Michigan Farm News

Law of the Land: Varnum LLP

Columnists

Varnum LLP | September 19, 2017

 Matt Zimmerman

It is generally well accepted that a building permit is not required for buildings used for agricultural purposes if the building does not include retail trade.  Section 10 of the Michigan Building Code plainly provides this. 

Unfortunately, this has not kept local building officials from stopping the construction of agricultural buildings for failure to have building permits or meeting other building code requirements.  It is unclear why there appears to be an increase in local attempts to regulate agricultural buildings through the building code.  It might be that new or inexperienced building officials simply do not understand the agricultural building exemption within the building code.  It might also simply be a matter of local politics – for example, a neighbor not wanting a building located where it can be seen who complains to local officials.  Or the building official may simply disagree that a particular building fits the definition of agricultural building.  In any event, what options does a farmer have when local building officials insist that a farmer apply for a building permit for agricultural buildings?

The easiest course of action may appear to be to simply file a permit application.  This may especially be the case where local building officials assure farmers that permits will be issued.  But farmers should consider the following before choosing to apply for a building permit:  you may be subjecting yourself to electrical, plumbing, mechanical and maintenance code provisions within the state building code that otherwise might not apply; you will have to pay an application fee; and you may be subjecting yourself to local zoning requirements that might have been preempted by Michigan's Right to Farm Act.

So what other options are available to farmers facing a local building official's demand to apply for a building permit?  One easy resolution that has a high success rate is to refer the building official to the attorney representing the local unity of government.  Most municipal attorneys are familiar with the Michigan Building Code and how the agricultural building exemption applies. 

If the building official refuses to involve the municipal attorney, or if the municipal attorney does not convince the building official that agricultural buildings are exempt from building permit applications, then you can appeal the building official's decision to the construction board of appeals. 

That is a board consisting of between three and seven members appointed by the governing body of the governmental subdivision.  Members are supposed to be qualified by experience or training.  Thus, they often have a better understanding of the agricultural building exemption within the Michigan Building Code than the building official.  An unfavorable ruling of the construction board of appeals may be appealed to state circuit court.

Another option is to essentially go "over the head" of the building official.  This often means the local government administrator or, if there is no administrator, the head of the legislative body of the local government (i.e. township supervisor, village president or city mayor). 

If the basis for the building official's insistence on applying for a building permit is something other than a misunderstanding of the law, these administrators or elected officials can often straighten out the situation.

Finally, you could simply do nothing and make the municipality consider if it is worth its scarce resources to bring an enforcement action.  If the municipality takes such action, you would have an opportunity to present your exemption defense before a judge.

You may never know the rationale behind a building official's demand that you apply for a building permit when the agricultural building exemption clearly applies.  Regardless of the rationale, giving in to such demands might seem to be the quickest and easiest option in the short-term.  But there are long-term ramifications that could far outweigh the short-term benefits.  So consider all of your options before deciding.

Matt Zimmerman is a partner and leads the Environmental, Energy and Natural Resources Practice Team at Varnum Law. Visit www.varnumlaw.com to learn more.

Columnists

Varnum LLP | July 6, 2017

 Kimberly Clark png

As more employers plan to use the H-2A program, completing the following items this year will make an easier transition to H-2A employment.

Implement a three-step discipline process

Many agricultural employers have not developed or consistently applied work rules.  Management should assess work activities and determine work rules and related discipline important to an effective workforce in its operations. 

While the Department of Labor generally prefers a three-step process - verbal warning, written warning, termination ‑ there is some conduct that management may assess warrants immediate termination such as violence or illegal drug use.

Managers should provide workers and train workers with customized work rules and document any disciplinary or termination process consistent with those rules. The work rules developed will need to be a part of the H-2A contract so that implementation and assessment over the course of this season will assist employers in revising as needed for the H-2A contract. 

In addition, seasonal employers sometimes choose not to discipline or terminate workers to allow the worker to complete the season without conflict, and the employer plans to not recruit or rehire that worker the following year. 

