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Commission of Ag Considers Limits on Right to Farm Act

Agriculture Blog Post
April 18, 2014

Originally published by Michigan Farm News on March 11, 2014; republished with permission.

For over a decade, Michigan has enjoyed one of the most expansive right to farm acts in the nation. The Michigan Right to Farm Act (RTFA) not only protects farmers from nuisance claims, such as odor complaints, but also against restrictive zoning. The latter protection is what sets Michigan's statute apart from many other states, and also makes the law controversial in some circles, as it can override local zoning ordinances that would, in effect, prohibit farming. 

Importantly, a farm is only entitled to the protections of the RTFA if it is complying with Generally Accepted Agricultural and Management Practices (GAAMPs), which are adopted by the Michigan Commission of Agriculture. In the context of farm location, the Commission has adopted "Site Selection" GAAMPs, which generally require large livestock production facilities to be located in areas primarily designated for agricultural use. Those GAAMPs, according to their own terms, only apply to very large farms - those with over 50 animal units. Fifty animal units is the equivalent of 5,000 laying hens, 2,750 turkeys, 25 horses, 500 sheep, 125 swine, 35 mature dairy cattle or 50 feeder cattle. In other words, if farm operation had 499 sheep, then it would not have to comply with Site Selection criteria in order to be protected by the RTFA. 

The Commission is again (it did last year as well) proposing that the Site Selection GAAMPs be amended to eliminate the minimum animal threshold for applicability and further provide that areas exclusively zoned for residential use are not acceptable for livestock facilities, regardless of number. Under the proposed amendments, even small livestock facilities would need to abide by the Site Selection GAAMPs, which in turn allow local governments to exclude farming altogether in certain areas. 

The proposed amendments have drawn fire from some in the agricultural community and have also received significant media attention. But two important points have been lost in this debate. 

First, the proposed changes do not affect hobby farms (including, non-commercial backyard chicken coops) because those activities are not protected by the RTFA in the first place. Only commercial farming is protected by the statute. What constitutes commercial production is the subject of another debate, but courts have generally held that even minimal commercial production is sufficient to bring a farm within the protection of the statute. One could argue that 4-H projects, which certainly involve a commercial element, are protected by the statute, and depending on the circumstances, could lose that protection under the proposed amendments. But backyard chicken farmers who keep hens as a hobby are not affected. 

Second, the Site Selection GAAMPs only apply to operations where animals are confined, such as feed lots or large dairy operations. If a farmer has sufficient pasture to sustain a herd of sheep or cattle, for example, the Site Selection GAAMPs – including the requirement that livestock facilities be located in areas zoned for agriculture – would not apply. This too would apply to free range chicken farmers: if the farmer can raise chickens without them being confined, then neither the current nor proposed Site Selection GAAMPs have any applicability. 

The fate of the proposed amendments is unknown, but they certainly have made for a lively debate about the role of agriculture in Michigan.

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