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Urban Agriculture, Right to Farm Act
Michigan Municipal League
Capitol Conference
March 26, 2015
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Speakers
• James Johnson, MICHIGAN DEPARTMENT OF
AGRICULTURE AND RURAL DEVELOPMENT
• Kurt H. Schindler, AICP, Gov’t & Public Policy ,
SENIOR EDUCATOR, MSU EXTENSION
• Frank Peterson, Muskegon City Manager
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What We Will Cover
• Right to Farm Act (RTFA); Preemption of local
jurisdiction; Kurt H. Schindler, AICP, MSU
Extension
• Urban Agriculture (Category 4 implementation,
Urban Livestock Workgroup recommendations
and technical report); James Johnson, MDARD
• Case study, City of Muskegon; Frank Peterson
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Right to Farm Act
Preemption of local jurisdiction
Kurt H. Schindler, AICP
Senior Educator, Land Use
MSU Extension, Greening Michigan Institute
Government and Public Policy Team
[email protected]
www.msue.msu.edu
4
Local Jurisdiction
P.A. 261 of 1999 amendment to RTFA
• MCL 286.474(6)
“Beginning June 1, 2000, except as otherwise
provided in this section, it is the express
legislative intent that this act preempt any
local ordinance, regulation, or resolution that
purports to extend or revise in any manner the
provisions of this act or generally accepted
agricultural and management practices
Schindler
developed under this act. . . .”
5
Local Jurisdiction
• MCL 286.474(6) (continued)
“. . . .Except as otherwise provided in this
section, a local unit of government
shall not enact, maintain, or enforce an
ordinance, regulation, or resolution that
conflicts in any manner with this act or
generally accepted agricultural and
management practices [GAAMPs]
developed under this act.”
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Schindler
Local Jurisdiction
• SUMMARY
• RTFA preempts any local ordinance,
regulation, or resolution
• Can’t extend or revise provisions of
RTFA, GAAMPs
• Local government shall not enact,
maintain, or enforce an ordinance,
regulation, or resolution that conflicts
with RTFA, GAAMPs
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Schindler
Local Jurisdiction: what
can/can’t do
• Exception:
•
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Can regulate if local ordinance is
submitted to, and approved by
Commission on Agriculture & Rural
Development
Local Jurisdiction
• Otherwise: A three part thought
process:
•
•
FIRST: Establish jurisdiction
SECOND: Determine what is covered
in RTFA & GAAMPs
•
•
•
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can’t regulate locally
and conversely if not in RTFA & GAAMPs,
still fair game to regulate locally
THIRD: “GAAMP delegate back.”
FIRST: Local Jurisdiction
•Four Part Jurisdiction Test:
•Is the activity a farm or “farm operation”?
•Is it producing a “farm product”?
•Is it engaged in “commercial
production”?
•Is it complying with GAAMPs? (Maybe
unsettled law)
•Lima Twp. v. Bateson 302 Mich. App. 483: Showing
activity is a farm operation, product, is burden of
person claiming RTFA protection
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SECOND: What subjects are off
limits for local regulation?
• If the subject of the regulation is covered
in RTFA, off limits for local regulation
• E.g., nuisance immunity,
• enforcement,
• investigation
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SECOND: What subjects are off
limits for local regulation?
• If the subject of the regulation is covered
in a GAAMP, off limits for local regulation
• E.g., type of farm,
• farm markets,
• manure,
• pesticide,
• care of animals,
• acres per animal
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AND much,
much more.
SECOND:
GAAMPs
• GAAMPs can change each year
• Usually in January or February
• Review of GAAMPs should be done
annually
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SECOND: What subjects are off
limits for local regulation?
• Conversely if the subject is NOT in
RTFA or a GAAMP, fair game to
regulate
• Sena Scholma Trust v. Ottawa Cnty. Rd.
Comm'n 303 Mich. App. 12: RTFA is a
“shield,” not a “sword” for farmer.
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THIRD: “Delegate back”
• GAAMPs have delegated certain
authority back to local government.
• 100,000 population rule
• Category 4 siting for livestock operations
• Vehicle access, setbacks, parking, signs for
Farm Markets
• Beer breweries, bonfires, camping, carnival
rides, concerts, corn mazes, etc. etc.