In an H-2A situation, employers must recruit all workers completing the previous season.  Accordingly, employers will need to rehire the workers not disciplined or terminated so that consistent application and action under the discipline process is essential to securing a quality workforce in the H-2A operations.

Investigate agents or contractors

Agricultural employers may participate in the H-2A program directly or through a contractor.  Employers participating directly may apply on their own or with the assistance of an agent. 

Often, employers daunted by H-2A complexities and requirements prefer to begin H-2A through a contractor.  Even though Department of Labor announced the withdrawal of the joint employer policy memo, Department of Labor will certainly assert joint employment situations whenever a farm labor contractor is operating the labor force for the agricultural entity. 

Employers and contractors may attempt to manage operations to avoid joint employer liability, but given the risk, employers should complete due diligence in selecting a contractor and enter into a contract assigning responsibilities and liabilities.  Similarly, if an employer plans to use an agent to process the direct H-2A employment contract, the employer should assess the services, costs and past experiences and performances of the agents.  In both contractor and agent situations, the entities should be willing to provide references to previous customers and be willing to discuss compliance processes and any previous Department of Labor or other audits and outcomes.

Assure housing sufficient for H-2A

H-2A employers must provide free certified housing for H-2A workers and non-local domestic workers and families (unless prevailing practice confirms no families), three meals/day or convenient cooking facilities if meals are not provided. 

Non-local domestic workers are workers who provide an address farther than 60 miles from the work location.  Michigan migrant labor housing inspectors are willing to assess migrant housing for H-2A purposes prior to use of the program so that employers may make any necessary changes and/or build or arrange for additional housing needed.  Employers may not use FHA/Rural Development Section 514 Housing for H-2A workers unless the loans are repaid and restrictions are confirmed removed.

Transportation

Employers must pay workers in-bound and out-bound transportation, but the transportation that requires the most planning is the daily transportation from housing to work locations and the weekly transportation to a grocery store. 

Employers need to assess options for vans and/or buses, drivers who can be licensed and will pass medical exams and secure the safety evaluations, insurance and driver medical exams and licenses. 

The size and location of housing units, whether the employer will operate various work schedules and availability of CDL passenger endorsed drivers will determine whether the employer chooses to operate vans with 15 person or less capacity or whether 15 plus person buses are used.

Develop job descriptions

H-2A contracts require employers to list activities with detailed job descriptions, and H-2A workers may complete only those tasks.  Employers should therefore take notes throughout this season related to the jobs the employer plans to include within the contract and job description details such as lifting requirements, bending, walking, and ladder or other equipment use.

All workers completing any work activities listed in the H-2A contract will be entitled to H-2A wages and benefits so employers often start with limited activities and preserve some positions and activities such as supervising, driving and packing to be completed by workers outside the H-2A contract. 

Over time, employers generally expand the work activities for the flexibility in placement of H-2A workers in all work activities and because employers often provide non-H-2A workers the same or better wage and benefits as the H-2A workers.

Completing review of these issues now will prepare employers to begin the H-2A process.  First-time H-2A employers should plan to begin the process approximately 6 months prior to the worker need to allow time to work through the many issues and considerations required by the program.

 

Columnists

Varnum LLP | May 3, 2017

 Reisner 2

I am frequently asked "what is a gun trust and when should I create one?" The short answer is that gun trusts are created primarily to acquire, possess and use firearms regulated by the National Firearms Act of 1934 (the NFA).  These firearms are known as NFA Firearms or Title II Firearms. The long answer requires a little bit of history of firearms laws.

