Michigan Commission of Agriculture Takes Measure to Support Local Control Over Urban Farming

As originally adopted, the Michigan Right to Farm Act (“RTFA”) was intended to protect farms and farm operations that conform to generally accepted agricultural and management practices (“GAAMPs”) from nuisance lawsuits that might be brought by nearby landowners. The scope of the RTFA was expanded, however, in 2000, when the Michigan Legislature adopted various amendments that were designed to preempt (to some degree) local ordinances that attempted to regulate farm operations and agricultural activities.

The scope and effect of the 2000 amendments became a topic of heated debate, insofar as the subject of urban farming is concerned. Some took the position that the 2000 amendments completely preempted local zoning, and therefore allowed a farm operation to be established anywhere – irrespective of local zoning – as long as the farm operation complied with applicable GAAMPs. Others more narrowly interpreted the amendments as applying only to farm operations that were otherwise lawful uses, for zoning purposes. For years, this uncertainty has resulted in some landowners battling with their local government officials about whether the RTFA allowed them to raise farm animals in residential neighborhoods, as a matter of right.

The Michigan Commission of Agricultural and Rural Development (“Commission”) has now stepped in and quelled the debate, coming down firmly on the side of local control. The Commission recently took action to ensure that local governments have the authority to decide, by ordinance, whether the raising of farm animals will be permitted in residentially-zoned areas, and, if so, to what extent and under what conditions. The Commission accomplished this by approving, on April 28, 2014, revisions in the GAAMPs for “Site Selection and Odor Control for New and Expanding Livestock Facilities.”

Insofar as urban farming is concerned, the April 28, 2014 revision to the Site Selection GAAMP included two principal changes. First, the new term “livestock facility” was added to the glossary of terms, along with its associated definition. The definition provides that a “livestock facility” is “[a]ny facility where farm animals as defined in the Right to Farm Act are kept regardless of the number of animals.” [Emphasis added.]

The emphasized portion of the new definition significantly increased the scope of the Site Selection GAAMP. This is so because the prior Site Selection GAAMP used only the term “livestock production facility,” and that term was defined to mean only those facilities that confined “50 animal units or greater,” which equates to 125 swine, 500 sheep/lambs, 2,750 turkeys or 5,000 chickens. This would have excluded almost all urban farms, which are typically much too small to accommodate, for example, 5,000 or more chickens.

Thus, by adopting the new term “livestock facility” into the Site Selection GAAMP, this provided the Commission with authority to bring all urban farms into its regulatory sphere, regardless of size, and thereby subject these urban farms to the locational standards of the Site Selection GAAMP.

There is one other subtle, but important, change reflected in the definitions of “livestock facility” and “livestock production facility.” The prior definition of “livestock production facility” referred only to farm animals that are “confined.” Arguably, therefore, this term did not apply to animals such as free-range chickens, which roam about, rather than being “confined.” However, the new definition of “livestock facility” and the revised definition of “livestock production facility” have each purposefully been drafted to eliminate the word “confined.” The definitions now instead refer to farm animals that are simply “kept.” Thus, urban farms that keep free-range chickens or other unconfined animals, are now more clearly made subject to the Site Selection GAAMP, as meeting the definition of a “livestock facility.”

The second principal change reflected in the revised Site Selection GAAMP is the creation of a new regulatory category, known as “Category 4 Sites.” These are sites that are “not acceptable for new and expanding livestock facilities and livestock production facilities under the siting GAAMPs.” In full, the new provision on Category 4 Sites states as follows:

“Category 4 Sites are locations that are primarily residential and do not allow agricultural uses by right and are not acceptable under the Siting GAAMPs for livestock facilities or livestock production facilities regardless of the number of animal units. However, the possession and raising of animals may be authorized in such areas pursuant to a local ordinance designed for that purpose. [Emphasis added].”

With regard to urban farming, the net effect of this new provision is as follows:

• A local government may adopt an ordinance that prohibits the keeping and raising of farm animals, regardless of number, on lands that are zoned primarily for residential use and where agricultural uses are not permitted by right. In this regard, a site that is “primarily residential” is defined in the new GAAMPs as a site where “there are more than 13 non-farm residences within 1/8 mile of the site or have any non-farm residence within 250 feet of the livestock facility.”
• A local government may, however, in its discretion, adopt an ordinance that permits the keeping and raising of farm animals on such lands, on whatever terms, and subject to such limitations, as the ordinance might provide.

While this will certainly be viewed as a defeat by those in favor of urban farming, it has generally been well received by local government officials. It gives local governments the discretion and flexibility to accommodate the occasional 4-H project or small hobby farm in a residential district, by special permit, while at the same time not necessarily “opening the barn door” to unrestricted livestock farming that could drastically alter the character of a residential neighborhood. And proponents of urban farming should not see this as a rejection of all methods urban farming. The Site Selection GAAMP applies only to livestock facilities, and therefore has no effect on other farming activities, such as backyard gardening. Such activities, when reasonable in scope, are traditionally viewed by local governments as being a permissible accessory use of residential property. There is no reason to think that the revised Site Selection GAAMP will alter that status quo.