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July 16 2019

Right to Farm Act: State Removes Local Zoning from Consideration in Livestock Site Selection GAAMP

By: James F. Scales

State law preempts local zoning and land use control over many different types of land uses. One of the most important protections is for commercial agricultural operations under Michigan’s Right to Farm Act (RTFA). Local governments often face difficult issues about whether they can enforce their ordinances with respect to farm animals, accessory buildings, and farm market sales.

Originally, the RTFA protected commercial farming operations from private nuisance suits brought by neighbors. In 2000, the RTFA was amended to provide that local zoning and other ordinances which extend, revise or conflict with the RTFA or Generally Accepted Agricultural and Management Practices (GAAMPs)would be preempted.

GAAMPs are adopted and updated annually by the Michigan Department of Agriculture and Rural Development (MDARD). There are currently eight GAAMPs for manure management, care of farm animals, nutrient utilization, irrigation, pesticide utilization, farm markets, and cranberry production. One of the most important is the GAAMP for Site Selection and Odor Control for New and Expanding Livestock Facilities.

In May 2019 the MDARD made significant changes to the Site Selection GAAMP – in the face of significant opposition from the Michigan Townships Association and many local governments – which removed consideration of local zoning from the determination of acceptable sites for livestock production.

Essentially, if a site is acceptable for livestock production under the Site Selection GAAMP, local zoning controls on the types of animals, number of animals, setbacks, lot area, or similar restrictions are preempted. The Site Selection GAAMP operates by placing proposed sites into four categories:

  • Category 1 sites are those in areas which are heavily agricultural and are normally acceptable for livestock facilities.
  • Category 2 sites are in areas which have some limitations which require special management practices for livestock facilities.
  • Category 3 sites are generally not acceptable for livestock production facilities with over 50 animal units.
  • Category 4 sites are not acceptable regardless of the number of animals and are expressly subject to local ordinance on the keeping of farm-type animals.

The classification depends primarily on the number of animal units and the number of non-farm residences within a specified radius. The number of animal units assigned is based on the type of animal according to a table in the Site Selection GAAMP. Slaughter or feeder cattle equal one animal unit each, two and one-half swine equal one animal unit, 100 hens equal one animal unit, and so on.

In the past, the Site Selection GAAMP included the following consideration in the determination of Category 1 or 2 sites: “New and expanding livestock facilities should only be constructed in areas where local zoning allows for agricultural uses.” The May 2019 amendment to the GAAMP removed that reference to local zoning. Reference to zoning was also removed from the determination of Category 3 sites. Therefore, for Category 1, 2, or 3 sites, the acceptability of the site for livestock facilities is now determined based on animal units and non-farm dwellings in the vicinity, and zoning is not considered.

Zoning was also removed from consideration of the classification of Category 4 sites, but that change may actually be helpful to some municipalities. Formerly, a site was classified as Category 4 and unacceptable for livestock facilities only if the location was both “primarily residential” and not zoned to allow agricultural uses by right. Many rural communities allow farming within a majority of their boundaries, even though the predominant use may be large lot residential. Under the prior GAAMP, this meant that much of the community would not be eligible to be classified as a Category 4 site. After the May 2019 amendment, classification as a Category 4 site is now based solely on whether the area is “primarily residential.” This is defined as a place where there are more than thirteen non-farm residences within 1/8th of a mile of the site, or if there are any non-farm residences within 250 feet of the livestock facility. The removal of reference to zoning requirements for Category 4 sites may be a benefit to some rural townships.

Protection under the RTFA extends only to activities used in the “commercial production” of farm products. A property owner owning horses or raising livestock or chickens solely for their own use would not be protected by the RTFA. There is no threshold for what constitutes the commercial production of farm products, and the courts have held that a very small amount of sales would qualify. As a result, many municipalities which are encountering difficulties with the RTFA are not having issues with large-scale bona fide commercial farming operations, but rather are struggling with small scale hobby farms and with landowners who are using the RTFA as a pretext for keeping a few horses, cows, chickens, or avoiding zoning rules or building code regulations for accessory buildings.

Not only can it be difficult to determine if someone is engaged in the commercial production of farm products, but the GAAMPs give rather vague guidelines, so it can be difficult to determine whether your local ordinance is contrary to a GAAMP or not. Unfortunately, the price of being wrong can be high – the RTFA provides for an award of attorney fees to a farm operator who prevails in a nuisance action brought by a private party or municipality.

We regularly represent and advise clients regarding zoning ordinance enforcement and other issues involving the RTFA and the GAAMPs. If you do encounter issues with a landowner who is claiming to be protected by the RTFA, we suggest that you contact one of our municipal attorneys.