The Gun Control Act of 1968 classified firearms as either "Title I Firearms" or "Title II Firearms." The vast majority of rifles, shotguns, and handguns used for hunting or sport shooting are Title I Firearms. Individual state law governs the transfer of Title I Firearms. Title II Firearms are governed by the NFA. The NFA regulates six general categories of Title II Firearms: (i) machineguns, (ii) short-barreled rifles, (iii) short-barreled shotguns, (iv) silencers/suppressors, (v) destructive devices, and (vi) any other weapon regulated by the NFA. Title II Firearms are subject to registration and transfer requirements administered by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the ATF). 

On Sept. 2, 2011, the Michigan Attorney General issued an opinion stating that silencers/suppressors were legal to possess in Michigan if the owner was in compliance with the NFA.  With suppressors now legal, many Michigan residents started the ATF process to acquire one. 

At the time, this paperwork required the signature of the Chief Law Enforcement Officer (CLEO) where the applicant resided. Despite suppressors being legal, some CLEOs refused to sign the necessary ATF paperwork.  However, an applicant could avoid getting their CLEO's signature by purchasing a suppressor through a gun trust.  Gun trusts quickly became the preferred way to acquire a suppressor or other legal Title II Firearm in Michigan.

Fast forward to July 13, 2016, the effective date for ATF Final Rule 41F.  Final Rule 41F amended the regulations regarding Title II Firearms.  The purported goal of the rule was to insure that the ATF's identification and background check requirements applied equally to individuals, trusts, and legal entities who apply to acquire Title II Firearms. Specifically, Final Rule 41F changed the NFA regulations by requiring "responsible persons" of such trusts or legal entities to complete ATF Form 5320.23 National Firearms Act Responsible Person Questionnaire and to submit photographs and fingerprints in connection with acquiring a Title II Firearm. 

While ATF Final Rule 41F makes it more cumbersome for gun trusts to acquire Title II Firearms, gun trusts are still the preferred way for multiple individuals to have access to and use of Title II Firearms. Gun trusts also help avoid unintentional violations of the NFA.  In this regard, under the NFA, possession of a Title II Firearm, either actual or constructive, by a person not registered with the ATF and not under the supervision of the registered owner of the Title II Firearm is in violation of the NFA.  With a gun trust, any Trustee who is not a prohibited person may have access to and use the Title II Firearm.  A gun trust also provides probate avoidance for Title II Firearms and the ability for Title II Firearms to be held for multiple generations.  So, while registering a Title II Firearm to a gun trust is more paperwork than it was in the past and may require additional fees, you should still consider the advantages of acquiring a Title II Firearm through a gun trust.  There are several ways to create a gun trust. Many estate planning attorneys are familiar with trusts, but for legal peace of mind, consider using an experienced lawyer who understands the NFA-specific requirements.

Dean Reisner is a partner at Varnum LLP and focuses his law practice on business transactional matters, corporate and real estate work, estate planning, and agricultural law. He grew up on a 1000-acre farm in Sanilac County, where his family continues to grow corn, beans and wheat.

Index

 

Blogs & Columns

 

Columns

Measuring operational efficiencies

Dollars and Sense

GreenStone FCS | November 9, 2017 

In today’s challenging economic times, it is more important than ever to monitor the operational efficiency of your operation.
 

Apply for building permits at your own risk

Law of the Land

Varnum LLP | September 19, 2017 

Matt ZimmermanIt is generally well accepted that a building permit is not required for buildings used for agricultural purposes if the building does not include retail trade.
 

Understanding operating loans

Dollars and Sense

GreenStone FCS | September 7, 2017 

Martin KarperskiFarming is a capital-intensive business, with land, equipment and facilities that can run into millions of dollars.
 

Tips to prepare now for H-2A next year

Law of the Land

Varnum LLP | July 6, 2017 

Kimberly Clark pngAs more employers plan to use the H-2A program, completing the following items this year will make an easier transition to H-2A employment.
 

Dairy: an unenviable position

Dollars and Sense

GreenStone FCS | June 6, 2017 

Ben SpitzleyThe dairy industry is facing a challenging time, a cyclical downturn that’s lasted longer than in previous cycles, and is expected to continue for at least the near-term.