not provide legal advice. Any information provided on this website is not intended to be legal advice, nor is it a substitute for legal services from a competent professional.

 

© The Michigan Small Farmer 2014