After 2006 the relationship between Small Farmers and MDA over Right to Farm issues worsened. Small Farmers read the RTF law and the Papesh court case and believed they were protected by Right to Farm, and were bewildered by the lack of support from MDA. Meanwhile, MDA apparently felt emboldened by the secret 2006 informal Attorney General opinion, even though the MDA must have known that it was based on false information. In 2011 Rick Snyder took office as a newly elected Governor, and appointed Keith Creagh as the new Director of the renamed Michigan Department of Agriculture and Rural Development. At this point, as events unfolded in Detroit, Small Farmers finally came to understand that MDARD was attempting to use the Site Selection GAAMPs as a vehicle for denying different classes of Michigan citizens from Right to Farm protection, based only on where they live.
The story of what happened in Detroit in late 2011 really began In 1999, when Senate Bill 205 was introduced, and proposed to amend Michigan’s Right to Farm Act to prohibit local governments from enforcing regulations more strict than the Right to Farm Act. In 1999 Kwame M. Kilpatrick of represented Detroit, and he voted for the passage of that 1999 amendment.
By the early 2010s, of course, a great deal had changed, and the establishment of large farm operations within Detroit was proposed as a way for the city to solve problems of vacant lots, unemployment, and food security. Although the ability to sell large tracts of vacant lots was attractive, Detroit refrained from moving forward out of concern that the clear language of the 1999 Right to Farm amendment would prevent Detroit from exercising city-level control of farming operations within its borders.
In 2010 Representatives Gabe Leland (D-Detroit) and Mike Huckleberry (D-Greenville) attempted to address the issue of Right to Farm protection in Detroit, by introducing HB 6458 to exclude cities with over 900,000 residents from the Michigan Right to Farm Act. In an October 28th, 2010 article, the Great Lakes Echo reported that MDA opposed this effort because Right to Farm relies on “science-based, acceptable practices that allow commercial agriculture to operate safely and responsibly.” House Bill 6458 never left the Urban Policy Committee that it was assigned to.
In 2011 a second attempt was made to use legislation to exempt Detroit from Right to Farm protection, this time by State Senator Virgil Smith (D-Detroit) and Joe Hune (R-Chair of Senate Ag Committee). On November 28th, 2011 the Detroit Free Press reported that these two senators had prepared a bill to exempt cities of over 600,000 residents from Right to Farm Protection, and on November 29th MLive reported that the bill would be introduced that day. The bill was never introduced, however. Instead, on December 14th MDARD proposed language to the 2012 GAAMPS to exempt any Michigan citizen living in a city of over 100,000 from Right to Farm Protection, and on the same day the Agriculture Commission approved those changes.
This was an astonishing turn of events, for a number of reasons. Here is how the events of November and December 2011 look from an MDARD perspective. First, changes to the GAAMPS normally occur during the course of a full calendar year, during which there are many opportunities for public comments. In contrast, the language that would become the 2012 Preface was not included in the Draft 2012 GAAMPS presented on September 1, 2011, was not included in the draft discussed at the public comment period on September 28, 2011, and was not included in the Draft 2012 GAAMPS that were formally presented to the commission at the November 9, 2011 Agriculture Commission meeting. Indeed, at that meeting Jim Johnson advised the Commission that the Department was considering creating an Urban Agriculture GAAMPs.
This was followed, of course, by the November 28, 2011 Detroit Free Press article that announced that Virgil Smith and Joe Hune would introduce a bill to exempt Detroit from Right to Farm protection, and the November 29, 2011 mlive.com article that announced that the bill would be introduced the next day. One clue of what happened next is available from December 2011, when Virgil Smith provided an explanation of what happened on his website: "Before I introduced my bill which would allow Detroit to control agricultural development in the city the Michigan Department of Agriculture asked me to wait so they could better explain what they are doing on this issue. On December 14, 2011 the Department will hold a meeting that will allow municipalities with a population of 50,000 or more the ability to regulate farming activity."
