Michigan Farm News

The ordinances have no clothes

Category: Politics

by Paul W. Jackson, Farm News

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Marty Vyskocil and April O’Connell have won their court battle over a Fenton Township ordinance that violated the Right-to-Farm Act. An Attorney General opinion has confirmed that such ordinances are illegal.
In a twist to the timeless fairy tale, Michigan farmers have not been shy about pointing out that local ordinances to restrict farming have no clothes.

Despite their writers’ grand and perhaps even noble intentions, such ordinances are illegal, especially when cloaked with misinformation about farming and disregard for numerous court opinions upholding the Right-to-Farm law.

Farmers in various parts of Michigan knew all that before a recent spate of ordinance proposals and rules that seek to impose township-scale restrictions on farmers. They’ve not hesitated, unlike citizens in the fairy tale, to point out the naked truth.
Now, however, farmers are suited up with yet another legal opinion about the state’s Right-to-Farm law, this time from the state Attorney General.

Citing seven court decisions about the Michigan Right-to-Farm law ‑ each one favorable to farmers’ rights to farm ‑ Attorney General (AG) Bill Schuette opined in his 12-page March 28 document that “…the Right-to-Farm Act is unambiguous – All local ordinance, regulation, or resolution (sic) that purports to extend or revise in any manner…(or) conflict(s) in any manner” with the Act or the GAAMPs are preempted.”

The opinion was requested by Jamie Clover Adams, former director of the Michigan Department of Agriculture and Rural Development (MDARD) as Leroy Township in Calhoun County passed amendments to its zoning law that restrict farming activities and expansions beyond what’s written in the Right-to-Farm Act’s section about Generally Accepted Agricultural Management Practices (GAAMPs). The opinion also applies to other townships, including Fenton Township in Genesee County, which has been resolved by a local court. More about that later.

Warnings ignored

Clover Adams, in fact, warned Leroy Township before its ordinance was passed in October that it conflicts with Right-to-Farm.

“In general,” she wrote, “many of the new provisions in your ordinance are an attempt to alter farmers’ business decisions and farming activities in Leroy Township.” The ordinance passed anyway.

Even before that, members of the Calhoun County Farm Bureau had pointed out the proposed ordinance’s shortcomings. And now that the new AG opinion has been published, local farmers would like to see the township yield to the law.

“It would be great if we could see a change in the zoning ordinance amendment or see it withdrawn,” said Andrea Boughton, president of the Calhoun County Farm Bureau. “Hopefully the zoning board and the supervisor will see that they are going against the law and withdraw it.”

That won’t happen, said Dr. Phillip “Pete” VanVranken, DVM, Leroy Township’s zoning board chair, because the new ordinance is simply a clarification of the GAAMPs, which he insists is the only motivation behind the ordinance.

“We’re not restricting anything,” he said. “We’re just saying that when farmers want to build an intensive livestock facility, it needs to be done to the letter. The reason things like this get screwed up is when someone is calling the shots from 200 miles away.”

While he said he understands the desire to control land use, Matt Kapp, Right-to-Farm expert with Michigan Farm Bureau, said local control is fine when townships understand they are not the only tailors in the kingdom.

“The reason we have a Right-to-Farm law statewide is because townships were creating a patchwork wardrobe of regulations that could set standards too difficult to comply with,” he said. “As farms became larger and farmers commonly began to operate in several different townships, we needed a standard to provide certainty and eliminate the costly and prohibitive practice of complying with numerous different regulations. As part of the amended law in 1999, voluntary GAAMPs, including site-selection GAAMPS for new and expanding livestock farms, were established to provide guidelines for complying with ordinances. Just because a township thinks it’s special or the law doesn’t apply to it doesn’t make that true.”

It’s the voluntary nature of the GAAMPs, Kapp said, that trips up both VanVranken and Leroy Township Supervisor Laveta Hardish, who claimed she had not heard that the AG had issued an opinion, and accused Michigan Farm Bureau of endorsing Schuette for Governor. Farm Bureau has not yet endorsed any candidate for Governor.

“This is six or seven months old now, and it’s coming to light because we have a man running for Governor,” she said. “Our ordinance, over and over throughout, no longer says, as does the Right-to-Farm law, that GAAMPs are voluntary. In Leroy Township, they are mandatory. If someone is coming in with a CAFO, GAAMPs are not voluntary any longer. Why is that bad? We’re just asking to be another set of eyes in order to protect our residents, and in the long run, the owner of the farm operation.”

Another township loses in court

What is it about farming that requires local protection?

