Right to Farm Act protects certain farm activities from some local government regulations
The Right to Farm Act impacts local government regulation of certain farm activities, but it does not extend to all agricultural activity and does not supersede all local regulations.
November 27, 2012 - Author: Kurt H. Schindler, Michigan State University Extension
One aspect of the Michigan Right to Farm Act (RTFA) is that it prevents local government from regulating certain aspects of farms and agriculture operations, but allows regulation of other aspects of farm and agriculture.
The preemption of local authority by the RTFA is somewhat confusing, and on some points it is still an unsettled law. As a result, Michigan State University Extension educators that work in the planning and zoning arena rank RTFA-related questions near the top most frequent questions received.
There is a two-step process for determining if local ordinance(s) have jurisdiction over a farm or farm activity. First, is to determine if what is being done is a type of farm or farm-like land use that qualifies under the RTFA. If it is, the second step is to determine which specific local regulations are preempted by the RTFA or not. In short, if the topic of the regulation is not covered in the RTFA or in any of the generally accepted agricultural management practices (GAAMPs) then local regulation still applies. If the topic is covered in the RTFA or GAAMPs, then that supersedes local regulation.
Farm activities that qualify
There are three (possibly four) conditions that must be satisfied for the RTFA to apply to a farm or farm activity. If the activity involveseachof the following, then it is an activity which qualifies for RTFA protection from certain local regulations:
- It is a “farm operation”
- The activity is producing a “farm product”
- The activity is “commercial”
- The practices follow published GAAMPs
Each of the first three terms, “farm operation,” “farm product” and “commercial” have specific defined meanings in the RTFA. When asking if the farm activity satisfies these criteria, one must use the terms as defined in the RTFA. If all four criteria are true, then it is an activity which qualifies for RTFA protection from certain local regulations. If the first three criteria are true, it may be an activity which qualifies for RTFA protection from certain local regulations. This is because the requirement to follow applicable GAAMPs is disputed among municipal attorneys and professionals. If any one of the first three points is not true, then the activity is not one that qualifies for RTFA protection. For more detail on these criteria and the different views on the fourth criterion see the MSU Extension decision tree “What sorts of local regulations are preempted by the Right to Farm Act.”
If the activity qualifies for RTFA protection from certain local regulations, then the second step is to determine which specific local regulations apply and which do not.
Particular local regulations that apply or not
Local regulations that are preempted by the RTFA are specific regulations that cover the same aspects of farming that are already covered in the RTFA and any of the GAAMPs (i.e. there is duplication between the local regulation and the state statute or GAAMPs). If the topic is not covered in the RTFA or in any of the GAAMPs (or the topic is in a GAAMP, but the GAAMP says local regulation still applies), then local regulation still applies.
The only way to make this determination is to read all of the RTFA and GAAMPs to determine if local jurisdiction applies or not. GAAMPs are reviewed annually and may be changed every year. Up-to-date copies of each GAAMP are posted on the Michigan Department of Agriculture and Rural Development (MDARD) website. The best advice is for a farmer to contact MDARD Right to Farm Program office to ask for a GAAMPs determination. Someone from MDARD will visit the farm and walk through the GAAMPs with the farmer to document compliance or where compliance is lacking.
The MSU Extension decision tree mentioned above provides a series of questions Michigan residents can walk through to understand what’s covered in the RTFA and GAAMPs. The decision tree will require some time to study. There are questions in the decision tree where the answer is not a simple “yes” or “no” response; this is because there are different interpretations and possible ways to answer some of the questions (again, disputes among municipal attorneys and professionals). The decision tree reflects these different views and provides some information on the source(s) of the differing views. On these points one will need to assess the risk or consult with an attorney to determine the position one wishes to pursue.
For more information on court cases concerning the RTFA see the MSU Extension document “Selected Zoning Court Cases Concerning the Michigan Right to Farm Act.”
RTFA preempts only local regulation
Concerning RTFA preemption at the local level, there is a difference between local ordinances and state statutes that may be enforced by local officials. The RTFA only preempts local ordinances. It does not preempt state or federal laws. Construction permits might be purchased and administered by a local or county government, but it is still administration of astate statute. (It is the state construction code, not the RTFA, that says buildings usedexclusively for agricultural are exempt from construction permits.)
The RTFA may preempt a local government from requiring a zoning permit, but a state construction code permit may still be required. An example of this is that there is a Farm Market GAAMP, so there is a preemption of local zoning authority about if a farm market can exist at a location or not, and a preemption over some aspects of products sold at a farm market. But a state construction code permit is still required for farm market buildings that will be used by the public.
So, to determine if an activity is subject to local regulation, or to determine if a local ordinance over-steps its authority, first determine if the activity is one that qualifies under the RTFA using the three (or four) criteria. If any one of the criteria is not true, then local regulation applies to the activity. If all criteria are true (or the first three are true), RTFA preemption of certain local regulations exists. If that is the case then, the second step is to determine which specific local regulations can exist or not. Local regulation can exist if the topic of that regulation is not covered in the RTFA or any of the GAAMPs. If the topic is covered in RTFA or any of the GAAMPs, then the local regulation is preempted. To determine this, it is best for a farmer to contact MDARD Right to Farm Program office to ask for a GAAMPs determination. This framework only applies to local government ordinances. State and federal laws are not preempted by RTFA.