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March 9 2020

Right to Farm Act Basics

By: James F. Scales

The Right to Farm Act (“RTFA”) is one of many State laws which preempts local control. Officials in any community that contains rural areas should have a basic understanding of the RTFA.

When the RTFA was first adopted in 1981, it only prohibited private nuisance suits by neighboring landowners against farm operations.  It did not initially preempt or limit local control.  In 2000, mostly in response to local efforts to regulate concentrated animal feeding operations, the RTFA was amended to limit local control over agriculture.  Beginning June 1, 2000, the RTFA preempted any local ordinance which “purports to extend or revise . . . the provisions of this Act or Generally Accepted Agricultural and Management Practices” or any “ordinance, regulation or resolution that conflicts in any manner with this Act or [the GAAMPs].”

Commercial Production.  First and foremost:  The RTFA only protects the commercial production of farm products.  This does not require a significant level of revenue or profits, but it does require a deliberate attempt to make a profit from producing farm products.  So, if someone is keeping horses, or raising chickens only for their own use, they are not covered by the RTFA.  For our clients who continually face this issue, we have prepared a questionnaire that can be given to property owners claiming RTFA protection or exemption from building permits, asking detailed questions about their operations, such as questions about areas under cultivation or pasture, number of animals, gross revenues, equipment used, certification or registrations, insurance and similar questions.

What are Farm Products?  “Farm products” include field crops, orchards, animal husbandry, poultry, deer, horses, fish, nurseries, trees and tree products. 

Is the Facility Necessary?  To be protected by the RTFA, there must be some connection between the facility or operation and the commercial agricultural operation.  For example, an apartment in a horse stable, although helpful and convenient, is not necessary and is therefore subject to Township zoning rules against two residences on the same property.

What are the GAAMPs?  The Generally Accepted Agricultural and Management Practices (GAAMPs) are guidelines adopted and renewed annually by the Michigan Department of Agriculture and Rural Development.  This is a five-member board, all associated with farming interests.  If an operation complies with a relevant GAAMP, it is protected from private nuisance suits and is exempt from local ordinances.  There are GAAMPs for manure management and utilization, care of farm animals, nutrient utilization, irrigation, pesticide utilization, and cranberry production.  The two GAAMPs that most often concern local governments are the GAAMPs for site selection and odor control for livestock, and the farm market GAAMPs.  The GAAMPs are available on the MDARD website – google “GAAMPs” for a current list. 

Farm Animals and the Site Selection GAAMPs.  This GAAMP impacts local units of government most often with respect to provisions in the zoning ordinance for the keeping of non-domestic animals (dogs and kennels are not covered by the RTFA).  Beginning in 2019, the MDARD amended the site selection GAAMPs for livestock to do away with the former requirement that a site was not suitable for livestock unless it was zoned to permit agricultural uses.  Now, whether the keeping of farm animals for commercial production is allowed is based on:  (i) the number of animal units; (ii) the number of non-farm dwellings within a specified radius; and (iii) the property line setback for livestock facilities.  The number of “animal units” is based on the type of animal, according to the table in the GAAMP.  For example, feeder cattle are equal to one animal unit each; one horse is equal to two animal units; and 100 chickens is equal to one animal unit.

Although the site selection GAAMPs are complicated, as a starting point a site which is defined as “primarily residential” is classified as not acceptable for livestock facilities and would be subject to local ordinances.  A site is “primarily residential” if there are more than 13 non-farm residences (a residence not affiliated with that specific farm), within a 1/8 mile radius, or there is any non-farm residence within 250 feet of the livestock facility.  “Livestock facility” means an area where animals are confined indoors or in such a concentration that natural forage species cannot grow; it does not include pasture land.   Therefore, most urbanized areas, or even suburban areas with an acre or smaller lot sizes will be considered primarily residential, and subject to local regulation of livestock.

The Farm Market GAAMPs.  Most local zoning ordinances allow farm markets, but many of those ordinances are probably non-compliant with the GAAMPs.  The GAAMP defines a “farm market” as a place where 50% of the products by retail space or gross sales are grown at the location or on an “affiliated farm.”  Many ordinances require that all of the products be grown on the location of the farm market and are out of sync with the GAAMP.  Also, there is no requirement that the farm market be operated only on a seasonal basis, and no restriction on what other products may be sold, as long as a 50% “affiliated farm” requirement is met.  The farm market GAAMP requires that farm markets must comply with local building setback requirements, provide sufficient parking (which need not be paved), comply with signage regulations, and have ingress and egress approved by the County Road Commission or MDOT.  Also, activities such as wedding/event venues, carnival rides and festivals, corn mazes, haunted barns, hayrides, and riding stables are specifically not considered to be farm markets and are subject to local regulation.

Currently, the GAAMPs only protect a farm market if it is located in an area zoned to allow agricultural uses.  The 2020 GAAMPs, which are still in draft form, would do away with the requirement that the property be located in an agricultural zone.

Building Permits.  The State Construction Code includes a provision which exempts “a building incidental to the use for agricultural purposes of the land on which the building is located” from the construction code and building permit requirements.  This means a building connected with “the act or business of cultivating or using land and soil” for the production of farm products.  It is unclear whether this requires the commercial production of farm products, as does the RFTA.  We interpret it to mean that commercial production is required for the exemption, and that the building must be used solely for agricultural purposes.  In any case, farm markets are specifically required to comply with the building codes and obtain building permits. 

Accessory Buildings versus Farm Buildings.  Another issue that arises is whether barns and other farm buildings must comply with the requirements for accessory buildings, such as number and size limits.  If the property is in a district that allows farms, and the building truly is being used as a barn or for farming purposes, then it is our opinion it is not an “accessory building” but is a principal building.  If it meets the setback and other requirements for a principal building, it should be permitted.

The Right to Farm Act has been subject to a great deal of litigation, and there are numerous - often inconsistent - decisions interpreting it.  If a local government commences enforcement action in Court against an activity determined to be protected by the RTFA, the municipality can be ordered to pay the farmer’s attorney fees.  So local governments need to be cautious about enforcing their ordinances if commercial agricultural activities might be involved.

We hope this article makes you aware of the basic issues involved in the Right to Farm Act.  If you have questions, we encourage you to contact us for further guidance.