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THIRD:
100,000 population rule
• Added to each GAAMP in January
2012
• Local government can regulate if:
• Has 100,000 population or more
• Has an urban agriculture zoning
amendment
• Has nonconforming for existing farms
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THIRD:
Siting GAAMP Category 4 sites
• Added to Site Selection and Odor Control for
New and Expanding Livestock Facilities (Site
Selection) GAAMP in April 28, 2014
• New “Category 4”
•
Locations not acceptable for livestock farms, unless
local government ordinance allows it
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THIRD:
Siting GAAMP Category 4 sites
• New “Category 4” sites
Locations that are primarily
residential
• Do not allow agricultural
uses by right in zoning
• Possession and raising of
animals may be authorized
in such areas pursuant to a
local ordinance designed
for that purpose
•
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THIRD:
Siting GAAMP Category 4 sites
• “Primarily residential”
More than 13 non-farm
residences within 1/8
mile of the site OR
• Have any non-farm
residence within 250
feet of the livestock
facility.
•
Google maps;
Grand Rapids
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What are communities doing
• In Michigan there are five approaches to
urban agriculture:
1. Allow activity, but not as “agriculture”
2. Rely on “delegate back” in each GAAMP for
municipality over 100,000
3. Ignore RTFA preemption
and regulate urban agriculture
4. Seek Commission on
Agriculture and Rural
Development approval local
regulation
5. Use Category 4 “delegate
UofM Center on Urban Planning and Community Development
back”
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Use the Category 4 Site authority
• MSUE has 2+ dozen
planners & municipal
attorneys asking for
assistance
• Have several communities
(townships, villages, cities)
working on this.
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Opportunity or Threat to Ag?
• Previously, some governments did not
include provisions on urban agriculture in
master plans and zoning ordinances.
March 26, 2015
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Changes to Siting GAAMP mean…
• Urban jurisdictions now have livestock zoning
authority.
• In suburban and rural jurisdictions, pay attention to Ag
as a permitted use in those ‘rural residential’ districts
• Major interest to individuals
developing community food
systems:
• Small farm operators,
• Local food advocates, and
• Retailers and consumers
March 26, 2015
Steven Walling; unchanged
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Changes to Siting GAAMP mean…
• Urban Ag should be a focus for planners
• MI Community and Regional Food Systems
Planning Policy, 6/2/14
March 26, 2015
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The glass seems half full
• Opportunity to address in
a manner that expands
community food system
• Urban, suburban locations
have challenges for
livestock
• The usual spillovers (smell,
Claire Gregory; cropped
March 26, 2015
noise), plus runoff with
storm/ sanitary sewers,
slaughter/ euthanasia, etc.
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Think outside the pen
• Still scared to address the
issue of Urban Ag?
• This is exactly the type of
land use that zoning was
created to handle (i.e.
spillovers and
incompatibility between
uses)
• It starts with the master
plan, Right!?!
March 26, 2015
Josh Larios; unchanged
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This issue is not going away
• Placemaking towards a community food system
identity
• Food business entrepreneurship
• Local economy multiplier
• Food security
• Community resilience
• Health
Terry McLean
• Etc.
March 26, 2015
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This issue is not going away…
• Community Food Hubs
• MSUE Community Food System educators
• MSU Center for Regional Food Systems (MI
Good Food Charter)
• MDARD
• Health Departments
• Etc.
MSU
March 26, 2015
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Prepare Zoning Standards
• There are public health, safety, welfare issues
with urban farms – some are major
• There is a balance
• Legitimate technical concerns about urban farms
March 26, 2015
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MSU
(James Johnson will talk about some of those)
• A push and pull between urban farmers who do not
want to be regulated and legitimate public concerns
(Frank Peterson will talk about that dynamic)
URBAN FARMING
Michigan Municipal League
2015 Capital Conference
March 25, 2015
Jim Johnson
Director
Environmental Stewardship Division
2014 Change to the Siting GAAMP
• Allows for an evaluation of property for
appropriateness for livestock numbers < 50
animal units – Category 3 and 4 sites.
