Court clarification on Right to Farm and local regulation
A recently published Michigan Court of Appeals case may provide some clarification over the confusing issue of local regulation and the Right to Farm Act.
For the first time in quite a while a published court case on the Michigan Right to Farm Act (RTFA) was released in the later part of September 2013. In that case, Lima Twp. v. Bateson, the appeals court walked through some of the basic principles in interpreting and applying the Right to Farm Act (RTFA) for purposes of local government regulation of farms and agriculture.
This case was partly concerned about whether the activity taking place on 30-acres was farming or not. The appeals court sent the case back to the trial court in Washtenaw County, Mich. with instructions on how to determine if the operation was a farm as used in the RTFA. Those guidelines are now case law for all of Michigan. The question in this case is now if a preponderance of the evidence shows activity on the land is a non-farm nuisance (violation of the Lima Township Zoning Ordinance (LTZO)), or if the activity is preparation for a tree farm.
What is significant in reviewing this case is that the Appeals Court reviewed the RTFA and made several points clarifying some aspects of the RTFA concerning local jurisdiction. Also significant is the appeals case is published, providing guidance in the form of court precedence. Most of RTFA court cases have not been published. Unpublished cases need not be followed by any other court, except in the court issuing that opinion. But, a court may find the unpublished case persuasive and dispositive, and adopt it or its analysis.
The courts findings were:
- However, “(u)nder the RTFA, a farm or farming operation cannot be found to be a nuisance if it meets certain criteria. . . .” (MCL 125.3407; Travis v Preston, 249 Mich App 338, 351; 643 NW2d 235 (2002) at 342-343.) (This reaffirming case law established in Travis v Preston.)
- First the task is to show that the activity is protected by the RTFA:
… we hold that a party relying on the RTFA as a defense in a nuisance action has the burden to prove that the challenged conduct is protected under the RTFA.
- Second the burden to show this falls on the person claiming to be a farm:
In keeping with our State’s jurisprudence on the applicable standard of proof, (because the RTFA is silent and there is no published case law addressing the issue) we hold that, where a party asserts the RTFA as a defense, the party asserting the defense bears the burden to prove by a preponderance of the evidence that the challenged conduct is protected under the RTFA. (Emphasis and parentheses added)
- The determination is protected by RTFA has a two-part test, and one must prove they meet those two parts:
it is clear that in determining whether an activity is protected under the RTFA, a two-prong analysis is required: first, the activity must constitute either a “farm” or a “farm operation,” and second, the “farm” or “farm operation” must conform to the applicable generally accepted agricultural and management practices. (GAAMPs).
As noted above, in order for a party to successfully assert the RTFA as a defense, that party must prove the following two elements: (1) that the challenged condition or activity constitutes a “farm” or “farm operation” and (2) that the farm or farm operation conforms to the relevant GAAMPs.
“Farm” and “farm operation” means the land, plants, animals, buildings, structures, machinery, and so on which are used in the “commercial production” of “farm products” and is not limited to a longer list of activities and operations found in the RTFA (MCL 286.472.)
- . . . . under “the plain language of the RTFA, a farm or farming operation cannot be found to be a nuisance if it is commercial in nature and conforms to GAAMPs . . . . (Shelby Twp v Papesh, 267 Mich App 92, 107; 704 NW2d 92 (2005)) at 101.)
- This Court has previously defined “commercial production” as “the act of producing or manufacturing an item intended to be marketed and sold at a profit.” (Shelby at 101.) However, “there is no minimum level of sales that must be reached before the RTFA is applicable.” (Shelby at 101 n 4.)
- Finally, the court provided instruction on how a party can proof:
If a party asserting an RTFA defense successfully proves that they maintain a farm or are engaged in a farm operation, then the party must also prove that the farm or farm operation complies with applicable GAAMPs “according to policy determined by the Michigan commission of agriculture.” MCL 286.473(1). A party can satisfy this element by introducing credible testimony or other evidence to show that their farm or farm operation complies with applicable GAAMPs as set forth by the Michigan Commission of Agriculture.
Items four, five, seven, and eight reiterate in a different format the four part test that has been used to explain this in the past. All four points must be found true for RTFA protection: (1) it is a “farm operation”, (2) producing a “farm product”, (3) with intent to be commercial, and (4) the operation follows GAAMPs.
In summary, the court ruled trees are “farm products.” But the trial court had not resolved if the appellants showed a preponderance of evidence of intent to produce trees for sale. Also the compliance with GAAMPS was not established in the trial court (the appellants (the farmer) having the burden of proof). In a footnote the court said:
If, on remand, the trial court determines that appellants are engaged in the commercial production of a farm product, then the LTZO is inapplicable. See Travis v. Preston, 249 Mich App at 344. However, if the trial court determines that the RTFA does not apply, before awarding injunctive relief, it should articulate findings as to whether appellants are in violation of the LTZO. See id. at 351; MCL 125.3407. (p. 10, n. 7)
For those interested in RTFA case law Lima Twp. v. Bateson is worth reading in its entirety. Michigan State University Extension keeps a set of materials on the RTFA available for use at the Land Use web page, specifically at http://lu.msue.msu.edu/pamphlets.htm#CourtRTFA. One of these materials is a compilation of RTFA court cases, including those mentioned in this article: Selected Zoning Court Cases Concerning the Michigan Right to Farm Act 1964-2013.