Right to Farm Site Selection GAAMP needs local government attention

Site Selection GAAMPs provides opportunity for local government to lead discussions about urban agriculture and local food production, and work to accommodate this economic activity.

Local government needs to start discussions about urban agriculture and local food activity, and work to accommodate this new economic niche. l MSU Extension
Local government needs to start discussions about urban agriculture and local food activity, and work to accommodate this new economic niche. l MSU Extension

On April 28, 2014, the Michigan Commission of Agriculture and Rural Development adopted the 2014 update of the Generally Accepted Agricultural and Management Practices for Site Selection and Odor Control for New and Expanding Livestock Facilities (Site Selection GAAMP) creating a fourth category of livestock facility sites. This category applies to livestock facilities and livestock production facilities. Michigan’s Generally Accepted Agricultural and Management Practices (GAAMPs) are adopted under the Right to Farm Act (MCL 286.471 et seq.).For more about the reasons and background on this change, see Category 4 sites under the Right to Farm Act Site Selection GAAMP.

According to page 5 of the Sitting GAAMP, categories of livestock facility sites now are:

  • “Category 1. sites - those normally acceptable for livestock facilities and generally defined as areas that are highly agricultural with few non-farm residences.
  • “Category 2. sites - those where special technologies and/or management practices could be needed to make new and expanding livestock facilities acceptable. These areas are predominantly agricultural but also have an increased number of non-farm residences.
  • “Category 3. sites - those that are generally not acceptable for new and expanding livestock production facilities due to environmental concerns or other neighboring land uses.
  • “Category 4 sites - those not acceptable for new and expanding livestock facilities and livestock production facilities.”

Category 4 sites for livestock facilities are further defined in the Site Selection GAAMP as:

“Category 4 Sites are locations that are primarily residential and are not acceptable under the Siting GAAMPs for livestock facilities or livestock production facilities regardless of the number of animal units. However, the possession and raising of animals may be authorized in such areas pursuant to a local ordinance designed for that purpose.” 

In other words, small livestock facilities in “primarily residential” locations are not outright permitted under the RTFA or banned from those locations; rather the decision of whether or not livestock can be permitted at a given location is shifted from the state, with GAAMPs, to the local government to determine. A small livestock facility is defined as “less than 50 animal units.” An animal unit is the number of animals equivalent to one slaughter and feed cattle. Depending on the animal, 50 animal units is proportionate based on a number of factors. For example, 50 animal units means 125 swine, 500 sheep and lambs, 25 horses, 2,750 turkeys, 5,000 laying hens or broilers.

Essentially, the creation of a Category 4 site defines a geography where livestock facilities do not comply with the Site Selection GAAMPs and therefore do not earn Right to Farm Act nuisance protection and local ordinance preemption. There are an increasing number of local governments with primarily residential areas allowing the keeping of animals. Remember, the RTFA reads:

“…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…” and “…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))

With the authority from the Site Selection GAAMP provided to local governments to regulate livestock facilities in primarily residential sites, there is no conflict with the RTFA.

The term “primarily residential” is defined in the GAAMP:

“Sites are primarily residential if there are 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.” 

This definition does not define a zoning density measure; instead, it defines a density of non-farm residences or a threshold distance within which the presence of a non-farm residence triggers the distinction as a Category 4 Site.

Other sections of the Site Selection GAAMP address other land use compatibility issues such as avoiding sites in high public use areas (high population density, hospitals, churches, schools, commercial zones, parks, campgrounds, etc.).

Many local governments have taken advantage of this opportunity. The cities of Marquette and Ishpeming in the Upper Peninsula adopted zoning ordinance language that includes permissive standards for small livestock production. Under the updated ordinances, primarily residential areas allow for the keeping of small animals — chickens, rabbits and bees — within city limits (see New Community food system policy resources now available).

Urban Strawberry Picking

 

The Category 4 site provides an opportunity for local governments to accommodate small livestock production, while having the ability to prevent land use conflicts with reasonable standards.

There is not a single state-wide solution to addressing urban agriculture, so, to the Category 4 site empowers some local governments to be able to accommodate small livestock farms. It is a response to the growing interest in urban agriculture, and the Commission’s attempt to balance concerns in residential areas where all livestock may not be appropriate. Win-win solutions are possible.

It is important to remember the Site Selection GAAMP provides this local regulatory control to areas which are “primarily residential” (with 13 or more non-farm residences within 1/8 of a mile, and no non-farm residences within 250 feet). That means there may not be local regulatory control in some areas which are urban, urban-like, or within a residential zoning district, because all those locations may not be “primarily residential.” Conversely, areas not in a residential zone may be “primarily residential.”

However, when a local government is approached by a member of the community, asking for ability to have urban farms and or small animal operations, it is important that the Michigan local government is open to talk about it or consider changes. One can expect different communities will do different things as a result:

  • There are some local government legislative bodies that still want to say “no” to any animal farm operations in dense primarily residential areas. But that should be far fewer municipalities, especially in face of the Michigan Zoning Enabling Act’s mandate to provide for all lawful land uses somewhere within the political jurisdiction.

    The Michigan Zoning Act reads:

    “A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a local unit of government in the presence of a demonstrated need for that land use within either that local unit of government or the surrounding area within the state, unless a location within the local unit of government does not exist where the use may be appropriately located or the use is unlawful.” (MCL 125.3207)

    Further, Michigan courts have addressed the matter of ‘demonstrated need’ with the Michigan Court of Appeals writing:

    “An ordinance that has the effect of totally prohibiting a particular land use within a township is impermissible in the absence of special circumstances. . . . A zoning ordinance that totally excludes an otherwise legitimate use carries with it a strong taint of unlawful discrimination and a denial of equal protection of the law with regard to the excluded use. . . . A zoning ordinance may not totally exclude a lawful land use where (1) there is a demonstrated need for the land use in the [municipality] or surrounding area, and (2) the use is appropriate for the location”  (English v. Augusta Township, 204 Mich. App. 33 (1994))
  • There are some local governments that are welcoming to discussion and consensus building to accommodate animal farm operations in all or some primarily residential areas.
  • There are some local governments that have not historically been receptive to animal farm operations in primarily residential locations but may feel far more comfortable in light of local authority in Category 4 sites and may be more open to farm operations in primarily residential areas. This is because they have the ability to have some control to implement a local consensus and appropriate local standards without RTFA preemption.
  • There are some local governments that allow limited animal farm operations in urban areas, but did so with the risk they may not have been able to really regulate such issues. The change put those communities on surer legal footing.

For the first three situations above, as with any planning task, it will be important to involve many stakeholders early in the discussion and process (see Before settling for a public hearing, consider the continuum of public involvement). Not just the small farmer, but also the community’s farmers market manager, food co-op representative, chamber of commerce, the sewer system and storm sewer operator, local foods initiative group, traditional restaurants and retail grocers, the food bank, MSU Agricultural experts and the district soil scientist with USDA. Nearly every government will be able to think of more to involve. All of these people are important to involve so that all concerns – whether it is manure entering storm sewers, or the local foods initiatives—are at the table. Michigan State University Extension can help with this civic engagement, conflict resolution and facilitation.

It is important to note that, a livestock operation already existing and legally started under the former zoning, RTFA, and GAAMPs will be a nonconforming use and must be allowed to continue, even if it is in a Category 4 site.

Finally, it is normal, each year, for advisory committees to the Michigan Commission of Agriculture and Rural Development to review each GAAMP and update them so they continue to reflect best science and best practices for farm operations. 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 and regularly checking that webpage is wise.

In addition to this article, Michigan State University Extension articles focusing on a specific audiences and concerns include:


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