The Pigs in The Parlor

WHEN URBAN AGRICULTURE MEETS MICHIGAN’S
RIGHT TO FARM ACT: THE PIG’S IN THE PARLOR

Patricia Norris,* Gary Taylor,** and Mark Wyckoff***
2011 MICH. ST. L. REV. 365
TABLE OF CONTENTS
INTRODUCTION ........................................................................................... 366

I. EMERGENCE OF URBAN AGRICULTURE ................................................. 370
II. RIGHT TO FARM NUISANCE PROTECTION FOR
AGRICULTURAL ACTIVITIES IN MICHIGAN ........................................... 373
A. Is the Activity in Question a Farm or Farm Operation? ............... 374
1. Is the Farm or Farm Operation Producing a Farm
Product? .................................................................................. 376
2. Is the Farm or Farm Operation Engaged in
Commercial Production? ....................................................... 377
B. Does the Farm or Farm Operation Comply with GAAMPS? ....... 378
C. Did the Farm or Farm Operation Exist, and Not
Constitute a Nuisance, Before Any Change in the
Land Use or Occupancy of Land Within One Mile
of the Boundaries of the Farm Land? ........................................... 383
III. THE VAGARIES OF PREEMPTION UNDER RTFA ................................... 384
A. Does the Local Ordinance, Regulation, or Resolution
Extend, Revise, or Conflict in Any Manner With the
Provisions of RTFA?....................................................................385
B. Does the Local Ordinance, Regulation, or Resolution
Extend, Revise or Conflict in Any Manner With
Generally Accepted Agricultural and Management
Practices Developed Under the RTFA? ........................................ 387
IV. THE RISKS OF RTFA FOR THE URBAN AGRICULTURE MOVEMENT ..... 392
A. Goals and Objectives of Urban Agriculture ................................. 392
B. Risks From a One-Size-Fits-All RTFA ........................................ 395
* Guyer-Seevers Chair in Natural Resource Conservation and Professor in Com-

munity, Agriculture, Recreation and Resource Studies and Agricultural, Food and Resource
Economics, Michigan State University.
** Associate Professor and Extension Specialist, Community and Regional Plan-
ning, Iowa State University, Member, American Institute of Certified Planners (AICP), and
Attorney.
*** Professor and Director, Planning & Zoning Center and Senior Associate Direc-
tor, Land Policy Institute, Michigan State University, Fellow, American Institute of Certified
Planners (FAICP).
366 Michigan State Law Review Vol. 2011:365
V. STATUTORY CHANGES TO BALANCE AGRICULTURAL AND

URBAN INTERESTS ................................................................................ 399
A. Simple Approach .......................................................................... 400
B. Comprehensive Approach ............................................................ 401
VI. CONCLUSIONS AND RECOMMENDATIONS ........................................... 403
INTRODUCTION
The city of Troy, Michigan, a second-ring suburb of Detroit, saw ex-

plosive population growth in the mid-twentieth century. During the twenty-
year period from 1960 to 1980, Troy grew by 246%, from a population of
19,402 to 67,102.1 According to the 2010 U.S. Census, Troy is the largest
city in Oakland County and the eleventh largest city in Michigan, with a
population of 80,980.2
Shelby Township, in Macomb County, is located immediately to the
north and east of the city of Troy. Like Troy, Shelby Township is one of
the suburban communities receiving the lion’s share of southeast Michi-
gan’s population growth. Shelby Township’s population grew by about
188% from 1950 to 1960, and in the subsequent forty years it grew in popu-
lation by an average of forty-two percent per decade.3 Shelby Township’s
population in 2010 was 73,804,4 making it the fourth largest township and
seventeenth largest community in Michigan.
The city of Troy has a population density of 2,409 persons per square
mile.5 Shelby Township has a similar population density of 2,096 persons
per square mile.6 Population statistics aside, to even the most casual ob-
server, both Shelby Township and the city of Troy are “urban,” with resi-
1. SOUTHEAST MICHIGAN COUNCIL OF GOVERNMENTS (SEMCOG), HISTORICAL

POPULATION AND EMPLOYMENT BY MINOR CIVIL DIVISION, SOUTHEAST MICHIGAN 5 (2002)
[hereinafter HISTORICAL POPULATION].
2. 2010 Census Data for Michigan, MICHIGAN DEPARTMENT OF TECHNOLOGY,
MANAGEMENT & BUDGET, http://www.michigan.gov/cgi/0,1607,7-158-54534_51713_51716-
252541--,00.html (scroll down to “Counts of Total Population for 2000 and 2010,” and click
on “Population of Michigan Cities, Villages, Twps., and Remainders of Twps.”) (last visited
Aug. 8, 2011); see also American Fact Finder, 2010 Census, U.S. CENSUS BUREAU, available
at http://factfinder2.census.gov (offering a more extensive database for examining census
data) (last visited Aug. 8, 2011).
3. HISTORICAL POPULATION, supra note 1.
4. 2010 Census Data for Michigan, supra note 2; see also American Fact Finder,
supra note 2.
5. SOUTHEAST MICHIGAN COUNCIL OF GOVERNMENTS (SEMCOG), COMMUNITY
PROFILES, CITY OF TROY, http://www.semcog.org/Data/Apps/comprof/people.cfm?cpid=2270
(2010 population divided by land area of 33.6 square miles) (last visited Aug. 8, 2011).
6. SOUTHEAST MICHIGAN COUNCIL OF GOVERNMENTS (SEMCOG), COMMUNITY
PROFILES, SHELBY CHARTER TOWNSHIP, http://www.semcog.org/Data/Apps/comprof/people.
cfm?cpid=3110 (2010 population divided by land area of 35.2 square miles) (last visited
Aug. 8, 2011).
Urban Agriculture 367
dential, commercial, and industrial development patterns typical of most

intensively-developed suburban communities in the United States. Why is
it, then, that in 2005, Shelby Township found itself unable to enforce its
zoning regulations against the owner of two chicken coops? Similarly, why
has the city of Troy been locked in a years-long battle over the city’s ability
to regulate the activities of a landowner with a barn, two greenhouses, and a
retail nursery operation conducting business on two residentially-zoned
parcels within the city limits?7
The answer lies in Michigan’s Right to Farm Act (RTFA).8 Like most
other states, Michigan adopted its RTFA during a time when public concern
about the loss of productive farmland in the U.S. to non-agricultural uses
was high on the national policy agenda.9 Both Oakland and Macomb coun-
ties boasted significant agricultural land in 1950: fifty-one percent of the
land area of Oakland County was in farmland, and sixty-four percent of the
land area of Macomb County was in farmland.10 Yet, by 1978, farmland
accounted for less than fourteen percent of the land area of Oakland County
and only twenty-nine percent of the land area of Macomb County.11 State-
wide, Michigan lost almost thirty-four percent of its agricultural land be-
tween 1950 and 1978.12
Steady encroachment of non-agricultural land uses—especially resi-
dential development—into traditionally agricultural areas meant conflicts
between farmers and non-farm neighbors became increasingly common.
Nuisance complaints also became more common, levied by individuals who
built homes in rural areas and then objected to noises, odors, dust, chemical
use, and slow-moving machinery.13 Michigan, like other states, recognized
that the threat of nuisance complaints, with their associated legal costs,
combined with other factors to make farming more difficult and less lucra-
7. This case has found its way into Michigan’s courts numerous times since 1996.
A brief history and summary of decisions rendered over the years are provided in Papadelis
v. City of Troy, No. 286136, 2009 Mich. App. LEXIS 2588 (Dec. 15, 2009).
8. MICH. COMP. LAWS §§ 286.471-286.474 (2011).
9. See, e.g., W. WENDELL FLETCHER & CHARLES E. LITTLE, THE AMERICAN
CROPLAND CRISIS: WHY U.S. FARMLAND IS BEING LOST AND HOW CITIZENS AND
GOVERNMENTS ARE TRYING TO SAVE WHAT IS LEFT (1982); R. NEIL SAMPSON, FARMLAND OR
WASTELAND: A TIME TO CHOOSE (1981); UNITED STATES DEPARTMENT OF AGRICULTURE,
UNITED STATES NATIONAL AGRICULTURAL LANDS STUDY FINAL REPORT (1981).
10. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, U.S. CENSUS OF
AGRICULTURE, 1950, MICHIGAN, VOLUME 1, PART 6, 45, 46 (1952).
11. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, U.S. CENSUS OF
AGRICULTURE, 1978, MICHIGAN, VOLUME 1, PART 22, 439, 504 (1981).
12. Id. at 1.
13. Jacqueline P. Hand, Right-to-Farm Laws: Breaking New Ground in the Preser-
vation of Farmland, 45 U. PITT. L. REV. 289, 292 (1984).
tive.14 Amidst concerns about loss of farmland and agricultural production

