The following opinion is presented on-line for informational use only and does not replace the official version. (Mich. Dept. of Attorney General Web Site - http://www.ag.state.mi.us)
STATE OF MICHIGAN
BILL SCHUETTE, ATTORNEY GENERAL
RIGHT TO FARM ACT:
|Preemption of local ordinances concerning farming activities.|
Unless otherwise approved under subsection 4(7) MCL 286.474(7), subsection 4(6) MCL 286.474(6) of the Right to Farm Act, 1981 PA 93, MCL 286.471 et seq., preempts provisions in ordinances adopted by local units of government that regulate farming activities when the Commission of Agriculture and Rural Development has developed generally accepted agricultural and management practices that address those farming activities.
Opinion No. 7302
March 28, 2018
Gordon Wenk, Director
Department of Agriculture and Rural Development
Lansing, MI 48909
You have asked whether the Right to Farm Act, 1981 PA 93, MCL 286.471 et seq., preempts provisions in ordinances adopted by local units of government that regulate farming activities when the Commission of Agriculture and Rural Development has developed generally accepted agricultural and management practices that address those farming activities.
Michigan first adopted the Right to Farm Act in 1981. Michigan’s Act was one of many right to farm acts adopted across the country during the late 1970s and early 1980s. 8 ALR6th 465, § 2. During that time-period, the spread of residential development into traditionally rural areas increased pressure on farm land and farmers. Id. As noted in a staff legislative analysis of the bill that became the Michigan Right to Farm Act, newcomers to traditionally agricultural areas were not accustomed to the noises, odors, and dust associated with agricultural activities. House Legislative Analysis, HB 4054 (April 7, 1981). Proponents of the legislation were concerned that farmers would face increased nuisance lawsuits seeking to enjoin agricultural activities and that such lawsuits, if successful, could result in economic ruin for those farmers. Id.
The Act provides that “[a] farm or farm operation shall not be found to be a public or private nuisance” under two circumstances: (1) if the farm “conforms to generally accepted agricultural and management practices;” or (2) if “the farm or farm operation existed before a change in the land use or occupancy of land within 1 mile of the boundaries of the farm land, and if before that change in land use or occupancy of land, the farm or farm operation would not have been a nuisance.” MCL 286.473, as amended by 1987 PA 240 and 1995 PA 94. The Act originally stated that it did not affect the application of state and federal statutes. MCL 286.474, as amended by 1995 PA 94 and 1999 PA 261. Because the Act barred finding a farm that complied with § 3 to be a public or private nuisance, courts interpreted the Act as insulating farmers from nuisance lawsuits brought based on local zoning ordinance violations. See, e.g., Northville Township v Coyne, 170 Mich App 446, 449 (1988).
In 1995 the Act was amended to, among other things, expand § 4. 1995 PA 94. The amended language defined state statutes to include the Rural Zoning Enabling Act and the Township Rural Zoning Act:
(1) This act does not affect the application of state statutes and federal statutes.
(2) For purposes of this section, “state statutes” includes, but is not limited to, any of the following:
(a) The county rural zoning enabling act, Act No. 183 of the Public Acts of 1943, being sections 125.201 to 125.232 of the Michigan Compiled Laws.
(b) The township rural zoning act, Act No. 184 of the Public Acts of 1943, being sections 125.271 to 125.301 of the Michigan Compiled Laws.
(c) Act No. 207 of the Public Acts of 1921, being sections 125.581 to 125.592 of the Michigan Compiled Laws. [MCL 286.474, as amended by 1995 PA 94 and 1999 PA 261.]
Following the 1995 amendments, in Troy v Papadelis (On Remand), 226 Mich App 90 (1997), the Court revisited whether a nuisance lawsuit brought against a farm based on an ordinance violation could be sustained under the Right to Farm Act. In that case, the defendant farmers expanded their greenhouse operations to a residentially zoned property that prohibited commercial activity. Id. at 92-93. The city brought a nuisance action based on local ordinance violations. Id. The Papadelis Court held that because the Right to Farm Act was amended to state that it was not a defense to the application of state statutes including the County Rural Zoning Enabling Act and the Township Rural Zoning Act, the Act was not a defense to an action to enforce a zoning ordinance. Id. at 96.
But in 1999, the Legislature changed course and again amended § 4 of the Act. 1999 PA 261. Proponents of the 1999 amendments expressed concern that if the Act did not protect farmers from the application of local zoning, “a farmer might be denied a permit necessary to expand his or her farming operation or, after expanding, might be subject to a lawsuit brought by neighbors.” House Legislative Analysis, SB 205 (October 28, 1999). In 1999 PA 261, the Legislature made two major changes to § 4 that have shaped the current Right to Farm Program.
First, references to the Rural Zoning Enabling Act and Township Rural Zoning Act were removed, and language was added limiting the application of local zoning ordinances to farming activities. MCL 286.474(5)–(7). Second, the Legislature required that the Commission propose generally accepted agricultural and management practices (GAAMPs) for site selection and odor controls for new and expanding animal facilities. MCL 286.474(8)–(9).