• Creates a “Category 4 Site” which is not
acceptable for new and expanding livestock
facilities (<50 animal units) and livestock
production facilities (>50 animal units).
• It goes on to say, “…the possession and raising of
animals may be authorized in such areas
pursuant to a local ordinance desired for that
purpose.”
Determining Category 3
and Category 4 Sites
• “Primarily Residential” defined
• MDARD looks at each case on an individual
basis.
– Does zoning include agriculture as a use by right?
• If yes, then Right to Farm and GAAMPs apply.
• If no, then it may be a Category 3 or Category 4 site.
Determining Category 4 Sites
• If there are more than 13 homes within 1/8 of a mile or
have a non-farm residence within 250’ of the livestock
facility, then it is a Category 4 site.
• Not appropriate for livestock
• Having livestock would not be in conformance with the Siting
GAAMP and the operation may not have Right to Farm
protection
Determining Category 3 Sites
• If there are less than 13 homes within 1/8 of a mile and
no non-farm residences within 250’ of the livestock
facility, then it is a Category 3 site.
• Appropriate for livestock
• Right to Farm and GAAMPs apply
Completing the Evaluation
Completing the Evaluation
Completing the Evaluation
Completing the Evaluation
Completing the Evaluation
Current Urban Ag Activities
Urban Livestock Workgroup
•
•
•
•
Named by Director Clover Adams and Senator Hune
Working since September 2014
Report submitted March 15, 2015
Looks at both social and technical issues
Workgroup Recommendations
1. Development of a comprehensive Urban
Agriculture Act
• Minority: Impedes efforts to stimulate urban ag
2. Act should require the development of
guidelines for urban/suburban agriculture
Workgroup Recommendations
3. Authority to develop and approve guidelines
be given to the Michigan Commission of
Agriculture and Rural Development
a) Commission to create a group composed of local
government, state government, academies,
subject matter experts, and urban/suburban
producers
• Minority: Group should be represented by at least 50%
urban/suburban producers
Workgroup Recommendations
4. Act provide for local (county, township, city
or village) zoning authority over agriculture in
urban/suburban areas, without state
preemptions
• Minority: Set minimum livestock type with guidelines
enforced by local units
Workgroup Recommendations
• Minority: Amend the Planning Act to require
all jurisdictions with a master plan to consider
and plan for both commercial and noncommercial agriculture
• Minority: Amend Zoning Act to require that
small livestock (or agriculture) be listed as a
“use by right” or “special land use” in at least
one residential zoning district
• Smaller minority: Outright preemption with
adherence to state level guidelines
Workgroup Recommendations
5. Majority wants the Urban Agriculture Act to
be introduced in the 2015/2016 legislation
session
• Minority: Act to be signed into law in 2015/2016
session
Technical Report
Purpose – to provide livestock
producers/planners in urban/suburban settings
information that can be used to raise or govern
livestock production within their jurisdiction.
Technical Report
•
•
•
•
•
•
Soils
Livestock Health
Livestock Housing
Waste/Manure Management
Livestock Slaughter and Euthanasia
Pest Control
Site Selection GAAMPs
www.michigan.gov/righttofarm
Urban Livestock Workgroup
Recommendations Report
www.michigan.gov/mdard
Stay connected with MDARD!
Michigan Department
of Agriculture
@MichDeptofAg
MIagriculture
A Balancing Act in
Muskegon
Frank Peterson, City Manager
March 26, 2015
Footer
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A Balancing Act in Muskegon
• For the past two years, Muskegon has
struggled to find the right mix of
allowances for commercial farming in our
neighborhoods with regulations of farming
activities that are appropriate and
enforceable.
March 26, 2015
Footer
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A Balancing Act in Muskegon
• The conversation has been dominated by three
factions:
1. Community garden operators that want to
sell produce as part of their effort to
accomplish other community-oriented goals.
2. Some landowners that want to be able to sell
produce from personal gardens to provide
personal income.
3. Residents that believe commercial farming
does not belong in our urban neighborhoods.
March 26, 2015
Footer
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Accommodating Commercial Activities
Our draft ordinance allows:
1. Community gardens as a principal use
in specific zoning districts.
• Commercial sales would be allowed with
appropriate business licensing.
• Guidelines were established for items like
setbacks, operation of heavy machinery,
signage, etc.
March 26, 2015
Footer
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Accommodating Commercial Activities
Our draft ordinance allows:
2. Urban commercial farms as an
accessory use in specific zoning districts
(special use permit required).
• Commercial sales would be allowed with
appropriate business licensing.
• Similar guidelines to community gardens
• No on-site sales
March 26, 2015
Footer
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Stumbling Blocks So Far
• Highly vocal minority – social media and
blogging that focuses on negatives of the
ordinance:
• “Muskegon Hates Veggies, Too”
• Muskegon to Ban Personal Gardens
March 26, 2015
Footer
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Stumbling Blocks So Far
• Residents and elected officials that are not
supportive because of potential side effects.
• Litigated a case involving goats in a
neighborhood that was appealed numerous
times – costing the city in excess of $40,000.
• Others attempting to use this to justify other
home-based businesses.
• If my neighbors can have a commercial farm,
can I fix cars or do auto-body work?
March 26, 2015
Footer
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Resources
• Site Selection GAAMPs:
www.michigan.gov/righttofarm
• Urban Livestock Workgroup
Recommendations Report:
www.michigan.gov/mdard, or
http://www.michigan.gov/documents/mdard/Urban_Livest
ock_Workgroup_Report_w_Technical_Workgroup_Guide
lines_031315____484099_7.pdf
• MSUE Sample Zoning – forthcoming:
http://lu.msue.msu.edu/pamphlets.htm#Zagr
March 26, 2015
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Resources
• Selected Zoning Court Cases Concerning the Michigan
Right to Farm Act; Dr. Patricia Norris and Kurt H.
Schindler; MSU Extension:
http://lu.msue.msu.edu/pamphlets.htm#CourtRTFA
• “When Urban Agriculture Meets Michigan’s Right To
Farm Act: The Pig’s in the Parlor;” Michigan State Law
Review; 2011:2 Mich St. L. Rev. 365):
http://lu.msue.msu.edu/pamphlets.htm#RTFAlawR
• Land Use Series “What sorts of local regulations are
preempted by the Right to Farm Act (RTFA):
http://lu.msue.msu.edu/pamphlets.htm#RTFAtable
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Resources for GAAMP Category 4
sites
• Prolog: Right to Farm Act can preempt local regulation authority, but
not all local regulations, August 26, 2014 | Kurt H. Schindler, AICP:
http://msue.anr.msu.edu/news/right_to_farm_act_can_preempt_local_regulation_auth
ority_but_not_all_local
• Introduction: New Right to Farm Act Siting GAAMP now in effect,
May 16, 2014 | Kurt H. Schindler, AICP:
http://msue.anr.msu.edu/news/new_right_to_farm_act_siting_gaamp_now_in_effect
•
Community Food: Changes to Site Selection GAAMP mean communities
have greater opportunity to plan for food systems, May 16, 2014 | Brad
Neumann, AICP:
http://msue.anr.msu.edu/news/changes_to_site_selection_gaamp_mean_communitie
s_have_greater_opportunity_t
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Resources for GAAMP Category 4
sites
• Government to do list: New Right to Farm Site Selection GAAMPS
needs local government attention, May 16, 2014 | Kurt H. Schindler,
AICP:
http://msue.anr.msu.edu/news/new_right_to_farm_site_selection_gaamps_needs_loc
al_government_attention
• Large Farms: Changes to the Right to Farm 2014 Site Selection
GAAMPs May 16, 2014 | Jerry May:
http://msue.anr.msu.edu/news/changes_to_the_right_to_farm_2014_site_selection_g
aamps
• Existing Livestock: Existing livestock farms in ‘primary residential’
areas can continue July 18, 2014 | Brad Neumann, AICP:
http://msue.anr.msu.edu/news/existing_livestock_farms_in_primary_residential_areas
_can_continue
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Thank you
• Kurt H. Schindler,
[email protected]
• James Johnson,
[email protected]
• Frank Peterson,
[email protected]
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