capacity, the RTFA and its protection of farms against nuisance suits be-
came an important component of Michigan’s efforts to stem the loss of pro-
ductive farmland. In its first look at Michigan’s RTFA, the Court of Ap-
peals addressed the basis for the law: “The Legislature undoubtedly realized
that, as residential and commercial development expands outward from our
state’s urban centers and into our agricultural communities, farming opera-
tions are often threatened. . . . It, therefore, enacted the Right to Farm Act to
protect farmers from the threat of extinction caused by nuisance
suits . . . .”15
Since its original adoption in 1981,16 the RTFA has been amended
three times,17 each in response to an observed need to clarify intent, respond
to changing characteristics of agriculture, or strengthen protections afforded
to farms and farmers. Agriculture in Michigan continues to evolve, but
some of the most recent changes call into question the role and application
of the RTFA. Where some urban areas contain vestiges of the agriculture
that once was (Troy and Shelby Township, for example), many urban com-
munities are increasingly interested in new urban agriculture opportunities.
However, cities are raising questions about whether embracing urban agri-
culture in the shadow of the RTFA is in the best interest of their citizens.
Taken together, each successive amendment to Michigan’s RTFA and
a recent series of appellate court decisions suggest that Michigan’s RTFA
has strayed from its original intent—to slow “the ‘parlor’ . . . encroaching
on the barnyard”18 and stem the loss of agricultural land—and is now, in
fact, the vehicle being used to bring the pig into the parlor.19 In this article,
we contend that judicial interpretations of the RTFA and the changing na-
ture of Michigan agriculture—in particular, the rapidly-growing interest in
urban agriculture—have raised several concerns and presented potential
conflicts that suggest it is time, once again, to revisit the RTFA. Specifical-
ly:
14. Alexander A. Reinert, Note, The Right to Farm: Hog-Tied and Nuisance-Bound,
73 N.Y.U. L. REV. 1694, 1697 (1998).
15. Northville v. Coyne, 429 N.W.2d 185, 187 (Mich. Ct. App. 1988).
16. 1981 Mich. Pub. Acts 93.
17. 1987 Mich. Pub. Acts 240; 1995 Mich. Pub. Acts 94; 1999 Mich. Pub. Acts 261.
18. Margaret Rosso Grossman & Thomas G. Fischer, Protecting the Right to Farm:
Statutory Limits on Nuisance Actions Against the Farmer, 1983 WIS. L. REV. 95, 97 (1983).
19. “A nuisance may be merely a right thing in the wrong place, like a pig in the
parlor instead of the barnyard.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388
(1926).
• The RTFA affords nuisance protection to those farms using general-

ly accepted agricultural and management practices (GAAMPs);
however, judicial interpretations arguably have expanded the scope
of GAAMPs beyond that envisioned by the Michigan legislature.
Yet, the applicability of GAAMPs for urban environments has not
been explicitly considered.20
• The RTFA was originally adopted to protect farms and farmland in
rural areas from encroachment by those “coming to the nuisance;”
however, the RTFA now affords farms the right to bring the nuis-
ance to town.21
• The RTFA preempts local laws that extend, revise, or conflict with
its provisions; however, judicial interpretations have led to the
preemption of even the most basic zoning regulations designed to
minimize land use conflicts and protect the public health and safety
of urban residents.22
The balance of this article addresses these concerns, describes in more detail
the conflicts created, and proposes potential legislative responses that could
ameliorate the potential dampening effect of the RTFA on the burgeoning
urban agriculture movement in Michigan.
Part I provides a look at growing interest and participation in food
production within urban areas. Part II describes Michigan’s RTFA and an
analysis of its application in the protection of farm operations from nuisance
complaints. Part III focuses on the implications of the most recent amend-
ment to the RTFA for the application of local zoning. Part IV examines the
implications of restrictions on local zoning and reliance on GAAMPs to
address nuisance concerns in urban agricultural settings. Finally, Part V
suggests legislative responses that could rebalance the protection of agricul-
ture provided by the RTFA with the protection of social and property inter-
ests provided by local zoning in urban areas.
We note at the outset that we are forced to rely upon several unpub-
lished opinions of the Michigan Court of Appeals to elucidate our under-
standing of the Michigan appellate courts’ interpretation of the RTFA.23
Despite the fact that the 1999 amendments made significant changes to the
nuisance protection and local ordinance preemption provisions of the
20. See infra Section II.B and Section IV.B.

21. See infra Section II.C.
22. See infra P III.
23. MICH. R. OF CT. § 7.215(C)(1) provides that unpublished opinions are “not pre-
cedentially binding under the rule of stare decisis.” Unpublished opinions generally are
given little attention in law review articles; however, with a dearth of published opinions
interpreting the RTFA, we believe it is appropriate and necessary to resort to unpublished
decisions to arrive at a better understanding of what the Court of Appeals believes to be well-
settled questions of law associated therewith.
RTFA, the Court of Appeals nevertheless has chosen to resolve a number of

cases addressing those provisions through unpublished opinions. Michigan
Court Rules require publication of an opinion that “(1) establishes a new
rule of law; (2) construes a provision of a constitution, statute, ordinance, or
court rule; (3) alters or modifies an existing rule of law or extends it to a
new factual context.”24 The decision to issue unpublished decisions implies
that the justices believe either many of the questions associated with inter-
preting the RTFA are well-settled or the statutory provisions themselves are
unambiguous;25 yet, as will be pointed out in several of the following sec-
tions, the Court of Appeals has given insufficient attention to the question of
whether the legal rules announced in these cases are establishing new rules
of law—to the point that the Michigan Supreme Court in 200726 implicitly
overruled one of these well-settled interpretations of the RTFA.
I. EMERGENCE OF URBAN AGRICULTURE
Urban agriculture, in simplest terms, involves growing, processing,

and distributing food in an urbanized area.27 It can include, but is not li-
mited to, residential vegetable gardens, community gardens, hoop houses,
large-scale nurseries, greenhouses, and aquaculture.28 In big cities with
large tracts of vacant land, like Detroit, Flint, and Cleveland, even conver-
sion of whole vacant city blocks to row crops has been proposed.29 Not
surprisingly, definitions of urban agriculture are many and varied. They
include straightforward, dictionary-like definitions focused principally on
24. Id. § 7.215(B).

25. The issues associated with the use of unpublished opinions in the federal courts
have been hotly debated over the last decade, since the 8th Circuit Court of Appeals deter-
mined in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) that its own rule of appel-
late procedure prohibiting the use of unpublished opinions as precedent was unconstitutional.
Subsequently in 2006 the U.S. Supreme Court adopted Federal Rule of Appellate Procedure
32.1(a), which requires all U.S. courts of appeals to permit litigants to cite to unpublished
opinions decided after January 1, 2007.
26. See discussion of Papadelis v. City of Troy, No. 268920, 2006 Mich. App.
LEXIS 2748 (Sept. 19, 2006), rev’d, 733 N.W.2d 397 (Mich. 2007); infra notes 151-52 and
accompanying text.
27. See Nina Mukherji & Alfonso Morales, Zoning for Urban Agriculture, ZONING
PRACTICE, March 2010, at 1, available at http://www.planning.org/zoningpract
ice/2010/pdf/mar.pdf (“Urban agriculture can include a number of food production and dis-
tribution-related activities, which for our purposes include food production through plant
cultivation or animal husbandry, as well as some nonindustrial processing and distribution of
that food.”).
28. KIMBERLEY HODGSON ET AL., URBAN AGRICULTURE: GROWING HEALTHY,
SUSTAINABLE PLACES, PLANNING ADVISORY SERV. REPORT 563 13-19 (2011).
29. Hantz Farms proposes to convert seventy acres of vacant lots in Detroit to farms,
as the first phase of an effort to ultimately create the largest urban farm in America. HANTZ
FARMS DETROIT, http://hantzfarmsdetroit.com (last visited May 28, 2011).
activities30 and also more complex descriptions that focus on systems31 and
processes32 that are part of urban agriculture. These definitions illustrate a
wide range of activities with an even wider range of impacts, depending on
the scale and intensity of the use.33
As urban settlement has evolved, so has the relationship between ur-
ban settlements and agricultural production. Early settlements incorporated
land for food production. However, increasing size and density of urban
populations, technological changes in agricultural production, development
of transportation networks that reduced costs, and greater competition for
land from commercial and industrial enterprises (as well as residential uses)
30. Urban agriculture is:

‘an industry located within or on the fringes of a town, a city or a metropolis which
grows and raises, processes and distributes a diversity of food and non-food prod-
ucts, (re)using largely human and material resources, products and services found
in and around that urban area, and in turn supplying human and materials re-
sources, products and services largely to that urban area.’ It includes community
and private gardens, fruit trees, food-producing green roofs, aquaculture, farmers
markets, small-scale farming, beekeeping, and food composting.
Michael Broadway, Growing Urban Agriculture in North American Cities: The Example of
Milwaukee, 52 FOCUS ON GEOGRAPHY 23, 23 (2009) (internal quotations and citations omit-
ted).
a complex system encompassing a spectrum of interests, from a traditional core of
activities associated with production, processing, marketing, distribution, and con-
sumption, to a multiplicity of other benefits and services that are less widely ac-
knowledged and documented. These include recreation and leisure activities, eco-
nomic vitality and business entrepreneurship, individual health and well-being,
community health and well-being, landscape beautification, and environmental res-
toration and remediation.
COUNCIL FOR AGRICULTURE SCIENCE & TECHNOLOGY TASK FORCE REPORT NO. 138, URBAN
AND AGRICULTURAL COMMUNITIES: OPPORTUNITIES FOR COMMON GROUND 14 (2002).
a network of cultivation spaces and production activities in which food is produced
by and for the local community and around which city government and administra-
tive departments, the private sector, non-profit coalitions and neighborhood groups
are involved in order to expand, support and integrate these activities into the life
of the city.
Kathryn J. A. Colasanti, Growing Food in the City: Two Approaches to Exploring Scaling up
Urban Agriculture in Detroit (2009) (unpublished M.S. thesis, Michigan State University)
(on file with the Michigan State University Library).
33. See Mukherji & Morales, supra note 27, at 5 (identifying four categories of
urban agriculture as (1) extensive in area/intensive in use; (2) extensive in area/less intensive
in use; (3) less extensive in area/intensive in use; and (4) less extensive in area/less intensive
in use).
pushed agriculture further and further from population centers.34 Eventual-

