By Wendy Lockwood Banka
In May of 2014 a small farm in Richland Township owned by Jim Nieuwenhuis and operated by Ben Martin received a zoning violation for the keeping of goats and the construction of a hoop house on 3.3 acres in an A-1 agriculture residential zoned area. Richland Township does not permit the keeping of goats on less than 5 acres, and the hoop house was larger than the size permitted on a 3.3 acre lot. This case went to the 8th District Court, with a defense that the MAEAP-verified farm was protected by the Right to Farm Act. On August 15, 2014 the judge issued an Opinion and Order that ruled that "...MAEAP verification does not equate GAAMPs conformance", and ruled that the farmers remained responsible for the ordinance violation.
On September 18, 2014, the attorneys for Nieuwenhuis and Martin filed a Motion for Reconsideration, which included a letter from MDARD dated September 12, 2014, stating that the farm was indeed in compliance with the GAAMPs. Because of the conventions of the court system, this eventually led instead to a Claim of Appeal to the 9th Circuit Court. This court acknowledged that the farm is in compliance with the GAAMPs, but ruled that since the Circuit Court is only allowed to consider the evidence seen by the District Court at the time of the hearing in August (which was before the receipt of the GAAMPs letter from MDARD in September), that the decision of the District Court was valid.
On April 2, 2015, the attorney for Nieuwenhuis and Martin, Christopher Tracy, began the process of bringing this case to the Court of Appeals by filing an Application for Leave to Appeal. The Court of Appeals will consider the arguments that Mr. Tracy made in this application in deciding whether the facts of the case merit bringing the case forward to the Court of Appeals.
On June 1, 2015 an Amicus Curiae Brief was filed by the Michigan Small Farm Council, in support of the Application for Leave to Appeal. The Amicus Brief was written by Michelle Halley, who famously defended Randy Buchler in his Right to Farm case in Forsyth Township in 2012. Ms. Halley made three arguments in the brief:
First, Ms. Halley argued that MAEAP certification actually IS a measure of GAAMPs compliance, and provided evidence to that effect from a deposition that Wayne Whitman from MDARD had previously made in the Buchler case. In this view, the 8th District Court should have accepted MAEAP verification as a proxy for explicit GAAMPs compliance.
Second, she argued that while RTF requires GAAMPs compliance, it does not require proof of GAAMPs compliance. Thus the interpretation of the 8th District Court that proof of GAAMPs compliance by MDARD must be provided to earn Right to Farm protection is not supported by the language of the statute.
Finally, Ms. Halley noted that the RTFA statute provides farmers with an opportunity to become GAAMPs compliant even after a complaint has been made, since the statute states that farms that are not compliant have a right to a consultation with MDARD and then 30 days to become compliant. This suggests that the assumption by the 8th District Court that a farm must be compliant with the GAAMPs at the time of the ordinance violation or at the time of the court hearing in order to earn Right to Farm protection is erroneous.
On behalf of the Michigan Small Farm Council I'd like to thank Michelle Halley for articulating these arguments to the Court of Appeals. And, I am glad to announce that On June 17th the 9th Court of Appeals accepted the Amicus Brief, and so will consider the arguments made on behalf of the Michigan Small Farm Council as it considers whether to hear this important case.
Those of us who started the Michigan Small Farm Council, and who work at this by advocating at Ag Commission meetings, and organizing the Facebook page, and responding to new member questions, and reaching out to legislators, and giving interviews, and running t-shirt fundraisers, and keeping the books - all of us who work at this do so because we think and hope that by working together we can accomplish more to protect small farm rights in Michigan than any one of us can accomplish alone. We don't yet know whether the Court of Appeals will hear the Ben Martin case, or if they do, whether they will rule in his favor. But this already feels like a success, and I hope everyone who has participated in any way in the establishment and growth of this organization takes pride in this concrete result of our collective efforts. So here it is again, the Amicus Curiae Brief written by Michelle Halley on behalf of the Michigan Small Farm Council, in support of the Application for Leave to Appeal to the Court of Appeals, in the Jim Nieuwenhuis/Ben Martin case in Richland Township.
