Preemption of Local Ordinances: Broad Protection for Michigan Farmers Under Right to Farm Act as Reaffirmed Through Recent Attorney General Advisory Opinion

April 13, 2018

Dating back to 1981, Michigan has sought to provide protection to farmers, ranchers, and other agriculturalists through its Right to Farm Act (hereinafter, the “RFA” or the “Act”). At the time of its enactment, the state was facing an influx of residential development into traditionally rural areas, which came with an emergence of nuisance actions from new residents unaccustomed to the noise, odors, and dust often associated with certain agricultural activities.  As such, the purpose behind the RFA is to safeguard farmers from liability under nuisance actions and zoning infractions; however, in order to obtain protection under the RFA the farm must: (i) conform to generally accepted agricultural and management practices (“GAAMPs”); or (ii) have existed before an applicable change in the land use and, in that time, must have been in compliance with applicable GAAMPs. MCL 286.473. To date, the Commission of Agriculture and Rural Development (the “Commission”) has promulgated eight sets of GAAMPs covering the following topics:  Site Selection, Care of Farm Animals, Nutrient Utilization, Manure Management, Irrigation and Water Use, Pesticide Utilization and Pest Control, Cranberry Production, and Farm Markets.

Since becoming law, the RFA has been amended twice and, in each instance, the protections afforded thereunder have been slightly broadened to ensure the purpose of the Act is fulfilled.  Most recently, the Attorney General of the State of Michigan, in Opinion No. 7302, has deemed this protection extended to encompass any topic already covered by one of the aforementioned GAAMPs.  This has the effect of voiding local ordinances adopted by local units of government that regulate farming activities when and if the Commission has developed GAAMPs that address such activity.  As background, Opinion No. 7302, issued March 28, 2018, sought to address the possibility of preempting local ordinances and regulations that: (i) limited the number of livestock per acre; (ii) required the submission and approval of a site plan by the local zoning administrator; (iii) limited manure operations and application methods; and (iv) required nutrient management plan to be submitted to and approved by local unit of government.  Under the reasoning that each of the foregoing ordinance provisions had relevant and applicable GAAMPs, such regulation was an undue attempt to extend or revise the rights granted in the RFA.  As a result, a farm otherwise in compliance with the GAAMPs would be preempted from any such local regulation.

As Michigan remains dedicated to its statutory protection of farmers under the RFA, there are many ramifications from both a municipal and agricultural prospective. Should a local government seek to limit or expand any of the practices or methods asserted in the GAAMPs, it can only do so in and through a submission to the Director of the Department of Agriculture under MCL 286.474(7). This subsection of the RFA requires a municipality, prior to enacting any ordinance which may infringe upon any of the aforementioned GAAMPs, to first seek review and approval from the Department of Agriculture and further prohibits any enforcement until such approval is granted.

For more details on this topic, or other matters related to farming operations, please contact attorney Kathryn M. Mohr, at kmohr@rcolaw.com or (517) 423-5404 for more details.

 

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