ly, agricultural production became almost completely separated from urban
settlements and regulated separately with agricultural zones in rural areas.35
As a result, until recently “urban agriculture” came to mean apartment
dwellers with tomato plants, lettuce, and flowers on porches and balconies,
and detached single family homes with small gardens in the front, back or
side yards.36 In the United States, urban and suburban zoning ordinances
have also permitted large-scale nurseries and greenhouse operations in
warehouse and industrial zones and sometimes in agricultural zones at the
undeveloped edge of the community.37 Where impacts of these agricultural
activities require mitigation, the uses have been permitted only when there
is adherence to defined standards clearly stated in the zoning ordinance.38
Conflicts of agricultural uses with the quiet use and enjoyment of ad-
joining property usually arise when the scale of the agricultural operation
increases or when operations include animals. Common negative impacts
associated with agricultural activities that have special relevance in urban
neighborhoods include smells from compost, animals, and animal waste;
chemical sensitivity to airborne fertilizers and pesticides; the exterior ap-
pearance of agricultural buildings, waste, or dirt piles; farm equipment and
animal shelters; and the sounds of animals and machinery.39 These charac-
teristics of some agricultural activities lead to related concerns that are typi-
cally addressed when local planning and zoning land use classification deci-
sions are being made, including:
• Security: concern about squatters, criminal hiding places,

vandalism, theft of garden produce, animals, or equipment;
• Traffic: where product sales are permitted, how much traf-
fic there will be, where customers will park, need for ade-
34. Early considerations of spatial relationships between agricultural and residential

land uses were put forth by J.H. von Thünen in 1826. A description of the von Thünen mod-
el and a more modern interpretation can be found in J. Richard Peet, The Spatial Expansion
of Commercial Agriculture in the Nineteenth Century: A von Thünen Interpretation, 45
ECON. GEOGRAPHY 283 (1969).
35. Eric Damian Kelly, Zoning, in THE PRACTICE OF LOCAL GOVERNMENT
PLANNING 272 (Frank S. So & Judith Getzels eds., 2d ed. 1988).
36. See Mukherji & Morales, supra note 27, at 3 (“Retail grocers have displaced the
decentralized food production of urban gardening efforts. . . . [G]ardening became the subur-
banite’s hobby.”).
37. For example, the Detroit Zoning Ordinance as amended April 1, 2010, allows
greenhouse operations in all five industrial zones by right. DETROIT, MICH., ZONING
ORDINANCE art. XII, div. 1, subsec. E, § 61-12-61 (2010), available at http://www.detroitmi.
gov/Portals/0/docs/legislative/cpc/pdf/Ch%2061%20Apr%2001,%202010.pdf.
38. TOM DANIELS & DEBORAH BOWERS, HOLDING OUR GROUND: PROTECTING
AMERICA’S FARMS AND FARMLAND 111 (1997).
39. See HODGSON ET AL., supra note 28, at 21-22.
quate space, and how vehicles access the sales area or loca-
tion;
• Signs: the number, type, size, and kind of signs; whether
they will be lit at night; and where lighting is directed.
Each of the above concerns has an urban counterpart for a variety of
different land uses—criminal activity in vacant buildings, highway traffic
noise near residential neighborhoods, and spillover of lighting from com-
mercial to residential areas—but those are typical urban sights and sounds
that are commonly addressed through local ordinances.
Urban agriculture brings sights and sounds that are associated with ru-
ral areas and are not expected in urban places, especially residential neigh-
borhoods. As a result, urban residents may object and complain to local
zoning authorities. Then, the community is forced to examine the extent to
which it desires, as a matter of public policy, to permit such uses, in which
zones such activities should be permitted, and under what circumstances
they should be allowed. These decisions are often driven by the scale of
activity, the number of people affected, and the distance between the activi-
ty and people affected.40 Local planning and zoning processes involve
community residents in making these kinds of decisions and seek appropri-
ate balances among different interests. Different communities take different
approaches, reflecting local values and community visions. In contrast,
state-level land use controls tend to apply a one-size-fits-all approach.
Michigan’s RTFA is one example of such a state-level policy, and with its
overly general application it brings a host of problems for the future success
of urban agriculture in Michigan.
II. RIGHT TO FARM NUISANCE PROTECTION FOR AGRICULTURAL

ACTIVITIES IN MICHIGAN
Right to farm laws codify the common law defense of “coming to the
nuisance.”41 Most such laws specifically assert that, if an agricultural opera-
tion was not a nuisance prior to changed conditions (e.g., non-farm residen-
tial development) in the surrounding area, then it cannot become a public or
40. Communities commonly require setbacks or separation distances between dif-

ferent land uses that are likely to conflict with one another. Where potential negative spil-
lovers would affect more people, separation distances are often larger. See, for example, the
zoning ordinance of Superior Township, Michigan, which specifies separation distances
between a variety of different land uses (e.g., day care and large group homes, industrial
operations, composting centers, extractive and earth removal operations) that vary from 300
to 500 to 1500 feet, depending upon other land uses in zones where these uses are permitted.
SUPERIOR TOWNSHIP, MICH., ZONING ORDINANCE no. 174, art. 5 (2001), available at
http://superior-twp.org/zoning/4_1_2011_art%205.pdf.
41. Grossman & Fischer, supra note 18, at 118.
private nuisance because of changing conditions.42 Many right to farm laws

frame the right to farm as a social contract in which protection from nuis-
ance actions carries with it a responsibility to manage the farm in such a
way that the health and safety of neighboring landowners who are barred
from bringing nuisance actions are not threatened. In such states, right to
farm protection is not available if a farmer is negligent in conducting his
farm operation or violates state or federal environmental regulations.43
Michigan adopted a social contract framework when the RTFA was
created in 1981.44 The RTFA offers protection to neighboring residents
through farmers’ use of GAAMPs, while at the same time the use of those
GAAMPs protects farms from nuisance complaints lodged by those who
would come to the nuisance.45 With an amendment in 1995, the conditions
under which nuisance protection is provided were expanded.46
The provisions for nuisance protection in the RTFA suggest a series of
questions that must be answered before eligibility of an activity for nuisance
protection can be determined. A decision-tree construct that can be fol-
lowed to answer these questions is described in the following sections.
A. Is the Activity in Question a Farm or Farm Operation?
The RTFA defines a farm as: “the land, plants, animals, buildings,
structures, including ponds used for agricultural or aquacultural activities,
machinery, equipment, and other appurtenances used in the commercial
production of farm products.”47 A farm operation is defined as:
42. See, e.g., N.C. GEN. STAT. §§ 106-700 to 106-701 (2009), GA. CODE ANN. § 41-1-
7 (West 2008), NEB. REV. STAT. ANN. §§ 2-4401 to 2-4404 (West 2011).
43. See, e.g., N.Y. AGRIC. & MARKETS L. § 308 (McKinney Supp. 2011), KAN. STAT.
ANN. §§ 2-3201 to 2-3204 (West 2011); FLA. STAT. ANN. § 823.14 (West 2006).
44. 1981 Mich. Pub. Acts 644.
45. MICH. COMP. LAWS ANN. § 286.473(1) (West 2003) provides in part: “A farm or
farm operation shall not be found to be a public or private nuisance if the farm or farm opera-
tion alleged to be a nuisance conforms to generally accepted agricultural and management
practices according to policy determined by the Michigan commission of agriculture.”
46. 1995 Mich. Pub. Acts 1065 added MICH. COMP. LAWS ANN. § 286.473(3) (West
2003), providing that a farm using GAAMPs shall not be a public or private nuisance as a
result of any of the following:
• “A change in ownership or size.”
• “Temporary cessation or interruption of farming.”
• “Enrollment in governmental programs.”
• “Adoption of new technology.”
• “A change in type of farm product being produced.”
47. MICH. COMP. LAWS ANN. § 286.472(a) (West 2003). 1995 Mich. Pub. Acts 1065
added “plants,” “animals,” “structures, including ponds used for agricultural and aquacultural
activities, machinery, equipment and other appurtenances.” The original 1981 definition of
the operation and management of a farm or a condition or activity that occurs at

any time as necessary on a farm in connection with the commercial production,
harvesting, and storage of farm products, and includes, but is not limited to:
(i) Marketing produce at roadside stands or farm markets.
(ii) The generation of noise, odors, dust, fumes, and other associated condi-
tions.
(iii) The operation of machinery and equipment necessary for a farm including,
but not limited to, irrigation and drainage systems and pumps and on-farm grain
dryers, and the movement of vehicles, machinery, equipment, and farm products
and associated inputs necessary for farm operations on the roadway as authorized
by the Michigan vehicle code.
(iv) Field preparation and ground and aerial seeding and spraying.
(v) The application of chemical fertilizers or organic materials, conditioners,
liming materials, or pesticides.
(vi) Use of alternative pest management techniques.
(vii) The fencing, feeding, watering, sheltering, transportation, treatment, use,
handling and care of farm animals.
(viii) The management, storage, transport, utilization, and application of farm by-
products, including manure or agricultural wastes.
(ix) The conversion from a farm operation activity to other farm operation activ-
ities.
(x) The employment and use of labor.48
In addition, the Michigan Court of Appeals has provided broad inter-

