By Wendy Lockwood Banka

Brady Township Planning Commission                                                                                             December 7, 2015
 
 
Dear Commissioners Crawford, Henderson, Miller, LeZotte, Locey, Oswalt, and Skrzypek:
 
I am writing as the President of the Michigan Small Farm Council to ask you to reconsider amending the Brady Township Zoning Ordinance to delete agricultural as a permitted use for 280 parcels in the RR single family rural residential district.
 
I understand that in the late 1980s and early 1990s Brady Township experienced an ongoing situation with the Tobe Strong farm, which began with Mr. Strong violating his discharge permit. At that time the Department of Natural Resources (DNR) attempted to rescind the permit, but Mr. Strong continued to farm. This initiated a response by the Michigan Department of Agriculture (MDA) and the Michigan Farm Bureau (MFB) to challenge the authority of the DNR to restrict the discharge permit of an agricultural operation, and led to the eventual transfer of authority over farm discharges from the DNR to the MDA. In particular, in September 1989 the Water Resources Commission unanimously revoked Mr. Strong’s permit to store and land-apply animal waste on his property in Brady Township.  However, this had no effect since the authority over his operation had been shifted to MDA under the Right to Farm Act.  Complaints continued over the next several years, and Brady Township eventually filed a complaint for ordinance violation.  This was settled out of court when Brady Township purchased Mr. Strong’s right to raise livestock on his property for $40,000.  By late 1991 all hogs were removed from the Tobe Strong farm. 
 
In 1992, Commissioner Crumbaugh of the Michigan Commission of Agriculture observed that a dichotomy was occurring in which the citizenry of Michigan supported expansion of production livestock agriculture through their state taxes, while at the same time some citizens were working to put these large operations out of business through complaints and the initiation of local ordinances against them.  He questioned which was right.  I have my own views, but history shows that in 1999 the Michigan Right to Farm Act was amended to make it very costly for citizens to bring complaints against agricultural operations, and impossible for local governments to use ordinances to affect operations protected by Right to Farm. In addition, a new requirement was made for the Department of Environmental Quality (DEQ) to engage in a Memorandum of Understanding with MDA that limited their ability to regulate farm operations, as had previously been done to the DNR.  A direct consequence of the 1999 amendment to the Right to Farm Act has been the proliferation of production livestock in Michigan, without the consent of the citizenry.
 
I became involved in agricultural policy from a different perspective. I live in an urban area, and like many read the Right to Farm court cases that occurred in 2003, 2004, and 2005, in which the courts interpreted the clear language of the 1999 amendment to the Right to Farm Act to mean that any operation, regardless of size or place was protected by the act, if it was commercial and if it followed generally accepted agricultural management practices (GAAMPs). This legal right to participate in agriculture and to grow food has become important to many people for a range of reasons. Perhaps most importantly, it turns out that the effects of production agriculture impact not only neighbors and communities, but also everyone who eats. As production agriculture has squeezed out small farm production in the state and eliminated traditional food choices, a growing number of people are opting to grow and sell from their own land, in rural areas and also in residential areas where most people live.
 
But here is where it gets complicated. The same state agricultural agency that uses the Right to Farm Act to protect very large animal production operations, refuses to allow the Right to Farm Act to protect very small operations, despite multiple Appeals Court rulings stating that it already does. Indeed, soon after MDA changed its name to the Michigan Department of Agriculture and Rural Development (MDARD) in 2011, they began making a series of changes to the GAAMPs with the specific intent of disenfranchising small farmers from their legal, legislatively-enacted Right to Farm protection. As you are certainly aware, the changes to the 2014 GAAMPs gave you and other townships an opening to exert local control over farm operations, by using zoning to restrict agriculture in areas that meet the definition of the newly coined ‘primarily residential’ term. 
 
So this is where we are. Brady Township understands clearly the risks of production agriculture, and wishes to avoid the repeat of another Tobe Strong situation within its borders. The change to the 2014 GAAMPs provides that opportunity, but only if you remove all agricultural rights, and not only the agricultural practices that are so offensive in production agriculture. Thus to prevent a kind of agriculture that almost no one wants, you are forced to prevent a kind of agriculture that almost everyone wants – the kind of small-scale agriculture that grows food in traditional ways. 
 
I am writing to ask you to consider the ramifications if every township and municipality in Michigan follows the Brady Township approach of eliminating agricultural rights of small operations, in order to forestall large operations. Since we all have to eat, I believe the elimination of small operations will result in the further consolidation and control of large operations over the food we eat. There can be no choice, no “local” food, if growing food locally is illegal. 
 
Brady Township sits at a historic crossroads when it comes to agricultural policy in Michigan. It could be argued that it was the Tobe Strong case that led to the dismantling of DNR and DEQ authority over agricultural waste pouring into Michigan waters, to the loss of neighbor rights to file nuisance complaints, and to the loss of local rights to regulate these industrial operations through zoning and ordinances.  And now, nearly three decades later it is in your hands to decide whether you will take advantage of the changes made to the 2014 GAAMPs to eliminate the agricultural rights of small farmers, in order to protect yourselves from the risks of large farms moving in.
 
My own view is that the agricultural policies of MDARD have been out of step with the citizenry at least since the Tobe Strong case.  Commissioner Crumbaugh was right; there was a real dichotomy of opinion in the early 1990s, and the real and legitimate objections to MDA policies were silenced by the 1999 amendment to the Right to Farm Act.  But the next policy decision is yours, and you can choose to vote Yes to pass an ordinance that will prevent production agriculture in Brady Township, or you can choose to vote No, to not pass an ordinance that will make commercial small-scale agriculture illegal in Brady Township.  I urge you to vote No, and to protect commercial small-scale agricultural rights in Brady Township.
 