Finally, on December 14, 2011, the Agriculture Commission met, and was for the first time formally presented with the 2012 GAAMPS Preface language that would exempt all Michigan citizens living in cities of over 100,000 from Right to Farm protection. Members of the Detroit City Planning Commission (DCPC) attended and according to the minutes of that meeting Laura Buhl expressed the following concern (bold added by me):
However, DCPC has concerns about the method being pursued, which appears to be an administrative exemption. It is not clear that the Act gives the Michigan Commission of Agriculture and Rural Development the authority to essentially "anoint" zoning ordinances from certain cities into the GAAMPs without following the requirements for review and recommendation as set out in the Act's definition of GAAMPs. The possible lack of authority to exempt some zoning ordinances through GAAMPs would leave Detroit open to legal challenge. We believe the best way to be allowed to develop regulations in a manner that preserves the public health, safety, and general welfare, while protecting the City from litigation, is to seek a legislative fix by changing the text of the Right to Farm Act in order to exempt large cities.
At the same meeting Danielle Allison-Yokum from Attorney General Bill Schuette’s office stated that she had been working on this issue to meet policy goals while remaining within the confines of Right to Farm. The minutes record that in her view:
The language proposed would exempt the City of Detroit and other municipalities of 100,000 or more in population from the GAAMPs. It does not, nor does the Commission have the authority, to exempt them from the Right to Farm Act which applies more broadly as a statute. The Attorney General's Office believes what has been proposed is within the confines of the Right to Farm Act and does accomplish the goals being sought.
Although this argument attempts to separate the authority of the Agriculture Commission over the language of the GAAMPs from their authority over Right to Farm protection, it ignores the statutory link between the GAAMPs and Right to Farm, which farmers are keenly aware of: if putting farmers in a position in which it is impossible to meet GAAMPs requirements is equivalent to putting them in a position in which it is impossible to earn Right to Farm protection. There is no real distinction, because Right to Farm protection depends on compliance with applicable GAAMPs. Both the Attorney General and the Agriculture Commission chose to ignore the implications of that statutory link, however, and on December 14, 2011 the Michigan Commission of Agriculture and Rural Development approved the changes to the 2012 GAAMPs preface that effectively exempts cities of over 100,000 residents from the GAAMPs and therefore from the possibility of Right to Farm protection.
Detroit wasn't so sure.
On February 21, 2012, Senators Joe Hune and Virgil Smith wrote a letter to Attorney General Bill Schuette, requesting a formal opinion on whether the adoption of the new language in the 2012 Preface to the GAAMPs complies with all procedural requirements of the Right to Farm Act, and then specifically asked whether the RTF Act preempts the application of municipal zoning ordinances for commercial farming operations. The Detroit City Planning Commission provided a written update on March 29, 2012 to inform the Detroit City Council about these changes to the 2012 GAAMPs and the request for a formal Attorney General Opinion, and stated there that, “We are not confident that the Act gives the authority to make this type of administrative determination and therefore, still leaves the City vulnerable to being challenged based on Right to Farm protections.”
Now in 2014 it seems that the legal concerns raised by the City of Detroit were valid, because the request for a formal legal opinion from Attorney General Bill Schuette on the 2012 GAAMPs Preface was never met. According to the Attorney General's Office, Senators Hune and Smith withdrew their request for that opinion in the Fall of 2012.
The change made to the 2012 GAAMPs and the changes to the proposed 2014 Site Selection GAAMPs have significant similarities. In both instances the GAAMPs are used by MDARD to serve a purpose for which they were not designed: to globally exempt whole classes of Michigan residents from Right to Farm protection, regardless of their agricultural management practices, and instead based only on where they live. MDARD will answer that zoning has always been a part of the Site Selection GAAMPs, but in previous versions farming operations always had some recourse that would allow them to continue to farm; if a Livestock Production Facility (50 animal units or more) was not permitted in a certain place, then the farm could restrict their animal number to fewer animals to earn Right to Farm protection. In contrast, the proposed changes to the 2014 Site Selection GAAMPs preclude even a single animal in areas that are zoned residential, thus providing no mechanism for farms to both meet generally accepted agricultural and management practices, and to maintain their farm.
My personal view is this new kind of GAAMPs language, designed to exempt whole classes of Michigan citizens from Right to Farm protection, would not withstand a court challenge. And given the uncertain legal ground of the change made in the 2012 GAAMPs, it would seem prudent for the Ag Commission to get those legal questions answered before approving the even more sweeping changes proposed to the 2014 Site Selection GAAMPs. Instead, of course, the Agriculture Commission is scheduled to vote on those proposed changes on March 20th.
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