pretations of what constitutes a farm or farm operation. In an unpublished
2003 decision, Milan Township v. Jaworski,49 the Court of Appeals deter-
mined that an operation where game birds were bred, raised, and hunted—
or sold as live birds for customers to take home—constituted a farm opera-
tion because it was “used for breeding, raising and selling game birds for
commercial purposes,”50 and the game birds were farm products “because
they are useful to human beings and produced by agriculture.”51 Additional-
ly, hunting game birds on the defendant’s property constituted a farm opera-
tion because it involved the “harvesting of farm products.”52 The Court
noted that the GAAMPs specifically addressed game birds,53 and a Michi-
“farm” was simply “land, buildings and machinery used in the commercial production of
farm products.” 1981 Mich. Pub. Acts 644.
48. MICH. COMP. LAWS ANN. § 286.472(b) (West 2003).
49. No. 240444, 2003 Mich. App. LEXIS 3105 (Dec. 4, 2003).
50. Id. at *11.
51. Id.
52. Id. at *12 (quotations omitted).
53. Id. at *14.
gan Commission of Agriculture54 (the Commission) resolution recognized

game bird hunting preserves as “an agricultural activity and a value-added
farm opportunity.”55
In Village of Rothbury v. Double JJ Resort Ranch, Inc.,56 another un-
published opinion issued the following year, the Court of Appeals con-
cluded that a riding stable is a farm operation because horses are farm ani-
mals, and “activities involving the use, handling, and care of farm animals
qualify as a farm operation.”57 Further, the Court noted that GAAMPs for
care of farm animals contained provisions specifically for horses and riding
stables.58
The Jaworski and Double JJ Resort decisions suggest that a reference
to an activity or product in GAAMPs will bring the activity or product with-
in the scope of “farm operation.” However, the definitions of “farm” and
“farm operation” both refer to “farm product” and “commercial produc-
tion,” requiring that a farm or farm operation be engaged in commercial
production of farm products to be eligible for nuisance protection.59 In fact,
much of the litigation over whether an activity is a protected farm or farm
operation has focused on the meanings of “farm product” and “commercial
production,” so additional components of the first question must be ad-
dressed in the decision tree.
1. Is the Farm or Farm Operation Producing a Farm Product?
Farm product is defined in the RTFA as:

those plants and animals useful to human beings produced by agriculture and in-
cludes, but is not limited to, forages and sod crops, grains and feed crops, field
crops, dairy and dairy products, poultry and poultry products, cervidae, livestock,
including breeding and grazing, equine, fish, and other aquacultural products, bees
and bee products, berries, herbs, fruits, vegetables, flowers, seeds, grasses, nursery
stock, trees and tree products, mushrooms, and other similar products, or any other
product which incorporates the use of food, feed, fiber, or fur, as determined by the
Michigan commission of agriculture.60
In Richmond Township v. Erbes, the Court of Appeals concluded that wood

pallets produced on defendant’s farm were not farm products because the
majority of wood used for the pallets was grown elsewhere and transported
54. Renamed the Michigan Commission of Agriculture and Rural Development as

of March 13, 2011.
55. Jaworski, 2003 Mich. App. LEXIS 3105, at *15.
56. 2004 Mich. App. LEXIS 2172 (Mich. Ct. App. Aug. 17, 2004).
57. Id. at *3.
58. Id. at *4.
59. See notes 47, 48 and accompanying text.
60. MICH. COMP. LAWS ANN. § 286.472(c) (West 2003).
to the owner’s farm.61 Even though the definition of farm product includes
“any other product which incorporates the use of food, feed, fiber, or fur,”
the Court observed that giving those words sufficiently broad meaning to
include the defendant’s pallet-building operation “would . . . allow practi-
cally anyone to claim protection under the act when constructing, for exam-
ple, flooring or furniture, which are arguably products incorporating fi-
ber.”62
In Double JJ Resort, the Court of Appeals concluded that a corn maze
is a farm product, in part because
the definition of a farm product is not limited to agriculturally produced products
that are edible. . . . [T]he definition also includes ‘flowers, seeds, grasses, nursery
stock, trees and tree products . . . and other similar products.’ This indicates a Leg-
islative intent to broadly define farm products to include products intended for use
for pleasure. And a corn maze falls within this wide range of products used for
pleasure.63
These cases suggest that a farm is eligible for RTFA protection if it produc-
es farm products on site, and farm products can include products marketed
and consumed on site, not just products marketed for use elsewhere.
2. Is the Farm or Farm Operation Engaged in Commercial

Production?
If a farm is producing a farm product, case law has also clarified that
the production must be commercial in nature. The RTFA does not define
“commercial,” but in 2005, the Court of Appeals took up this issue. In
Charter Township of Shelby v. Papesh, the township argued that a small
flock of chickens in backyard coops was a nuisance.64 In deciding whether
the poultry operation was protected by the RTFA, the Court considered
whether the operation was commercial in nature. It defined commercial
production as “the act of producing or manufacturing an item intended to be
marketed and sold at a profit”65 and concluded that “there is no minimum
level of sales that must be reached before the RTFA is applicable.”66 In
Papadelis v. City of Troy,67 an unpublished decision from 2006, the Court of
Appeals logically extrapolated from the Papesh decision and dictionary
definitions that “a farming operation must be at least partially commercial in
61. 489 N.W.2d 504 (Mich. Ct. App. 1992).

62. Id. at 511.
63. 2004 Mich. App. LEXIS 2172, at *5 (citations omitted).
64. 704 N.W.2d 92, 96 (Mich. Ct. App. 2005).
65. Id. at 99.
66. Id. at 99 n.4.
67. No. 268920, 2006 WL 2683385 (Mich. Ct. App. Sept. 19, 2006), rev’d, 733
N.W.2d 397 (Mich. 2007).
nature for the RTFA to apply.”68 The Papesh decision established that “a
farm or farming operation cannot be found to be a nuisance if it is commer-
cial in nature and conforms to GAAMPs.”69 Thus, the next question in our
decision tree addresses the use of GAAMPs.
B. Does the Farm or Farm Operation Comply with GAAMPS?
The RTFA does not formally define GAAMPs beyond describing

them as “practices as defined by the Michigan commission of agriculture.”70
The Commission has produced and adopted eight sets of published
GAAMPs.71 With one exception, GAAMPs were developed at the request
of the Commission in response to mounting complaints about specific farm-
ing practices. The exception is GAAMPs for “Site Selection and Odor Con-
trol for New and Expanding Livestock Operations,” which were developed
and adopted by the Commission as required by a 1999 amendment to the
RTFA.72 The RTFA describes the sources of information to be considered
in defining GAAMPs73 and, with the 1999 amendment, established specific
membership for the committee charged with developing the Site Selection
and Odor Control GAAMPs.74
68. Id. at *6.

69. 704 N.W.2d at 99.
70. MICH. COMP. LAWS ANN. § 286.472(d) (West 1995). This definition was added
by 1987 Mich. Pub. Acts 240.
71. GAAMPs were adopted for Manure Management and Utilization (1988); Pesti-
cide Utilization and Pest Control (1991); Nutrient Utilization (1993); Care of Farm Animals
(1995); Cranberry Production (1996); Site Selection and Odor Control for New and Expand-
ing Livestock Production Facilities (2000); Irrigation Water Use (2003); and Farm Markets
(2010). All adopted GAAMPs are available at the Michigan Department of Agriculture and
Rural Development website: http://www.mi.gov/mda/0,1607,7-125-1567_1599_1605---
,00.html.
72. MICH. COMP. LAWS § 286.474(8) (2000) amended by 1999 PA 261 which re-
quired: “By May 1, 2000, the commission shall issue proposed generally accepted agricultur-
al and management practices for site selection and odor controls at new and expanding ani-
mal livestock facilities. The commission shall adopt such generally accepted agricultural and
management practices by June 1, 2000.”
73. MICH. COMP. LAWS § 286.472(d) (1995) directs:
The commission shall give due consideration to available Michigan department of
agriculture information and written recommendations from the Michigan state uni-
versity college of agriculture and natural resources extension and the agricultural
experiments station in cooperation with the United States department of agriculture
natural resources conservation service and the consolidated farm service agency,
the Michigan department of natural resources, and other professional industry or-
ganizations.
74. 1999 PA 261 § 286.474(8) added:
In developing these generally accepted agricultural and management practices, the
commission shall do both of the following:
The Commission has adopted a formal policy for carrying out its re-
sponsibilities for administering the RTFA, including the process for devel-
oping, adopting, and revising GAAMPs.75 A standing committee is created
for each set of GAAMPs to be developed. The Commission may, if deemed
necessary, request a public review and comment process for each proposed
set of GAAMPs.76 The RTFA requires that GAAMPs be reviewed annually
by the Commission and revised as necessary,77 so the review and comment
process is also applied annually if, following review by the standing com-
mittees, revisions to GAAMPs are recommended. Following public com-
ment and responses by the standing committees, new GAAMPs or annual
revisions are formally approved by the Commission.
Questions about whether a farm operation conforms with GAAMPs
are raised through complaints made to the Michigan Department of Agricul-
ture and Rural Development (MDARD—formerly Michigan Department of
Agriculture) Right to Farm Program, according to the frameworks outlined
in the RTFA.78 If the farm operation is using GAAMPs, MDARD is to noti-
fy the farm operator, the complainant, and the local unit of government in
which the farm operation is located.79 In the event that MDARD is not pro-
(a) Establish an advisory committee to provide recommendations to the commis-

