By Anna EldenBrady
I write this to clear up any misconceptions about how our right to farm appeals have proceeded. I am concerned that, without this clarification, our case could be used against the cause of small scale agriculture in Michigan, especially given that the yearly GAAMP (Generally Accepted Agricultural Management Practices) review and revision is fast approaching. I do not want our appeals to be used to destroy the cause of the hardworking small farmers I have met along this journey.
Individuals associated with the City of Muskegon have been telling individuals associated with Michigan State University Extension, the Michigan Township Association, the press, and others, that they spent $40,000 on our right to farm cases (or case- I have heard both that this number represents one case and that it is the cost for both), which they have perpetually inaccurately represented as lawsuits. I do not think this can possibly be accurate, whether for one or both cases. The appeals should not have required more than 200 billed hours of legal time (calculated by dividing $40,000 by the hourly billed rate of the legal firm contracting with the City). Furthermore, contrary to the assertions of city officials, neither were lawsuits, both were appeals: one a civil infraction appeal, one an administrative appeal. I will acknowledge that our appeals of city decisions may have sparked discussion of urban agriculture issues in the City of Muskegon, but City administration would have had to address these issues eventually, whether we were involved or not.
It is frustrating that city officials seem to be representing us as terrible people for exercising our legal right of appeal. Let us break down the choices the city made regarding our cases.
Firstly, in the appeal of our business license denial:
Now to break down the choices the city made in the case against our goats:
The text of the ordinance is as follows (it has since been eliminated and replaced with text explicitly forbidding the keeping of livestock and poultry in the city except for one pet bird or in the case of schools- this change occurred immediately after our case ended):
Section 6.17- Livestock and poultry
(a)No livestock shall be kept permanently or temporarily in any district in the city unless affiliated with a stable, pen, cage or other livestock confinement facility which meets the requirements of all applicable laws, ordinances or regulations and the best management practices of the local cooperative extension office. Livestock and poultry pens, stables, cages or other confinement shall be adequately maintained in a healthful, sanitary and safe manner for the type of livestock. No livestock shall be kept in the city nor any stable or pen, cage or other livestock confinement shall be erected or maintained in violation of the zoning ordinance. No stable or containing building shall be closer to any dwelling than 25 feet.
(b)No live poultry shall be kept in the city except in a commercial establishment legally licensed and zoned therefor, except that one pet may be kept in a pen or confinement which is at least 25 feet from any dwelling.
(c)No more than two rabbits shall be kept on any premises in the city, except in a commercial establishment licensed and zoned therefor. The two rabbits which may be kept at premises, other than a legal commercially licensed and zoned establishment, shall be in a pen located at least 25 feet from any dwelling and constructed and maintained in accordance with standards published in the industry or by a 4-H organization.
(d)No wild animal shall be kept permanently or temporarily in the city unless affiliated with a transient circus or carnival having all required permits to operate in the city, or a licensed zoo.
We have also heard a rumor that we took the appeal for the goats to the State Supreme Court. We did not. We appealed to the Michigan Court of Appeals. This is a different body. Our case was rejected. We surmise that this may have been, in part, because Sweat Peas Farm had an appeal on a similar matter moving through the court system. But more importantly, it is worth noting that the Court of Appeals only accepts about 2% of cases on leave. (On leave means “a case that is not an automatic right of appeal”- the court factors many things into this decision, including how much would be lost by standing by the lower court’s ruling, if anyone else has appealed a similar decision, etc.) It does not mean that the case is without merit or that the appealing party is wrong. It simply means the Court does not want to spend the time hearing it or they have more pressing matters that are likely to impact more people they would rather spend their limited hours on.
During these concurrent proceedings, a neutral third party offered to pay in full for professional mediation services so court proceedings could be avoided. They did not do this on our request, they did this as outsiders with an interest in the well-being of the citizens of Muskegon and their access to healthy food. The city’s response was that they were not interested in mediation, they would take the case to court.
