Right to Farm Act can preempt local regulation authority, but not all local regulations

Many statutes and laws result in limiting local government’s ability to adopt and enforce regulations. Most are straightforward, but the Right to Farm Act preemption is confusing, changing and only preempts local regulation of certain things.

Right to Farm Act can preempt local regulation authority, but not all local regulations. Photo credit: Kurt Schindler l MSU Extension

Right to Farm Act can preempt local regulation authority, but not all local regulations. Photo credit: Kurt Schindler l MSU Extension

There are many laws that preempt local zoning authority – they basically say that local government cannot regulate that topic. Most are straightforward. For example, state police communication towers do not need a local zoning permit and are not subject to local government regulation. But one, the Right to Farm Act (RTFA) (MCL 286.471 et seq.) is not so simple or straightforward.

With the Right to Farm Act there are some things about agriculture that can be regulated, other things that cannot, some that cannot but are delegated back to the local government, disagreement over some aspects of all this, plus some issue over what is and is not agriculture.

As a result, Michigan State University Extension educators that focus in land use (planning and zoning) receive many questions on this aspect of the Right To Farm Act from zoning officials, farmers, people wanting to keep farm animals and more.

Here is the basic thought process you can use to determine how this works:

First, is the land use going to fall under the Right To Farm Act (RTFA), that is, is it a farm or agriculture? Start by asking these questions:

  1. Is it a “farm operation?” (defined in the act: MCL 286.472(b))
  2. Is it producing “farm products?” (defined in the act: MCL 286.472(c))
  3. Is it commercial?

If the answer is “yes” to each of these above (it does not matter intent, or that it might be a “hobby farm” if it meets the criteria of farm operation, farm product, commercial) then it applies under the RTFA. The definitions of those terms are very broad and all inclusive. For example “commercial” can be as little as selling one egg in a year –there is no minimum threshold for “commercial.” (Charter Township of Shelby v Papesh, 267 Mich. App. 92, 704 N.W.2d 92 (2005))

A fourth question may also apply:

  1. Does the operation follow Generally Accepted Agricultural Management Practices (GAAMPs)?

If the answer is “yes” to each of the four, above, then the land use or activity applies under the RTFA. But a farmer does not have to follow GAAMPs. That is the farmer’s choice. As a result some attorneys advise against local government treating farmer “A” that follows GAAMPs different than next-door farmer “B” that chooses not to. The concern becomes lack of equal treatment in administering zoning. Those attorneys advise giving a “pass” to question four, or always answering it as “yes.” Other attorneys do not share this concern. A local government should consult its attorney, who is presumably experienced in municipal (planning and zoning) law as to how to handle this.

This first step determines if the land use falls under the RTFA. If it does not (if one or more of the questions was answered “no”), then the RTFA does not apply, and local regulations do apply. If all three (or four) questions were answered “yes” then RTFA does apply, and certain local regulations are preempted.

Second, is to determine what local regulations are preempted and which local regulations can still be enforced. If the topic of the regulation is already covered in the RTFA or in any of the published GAAMPs, then local government cannot regulate it. If the topic is not in RTFA and not in any of the GAAMPs, then local regulation can still apply.

There is no easy way to review what topics are covered in GAAMPs. The RTFA is easier. Topics in RTFA, and thus off limits for local regulation are:

  • Anything about a farmer’s liability in a public or private nuisance lawsuit. (MCL 286.473)
  • Anything about enforcement or investigation process for complaints involving agriculture. (MCL 286.474)
  • The conversion from one or more farm operation activities to other farm operation activities. (MCL 286.472(b)(ix))

However, GAAMPs cover a much larger range of topics and an effort is made to keep GAAMPs up-to-date with the most current science-based best practices for farm operations. It is normal, each year, for advisory committees to the Michigan Commission of Agriculture and Rural Development to review each GAAMP and update. 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.

bales of hay

Using this decision tree may help organize the thought process of review to determine what regulations are preempted or not: What sorts of local regulations are preempted by the Right to Farm Act (RTFA) February 13, 2012 (found on Schindler’s Land Use Page).

A further complication is some GAAMPs delegate regulation authority back to the local unit of government (but this too can change from year to year). Examples of this include:

  • Municipalities with a population of 100,000 or more in which a zoning ordinance has been enacted to allow for agriculture (that designates existing agricultural operations present as non-conforming uses).
  • Category 4 sites for livestock operations (in the GAAMP for Site Selection and Odor Control for New and Expanding Livestock Facilities)
  • Vehicle access and egress, building setbacks, parking (but not the surface of the parking lot), signs for Farm Markets (in the GAAMP for Farm Markets)
  • Beer breweries, bonfires, camping, carnival rides, concerts, corn mazes, distilleries, fishing pond, haunted barns/trails, mud runs, play-scapes, riding stables, and winery/hard cider associated with Farm Markets (in the GAAMP for Farm Markets)

There is a legal question as to if, in a GAAMP, there is authority to delegate local authority and ability to regulate in face of statutory preemption of any local ordinance, regulation or resolution that extends or revises in any manner the provisions of the RTFA or GAAMPs. A local government should consult their attorney, who is presumably experienced in municipal (planning and zoning) law as to how to handle this.

Because some GAAMPs address the location of farms, there is an unsettled legal question whether a zoning ordinance can even restrict agriculture to certain zoning districts. The reason is that some courts have concluded that commercial agricultural operations are able to establish in any local zoning district based on the 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)). A local government should consult their attorney, who is presumably experienced in municipal (planning and zoning) law for information on how to handle this.

What is clear, however, is that a local government cannot choose which type of farm operation is permitted in a zoning district. If agriculture is allowed, then all types of farming need to be allowed. This is because the ability to convert from a farm operation activity to other farm operation activities is specifically included in the RTFA (MCL 286.472(b)(ix)). (But in category 4 sites, there may be ability to further regulate livestock aspects of a farm operation based on the Site Selection GAAMP.)

These and many other issues have been previously litigated in courts. It may help further to know what those court cases have been. To help with that see Public Policy Brief: “Selected Zoning Court Cases Concerning the Michigan Right to Farm Act court cases” (March 14, 2013) (found on Schindler’s Land Use Page). What is safe to say is this area of law is a moving target, and keeping current will be an ongoing task. MSU Extension educators that focus in land use (planning and zoning) will continue fielding questions on this topic.

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