sion. The advisory committee shall include the entities listed in section 2(d), 2 in-
dividuals representing townships, 1 individual representing counties, and 2 indi-
viduals representing agricultural industry organizations.
(b) For the generally accepted agricultural and management practices for site selec-
tion, consider groundwater protection, soil permeability, and other factors deter-
mined necessary or appropriate by the commission.
MICH. COMP. LAWS § 286.474(8) (2000).
75. MICH. COMM’N OF AGRIC. & RURAL DEV., POLICY NO. 8: RIGHT TO FARM
PROGRAM, in MICHIGAN COMMISSION OF AGRICULTURE AND RURAL DEVELOPMENT POLICY
MANUAL (re-approved March 16, 2011), available at http://www.mi.gov/docum
ents/mda/Commission_Policy_Manual_Update_3_16_11-Approved_348124_7.pdf (Appen-
dices I and II to POLICY NO. 8 pertaining to the adoption and review of GAAMPs not posted
on website are on file with authors) [hereinafter POLICY NO. 8].
76. Id.
77. MICH. COMP. LAWS § 286.473(1) (1995).
78. MICH. COMP. LAWS § 286.474(1) (2000) provides:
[T]he director shall investigate all complaints involving a farm or farm operation,
including, but not limited to, complaints involving the use of manure and other nu-
trients, agricultural waste products, dust, noise, odor, fumes, air pollution, surface
water or groundwater pollution, food and agricultural processing by-products, care
of farm animals and pest infestations. Within 7 business days of receipt of the
complaint, the director shall conduct an on-site inspection of the farm or farm op-
eration.
79. MICH. COMP. LAWS § 286.474(3) (2000) describes the process to be followed if
the farm operation is using GAAMPs:
If the director finds upon investigation under subsection (1) that the person respon-
sible for a farm or farm operation is using generally accepted agricultural and man-
vided access to a farm operation in order to carry out an investigation of air

or odor complaints, the operation is assumed to not be using GAAMPs.80
A farm operation that conforms with GAAMPs is eligible for protec-
tion from nuisance suits under the RTFA;81 and, as clarified in Papesh, the
farm operation must conform with all applicable GAAMPs, not just one
particular set of GAAMPs.82 However, references to “all applicable
GAAMPs” raise considerable practical difficulties given that the Commis-
sion does not consider the eight published GAAMPs to be the complete
universe of GAAMPs guiding the practices of Michigan’s agricultural pro-
ducers. In its policy for the Right to Farm Program and GAAMPs,
The Commission recognizes the diversity of Michigan’s agricultural industry,
which produces more than 200 commodities using a multiplicity of varied man-
agement procedures and techniques, and will strive to define specific Practices en-
compassing all sectors of the industry. Given the breadth of the industry, it is the
policy of this Commission that Generally Accepted Agricultural and Management
Practices include any traditional farming practice which is not detrimental to the
environment or human and animal health.83
Similarly, the Commission recognizes that the generally accepted practices

contained in the GAAMPs for care of farm animals may not represent all
relevant practices:
These voluntary Generally Accepted Agricultural and Management Practices
(Practices) are intended to be used by the livestock industry and other groups con-
cerned with animal welfare as an educational tool in the promotion of animal hus-
bandry and care practices. The recommendations do not claim to be comprehen-
agement practices, the director shall notify, in writing, that person, the complai-
nant, and the city, village or township and the county in which the farm or farm
operation is located of this finding.
80.
It is the policy of the Michigan Commission of Agriculture and Rural Development
to determine that a farm/farmer is not following Generally Accepted Agricultural
and Management Practices if a Right to Farm complaint case involves air and/or
odor issues, and Michigan Department of Agriculture and Rural Development staff
is refused access to review practices and/or records related to the appropriate Gen-
erally Accepted Agricultural and Management Practices.
Mich. Comm’n of Agric. & Rural Dev., Policy No. 9: Generally Accepted Agricultural and
Management Practices Determination of Non-compliance, in MICHIGAN COMMISSION OF
AGRICULTURE AND RURAL DEVELOPMENT POLICY MANUAL (re-approved March 16, 2011),
available at http://www.mi.gov/documents/mda/Commission
_Policy_Manual_Update_3_16_11-Approved_348124_7.pdf.
81. See discussion supra note 45.
82. Charter Township of Shelby v. Papesh, 704 N.W.2d 92, 101 (Mich. Ct. App.
2005).
83. POLICY NO. 8, supra note 75.
sive for all circumstances; but attempt to define general standards for livestock
production and well-being on farm operations.84
Following the lead of the Commission, the Court of Appeals has granted
nuisance immunity to farm operators based on accepted management prac-
tices that have not been reduced to writing in any adopted GAAMPs or oth-
er statement of policy.
Almont Township v. Dome first gave legal recognition to unwritten
GAAMPs.85 Defendant parked a mobile home, which he used as an office
and storage facility, on property where he operated a tree farm.86 He sought
protection from the RTFA when the township cited him for violation of
three sections of the township’s zoning ordinance.87 The township argued
that defendant was not entitled to protection under the Right to Farm Act
because no written GAAMPs addressed tree farms.88 Citing an earlier ver-
sion of the above-referenced Right to Farm Program policy statement,89 the
Court disagreed:
We do not wish to punish defendant for engaging in what the commission of agri-
culture may consider to be a generally accepted practice simply because the com-
mission did not adopt any written guidelines for tree farmers. From a practical
standpoint, it would seem nearly impossible to list every generally accepted agri-
cultural and management practice for every possible type of farm or farming opera-
tion in the state.90
In Jaworski, the Court of Appeals concluded that the absence of GAAMPs

on game-bird hunting was not sufficient to exclude the activity from RTFA
protection. “To the extent that the GAAMPs do not address the harvesting
of game birds, the commission’s express policy statement that the list is not
84. MICH. DEPT. OF AGRIC. & RURAL DEV., GENERALLY ACCEPTED AGRICULTURAL
AND MANAGEMENT PRACTICES FOR THE CARE OF FARM ANIMALS 1 (Jan. 2010), available at
http://www.michigan.gov/documents/MDA_Care_Farm_Animals_GAAMP_129713_7.pdf
[hereinafter CARE OF FARM ANIMALS].
85. No. 179297, 1997 WL 33354480 (Mich. Ct. App. Jan. 17, 1997).
86. Id. at *1.
87. Id.
88. Id.
89. The previous version of the MDARD policy statement read as follows:
The Commission recognizes the diversity in Michigan farm products with over 125
commodities being produced in the state. This commercial production process in-
volves the use of a multiplicity of acceptable management techniques. Therefore,
the Practices defined using the enclosed reference procedures should not be con-
strued as an exclusive list of acceptable practices [emphasis added].
Quoted in Id. at *3. It is worth noting how the language in the last sentence of this previous
version differs from the current version. The current version explicitly recognizes “any
traditional farming practice which is not detrimental to the environment or human and animal
health” as GAAMPs that, if followed, provide nuisance protections and renders local laws
unenforceable according to current judicial interpretations. POLICY NO. 8, supra note 75.
90. 1997 WL 33354480, at *4.
exclusive indicates that the absence of a GAAMP on this subject does not
preclude application of the RTFA.”91
Reliance by the Court of Appeals on unwritten GAAMPs seems mis-
placed in light of the statutory language of the RTFA. The fact that the
RTFA requires GAAMPs to be “reviewed annually by the Michigan com-
mission of agriculture and revised as considered necessary”92 and requires
the MDARD to “[m]ake available on the department’s website current gen-
erally accepted agricultural and management practices”93 strongly suggests
that the legislature considered only written GAAMPs to be relevant for
RTFA protection.94 The Commission does not have a process for annually
reviewing unwritten GAAMPs; indeed, in the Almont Township case it ap-
pears that whether parking a mobile home on a tree farm is an acceptable
practice would not have been considered by (then) Michigan Department of
Agriculture (MDA) absent the litigation.95
A farm operation that is not using GAAMPs (presumably written or
unwritten) is afforded the opportunity to modify its practices in order to
conform with GAAMPs and become eligible for protection from nuisance
suits.96 Steffens v. Keeler confirmed that changing practices to conform with
GAAMPs provides for nuisance protection.97 Steffens v. Keeler confirmed
that changing practices to conform with GAAMPs provides for nuisance
protection.98 The swine operation that was the subject of the nuisance com-
plaint was initially found not to be using GAAMPs by (then) MDA; howev-
er, practices consistent with GAAMPs were adopted and, subsequently,
91. Milan Township v. Jaworski, No. 240444, 2003 Mich. App. LEXIS 3105, at *14
(Dec. 4, 2003).
92. MICH. COMP. LAWS § 286.473(1) (1995).
93. MICH. COMP. LAWS § 286.474(10)(b) (2000).
94. The Almont Township and Jaworski cases in which the Court of Appeals gave
legal force to unwritten GAAMPs should have been published by the Court, given the statu-
tory language that suggests otherwise and the implications of this reasoning.
95. “At trial, the program manager for the RTFA within the department of agricul-
ture opined that defendant’s use of the mobile home was appropriate and a generally ac-
cepted practice under the commission of agriculture’s policy.” Almont Township v. Dome,
No. 179297, 1997 Mich. App. LEXIS 1285, at *4 (Jan. 17, 1997).
96.
[I]f the director identifies that the source or potential sources of the problem were
caused by the use of other than generally accepted agricultural and management
practices, the director shall advise the person responsible for the farm or farm op-
eration that necessary changes should be made to resolve or abate the problem and
to conform with generally accepted agricultural and management practices and that
if those changes cannot be implemented within 30 days, the person responsible for
the farm or farm operation shall submit to the director an implementation plan in-
cluding a schedule for completion of the necessary changes.
MICH. COMP. LAWS § 286.474(3) (2000).
97. 503 N.W. 2d 675, 677 (Mich. Ct. App. 1993).
98. Id. at 677.
MDA concluded that the farm was in con-formance with GAAMPs.99 As a