We have been frustrated by the City’s lack of responsiveness. This happened in the business license appeal when they declined to discuss the case through mediation and in the case of our goats when we were trying to understand specifically what the tickets were for. Neither our choice to #1 imitate an already successful program and apply for our business license nor #2 end up in court over animals that were both therapeutic pets and practical milk animals had to end up in court.
And the City continues to make similar choices. When we were cited for having “problematic” plants in our front terrace, we asked specifically what species they had noticed that were a problem. There was no answer other than “remove the weeds.” We can identify the plants growing in our terrace and do not believe we have weeds. We would appreciate a little botanical expertise on the part of the City. We have not appealed that decision. We sought declaratory action so we know if it is a due process violation to destroy intentional plantings or threaten their destruction without the ability of a resident to appeal prior to enforcement action. As of the writing of this piece, the Circuit Court has noted that they do not believe this is a due process deprivation as our plants have no monetary value. We are still considering what to do next, as our plants have very deep spiritual and emotional value to our family.
The city has also chosen to expend City money on legal fees. They have switched now to a flat-rate system. In this process, they misrepresented the proposals they received in a City commission meeting. One proposal came from a Grand Rapids attorney with extensive municipal law experience, including teaching future municipal law attorneys the ins and outs of the work. Her bid was $500,000 lower over the course of five years than the bids of the two finalist firms. The city chose to not only reject that bid, but not even to mention it in the city commission packet or the meeting. The press and residents were led to believe that only the two highest priced Muskegon firms met the experience requirements. I am in possession of documentation that disproves this.
Every city resident has the right to appeal the initial decision of a civil infraction violation or an administrative decision. The city is not the end-place in these decisions. This is the very definition of due process. Exercising our right to due process does not make us the dollar-wasting villains as it seems the City has attempted to portray us. The City made choices that brought us to the courts and the City has continued to make decisions that cost them more for legal services. Every citizen should feel comfortable appealing a decision that they feel is unfair. They should not be afraid to do so because the City might attempt to bully them to drop the case or be afraid to do so because they think they will be continually dragged through the mud afterwards for exercising those rights.
I am dismayed that this is being spread to both MSU Extension and the Michigan Township Association and I fear it is going to be leveraged as a scare tactic to destroy small scale agriculture and urban agriculture in Michigan. I hope these organizations will take it upon themselves to investigate ways to help small scale agriculture thrive everywhere in Michigan, including in urban settings that otherwise lack fresh foods. I urge these organizations not to follow the temptation offered by the City of Muskegon to circle up the wagons against a feared onslaught of lawsuits that are unlikely to occur. Those of us most greatly impacted by the GAAMPS and any future legislation at the state or local level would rather stick to working in our gardens than spend any time in legal proceedings. Like most Michigan citizens, we simply desire legislation and rules that fairly address the needs of all citizens, and call on all who are involved in making these decisions to work toward that end.
I write this to clear up any misconceptions about how our right to farm appeals have proceeded. I am concerned that, without this clarification, our case could be used against the cause of small scale agriculture in Michigan, especially given that the yearly GAAMP (Generally Accepted Agricultural Management Practices) review and revision is fast approaching. I do not want our appeals to be used to destroy the cause of the hardworking small farmers I have met along this journey.
Individuals associated with the City of Muskegon have been telling individuals associated with Michigan State University Extension, the Michigan Township Association, the press, and others, that they spent $40,000 on our right to farm cases (or case- I have heard both that this number represents one case and that it is the cost for both), which they have perpetually inaccurately represented as lawsuits. I do not think this can possibly be accurate, whether for one or both cases. The appeals should not have required more than 200 billed hours of legal time (calculated by dividing $40,000 by the hourly billed rate of the legal firm contracting with the City). Furthermore, contrary to the assertions of city officials, neither were lawsuits, both were appeals: one a civil infraction appeal, one an administrative appeal. I will acknowledge that our appeals of city decisions may have sparked discussion of urban agriculture issues in the City of Muskegon, but City administration would have had to address these issues eventually, whether we were involved or not.
