Reining In Urban Farming – No More RTFA Protection?

In 2000, the Michigan Legislature amended the Michigan Right to Farm Act (RTFA), making it one of the most protective farm statutes in the country.  One of its more potent features is that it overrules any local ordinances that conflict with it or the Generally Accepted Agricultural Management Practices (GAAMPS) of the Michigan Department of Agriculture & Rural Development (MDARD). The GAAMPs are critical to the reach of the RFTA. 

If a farm complies with GAAMPs, then it is protected under the RTFA. If a farm does not comply with GAAMPs, it is not protected under the RTFA. 

Similarly, if an ordinance purports to regulate farming beyond what is required in the GAAMPs, then it is unenforceable.

Small Scale Farming

Not long after the 2000 amendments, a clash between small "farms" and local governments began.  The conflict is best illustrated by the case of Shelby Charter Township v. Papesh.  The defendants in that case raised chickens (allegedly for commercial purposes; only commercial farming is protected) on a one acre lot, which violated local zoning (ordinance required three acre minimum lot sizes for raising small animals).  The township insisted that the defendants remove the chickens, and the dispute ended up at the Michigan Court of Appeals. 

The Court of Appeals concluded that "any township ordinance, including a zoning ordinance, is unenforceable to the extent that it would prohibit conduct protected by the RTFA."  Because the ordinance placed an acreage requirement on the raising of chickens that the GAAMPs did not, the ordinance was in conflict with the GAAMPs, and therefore could not be enforced.

The Shelby Township case has become the most cited authority for those attempting urban farming as it stands for the proposition that local government cannot prohibit small scale commercial farming – so long as the farming activity complies with GAAMPs.

Proposed Revisions

The conflict between small farms and government has persisted even though MDARD long ago approved "Site Selection" GAAMPs.  Those GAAMPs were designed to keep "livestock production facilities" away from urban areas, but the GAAMPs, by their own definition, only apply to large-scale farms (for example, you would have to have 5,000 chickens to be covered by these GAAMPs).    

To address this issue, MDARD recently proposed revising the Site Selection GAAMPs to include small farms.  Once covered by the GAAMPs, small farms will need to follow the site selection requirements, which provide that farms may only be sited in areas zoned for agriculture.  This will greatly increase the power of local governments to regulate where farming takes place.   

However, even this change is unlikely to eliminate all of the conflict.  Notably, the new GAAMPs probably would not have changed the outcome of the Shelby Township case because farming was an allowed use in the area, but the township imposed an additional lot size requirement.  If the property was suitable for farming under the GAAMPs, then the ordinance would still be invalid.  Nonetheless, the ability for new urban farms to pop-up in non-ag areas will be greatly diminished.