result, the Court of Appeals concluded that the farm was immune from a
nuisance complaint under the RTFA.100
The RTFA describes the notification requirements if a farm operation
is not in conformance with GAAMPs and chooses not to adopt the neces-
sary practices.101 The implications for such a farm operation are not made
explicit in the RTFA, but recent case law concludes that, in some cases, the
decision not to follow GAAMPs may be immaterial to invoking nuisance
protections. As a result, one final question must be addressed to determine
eligibility for nuisance protection; this question captures the “coming to the
nuisance” issue.
C. Did the Farm or Farm Operation Exist, and Not Constitute a Nuisance,
Before Any Change in the Land Use or Occupancy of Land Within One
Mile of the Boundaries of the Farm Land?
The “coming to the nuisance” protection included in RTFA102 was ad-

dressed in the 2006 Papadelis case.103 Papadelis’ greenhouse and garden
center was expanded onto an adjacent parcel that was zoned residential.104
In response to the City’s nuisance complaint, the Court determined that the
expanded activity met the “farm products” and “commercial production”
tests and thus was protected by the use of GAAMPs.105 The City argued that
the RTFA, nevertheless, did not protect the farm operation because the farm
operation did not exist before the parcel was zoned for residential use in
1956, which the city regarded as a change in land use under the “coming to
the nuisance” provision of the RTFA.106 In response, the Court of Appeals
addressed for the first time “the issue of whether both MCL 286.473(1)107
99. Id.
100. Id.
101. MICH. COMP. LAWS § 286.474(3) (2000).
102.
A farm or farm operation shall not be found to be a public or private nuisance if the
farm or farm operation existed before a change in the land use or occupancy of
land within 1 mile of the boundaries of the farm land, and if before that change in
land use or occupancy of land, the farm or farm operation would not have been a
nuisance.
MICH. COMP. LAWS § 286.473(2) (1995).
103. Papadelis v. City of Troy, No. 268920, 2006 Mich. App. LEXIS 2748 (Sept. 19,
2006); see supra note 67 and accompanying text.
104. Id. at *3.
105. Id. at *7.
106. See supra note 102. The city was relying in part on the Court of Appeals deci-
sion in Jerome Township v. Melchi, in which the court refused to recognize nuisance protec-
tions for an apiary established after the township’s change in zoning that prohibited apiaries.
457 N.W.2d 52, 55 (Mich. Ct. App. 1992).
107. MICH. COMP. LAWS ANN. § 286.473(1) (West 2003).
and (2)108 must be met before a farm or farming operation is protected under
the RTFA.”109 The Court concluded that “MCL 286.473(1) and (2) are to be
read separately and that protection under one subsection does not depend on
a party’s satisfaction of the requirements stated in the other subsection.”110
Reading M.C.L. 286.473(1) and (2) independently means that a farm
operation that existed prior to surrounding land use changes, and that did
not constitute a nuisance prior to these changes, need not comply with
GAAMPs in order to receive nuisance protection under the RTFA. This
undermines the fundamental social contract111 created by the initial passage
of Michigan’s RTFA. Reading M.C.L. 286.473(1) and (2) independently,
when read in conjunction with the preemption language inserted into the
RTFA with the 1999 amendments,112 also means that farm operators are
given the right to move into urbanized residential areas by using GAAMPs.
The preemption language is the subject of the following Section and also
where urban agriculture meets the Right to Farm Act.
III. THE VAGARIES OF PREEMPTION UNDER RTFA
The 1999 amendments to the RTFA provided new protections to farm

operations in addition to nuisance protections. These additional protections
were put into place following lengthy statewide discussions about many
examples of local zoning ordinances that limited various types of agricul-
tural activities, from agricultural-tourism initiatives to creation and expan-
sion of large animal production facilities.113 Through the 1999 amendments,
the state legislature sought, for the first time, to expressly preempt local
laws that could be construed to be a hindrance to farming activities.114

109. Papadelis, 2006 Mich. App. LEXIS 2748, at *10.
110. Id.
112. See infra Part III.
113. See MICHIGAN SENATE AGRICULTURAL PRESERVATION TASK FORCE, SENATE
AGRICULTURAL PRESERVATION TASK FORCE REPORT (1999) (on file with the State Library of
Michigan).
114. Prior to the 1999 amendments, the RTFA specifically recognized the authority
of local governments to regulate farm operations through zoning. Prior to 1999, MICH.
COMP. LAWS § 286.274(1) read: “This Act does not affect the application of state statutes and
federal statutes.” “State statutes” were specifically defined at MICH. COMP. LAWS §
286.272(2) to include those authorizing county zoning, township zoning, and city and village
zoning. 1999 Mich. Pub. Acts 261 eliminated the references to state statutes, replacing them
with MICH. COMP. LAWS ANN. § 286.474(6) (West 2011), which now provides:
Beginning June 1, 2000, except as otherwise provided in this section, it is the ex-
press legislative intent that this act preempt any local ordinance, regulation, or res-
olution that purports to extend or revise in any manner the provisions of this act or
generally accepted agricultural and management practices developed under this act.
Except as otherwise provided in this section, a local unit of government shall not
As with the previous review of the nuisance protections of the RTFA,

the preemption provisions included in the 1999 amendments are amenable
to a decision-tree analysis to determine whether the RTFA trumps local law.
This type of analysis is useful both to guide farm operators and local gov-
ernments in assessing potential RTFA situations and to critique the appel-
late decisions—both unpublished and published—that purport to follow the
“plain language of the RTFA”115 when interpreting the preemption provi-
sions. The analysis revealed that, although the Michigan Court of Appeals
“cannot imagine any clearer expression of legislative intent”116 than that
included in the preemption provisions of the RTFA, some of the principles
employed by the Court to resolve RTFA preemption cases are hardly a ne-
cessary result of applying the RTFA language.117 The results have troubling
implications for landowners and communities attempting to minimize land
use conflicts through the reasonable application of zoning and other land
use regulations.
A. Does the Local Ordinance, Regulation, or Resolution Extend, Revise, or

Conflict in Any Manner With the Provisions of RTFA?
Broadly speaking, there are three major regulatory thrusts of the

RTFA aside from the preemption of local ordinances, regulations, or resolu-
tions: (1) it provides immunity for farmers from public or private nuisance
suits under certain circumstances,118 (2) it provides an investigation process
for complaints involving a farm or farm operation,119 and (3) it gives legal
force to generally accepted agricultural and management practices devel-
oped by the Commission.120 Regulatory areas (1) and (2) are assimilated
into the preemption analysis through the statutory language that prevents
local governments from adopting local laws that extend, revise, or conflict
with “the provisions of this act.”121 Thus, the analysis in Section II concern-
ing the eligibility of farm operators for protection from nuisance suits has
significant relevance in a preemption analysis. Simply put, if a court has
found that a farm operation meets the requirements for protection from
enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in

any manner with this act or generally accepted agricultural and management prac-
tices developed under this act.
115. Charter Township of Shelby v. Papesh, 704 N.W.2d 92, 102 (Mich. Ct. App.
2005).
116. Id.
117. See discussion infra Sections III.A, III.B.
118. MICH. COMP. LAWS ANN. § 286.473 (West 2011).
119. MICH. COMP. LAWS ANN. § 286.474(1)-(4) (West 2011).
120. MICH. COMP. LAWS ANN. §§ 286.473(1), 286.474(6) (West 2011).
121. MICH. COMP. LAWS ANN. § 286.474(6) (West 2011). The preemption of local
laws by GAAMPs is discussed infra Section III.B.
nuisance actions, then local laws that would limit or preclude the operation
in some way are unenforceable against that farming operation. Similar log-
ic holds true for local laws that purport to establish an alternative investiga-
tion process—such as investigations of farm operations through zoning en-
forcement proceedings—at the local level.
Court of Appeals’ decisions confirm this relationship between
preemption and the other provisions of the RTFA. In Papesh,122 not only
did the Court interpret the nuisance immunity provisions to ultimately pro-
tect the landowner from the township’s public nuisance suit,123 it also ex-
amined whether the township’s zoning ordinance prohibiting the raising of
poultry on parcels smaller than three acres124 was preempted by the RTFA.
To reach its conclusion, the Court dovetailed its preemption analysis with
its nuisance immunity conclusion:
As we concluded above, if defendants’ farm is commercial in nature and in com-
pliance with the GAAMPs, it is a farm operation protected by the RTFA. The or-
dinance conflicts with the RTFA to the extent that it allows plaintiff [township] to
preclude a protected farm operation by limiting the size of a farm.125
The Court thus interpreted the “in conflict . . . with this act” language of the
RTFA in a manner that renders zoning—and any and all other local laws—
unenforceable against farm operations that have met the nuisance immunity
tests presented in Part II of this article.
This interpretation, although plausible in light of the statutory lan-
guage, is very problematic for communities attempting to control incompat-
ible uses through zoning. It was, in fact, the situation in Papesh that the
ordinance prohibiting the poultry farming on less than three acres was in
place when the landowners bought the property and began their operation.
The Court’s conclusion had the effect of sanctioning a land use that imme-
diately violated local zoning when established. This result did not go unno-
ticed by the Court. It conceded:
Although plaintiff argues that application of the RTFA under these circumstances
will prevent local municipalities from “getting their arms around” farms operating
in existing or developing residential areas, the fact that the statute appears to be
unwise or unfair to plaintiff is insufficient to permit judicial construction. The
wisdom of a statute is for the determination of the legislature, and the law must be
enforced as written.126
In Papadelis, the Court of Appeals was more direct in its assessment of the
implications of its reasoning:
122. 704 N.W.2d 92.