It is frustrating that city officials seem to be representing us as terrible people for exercising our legal right of appeal. Let us break down the choices the city made regarding our cases.
Firstly, in the appeal of our business license denial:
- The city chose to deny the license application for a home based farm business similar to another urban farm existing in the city at that time. The existence of this operation led us to believe that our application would be successful.
- The city chose to continue to allow the other operation to exist unchanged during the course of our administrative appeal.
- The city chose to misrepresent our case both to the press and to the courts, conflating it with a different case over livestock (detailed below).
- When we went before the Zoning Board of Appeals, we were told that the standard of review for our requested variance (a formality requested by the judge handling the appeal- administrative appeals of this kind are an appeal by right to the Circuit Court) was the same as that for a special use permit (it is not) and, as we did not meet the standards for a special use permit, we were denied. There are different standards under state law for these two procedures. The City chose to ignore this.
Now to break down the choices the city made in the case against our goats:
- The city chose to contest the meaning of the words in its own ordinance (text follows the bullet points).
- The city chose to send police out to enforce this during both Bike Time and during an active murder investigation- the detective took photographs. The city later chose to lose these pictures, as they said under oath that no photographs existed.
- When we asked for clarification from the police department, we were helped by a very friendly captain who seemed to want to assist us. We had brought the text of the ordinance with us and we had the ticket that did not state which of the requirements we did not meet. While we were conversing with her, the desk phone rang. The clerk told the captain that Chief Lewis wanted to see her NOW. When she returned, she no longer seemed interested in helping us and told us that we were to take it before a judge if we wanted answers. Thusly, the city chose at this point to take this matter to court.
- The city was on contract with the prosecutor’s office to handle civil infraction cases for a flat fee. The city attorney, in court, stated that they usually did this work at a billed rate anyway. The city chose to spend money on an hourly attorney instead of using their flat rate service (which they had already paid for). Therefore, the city was billed twice for this (and all other civil infraction work handled by this firm).
- Civil infractions are first appealed to a magistrate. The magistrate agreed that he could see no place in which we had violated the ordinance. The city chose to appeal this to the District Court instead of letting the decision of the magistrate stand. We did not make the choice to take this to the District Court.
The text of the ordinance is as follows (it has since been eliminated and replaced with text explicitly forbidding the keeping of livestock and poultry in the city except for one pet bird or in the case of schools- this change occurred immediately after our case ended):
Section 6.17- Livestock and poultry
(a)No livestock shall be kept permanently or temporarily in any district in the city unless affiliated with a stable, pen, cage or other livestock confinement facility which meets the requirements of all applicable laws, ordinances or regulations and the best management practices of the local cooperative extension office. Livestock and poultry pens, stables, cages or other confinement shall be adequately maintained in a healthful, sanitary and safe manner for the type of livestock. No livestock shall be kept in the city nor any stable or pen, cage or other livestock confinement shall be erected or maintained in violation of the zoning ordinance. No stable or containing building shall be closer to any dwelling than 25 feet.
(b)No live poultry shall be kept in the city except in a commercial establishment legally licensed and zoned therefor, except that one pet may be kept in a pen or confinement which is at least 25 feet from any dwelling.
(c)No more than two rabbits shall be kept on any premises in the city, except in a commercial establishment licensed and zoned therefor. The two rabbits which may be kept at premises, other than a legal commercially licensed and zoned establishment, shall be in a pen located at least 25 feet from any dwelling and constructed and maintained in accordance with standards published in the industry or by a 4-H organization.
(d)No wild animal shall be kept permanently or temporarily in the city unless affiliated with a transient circus or carnival having all required permits to operate in the city, or a licensed zoo.