In May of 2014 a small farm in Richland Township owned by Jim Nieuwenhuis and operated by Ben Martin received a zoning violation for the keeping of goats and the construction of a hoop house on 3.3 acres in an A-1 agriculture residential zoned area. Richland Township does not permit the keeping of goats on less than 5 acres, and the hoop house was larger than the size permitted on a 3.3 acre lot. This case went to the 8th District Court, with a defense that the MAEAP-verified farm was protected by the Right to Farm Act. On August 15, 2014 the judge issued an Opinion and Order that ruled that "...MAEAP verification does not equate GAAMPs conformance", and ruled that the farmers remained responsible for the ordinance violation.
On September 18, 2014, the attorneys for Nieuwenhuis and Martin filed a Motion for Reconsideration, which included a letter from MDARD dated September 12, 2014, stating that the farm was indeed in compliance with the GAAMPs. Because of the conventions of the court system, this eventually led instead to a Claim of Appeal to the 9th Circuit Court. This court acknowledged that the farm is in compliance with the GAAMPs, but ruled that since the Circuit Court is only allowed to consider the evidence seen by the District Court at the time of the hearing in August (which was before the receipt of the GAAMPs letter from MDARD in September), that the decision of the District Court was valid.
On April 2, 2015, the attorney for Nieuwenhuis and Martin, Christopher Tracy, began the process of bringing this case to the Court of Appeals by filing an Application for Leave to Appeal. The Court of Appeals will consider the arguments that Mr. Tracy made in this application in deciding whether the facts of the case merit bringing the case forward to the Court of Appeals.
On June 1, 2015 an Amicus Curiae Brief was filed by the Michigan Small Farm Council, in support of the Application for Leave to Appeal. The Amicus Brief was written by Michelle Halley, who famously defended Randy Buchler in his Right to Farm case in Forsyth Township in 2012. Ms. Halley made three arguments in the brief:
First, Ms. Halley argued that MAEAP certification actually IS a measure of GAAMPs compliance, and provided evidence to that effect from a deposition that Wayne Whitman from MDARD had previously made in the Buchler case. In this view, the 8th District Court should have accepted MAEAP verification as a proxy for explicit GAAMPs compliance.
Second, she argued that while RTF requires GAAMPs compliance, it does not require proof of GAAMPs compliance. Thus the interpretation of the 8th District Court that proof of GAAMPs compliance by MDARD must be provided to earn Right to Farm protection is not supported by the language of the statute.
Finally, Ms. Halley noted that the RTFA statute provides farmers with an opportunity to become GAAMPs compliant even after a complaint has been made, since the statute states that farms that are not compliant have a right to a consultation with MDARD and then 30 days to become compliant. This suggests that the assumption by the 8th District Court that a farm must be compliant with the GAAMPs at the time of the ordinance violation or at the time of the court hearing in order to earn Right to Farm protection is erroneous.
On behalf of the Michigan Small Farm Council I'd like to thank Michelle Halley for articulating these arguments to the Court of Appeals. And, I am glad to announce that On June 17th the 9th Court of Appeals accepted the Amicus Brief, and so will consider the arguments made on behalf of the Michigan Small Farm Council as it considers whether to hear this important case.
Those of us who started the Michigan Small Farm Council, and who work at this by advocating at Ag Commission meetings, and organizing the Facebook page, and responding to new member questions, and reaching out to legislators, and giving interviews, and running t-shirt fundraisers, and keeping the books - all of us who work at this do so because we think and hope that by working together we can accomplish more to protect small farm rights in Michigan than any one of us can accomplish alone. We don't yet know whether the Court of Appeals will hear the Ben Martin case, or if they do, whether they will rule in his favor. But this already feels like a success, and I hope everyone who has participated in any way in the establishment and growth of this organization takes pride in this concrete result of our collective efforts. So here it is again, the Amicus Curiae Brief written by Michelle Halley on behalf of the Michigan Small Farm Council, in support of the Application for Leave to Appeal to the Court of Appeals, in the Jim Nieuwenhuis/Ben Martin case in Richland Township.
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