123. The holding of Papesh regarding nuisance immunity claim discussed, supra note
64 and accompanying text.
124. The landowner’s parcel was 1.074 acres. Papesh, 704 N.W.2d at 96.
125. Id. at 102.
126. Id.
we are aware that . . . a business could conceivably move into an established resi-
dential neighborhood and start a farm or farm operation in contravention of local
zoning ordinances as long as the farm or farm operation conforms to generally ac-
cepted agricultural and management practices. Although we might personally dis-
agree with the wisdom of the policy choice . . . we are without the authority to
override the clearly expressed intent of the legislature.127
Following the statutory language and the Papesh and Papadelis deci-
sions to their logical conclusion, the RTFA now allows farm operators to
use the RTFA as a sword, as well as a shield. It not only protects farmers
from nuisance complaints filed by those who “come to the nuisance,” it also
allows farmers to invoke the RTFA to move into densely-settled residential
areas and establish farm operations in defiance of local zoning and nuisance
regulations—even if those operations result in nuisances in fact and a de-
cline in surrounding property value—as long as they meet the legal stan-
dards that confer nuisance immunity. This may be rare and somewhat more
acceptable in rural agrarian areas; however, in Detroit and other cities in
Michigan, where urban agriculture is emerging in practice and as a viable
alternative land use, the implications of this legal outcome for existing
neighborhoods are troubling.
B. Does the Local Ordinance, Regulation, or Resolution Extend, Revise, or

Conflict in Any Manner With Generally Accepted Agricultural and
Management Practices Developed Under the RTFA?
As discussed previously, the 1999 amendments to the RTFA placed an

increased emphasis on GAAMPs promulgated by the Commission. Prior to
the 1999 RTFA amendment, farm operations that adhered to GAAMPs were
immune from nuisance suits, but they were not immune from citations for
ordinance violations if the standards set out in the local ordinance differed
from those set out in the GAAMPs that existed at the time.128 With the 1999
amendments, GAAMPs also became a vehicle for invalidating local laws
that are judged by the courts to extend, revise, or conflict with GAAMPs.
Note that this is a different question than that addressed under Section III.A
above. In Section III.A, the relevant inquiry is whether the farm operator’s
conformance with GAAMPs has provided him with nuisance immunity. If
so, then that immunity renders any local law unenforceable against his “pro-
tected farm operation.”129 In contrast, under the present question a local law
that extends, revises, or conflicts with GAAMPs on its face is unenforceable
against a landowner. This is a subtle yet important distinction, for it con-
127. Papadelis v. Troy, No. 268920, 2006 LEXIS 2748 (Mich. Ct. App. Sept. 19,
2006).
129. Papesh, 704 N.W.2d at 102.
ceivably allows a landowner to challenge a zoning enforcement action on

the grounds that the zoning conflicts with GAAMPs without requiring the
landowner to show that he is, in fact, complying with the GAAMPs he is
raising as a defense. Although no cases have directly presented this situa-
tion, it is easy to imagine that such a case could present itself to the courts,
given the recent pace of judicial activity on preemption-related questions.
Another important, yet unaddressed, distinction between the present
question and the question posed in Section III.A is the ambiguous legal sta-
tus of GAAMPs themselves. GAAMPs are not state statutes debated and
passed by the legislature, and they do not go through the administrative
rulemaking process or get published in the Michigan Administrative Code.
As previously discussed, GAAMPs are defined in the RTFA as simply
“those practices as defined by the Michigan commission of agriculture.”130
With the exception of the “Site Selection and Odor Control for New and
Expanding Livestock Production Facilities” GAAMPs, which the 1999
amendments required the Commission to develop,131 the creation and publi-
cation of GAAMPs is entirely within the discretion of the Commission.132
GAAMPs are not written as regulations, but rather in the style of a set of
suggested best practices based on scientific literature—running from four-
teen133 to eighty-five134 pages in length.
Prior to the 1999 amendments, the ambiguous legal status of
GAAMPs was perhaps less problematic. GAAMPs were—and today still
are—an optional practice for farm operators wishing to immunize them-
selves from nuisance suits. They are optional in that farm operators are free
to choose to ignore GAAMPs if they are willing to assume the risk of a
nuisance suit. With the 1999 amendments, however, the Michigan legisla-
ture put into place a scheme that subjects local laws to invalidation if they
run afoul of GAAMPs. This places a burden on local governments to track
the changes made to GAAMPs annually, be alert for new GAAMPs that the
Commission may decide to adopt, and decipher best practices language to
130. MICH. COMP. LAWS § 286.472(d) (2011).

131. See discussion supra note 59. The Commission of Agriculture is simply re-
quired to review existing written GAAMPs annually and revise as necessary. The Michigan
Department of Agriculture does accept public comments as part of this review process.
132. MICH. COMP. LAWS ANN. §286.472(d) (West 2011) (GAAMPs are “those prac-
tices as defined by the Michigan commission of agriculture”); MICH. COMP. LAWS ANN. §
286.473(1) (West 2011) (nuisance protection afforded to farm or farm operation that “con-
forms to [GAAMPs] according to policy determined by the Michigan commission of agricul-
ture”).
AND MANAGEMENT PRACTICES FOR FARM MARKETS (Jan. 2010), available at
michigan.gov/documents/mda/2010_Farm_Market_GAAMPs_-_Final_305018_7
[hereinafter FARM MARKETS].
134. CARE OF FARM ANIMALS, supra note 84.
determine where conflicts with local ordinances may exist.135 In this regard,
preemption based on GAAMPs differs markedly from the common frame-
work of preemption based on state statute.
The burden for local governments associated with the preemption and
unenforceability of local laws due to GAAMPs has been compounded by
the Court of Appeals’ recognition of unwritten GAAMPs.136 The recogni-
tion of unwritten GAAMPs essentially allows farm operators to raise post
hoc a defense to zoning enforcement actions by making a case to MDARD
that their activities are traditional farming practices.137
The RTFA allows local governments to submit to the Commission
proposed ordinances that prescribe standards “different from those con-
tained in generally accepted agricultural and management practices if ad-
verse effects on the environment or public health will exist within the local
unit of government,”138 and the Court of Appeals has pointed to this provi-
sion in several cases to show that local governments are not without re-
course if they are dissatisfied with the results of the Court’s preemption
analysis.139 However, if GAAMPs are considered by the Commission—and,
by extension, the courts—to be “any traditional farming practice which is
not detrimental to the environment or human and animal health,”140 it is hard
to imagine how such an initiative by a local government could yield any
practical results.
A separate but closely related principle is the Court of Appeals’ broad
interpretation of the reach of GAAMPs in preempting local laws. The Court
has cited with approval longstanding principles that “state law preempts a
[local] ordinance whe[n] the [local] ordinance directly conflicts with a state
statute or the [state law] completely occupies the field that the ordinance
attempts to regulate.”141 Both published and unpublished Court of Appeals’
decisions apply a liberal interpretation of this preemption jurisprudence by
finding that local zoning provisions impermissibly extend, revise, and/or
conflict with GAAMPs when the GAAMPs are, in fact, silent on the activi-
ties that the zoning provision is regulating.142
135. Wendy Walker, Whole Hog: The Preemption of Local Control by the 1999
Amendment to the Michigan Right to Farm Act, 36 VAL. U. L. REV. 461, 493-94 (2002).
136. See discussion supra Section II.B.
137. See discussion of Almont Township, supra note 95 and accompanying text.
139. See, e.g., Charter Twp. of Shelby v. Papesh, 704 N.W.2d 92, 103 n.8 (Mich. Ct.
App. 2005); Milan Twp. v. Jaworski, No. 240444, 2003 LEXIS 3105, at *15 n.3 (Mich. Ct.
App. Dec. 4, 2003).
140. POLICY NO. 8, supra note 75.
141. Papesh, 704 N.W.2d at 102 (quoting Rental Prop. Owners Ass’n of Kent Cnty.
v. City of Grand Rapids, 566 N.W.2d 514 (Mich. 1997)).
142. Papesh, 704 N.W.2d at 102; Vill. of Rothbury v. Double JJ Resort Ranch, Inc.,
No. 246596, 2004 LEXIS 2172, at *5 (Mich. Ct. App. Aug. 17, 2004); Jaworski, 2003 Mich.
Because the preemption of local zoning raised considerable concern