Sincerely,

Wendy Lockwood Banka
President, Michigan Small Farm Council

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:

• 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.

By Randy Zeilinger   Randy is shown in the photo above after receiving MAEAP verification for his urban farm.

For several years now members of the Michigan Small Farm Council (MSFC) have been attending the Michigan Commission of Agriculture and Rural Development meetings that are held at various locations and times. November 18, 2015 was no exception.

We attend these meetings to provide information to the commissioners relating to small-scale agriculture in Michigan, and that are impacted by how commissioners vote on action items or policy changes that affect the entire state.  All individuals who attend are granted a brief opportunity to provide public comment.

Wendy Banka and Randy Zeilinger attended the meeting in Lansing, with both addressing the Commissioners and MDARD Director regarding the proposed changes to the 2016 GAAMPs (Generally Accepted Agricultural and Management Practices). According to an October press release from MDARD, the proposed changes to the GAAMPs are for “clarification” of previous changes and to make them easier to understand. MSFC pointed out that the changes proposed this year would further muddle the language of the Site Selection and Odor Control GAAMP.  The MSFC had previously made similar points during the Public Input period on the GAAMPs earlier in the year; all public comments received during this period are available here.

The appointed Site Selection GAAMP review committee suggested a change in the definition of farm animals to be defined as “beef and dairy cattle, swine, sheep and goats, horses and poultry”. This definition is counter to the expressed language of the actual law (PA 93 of 1981 as amended) that was passed by legislative action. Additionally the proposed change added a reference to “Part 413 of MCL 324.41301 et seq.) with wording to allow MDARD, DNR or DEQ to make declaratory rulings that could outlaw any animal species that they see fit. 

MDARD representatives conceded that the new definition of “Livestock” should be clearer, and that the real intent had been to make clear that bees were not included as livestock covered in the Site Selection GAAMP.  Furthermore, they  admitted that the inclusion of Part 413 was an unnecessary duplication, because existing laws on invasive species already supercede the Right to Farm Act.  The commissioners voted to return the Site Selection GAAMP to committee for revisions before the January vote.

Also of note at the meeting:

• Information regarding the certification programme for mushroom hunters to legally sell their harvest.
• The Michigan Meat Association asked that MDARD provide assistance in leveling the playing field between meat processors who have met the requirements of a new Specialized Meat Processing Variance and those who have not. Small deer producers have not been a problem.
• A comment was presented that there is a feral hog issue in Marquette County with a game farm “across the river” being suggested as the source. There was no supporting documentation of this allegation, and another MSFC member from Marquette informs us that to his knowledge "there is not" a feral hog problem in the area.
• Michigan Grape and Wine Industry suggest that there will be a shortage of Michigan wines within the next few years.
• John Stears was present to inform the Commissioners about the impending loss of agricultural rights in Brady Township.

In conclusion, MSFC is cautiously optimistic with the GAAMPs being returned to committee.  We continue to advocate for the small farm operators and hope to get the GAAMPs to reflect the interests of all Michigan farmers and not just the large commercial operations.

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.

By Wendy Lockwood Banka

Anyone who has followed the work of the Michigan Small Farm Council knows that one of our firmly held beliefs is that the Michigan Right to Farm Act protects farms of all sizes in the state, regardless of size or place, and that this protection preempts local regulations such as zoning.  We think this is true because the law states this clearly, because the Michigan Court of Appeals has three times ruled that farms in residentially-zoned areas are protected by Right to Farm (see Village of Rothbury, Papesh, Papadelis), and because scholars from MSU and MSU-Extension have come to this conclusion in multiple publications. 

Indeed, the only party who appears to be uncertain about this is the Michigan Department of Agriculture and Rural Development.  In 2011 the Director of Environmental Stewardship at MDARD, Jim Johnson, said that "The difficulty of the issue, in terms of legal versus non-legal issues, is that the RTF Act itself does not place a restriction in any way on land use or land zoning.  It has been very clear from the beginning that the RTF Act applies across the entire state."  But then in 2012 MDARD told Forsyth Township that Randy Buchler was not protected on his property that is zoned Lake Residential.  This led to a court case in which Randy Buchler prevailed.  The confusion and ongoing Right to Farm court battles in the state are a direct result of situations like this in which MDARD sometimes advises local governments and citizens that they are not protected by Right to Farm, in situations in which all other authorities - the law, the courts, the legal scholars - all come to the opposite conclusion. 

Since 2012 the Michigan Small Farm Council has engaged in repeated interactions with MDARD and with the Commission of Agriculture and Rural Development over this issue.  We have been told repeatedly that Right to Farm does not protect folks who live in residentially zoned areas of the state.  So it is with surprise that we read this new letter written by Chief Deputy Director Gordon Wenk, which states quite simply, "Since zoning is not a requirement for Right to Farm coverage, the Right to Farm Act applies across the entire state, regardless of zoning."  We agree.  You can find the letter from Mr. Wenk here, and the letter from Brady Township that he was responding to, here.  A longer history of these events is here.

The only question that remains, then, is whether the changes to the 2014 Site Selection GAAMP have the authority to strip the legal protections provided by the legislature:  can five appointed members of the Michigan Commission of Agriculture take any action that would un-do the work of the legislature to provide Right to Farm protection to all Michigan citizens?  We think not, but the battle continues.