New Right to Farm Site Selection GAAMPS needs local government attention

Agriculture Commission adopted new Site Selection GAAMPs. This means local government needs to start discussions about urban agriculture and local food activity, and work to accommodate this new economic niche.

Local government needs to start discussions about urban agriculture and local food activity, and work to accommodate this new economic niche. l MSU Extension

Local government needs to start discussions about urban agriculture and local food activity, and work to accommodate this new economic niche. l MSU Extension

Major change has been adopted in the Right to Farm Act (MCL 286.471 et seq.) Generally Accepted Agricultural Management Practices (GAAMPs) concerning local government jurisdiction over some livestock farms. On April 28, 2014, the Michigan Commission of Agriculture and Rural Development adopted the 2014 update of the Generally Accepted Agricultural and Management Practices for Site Selection and Odor Control for New and Expanding Livestock Facilities (Site Selection GAAMP) creating a fourth category of livestock facility sites. This category applies to livestock facilities and livestock production facilities. For more about the reasons and background on this change, see the introductory article on the topic.

According to page 5 of the Sitting GAAMP, categories of livestock facility sites now are:

  • “Category 1. These are sites normally acceptable for livestock facilities and generally defined as areas that are highly agricultural with few non-farm residences.
  • “Category 2. These are sites where special technologies and/or management practices could be needed to make new and expanding livestock facilities acceptable. These areas are predominantly agricultural but also have an increased number of non-farm residences.
  • “Category 3. These are sites that are generally not acceptable for new and expanding livestock production facilities due to environmental concerns or other neighboring land uses.
  • “Category 4 (the new one just added). Sites not acceptable for New and Expanding Livestock Facilities and Livestock Production Facilities.”

Category 4 sites for livestock facilities are further defined on page 11 of the Site Selection GAAMP as:

“Category 4 Sites are locations that are primarily residential and do not allow agricultural uses by right and are not acceptable under the Siting GAAMPs for livestock facilities or livestock production facilities regardless of the number of animal units. However, the possession and raising of animals may be authorized in such areas pursuant to a local ordinance designed for that purpose.” (Emphasis added)

In other words, small livestock facilities in “primarily residential” locations are not banned from those locations; rather the decision of whether or not it is an appropriate location is shifted from the state, with GAAMPs, to the local government to determine. A small livestock facility is defined as “less than 50 animal units.” An animal unit is the number of animals which are equivalent to one slaughter and feed cattle. Depending on the animal, 50 animal units is proportionate based on a number of factors. For example, 50 animal units means 125 swine, 500 sheep and lambs, 25 horses, 2,700 turkeys, 5,000 laying hens or broilers. See table 1 on page 4 of the Site Selection GAAMP for more information.

Essentially, the creation of a Category 4 site defines a geography where livestock facilities do not comply with the Site Selection GAAMPs and therefore do not earn Right to Farm Act protection, and also local zoning applies. There are an increasing number of local governments that have allowed keeping of animals. There are also many others that have expressed interest to do so if they could include regulation tailored to local concerns. The concern is that once any agriculture is allowed before this change, then all forms of agriculture are allowed without a means to implement community consensus. Remember, the RTFA reads:

“…it is the express legislative intent that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any manner the provisions of this act or generally accepted agricultural and management practices…” and “…a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.” (MCL 286.474(6))

The Michigan Department of Agriculture and Rural Development (MDARD) receive requests for siting a farm operation under the Site Selection GAAMP, an environmental complaint or a farmer’s proactive request for a GAAMP compliance determination. When that happens, MDARD will conduct a review of many things including,

“zoning for the location in question. If the site is primarily residential and zoning does not allow agricultural uses, then the site will be identified as Category 4 and not acceptable for a livestock facility under the Siting GAAMPs. However, if zoning identifies an agricultural use or a mixed use that includes agricultural use as its zoning designation (e.g., many locations use an agriculture/residential zoning designation), MDARD will evaluate whether the site complies with the other requirements of the Siting GAAMPs.” (Emphasis added, page 15 of the Site Selection GAAMP)

The term “primarily residential” is defined in the GAAMP:

“Sites are primarily residential if there are more than 13 non-farm residences within 1/8 mile of the site or have any non-farm residence within 250 feet of the livestock facility.” (Page 4 of the Site Selection GAAMP)

This definition does not define a zoning density measure; instead, it defines a density of non-farm residences or a threshold distance within which the presence of a non-farm residence triggers the distinction as a Category 4 Site. Some additional clarity as to what constitutes ‘primarily residential’ is provided in the Site Selection GAAMP statement on page 15 indicating the location for the new or expanding livestock facility is a Category 4 Site if it is in a zoning district that “does not allow agricultural uses.” Conversely, it is assumed, if the respective zoning district does allow “agriculture” it is not a Category 4 Site.

