Picking Sides

If everyone agreed with the Right to Farm Core Argument laid out in a previous post, there would be no conflict, no Michigan Small Farm Council, and no vote on March 20th, 2014, that could - arguably - represent a major shift in agricultural policy in Michigan against the interests of small farm operations.

So what is the conflict, and what arguments do each side use to justify their position?

I am on the side that argues that Michigan's Right to Farm law protects all Michigan citizens who meet Right to Farm criteria.  One reason I believe this is because I have read the law and I see no language that says that people who have very small farms, or who have their farms in residentially zoned areas, are excluded from Right to Farm protection.  So my own reading of the law is one reason that I believe that even small farms in residentially-zoned areas are protected by Michigan's Right to Farm Act.

But I am not a lawyer, and I appreciate that there may be subtleties that I don't understand.  Fortunately I have plenty of other actual authorities who back up my reading of the law.

The first is Dr. Patricia Norris, a professor at Michigan State University, and an expert on these issues who published Land Use Planning and the Right to Farm Act that states the following:

Judicial precedent, then, suggests that farms and farm operations that qualify for nuisance immunity may be undertaken in any location.  Zoning ordinances that restrict agricultural activity, even in areas designated solely for residential use, are unenforceable.

Second, I have read a lot of court cases.  In the two cases I know of in which the judge clearly understands that "Livestock Production Facility" is defined as 50 Animal Units on page 3 of the Site Selection GAAMPs, the judge has ruled that the Site Selection GAAMPs are not applicable to small operations with fewer than 50 Animal Units, and has ruled that the small farm operations in residentially-zoned areas are indeed protected by Right to Farm, despite local ordinances that would otherwise prohibit those operations.  Those two cases, of course, are Shelby Charter Township v Papesh from 2006, and Forsyth Township v Buchler in 2012.

Third, last summer I learned about a letter that Dr. Wendy Powers, the longtime Chair of the Site Selection GAAMPs Committee had written to the Agriculture Commission about the Site Selection GAAMPs, and I requested a copy.   And what I learned from that letter is that Wendy Powers also believes that the Site Selection GAAMPs do not apply to farms with fewer than 50 Animal Units:

Currently the Site Selection GAAMP is applicable almost exclusively to facilities with more than 50 animal units.

Fourth, in late 2011 when Detroit wanted to introduce new legislation to amend Right to Farm to add an exemption for Detroit, a report from city officials in Detroit said that MDARD wished to use the GAAMPs instead of an RTF amendment because of:

… a concern about opening the Act to further scrutiny and possible erosion of the protections for existing rural farm operations.  

Notably, MDARD did not argue that no changes were needed since the citizens of Detroit were not protected by Right to Farm, but rather only discussed the best mechanism, from their perspective, for removing that legal protection.  This is a clear acknowledgement that MDARD's position at that time was that Right to Farm protects the residents of Detroit, and indeed that officials from the City of Detroit were of the same opinion.

Fifth, on December 14th, 2011 during a meeting of the Michigan Commission of Agriculture and Rural Development, Jim Johnson, the Director of the Division of Environmental Stewardship which oversees the Right to Farm program said the following in a discussion over Right to Farm protection in the City of Detroit:

The difficulty of the issue, in terms of legal versus non-legal uses, is that the RTF Act itself does not place a restriction in any way on land use or land zoning.  It has been very clear from the beginning the RTF Act applies across the entire state.

Sixth, on August 30, 2012, in a deposition for the Forsyth Township v Buchler case, there was the following exchange between attorney Michelle Halley and Wayne Whitman, the Environmental Manager for the Right to Farm program at MDARD.  In every instance the questions (Q) are asked by Attorney Halley, with answers (A) provided by Wayne Whitman:

Q.  Okay.  I would like to get your copy of the Right to Farm Act back, and I would like to look at Section 474(6), and I am just going to read it because it is so short.  It says, "Beginning June 1st, 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" agriculture -- "agricultural and management practices developed under this act."  Are you familiar with this language?

A.  Yes.

Q.  What is your interpretation on that language?  What do you think that means in plain language?

A.  That means that the Right to Farm Act applies everywhere in Michigan, that the GAAMPs that have been developed pursuant to the act are the statewide standards with regards to farm operations, managing conditions, activities, materials on their property, siting of facilities, use of irrigation, water and so forth, to prevent pollution, to minimize nuisance conditions to non-farm neighbors.

Altogether it has seemed to me for a very long time that the preponderance of opinion is strongly on the side of those who believe that Right to Farm protects everyone in the state who meets Right to Farm criteria, regardless of the place or size of that operation.

So what is the argument on the other side?

This is difficult to answer since MDARD rarely discusses their reasoning.  At the June 2013 meeting of the Commission of Agriculture, however, there was a revealing exchange between me and the Director of MDARD, Jamie Clover Adams.  The minutes of that meeting first provide a summary of my statement to the Commissioners and to Director Clover Adams:

When contacting MDARD, she and others are usually advised that they are not covered by RTF.  During the meeting it was noted that in reviewing the law and court cases, they found very little room for ordinances to supersede RTF; if a farming operation is commercial and one follows the GAAMPs, RTF protection applies; the decision made through the 2012 GAAMPs is unclear and open to question; and MDARD's position is not in line or consistent with the court cases.

And in response, according to the same minutes, Director Clover Adams responded in this way:

Director Clover Adams advised the department consults with the state's Assistant Attorney Generals who have advised MDARD is following the law.  Different opinions may exist; however, RTF is not a right to do whatever is wanted in the name of farming - it is a presumption that you are not a nuisance - there is a technical difference.  Until the advice from the Attorney General's Office is overturned by the courts, it is the law of the land, and the department will follow that law and the counsel of its attorneys.

So that is it.  The informal Attorney General opinions - which rely on an assertion made by MDA to the Attorney General in 2006 that is demonstrably untrue - is the reason that MDARD believes that small farms in residential areas are not protected by Right to Farm.

You would think that someone over there would notice that the change to the Site Selection GAAMPs that they said happened in 2006 is the same change that they are trying to push through in 2014 - and that if you connect all the dots, that means that there must be something wrong with those Attorney General opinions too.  

But that is where we are.  And all of this matters because which side you choose on this issue just might have a lot to do with how you feel about the proposed changes to the 2014 Site Selection GAAMPs.

If you believe that Right to Farm currently does not apply to small farms or to farms in residentially zoned areas, then the proposed changes are not a big deal since those farms are not protected now, and nothing is lost by making a change that ensures that they won't be protected in the future.  

On the other hand, if you believe as I do that Right to Farm protects everyone, then the proposed changes to the 2014 Site Selection GAAMPs are very significant; if approved they will represent a real shift in Michigan's agricultural policy from one in which Right to Farm is acknowledged to protect all farmers equally, to one in which a significant impediment has been introduced for farmers who live on residentially-zoned property, by the leaders of our state agricultural agency. 

The law, it is important to note, will remain unchanged by this tactic, and in my view will continue to protect all Michigan citizens who meet the appropriate Right to Farm criteria, regardless of whether the proposed changes to the 2014 Site Selection GAAMPs are approved.


Copyright 2012-2014     Wendy Lockwood Banka     All Rights Reserved