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Apply for building permits at your own risk

Law of the Land

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.

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