We have also heard a rumor that we took the appeal for the goats to the State Supreme Court. We did not. We appealed to the Michigan Court of Appeals. This is a different body. Our case was rejected. We surmise that this may have been, in part, because Sweat Peas Farm had an appeal on a similar matter moving through the court system. But more importantly, it is worth noting that the Court of Appeals only accepts about 2% of cases on leave. (On leave means “a case that is not an automatic right of appeal”- the court factors many things into this decision, including how much would be lost by standing by the lower court’s ruling, if anyone else has appealed a similar decision, etc.) It does not mean that the case is without merit or that the appealing party is wrong. It simply means the Court does not want to spend the time hearing it or they have more pressing matters that are likely to impact more people they would rather spend their limited hours on.
During these concurrent proceedings, a neutral third party offered to pay in full for professional mediation services so court proceedings could be avoided. They did not do this on our request, they did this as outsiders with an interest in the well-being of the citizens of Muskegon and their access to healthy food. The city’s response was that they were not interested in mediation, they would take the case to court.
We have been frustrated by the City’s lack of responsiveness. This happened in the business license appeal when they declined to discuss the case through mediation and in the case of our goats when we were trying to understand specifically what the tickets were for. Neither our choice to #1 imitate an already successful program and apply for our business license nor #2 end up in court over animals that were both therapeutic pets and practical milk animals had to end up in court.
And the City continues to make similar choices. When we were cited for having “problematic” plants in our front terrace, we asked specifically what species they had noticed that were a problem. There was no answer other than “remove the weeds.” We can identify the plants growing in our terrace and do not believe we have weeds. We would appreciate a little botanical expertise on the part of the City. We have not appealed that decision. We sought declaratory action so we know if it is a due process violation to destroy intentional plantings or threaten their destruction without the ability of a resident to appeal prior to enforcement action. As of the writing of this piece, the Circuit Court has noted that they do not believe this is a due process deprivation as our plants have no monetary value. We are still considering what to do next, as our plants have very deep spiritual and emotional value to our family.
The city has also chosen to expend City money on legal fees. They have switched now to a flat-rate system. In this process, they misrepresented the proposals they received in a City commission meeting. One proposal came from a Grand Rapids attorney with extensive municipal law experience, including teaching future municipal law attorneys the ins and outs of the work. Her bid was $500,000 lower over the course of five years than the bids of the two finalist firms. The city chose to not only reject that bid, but not even to mention it in the city commission packet or the meeting. The press and residents were led to believe that only the two highest priced Muskegon firms met the experience requirements. I am in possession of documentation that disproves this.
Every city resident has the right to appeal the initial decision of a civil infraction violation or an administrative decision. The city is not the end-place in these decisions. This is the very definition of due process. Exercising our right to due process does not make us the dollar-wasting villains as it seems the City has attempted to portray us. The City made choices that brought us to the courts and the City has continued to make decisions that cost them more for legal services. Every citizen should feel comfortable appealing a decision that they feel is unfair. They should not be afraid to do so because the City might attempt to bully them to drop the case or be afraid to do so because they think they will be continually dragged through the mud afterwards for exercising those rights.
I am dismayed that this is being spread to both MSU Extension and the Michigan Township Association and I fear it is going to be leveraged as a scare tactic to destroy small scale agriculture and urban agriculture in Michigan. I hope these organizations will take it upon themselves to investigate ways to help small scale agriculture thrive everywhere in Michigan, including in urban settings that otherwise lack fresh foods. I urge these organizations not to follow the temptation offered by the City of Muskegon to circle up the wagons against a feared onslaught of lawsuits that are unlikely to occur. Those of us most greatly impacted by the GAAMPS and any future legislation at the state or local level would rather stick to working in our gardens than spend any time in legal proceedings. Like most Michigan citizens, we simply desire legislation and rules that fairly address the needs of all citizens, and call on all who are involved in making these decisions to work toward that end.
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