The most significant change in the 1999 amendments was the adoption of language preempting the application of local ordinances to farming activities:
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 developed under this act. 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 developed under this act. [MCL 286.474(6).]
The preemption language in § 4(6) was coupled with a process through which a local unit of government could obtain approval from the Commission to enact standards different than those contained in the Act or the GAAMPs. MCL 286.474(7). For standards different than the GAAMPs to be adopted, the Legislature required a demonstration that the alternative standards were necessary to prevent adverse effects on the environment or public health. Id. The Act prescribed the process for obtaining the Commission’s approval to enact and enforce an ordinance with different standards. Id.
Additionally, the 1999 amendment required the Commission to adopt GAAMPs for site selection and odor controls at new and expanding livestock facilities (Site Selection GAAMPs) by June 1, 2000. As required by the statute, the Commission adopted the original Site Selection GAAMPs in 2000.
The Site Selection GAAMPs are among eight sets of GAAMPs the Commission has adopted—the other GAAMPs address care of farm animals, nutrient utilization, manure management, irrigation and water use, pesticide utilization and pest control, cranberry production, and farm markets. In addition to the GAAMPs that address specific farming practices, the Commission has adopted an overarching policy regarding GAAMPs: “Given the breadth of the industry, it is the policy of this Commission that Generally Accepted Agricultural and Management Practices include any traditional farming practice which is not detrimental to the environment or human and animal health.” Michigan Commission of Agriculture and Rural Development Policy Manual, Policy No. 8, p 27.
The GAAMPs cover most aspects of agriculture, including where livestock facilities can be located, how far livestock facilities must be set back from neighboring property lines, how manure should be stored, how much manure can be spread on fields, and where manure can be spread.
You specifically ask whether § 4(6) preempts provisions in local ordinances and regulations that: (1) limit the number of livestock per acre, (2) require a site plan be submitted to and approved by the local zoning administrator, (3) limit manure application to fields in which the farmer owns or holds a 7-year lease (4) specify manure application methods, or (5) require a comprehensive nutrient management plan be submitted to and approved by the local unit of government.
Whether a state statute preempts a local ordinance is a question of statutory interpretation. Mich Coalition of Responsible Gun Owners v Ferndale, 256 Mich App 401, 405 (2003). “The cardinal rule of statutory construction is to discern and give effect to the intent of the Legislature.” Murphy v Mich Bell Tel Co, 447 Mich 93, 98 (1994). “If the statutory language is unambiguous, we must presume that the Legislature intended the meaning it clearly expressed and further construction is neither required nor permitted.” Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720 (2005).
In People v Llewellyn, 401 Mich 314 (1977), the Michigan Supreme Court outlined the factors to be considered in determining whether a local regulation is preempted. The most applicable of these factors to your question is: “[W]here the state law expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted.” Id. at 323 (emphasis added). See also, Rental Prop Owners Ass’n of Kent Co v Grand Rapids, 455 Mich 246, 257 (1997). That rule has been specifically applied with respect to local zoning ordinances. See, e.g., Frericks v Highland Twp, 228 Mich App 575, 585-586 (1998).
The express preemption test is most applicable to your question because the text of § 4(6) specifically states that the Right to Farm Act and GAAMPs preempt local governments’ regulation of farming activities covered by the Act or the GAAMPs. There is no question regarding legislative intent—local ordinances seeking to regulate those activities are preempted. However, even though the statutory language is clear, the courts have considered the scope of the Act’s preemption language on several occasions.
The Court of Appeals first addressed the Right to Farm Act’s preemption language in Charter Township of Shelby v Papesh, 267 Mich App 92 (2005). In that case, the defendants, who were raising poultry on just over one acre, challenged a township ordinance that prohibited farming on less than three acres as violating the Right to Farm Act. Id. The Court held that to the extent the ordinance sought to limit farming, it was prohibited:
The language of the statute is unambiguous. It clearly states that a local ordinance is preempted when it purports to extend or revise the [Right to Farm Act] or GAAMPs. . . . The relevant GAAMPs provide for the proper management practices for poultry farming, including, but not limited, to facilities, manure management, and care of chickens and turkeys. . . . The ordinance conflicts with the [Right to Farm Act] to the extent that it allows plaintiff to preclude a protected farm operation by limiting the size. [Id. at 106.]
The Court concluded that “the [Right to Farm Act] no longer allows township zoning ordinances to preclude farming activity that would otherwise be protected by the [Right to Farm Act].” Id. at 107.
The Court of Appeals again addressed the preemption language’s effect on local ordinances in Lima Township v Bateson, 302 Mich App 483 (2013). In that case, the township brought an action against the Batesons claiming their conduct of commercial activity on agriculturally zoned property was prohibited by the local ordinance and, consequently, was a nuisance per se. The Batesons responded that their activities were related to developing a tree farm on their property and were protected under the Right to Farm Act. In remanding the case to the trial court for a determination whether the Batesons were operating a farm and conforming to GAAMPs, the Court held that “the rights afforded a farmer under the [Right to Farm Act] preempt local ordinances such that activities falling within the purview of the act cannot be barred by ordinance.” Id. at 493.
