Protection is only as good as its threat. The threat of flies in your butter, for example, doesn’t require a shotgun.
But as Calhoun County’s Leroy Township prepares to pass amendments to its zoning ordinance purportedly designed to protect “the public health, safety and general welfare,” some farmers believe the township is trying to eliminate a threat that isn’t really there.
“This is clearly an overreach by a township that is not listening to the community,” said Andrea Boughton, president of the Calhoun County Farm Bureau. “The boards (planning and township) kept telling us they want agriculture to remain in the community, and to be sure it and all citizens are protected. My question is who will be protected, and from what?”
While township officials won’t plainly say that large livestock farms are the threat, or that potential lawsuits are the threat, the zoning proposal clearly addresses “intensive livestock operation(s)” by redefining the term and setting specific and restrictive rules about what such an operation can do. It also seems that the ultimate resolution will come only through a legal battle.
The proposed ordinance would limit the number of animals allowed. It requires farmers to submit a site plan to the zoning administrator. It requires the “minimum lot area for intensive livestock operations” to be 60 acres. It requires a Comprehensive Nutrient Management Plan (CNMP). It requires manure applications only by “sub-surface injection within the setback areas prescribed ….” It requires standards and specifications for buildings found in various handbooks, including “all relevant publications referenced therein…”
After all that, it requires farmers to follow Generally Accepted Agricultural Management Practices (GAAMPs), even though the proposed ordinance goes well beyond GAAMPs and violates the Right-to-Farm Act, under which GAAMP operate, according to Jamie Clover Adams, director of the Michigan Department of Agriculture and Rural Development (MDARD).
“Clearly, the Right-to-Farm Act preempts township actions like this one,” she said. “This township has seen something they don’t want, and are trying to find ways to stop it. I can’t compel a township not to do this, but eventually, people will have to spend money (in litigation) to have this proven out. I wrote the township a letter (see the entire letter below), pointing out a few things, but they seem determined to set their own GAAMPs.”
The township is only doing this to be sure GAAMPS are followed, said Dr. Phillip (Pete) VanVranken, DVM, the township’s planning commission chairman.
“Through the GAAMPs, townships have no say in how things are done,” he said. “Right now a farmer can go out and build and then could end up fighting with lawyers. GAAMPs are optional. This offers more protection for farmers than other people, but Farm Bureau pitched a fit.”
Part of that ‘fit” was a letter from Boughton to the township board, explaining exactly why farmers don’t want to add another layer of regulation on top of GAAMPs, even though they are voluntary.
“Protection for local units of government, farmers and non-farm residents is already in place under the Right-to-Farm law,” she wrote. “Right-to-Farm and GAAMPs have been proven time and time again to be effective at allowing for agricultural growth, environmental protection and community harmonization.”
The GAAMPs, however, are unenforceable because they are optional, VanVranken said.
“There are no rules in GAAMPs,” he said. “It’s like at Brigham Young (University), where students sign a document that says they won’t have sex. Is that enforceable? We just want to enforce what should be enforced.”
Enforcing an illegal ordinance isn’t exactly good government, though, said Matt Kapp, government relations specialist with Michigan Farm Bureau.
“I think it’s been made clear from every challenge to the Right-to-Farm law to date that townships are not granted the same authority that the state has,” he said. “The reason Right-to-Farm was enacted to begin with was to limit conflicts between farmers and their neighbors. The right-to-Farm Act benefits both farmers and townships because it provides one set of best management practices statewide. It protects townships because they no longer have to be agricultural experts. MDARD has the experts, and GAAMPs have been proven effective. We’ve had conflicts with GAAMPs before a new facility was built, but we’ve had no significant instances that I know of after a facility was built. That’s because GAAMPs are working well.”
While VanVranken is correct that GAAMPS are not laws and cannot be enforced by MDARD, the Right-to-Farm Act is law, and the GAAMPs guidelines under the act are in essence an insurance policy against litigation-driven enforcement by disgruntled citizens, said Lori Laing, a Leroy Township dairy farmer.
“It’s true that GAAMPs are not mandatory, but the fact is that we farmers can’t even get a loan without having them in place,” she said. “Pete wouldn’t practice veterinary medicine without insurance, and that’s what GAAMPs are to us. We follow them and get protection against nuisance lawsuits. I don’t think the township really understands the difference, because back in February, the township supervisor didn’t even know there was a siting GAAMP. I think that’s a perfect example of why we need state control over things like this. There’s too much personal opinion involved and not enough knowledge.”
VanVranken, however, said he and other township officials consulted with MDARD and took a tour around the township together.
“We spent a whole afternoon and had a long conversation,” he said. “This was a township board directive (to the planning commission), and we handled it in a way we thought was fair to everyone. We’re not trying to fight Right-to-Farm, and we think the proposed ordinance is very respectful of everyone’s rights. But yet what we hear is that ‘we’re going to sue you.’ I think unequivocally, we’re right about this.”
Kapp, however, believes the township ordinance, if passed, will never stand up in court.
“What happens in these cases is that a farmer, at some point, will want to expand or start a new enterprise. He’ll go through all the GAAMPs and develop a site plan and receive other approvals, and the township will try to enforce the ordinance,” he said. “It’s very clear in the Right-to-Farm amendment in 1999 that the act preempts local ordinances. We can’t have 1200 different ordinances, one for each township. We have one set of statewide standards, and the siting GAAMP’s main purpose is so farmers will build new and expanding livestock facilities in appropriate locations.
“Not every site will meet the terms of the GAAMP, and that’s the whole point,” he said. “It’s as much to keep the lawyers away as it is to protect non-farmers and farmers. Everyone has the right to complain, and that’s also a part of the act. It’s a good system, and it’s all about common sense.”
The Right-to-Farm Act can be confusing, Kapp said, and ordinances like Leroy Township’s could end up clarifying many questions if it comes before a judge.
“I suppose that a property owner could stand on his Right-to-Farm Act rights,” said Matt Zimmerman, an attorney from Varnum Law with extensive experience in these matters. “That forces the township to bring enforcement action, so it will have to spend its scarce resources over something that MDARD already tried to educate them about. I think townships who go this route should be careful what they ask for. They could end up with an appeals court decision that invalidates the entire ordinance. That would be a precedent that would be hard to overturn.”
Read the letter that was sent to Leroy Township.