Township zoning: What’s the real poop? | Michigan Farm News

Township zoning: What’s the real poop?

Category: People, Politics

by Paul W. Jackson

Marty Vyskocil and April O’Connell will appear in court soon to challenge a township ordinance that would prevent them from spreading horse manure on a hay field.

She walks confidently but slowly, typical of a healthy senior citizen, bundled by blankets that insulate her against early February’s bitter wind.

A 30-year-old saddle-bred mare, Sandy has the run of the place when owner April O’Connell is there. Sandy knows her limits, comes when she’s called and, as a former champion, ignores the chilling conflict that surrounds the farm she calls home.

That’s not an option for the owners of Micah’s Meadow, named after April’s late son, because surrounding them are homeowners who insist that the 22-acre equine facility in Fenton Township (on the border of Genesee and Livingston counties) is not a farm.

“The point is, people came to the farm, the farm didn’t come to them,” said Marty Vyskocil, who owns the 22-acre long-time horse farm and runs it with April.

Ironically, the housing development that surrounds the place is called “Lakeview Farms,” although its most vocal residents want to be insulated against farming activities, especially horse manure.

The conflict will land the township, Vyskocil and O’Connell in court at the end of February as yet another township contends that its ordinances supersede the state’s Right-to-Farm rules.

“This is exactly the type of conflict that caused the Right-to-Farm Act (RTFA) to be written and amended in the first place,” said Matt Kapp, Right-to-Farm expert with Michigan Farm Bureau. “The township seems to be trying to define a farm, when it’s already been defined in the Right-to-Farm Act.”

In this case, Fenton Township is using a confusing amalgam of ordinances old and new to justify its contention that in the Planned Unit Development Equine (PUD-EQ) zone it imposed on the farm, manure spreading is not allowed. It’s also threatening to contend that baling hay is “more like an agricultural use of the property,” and thus not allowed in the zone.

For now, though, manure is creating the bitter wind.

Originally, it was zoned agriculture when the equine farm, complete with an impressive array of more than 80 horse stalls, an equine swimming pool, a horse track, pastures and hay fields, was built. By the time Vyskocil bought it on a foreclosure sale, it had been zoned PUD-EQ, which the township argues does not allow agriculture.

It all started well enough, said Doug Piggott, zoning administrator for Fenton Township.

“The property owner (in the late 1990s) had a vision of a development that blended residential development with the (existing) equine facility,” he said. “His vision was that people who had horses or enjoyed horses could be in a community that could maintain horses, help with boarding and training. The township was interested in promoting that development, so it developed the PUD amendment to allow for equestrian development in conjunction with the subdivision.”

When that owner died in 2003, the property’s use as a full-fledged horse farm intensified, and was used to train trotters. But with the demise of that industry, the facility’s use fell off a bit, and eventually went into foreclosure.

Residents of the development became used to the “open space,” and in some cases, O’Connell said, considered it their own property, spurred on, apparently, by realtors who called the farm a “theme” of the housing development.

In fact, Ordinance 466, adopted in 1995, stipulates that “30 percent of the total site area (70-some acres that included the 22-acre horse farm) “shall be designated as the “theme area.” The master deed, however, calls it private property.

Over time, a new owner set up shop on the farm, which led to complaints about manure spreading.

“What we did was rely on a review by the Michigan Department of Agriculture and Rural Development as to whether the owner was operating according to the GAAMPs (generally accepted agricultural management practices),” Piggott said. “In general, they were found to be complying. We reported to residents that raising of animals is covered under Right-to-Farm, the operation was consistent with GAAMPs, and there was nothing the township could do. Then the property changed hands.”

It was late 2013, after the equine facility had fallen into disrepair and Lakeview Farms residents used it for their own activities, that Vyskocil and O’Connell took over. They brought in two horses, and in 2014 and 2015, Vyskocil spread manure, which amounted to about two wheelbarrow loads per day, either on the farm just south of the property or a seven-acre hay field. It was not applied every day, but admittedly was more intense in the spring, when manure stockpiled in a container throughout the winter was spread.

Then the complaints began.

After the first one, Vyskocil called the township, which told him he could spread manure.

“Then, in 2016, the township told me I could not, and I called MDARD,” he said.

In a letter from Kristin Esch, then an employee of MDARD’s Right-to-Farm program, Vyskocil was told that the property “is zoned ‘Planned Unit Development’ and allows agricultural uses by right.”

It’s a remarkably simple explanation that cuts through all the township red tape, Kapp said. In fact, in zoning ordinance 466, the township changed the zoning “from AG to PUD-EQ” with 11 conditions on Viskocil’s agricultural activities.

“The conditions are illegal,” Kapp said. “Conditions of agricultural uses are determined by the Right-to-Farm law and GAAMPS, not township regulations.”

Spreading manure, in this case, is allowed in an ag zone, especially since Vyskocil has a manure management plan approved by MDARD and has followed it carefully.

In that and other regards, Vyskocil is doing everything right. He is MAEAP (Michigan Agriculture Environmental Assurance Program) verified in farmstead, livestock and cropping, which means his farming practices must comply with GAAMPs or verification is revoked and he loses Right-to-Farm nuisance complaint protection.

Besides that, Zoning Administrator Piggott reversed his opinion about manure spreading. In a memorandum in February 2016, he told the township Zoning Board of Appeals that “it was my feeling that the spreading of manure was a more intense use than the storing of manure...” But then, in August of 2017, he told the Zoning Board of Appeals that “Mr. Vyskocil’s operation of the horse barn, including the spreading of manure on his property, is preempted by the RFTA … Given that, I am reversing my previous administrative decision that Mr. Vyskocil cannot spread his horse manure on his property.”

The ZBA, however, denied Vyskocil’s appeal of Piggott’s original decision, which leads us to where the aged Sandy wanders today – on a farm with horse manure stockpiled in a container between barns.

There are plenty more complications to this matter, including the fact that three different ordinances have been applied to Vyskocil’s case, but yet, as he said, no one in the township has told him which ordinance he’s violating when he spreads manure according to GAAMPs.

And, as his attorney, Marilyn DiRezze, wrote in Vyskocil’s brief in support of his appeal, “on March 18, 2002, Fenton Township enacted ordinance 594 which states that ordinance 464 was superseded by ordinance 186, which was then replaced by ordinance 594 in 2002.” The brief also notes that section 11.29 of ordinance 594 “states that equestrian subdivisions are permitted by right in the PUD zoning district.”

Aside from the type of complains that got the RTFA passed in the first place, DiRezze wrote, “it appears that the township is simply tired of the constant complaints … and made the unlawful, unsubstantiated decision to disallow Appellant (Vyskocil) the ability to spread manure on his farm to put an ‘end’ to the constant taxing of its time and resources …”

While such ‘constant taxing’ is a challenge for townships such as Fenton, Kapp said the law seems clear: The Right-to-Farm Act supersedes local ordinances.

As for Sandy, she’ll continue to do what horses do. She’ll spread her manure wherever she wants.