Other sections of the Site Selection GAAMP address other land use compatibility issues – which have not been changed–such as avoiding sites in high public use areas (high population density, hospitals, churches, schools, commercial zones etc.).

There is not a substitute for reading the Site Selection GAAMP for a full understanding (in particular see pages 4, 5, 11 and 15).

Urban Strawberry Picking

This change provides a new opportunity for local governments to accommodate local foods, small farms, a new avenue for economic development, while at the same time having some additional ability to resolve land use conflicts and concerns. While this is an over-simplification of all the issues, that is the problem confronting the Michigan Commission of Agriculture and Rural Development and the basis for their adoption of the 2014 update of the Site Selection GAAMP on April 28, 2014.

Part of the foundation of the Commission’s decision is that there is not a single state-wide solution to balancing the two differing interests. So, a major part of the change is to empower local government to be able to accommodate such small farms. It is a response to the growing interest in urban agriculture, and the Commission’s attempt to balance concerns in residential areas where all livestock may not be appropriate. A possible result of the change to the Site Selection GAAMP can be allowing community involvement in deciding if livestock, with or without certain conditions, is appropriate in urban locations while providing continued opportunity for people to be closer to local food sources. In other words, these issues may best be addressed locally. It is hoped there will be win-win solutions that come from this.

It is important to remember the Site Selection GAAMP provides this local regulatory control to areas which are “primarily residential” (where zoning does not allow agriculture, with 13 or more non-farm residences within 1/8 of a mile, and no non-farm residences within 250 feet). That means there may not be local regulatory control in some areas which are urban, urban-like, or within a residential zoning district, because all those locations may not be “primarily residential.” Conversely, areas not in a residential zone may be “primarily residential.”

But when a local government is approached by a member of the community, asking for ability to have urban farms and or small animal operations, it is important that the Michigan local governement is open to talk about it or consider changes. One can expect different communities will do different things as a result:

  • There will be some local governments which will still want to say “no” to any animal farm operations in dense primarily residential areas. But that should be far fewer municipalities, especially in face of the Michigan Zoning Enabling Act’s mandate to provide for all lawful land uses somewhere within the political jurisdiction.

    The Michigan Zoning Enabling Act reads:

    “A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a local unit of government in the presence of a demonstrated need for that land use within either that local unit of government or the surrounding area within the state, unless a location within the local unit of government does not exist where the use may be appropriately located or the use is unlawful.” (MCL 125.3207)

    Further, Michigan courts have addressed the matter of ‘demonstrated need’ with the Michigan Court of Appeals writing:

    “An ordinance that has the effect of totally prohibiting a particular land use within a township is impermissible in the absence of special circumstances. . . . A zoning ordinance that totally excludes an otherwise legitimate use carries with it a strong taint of unlawful discrimination and a denial of equal protection of the law with regard to the excluded use. . . . A zoning ordinance may not totally exclude a lawful land use where (1) there is a demonstrated need for the land use in the [municipality] or surrounding area, and (2) the use is appropriate for the location”  (English v. Augusta Township, 204 Mich. App. 33 (1994))
  • There will be some local governments which will be welcoming to discussion and consensus building to accommodate animal farm operations in all or some primarily residential areas.
  • There are local governments that have not been receptive to animal farm operations in primarily residential locations but may feel far more comfortable after these changes and be more open to farm operations in primarily residential areas. This is because they now have ability to have some control to implement a local consensus without preemption by RTFA.
  • There are some local governments that already allow limited animal farm operations in urban areas, but did so with the risk they may not have been able to really control issues of local importance. This change helps those communities be on surer legal footing.

For the first three situations, as with any planning task, it will be important to involve many stakeholders early in the discussion and process. Not just the small farmer, but also the community’s farmers market manager, food co-op representative, chamber of commerce, the sewer system and storm sewer operator, local foods initiative group, traditional restaurants and retail grocers, the food bank, MSU agricultural experts and the district soil scientist with USDA. Nearly every government will be able to think of more to involve. All of these people are important to involve so that all concerns – whether it is manure entering storm sewers, or the local foods initiatives—are at the table. And they need to be at the table early in the discussion – not just at the end for the public hearing. Michigan State University Extension can help with this civic engagement, conflict resolution and facilitation.

Regardless which of the above options are decided upon, a livestock operation already existing and legally started under the former zoning, RTFA, and GAAMPs will be a nonconforming use and must be allowed to continue, even if it is in a Category 4 site.

Finally, it is normal, each year, for advisory committees to the Michigan Commission of Agriculture and Rural Development to review each GAAMP and update them so they continue to reflect best science and best practices for farm operations. Usually in January or February of each year, the Commission is adopting updated versions of the GAAMPs. Thus, local zoning authorities should expect revisions and changes to GAAMPs each year. Bookmarking/Favoriting the webpage where current GAAMPs are made available and regularly checking that webpage is wise.

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