Although courts have held that local zoning cannot prohibit farming activities that are otherwise protected by the Right to Farm Act and addressed by the GAAMPs, they have not held that every activity on a farm is outside of local regulation or that local units of government are required to take affirmative action to assist farms in their operations. For example, courts have held that where the GAAMPs and Right to Farm Act do not provide other standards, local ordinances that address the permitting, size, height, bulk, floor area, construction and location of buildings on a farm can be enforced. Papadelis v City of Troy, 478 Mich 934, 934 (2007). Further, the Right to Farm Act cannot be used as a sword to force a township to grant a general permit, even if that permit may assist the farmer in the conduct of their farming activities. Scholma v Ottawa County Road Commission, 303 Mich App 12, 25-27 (2013). 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.” Id. at 23.
Each of the five types of ordinance provisions you have asked about are preempted by § 4(6) because they extend, revise, or conflict with the Act or the GAAMPs adopted by the Commission under the Act.
First, the Papesh Court determined that ordinances that established the number of animals permitted per acre conflicted with the Act and the Site Selection GAAMPs by precluding farming activity that the Act protected. Accordingly, those provisions are preempted and unenforceable. Papesh, 267 Mich App at 105-106.
Second, because the Site Selection GAAMPs require that a site plan be submitted and approved by the Michigan Department of Agriculture and Rural Development (2017 Site Selection GAAMPs, pp 13, 15-17), a local ordinance that requires a site plan also be submitted and approved by the zoning administrator is extending the Site Selection GAAMPs requirements. Such a local ordinance provision “purports to extend . . . in any manner . . . generally accepted agricultural and management practices developed under [the Act]” contrary to § 4(6), and is therefore preempted.
Regarding the third and fourth provisions, the GAAMPs for Manure Management and Utilization specifically address where and under what circumstances manure can be applied to land—including requirements for soil testing, manure analysis, nutrient loading, methods and timings of applications, and manure management applications. (2017 Manure Management and Utilization GAAMPs, pp 15-25). As a result, local ordinances that attempt to regulate where and under what conditions manure can be stored or applied to land are preempted by § 4(6) of the Act because they extend (and potentially conflict with) the requirements in the Manure Management and Utilization GAAMPs.
And fifth, the GAAMPs for Nutrient Utilization address fertilizer storage, soil testing and analysis, and nitrogen, phosphorus, and nutrient management. (2017 Nutrient Utilization GAAMPs, pp 2-12). Consequently, local ordinances seeking to require farms to obtain local approval for their nutrient management plans are an attempt to extend the Nutrient Utilization GAAMPs and are preempted by § 4(6).
Subsection 4(6) of the Right to Farm Act is unambiguous—all “local ordinance, regulation, or resolution that purports to extend or revise in any manner . . . [or] conflict[s] in any manner” with the Act or the GAAMPs are preempted. MCL 286.474(6). The GAAMPs establish comprehensive requirements for livestock siting, manure management, and nutrient management. Local ordinances that attempt to limit these activities or place additional requirements on farmers to conduct these activities are preempted by the Act and, under § 4(6), cannot be enacted, maintained, or enforced. The only exception to this preemption provision is for local ordinances submitted to the Department of Agriculture and Rural Development and approved by the Commission under the terms set forth in § 4(7).
It is my opinion, therefore, that unless otherwise approved under § 4(7), § 4(6) of the Right to Farm Act preempts provisions in ordinances adopted by local units of government that regulate farming activities when the Commission of Agriculture and Rural Development has developed generally accepted agricultural and management practices that address those farming activities.
 The Commission of Agriculture and Rural Development is a five-member, bipartisan board appointed by the Governor, MCL 16.279, and housed with the Michigan Department of Agriculture and Rural Development.
 This analysis and others are available on the Michigan Legislature’s website, http://www.legislature.mi.gov/(S(aziu0emdgxwqcgnnvt4l2wx1))/mileg.aspx?page=getObject&objectName=1999-SB-0205
 The Site Selection GAAMPs have been reviewed and revised annually since 2000. The current version and other GAAMPs are available on the Michigan Department of Agriculture and Rural Development’s website at http://www.michigan.gov/mdard/0,4610,7-125-1599_1605---,00.html (last accessed February 27, 2018).
 The Commission’s Policy Manual is available on the Department of Agriculture and Rural Development’s website at http://www.michigan.gov/mdard/0,4610,7-125-1572_2878---,00.html, (last accessed February 27, 2018).
 The 2017 Site Selection GAAMPs are available at http://www.michigan.gov/documents/mdard/SITE_SELECTION_GAAMPs_550741_7.pdf, (last accessed February 27, 2018).
 The 2017 Manure Management and Utilization GAAMPs are available at http://www.michigan.gov/documents/mdard/MANURE_GAAMPs_550734_7.pdf, (last accessed February 27, 2018).
 The 2017 Nutrient Utilization GAAMPs are available at http://www.michigan.gov/documents/mdard/NUTRIENT_UTILIZATION_GAAMPs_550736_7.pdf, (last accessed February 27, 2018).