Existing livestock farms in ‘primary residential’ areas can continue

Recent changes to the Site Selection GAAMP do not likely affect existing livestock facilities in primarily residential areas. Considered nonconforming land uses, such livestock facilities are probably allowed to continue under zoning.

Since the April 2014 updates to the Generally Accepted Agricultural and Management Practices for Site Selection and Odor Control for New and Expanding Livestock Facilities (Site Selection GAAMP), questions have arisen as to whether existing livestock facilities in primarily residential areas (Category 4 Sites as defined in the Site Selection GAAMP) are allowed to continue. The short answer is probably yes, but as is usually the case, the short answer does not tell the whole story.

First of all, a legal land use at the time of establishment must be allowed to continue if zoning is later changed. A legally formed land use is one that was an allowable land use in the zoning district at the time the land use began. Allowable land uses can include those listed in the zoning district as ‘uses by right,’ meaning no special approval is required, and those listed as ‘special land uses,’ which require the landowner to obtain a special land use permit.

An example is a commercial zoning district that allows drive-thru restaurants as a special land use. Let’s say that after a landowner obtains a special land use permit from the local unit of government for a drive-thru and builds the building, the zoning is amended such that drive-thru’s are no longer allowed. The drive-thru is allowed to continue since it was a legal land use when it was established. It is simply considered a nonconforming use after the amendment, meaning it does not comply with current zoning standards, but it did at the time it was established.

The same applies for agricultural operations, although, in the case of agriculture operations it is a little more complicated than the example above. The reason is that some courts have concluded that commercial agricultural operations are able to establish in any local zoning district based on the Michigan Right to Farm Act (RTFA) and its preemption of local regulation of agricultural activities (see MCL 286.474(6), Papadelis v City of Troy (Court of Appeals; Unpublished, September 2006), and Village of Rothbury v Double JJ Resort Ranch (Court of Appeals; Unpublished)). At the same time, other court cases suggest the legislature never intended the RTFA to be used “…as a sword…” to thwart the enforcement of local ordinances (see Sena Scholma Trust v Ottawa County Road Commission (Court of Appeals; Published)).

Taken collectively, a local government looking to minimize legal risk will likely take this unsettled legal aspect of the RTFA to mean that under the 2014 Site Selection GAAMP, even an existing commercial livestock facility in a primarily residential area is to be considered a nonconforming use. If the agricultural activity was legal when it began (taking the ‘safe’ or conservative position that the local ordinance is preempted under the RTFA), the return of local zoning authority through the addition of a Category 4 Site does not void or trump the legal nonconforming status of such uses. Again, local governments dealing with this type of situation may be wise to just treat the livestock facility as a nonconforming use (or consult an attorney with a high degree of experience in municipal planning and zoning law; often members of the Municipal Corporation Law section of the Michigan Bar or the Michigan Association of Municipal Attorneys).

It is true that a local government can regulate to what extent a nonconforming use can expand, be replaced, be reconstructed, etc. (see MCL 125.3208), but it must allow the use to continue until one of three things happens: (1) the landowner gives up the nonconformity through some explicit, intentional action, (2) the local government buys the nonconforming activity or property from the landowner, or (3) a change to zoning makes the nonconformity legal again.

The principle of allowing legally established land uses to continue is one of those private property rights protections from the foundational principles in the U.S. Constitution and is included in the Michigan Zoning Enabling Act. Rights to the use of land are ‘vested’ upon first using the land in a particular way (so long as it is lawful) and subsequent changes to the law cannot force the termination of that use until the landowner takes explicit action to discontinue the use him/herself.

Earlier this year, Michigan State University Extension articles covering changes to the Site Selection GAAMP (specifically New Right to Farm Site Selection GAAMPS needs local government attention and Changes to Site Selection GAAMP mean communities have greater opportunity to plan for food systems) mention that existing livestock facilities are allowed to continue, but do not go into the same detail as described herein. Questions can be directed to a Michigan State University Extension land use educator.

In addition to this article, Michigan State University Extension educators have also prepared these which have a focus on a specific audience and concerns: