Right to Farm Act can preempt local regulation authority, but not all local regulations
There are many laws that preempt local zoning authority, they basically say that local government cannot regulate that particular topic. Most are straightforward. For example, Michigan State Police communication towers do not need a local zoning permit and are not subject to local government regulation. However, one, the Right to Farm Act (RTFA) is not so simple or straightforward.With the Right to Farm Act, there are some things about agriculture that can be regulated, other things that cannot, some that cannot but are delegated back to the local government, disagreement over some aspects of all this, plus some issue over what is and is not agriculture.As a result, Michigan State University Extension educators that focus in land use (planning and zoning) receive many questions on this aspect of the Right to Farm Act from zoning officials, farmers, people wanting to keep farm animals and more.Here is the basic thought process for trying to figure out local authority preemption:First, does the land use fall under the Right to Farm Act (RTFA), that is, is it a farm or agriculture? Start by asking these questions:
- Is it a “farm operation?”
- Is it producing “farm products?”
- Is it commercial?If the answer is “yes” to each of these above (it does not matter intent or that it might be a “hobby farm” if it meets the criteria of farm operation, farm product, commercial) then it applies under the RTFA. The definitions of those terms are very broad and all inclusive. For example, “commercial” can be as little as selling one egg in a year. There is no minimum threshold for “commercial.”A fourth question may also apply:• Does the operation follow generally accepted agricultural and management practices (GAAMPs)?If the answer is “yes” to each of the four, above, then the land use or activity applies under the RTFA. However, a farmer does not have to follow GAAMPs. That is the farmer’s choice. As a result, some attorneys advise against local government treating farmer “A” that follows GAAMPs different than next door farmer “B” that chooses not to. The concern becomes lack of equal treatment in administering zoning. Those attorneys advise giving a “pass” to question four, or always answering it as “yes.” Other attorneys do not share this concern. A local government should consult its attorney, who is presumably experienced in municipal (planning and zoning) law as to how to handle this.This first step determines if the land use falls under the RTFA. If it does not (if one or more of the questions was answered “no”), then the RTFA does not apply and local regulations do apply. If all three (or four) questions were answered “yes” then RTFA does apply and certain local regulations are preempted.Second, is to determine what specific local regulations are preempted and what local regulations can still be enforced. If the topic of the regulation is already covered in the RTFA or in any of the published GAAMPs, then local government cannot regulate it. If the topic is not in the RTFA and not in any of the GAAMPs, then local regulation can still apply.There is no easy way to review what topics are covered in GAAMPs. The RTFA is easier. Topics in the RTFA, and thus off limits for local regulation are:• Anything about a farmer’s liability in a public or private nuisance lawsuit.• Anything about enforcement or investigation process for complaints involving agriculture.• The conversion from one or more farm operation activities to other farm operation activities.The Michigan Attorney General issued Opinion 7302 on March 28, 2018 concluding that a local government ordinance cannot regulate any of the following things due to the RTFA’s Section 4(6) limit the number of livestock per acre, require a site plan be submitted to and approved by the local zoning administrator, limit manure application to fields in which the farmer owns or holds a 7-year lease, specify manure application methods, and require a comprehensive nutrient management plan to be submitted to and approved by the local unit of government.There are other subjects that are preempted from local regulation in addition to what is listed above. These were just the ones the attorney general was asked about. The opinion reads “There is no question regarding legislative intent [in the RTFA], local ordinances seeking to regulate those activities are preempted.” The opinion also reads:“Although the Right to Farm Act’s preemption language is broad, it is ‘only those ordinances, regulations and resolutions by local units of government that either purport to extend or revise or that conflict with the [Right to Farm Act] or the GAAMPs [that] are improper.’”However, GAAMPs cover a much larger range of topics and an effort is made to keep GAAMPs up to date with the most current science-based best practices for farm operations. It is normal, each year, for advisory committees to the Michigan Commission of Agriculture and Rural Development to review and update each GAAMP. Usually in January or February of each year, the Commission is adopting updated versions of the GAAMPs. Thus, local zoning authorities should expect revisions and changes to GAAMPs each year. Bookmarking the webpage where current GAAMPs are made available (https://www.michigan.gov/mdard/environment/rtf) and regularly checking that webpage is wise.Using this decision tree at https://www.canr.msu.edu/resources/who_is_protected_from_zoning_regulation_under_the_right_to_farm_act_rtfa may help organize the thought process of review to determine what regulations are preempted or not.A further complication is some GAAMPs delegate regulation authority back to the local unit of government (but this too can change from year to year). Examples of this include:• Municipalities with a population of 100,000 or more in which a zoning ordinance has been enacted to allow for agriculture (and that designates existing agricultural operations as nonconforming uses).• Category 4 sites for livestock operations (in the GAAMP for Site Selection and Odor Control for New and Expanding Livestock Facilities)• Vehicle access and egress, building setbacks, parking (but not the surface of the parking lot), signs for Farm Markets (in the GAAMP for Farm Markets)• Promotional and educational activities designed to sell more farm products that are not incidental to a Farm Market's farm products (in the GAAMP for Farm Markets)There is a legal question as to if, through a GAAMP, the Michigan Commission of Agriculture and Rural Development has the authority to delegate local authority to regulate in face of statutory preemption of any local ordinance, regulation or resolution that extends or revises in any manner the provisions of the RTFA or GAAMPs. A local government should consult their attorney, who is presumably experienced in municipal (planning and zoning) law as to how to handle this.Because some GAAMPs address the location of farms, there is an unsettled legal question whether a zoning ordinance can even restrict agriculture to certain zoning districts. The reason is that some courts have concluded that commercial agricultural operations are able to establish in any local zoning district based on the RTFA and its preemption of local regulation of agricultural activities and Village of Rothbury versus Double JJ Resort Ranch. At the same time, other court cases suggest the legislature never intended the RTFA to be used “…as a sword…” to thwart the enforcement of local ordinances. A local government should consult their attorney, who is presumably experienced in municipal (planning and zoning) law for information on how to handle this.What is clear, however, is that a local government cannot choose which type of farm operation is permitted in a zoning district. If agriculture is allowed, then all types of farming need to be allowed. This is because the ability to convert from one farm operation activity to other farm operation activities is specifically included in the RTFA. But in category 4 sites, there is the local government authority to regulate livestock aspects of a farm operation based on the Site Selection GAAMP.These and many other issues have been previously litigated in courts. It may help further to know what those court cases are. See selected zoning court cases concerning the Michigan Right to Farm Act at https://www.canr.msu.edu/resources/selected_zoning_court_cases_concerning_the_michigan_right_to_farm_act_court. What is safe to say is this area of law is a moving target and keeping current will be an ongoing task.