Seeking the answer shifts attention from Leroy Township to Genesee County’s Fenton Township, where local horse farmers Marty Vyskosil and April O’Connell recently won their court case over an ordinance that would have prevented them from spreading manure and baling hay on their horse farm. Their story was told in the Feb. 15 edition of Michigan Farm News.

In essence, the township passed an ordinance that would have redefined a farm despite the fact that the local zoning administrator had warned the township board that raising animals in its Planned Unit Development –Equine could not legally be restricted or zoned out.

Initially, Zoning Administrator Doug Piggott supported the restriction on manure spreading, but after researching the state law and the farm’s compliance with it, he affirmed that Vyskosil and O’Connell were following GAAMPs. He also discovered that the farm had been environmentally verified under three Michigan Agriculture Environmental Assurance Program (MAEAP) categories, so he told the township it could not impose additional restrictions. It invoked the ordinance, which is specifically against the small farm, anyway.

Vyskocil and O’Connell sued and won. The court even awarded costs and attorney fees, the amount of which will be decided April 16, although the township intends to appeal that part of the judgment.

The bottom line of the Fenton Township ordinance, Vyskocil said, was that it was trying to revise GAAMPs. And while many of the circumstances are different from what Leroy Township did, the goal is the same, Kapp said.

“Several townships are trying to do the same thing that Fenton and Leroy did, which is to restrict farming,” he said. “We understand that some township officials are not familiar with Right-to-Farm or GAAMPs, but both MDARD and Farm Bureau members have tried to inform them about the law. For years, the agriculture community has assumed that all we have to do for common sense to prevail is to educate and inform people about farming and the law, but when they won’t listen, these kinds of things happen, and townships set themselves up to lose in court.”

Still, said Larry Merrill, executive director of the Michigan Townships Association, farmers should not stop the educational effort.

“If farmers have reason to believe that a local ordinance is not valid, share that with your township officials,” he said. “Perhaps the officials are not aware of the law, so farmers should be part of that educational process. The ordinance won’t be withdrawn if it’s not challenged, and if it’s not challenged, it just hangs out there.”

That’s likely what will happen in Leroy Township until a lawsuit comes up, VanVranken said.

“We think our ordinance is different, that we’re not doing anything more restrictive than GAAMPs, and that’s the gold standard,” he said. “We’re just saying that GAAMPs should not be optional and the township should not bear the legal cost. If no one tries to put up an intensive agriculture operation, there’s no reason for a suit. For that, we’ll wait until someone wants to put one in.”

Hardish said she believes the township will prevail in any suit.

“We are free to adopt whatever ordinance best suits us to protect the health, safety and welfare of our citizens,” she said. “Right-to-Farm does not dictate our ordinances, and we’re not more restrictive than the GAAMPs.”

That statement, however, conflicts with the ordinance, which Kapp said goes beyond GAAMPs to the point of issuing a chart that clearly defines how many animals are allowed in the definition of “intensive livestock operation.”

“It’s not true that Leroy Township is only asking famers to conform with GAAMPs,” Kapp said. “As former Director Clover Adams said, the ordinance contains requirements that are stricter than GAAMPs. For example, it contains minimum acreage requirements and strict control over livestock numbers.”

Those numbers, Hardish said, are simply an attempt to define things.

“Those (animal) numbers separate a local farmer who on his property can take care of the manure, grow the feed and perform other farming all on his property,” she said. “Then we have the industrial farms, the commercial operations who must use the (township) numbers even if they differ from the GAAMPS. We’re not saying intensive agriculture can’t come in, but if they do, they should be good neighbors.”

Being a good neighbor is indeed at the root of the Right-to-Farm Act, Kapp said. But the pinstripes run both ways.

“If we didn’t have Right-to-Farm on the books there would be no statewide standard for farmers to use to be sure they remain good neighbors,” he said. “I suppose if townships want to pretend that they’re all dressed up and the only ones who know what being a good neighbor means, they can go ahead and try to convince their subjects that they need new regulations. But then they shouldn’t be upset when farmers who know the law point out that there are already laws in place that provide them with both standards of conduct and protection from nuisances in cases such as these, where the township obviously either doesn’t know the law or chose to ignore it,” he said.

“The point is, the courts have already exposed these ordinances for what they are, and the fact is, ordinances like this are not even barely legal,” he said. “They are obviously illegal, and no amount of pretending that they’re protective of the township makes them legal. These ordinances have no clothes, and we encourage farmers to continue to point that out.”