among those opposed to the growth in large-scale animal agriculture in the
state, the 1999 amendments required that the RTFA and GAAMPs explicit-
ly address the siting of such operations. Specifically, the amendments re-
quired that the Commission develop a set of GAAMPs that have come to be
titled “Site Selection and Odor Control for New and Expanding Livestock
Production Facilities.”143 These GAAMPs prescribe property line setback
distances based on the number of animal units in the farm operation and the
number of non-farm residences within a specified radius.144 These
GAAMPs are not the final word on site selection for large-scale animal
agriculture uses, however, because the GAAMPs also specifically allow
local governments to determine, through zoning, where within the jurisdic-
tion such uses should be located. The GAAMPs simply restrict, to a degree,
the location of individual facilities within the permitted zones.
Aside from the Site Selection and Odor Control GAAMPs and the
Farm Market GAAMPs,145 however, location issues—the types of issues
zoning is precisely designed to address—are only referenced in passing in
other GAAMPs. Nevertheless, the Court has interpreted the mere existence
of GAAMPs addressing the type of farming operation in question as suffi-
cient to preempt local zoning. In Jaworski, the Court found the reference to
“gamebirds” in the Care of Farm Animals GAAMPs and a Commission
policy statement that game preserves are an agricultural activity sufficient to
preempt the township’s zoning provisions regulating hunting preserves.146
The Care of Farm Animals GAAMPs document is eighty-five pages long. 147
It contains a four-page subsection dedicated to “broilers, turkeys and game-
birds.”148 The exclusive list of topics addressed in this subsection are nutri-
tion, beak trimming, toe trimming, transportation, chick and poultry deli-
very, adult and gamebird delivery, range rearing, ventilation and lighting,
housing, and euthanasia and dead animal disposal.149 The physical sizes of
gamebird farms or hunting preserves, or their locational relationship to sur-
rounding properties or residences, are nowhere addressed in the Care of
App. LEXIS 3105, at *12; Almont Twp. v. Dome, No. 179297, 1997 LEXIS 1285, at *4
(Mich. Ct. App. Jan. 17, 1997).
AND MANAGEMENT PRACTICES FOR SITE SELECTION AND ODOR CONTROL FOR NEW AND
EXPANDING LIVESTOCK PRODUCTION FACILITIES (Jan. 2009), available at
https://www.michigan.gov/documents/MDA_SITE_SELECTION_133281_7.pdf.
144. Id. at 5-9.
145. “[T]he market must be located on property where local land use zoning allows
for agriculture and its related activities.” FARM MARKETS, supra note 133, at 3.
146. Jaworski, 2003 Mich. App. LEXIS 3105, at *16.
147. CARE OF FARM ANIMALS, supra note 84.
148. Id. at 52-55.
149. Id.
Farm Animals GAAMPs. From this, the Court nevertheless found that the
Care of Farm Animals GAAMPs usurped the prerogative of the township to
determine the appropriate locations of private hunting preserves so as to
minimize the potential conflicts with surrounding residential and agricultur-
al land uses.150 It is an extremely broad reading of the scope of GAAMPs—
the vast majority of which address agricultural practices completely unre-
lated to the types of activities regulated by local zoning—when they are
construed to occupy the field generally reserved for local zoning.
Despite being presented with the opportunity to do so, the Michigan
Supreme Court has failed to clearly address both the issue of unwritten
GAAMPs and the Court of Appeals’ broad interpretation of the scope of
RTFA preemption. In Papesh, the Court of Appeals invalidated the mini-
mum lot size provisions of local zoning after observing that
[T]he relevant GAAMPs provide for the proper management practices for poultry
farming, including, but not limited, to facilities, manure management and care of
chickens and turkeys. Plaintiff has not produced, and we are unable to find, any
GAAMP that limits poultry farming to property consisting of more than three
acres.151
Relying on its reasoning in Papesh, the Court of Appeals held in its

2006 unpublished Papadelis decision that the RTFA preempted the City of
Troy’s zoning ordinances “regarding building size and permit require-
ments,”152 because “[t]his Court is unaware of any such requirements con-
tained in the RTFA.”153 The case was appealed to the Michigan Supreme
Court, and the Supreme Court reversed the Court of Appeals in a one para-
graph Order.154 Regarding the preemption of Troy’s ordinances by the
RTFA, the Supreme Court stated, “As no provisions of the RTFA or any
published generally accepted agricultural and management practice address
the permitting, size, height, bulk, floor area, construction, and location of
buildings used for greenhouse or related agricultural purposes, no conflict
exists between the RTFA and the defendant city’s ordinances. . . .”155 This
150. It is worth explicitly pointing out that in the Jaworski decision the Court of
Appeals never reached the question of whether the defendants’ operation utilized acceptable
management practices as defined in the Care of Farm Animals GAAMP. Jaworski, 2003
Mich. App. LEXIS 3105, at *14-15. The Court preempted local zoning based simply on the
finding that the defendant was engaged in something that MDARD recognizes as an agricul-
tural activity. Id. The principle underlying the use of GAAMPs—to minimize the negative
impacts of farm operations on nearby landowners⎯is seriously undercut when a court fails
to consider a farm operator’s compliance with the management practices themselves.
151. Charter Twp. of Shelby v. Papesh, 704 N.W.2d 92, 102 (Mich. Ct. App. 2005).
152. Papadelis v. City of Troy, No. 268920, 2006 LEXIS 2748, at *22 (Mich. Ct.
App. Sep. 19, 2006).
153. Id.
154. Papadelis v City of Troy, 733 N.W.2d 397 (Mich. 2007).
155. Id.
single sentence would seem to indicate that the Supreme Court disapproves
of the Court of Appeals’ broad interpretation of what GAAMPs preempt,
the reliance on unwritten GAAMPs to preempt local ordinances, or perhaps
both. Rather than take the opportunity to clarify and/or explicitly disavow
the Court of Appeals’ reasoning in Papesh and related cases, however, the
Supreme Court simply left farm operators and local government officials to
speculate on the import of its order. The cumulative effect of the Court of
Appeals’ decisions regarding preemption effectively is to close the door on
any local regulation of farming operations in both rural and urban areas, a
result that should be addressed by the Supreme Court and then, if necessary,
adjusted by the Michigan Legislature.
IV. THE RISKS OF RTFA FOR THE URBAN AGRICULTURE MOVEMENT
The RTFA and its provision of nuisance immunity and local ordinance
preemption described in Parts II and III create special problems for urba-
nized places. These problems arise largely because the RTFA does not, nor
was it intended to, address agricultural activities introduced into areas of
dense population. Increasingly, though, agricultural enterprises are finding
their way into residential neighborhoods in cities, villages, and densely po-
pulated parts of suburban and rural townships.156 Agriculture in urban
communities offers an array of public benefits, but those benefits could
bring with them activities that neighbors find objectionable. Agricultural
activities most associated with neighbor conflicts in urbanized areas are not
traditional row crops, orchards, or concentrated animal feeding operations—
because they are rarely proposed near dense neighborhoods—but rather the
crowing of a single rooster, the waste or smell of a small number of ani-
mals, or the appearance of a hoop house or similar structure next to a neigh-
bor’s well kept home. Without authority to use traditional local planning
and zoning tools to minimize such conflicts, local governments may seek to
forego the benefits and eliminate opportunities for the expansion of urban
agriculture altogether.
A. Goals and Objectives of Urban Agriculture
Given that agriculture has been found in urban areas in some form
since cities began, why is there more attention now, and how is it different
from before? The renewed focus on urban agriculture can be tied to a num-
ber of trends and social movements. These include:
156. See Mukherji & Morales, supra note 27 (arguing that the nuisance-like impacts
of agriculture increase with the intensity of the activity and the area of land involved).
• Access to fresh, healthy, and nutritious food.157 The principal goal

of many in the urban agriculture movement is to improve the avail-
ability of more fresh and nutritious food to urban residents, espe-
cially low-income residents and those with limited mobility. Many
neighborhoods in urban areas are in documented food deserts;158
these are areas where a full range of fresh food is either unavailable
or not easily accessible to residents. Growing awareness of the im-
portance of fresh vegetables in a healthy diet, along with concerns
about equal food access for all citizens (not just suburbanites who
have the easiest access to full service grocery stores and other
sources of healthy food), often support these efforts. Other suppor-
ters include participants in the slow food movement which focuses
on preparing meals at home using fresh, locally grown ingredients.
• Food safety and food security.159 With a world in which terrorist
threats and dependency on foreign oil dominate the evening news
and in which food production and transportation systems are global
in scale, it should be no surprise that people in many nations have
begun to look inward and pay more attention to issues of domestic
food safety and security. Even as food-importing and exporting-
countries compete for global food market access and grapple with
diverse food inspection regulations and emerging food safety risks,
increasingly consumers are asking where their food is produced,
what production practices are used, and what measures are taken to
ensure food safety. These questions reflect the view that increasing
locally grown food as a percentage of the total food supply reduces
food safety and security risks. Additionally, connecting local food
systems to delivery models that have documented success in in-
creasing healthy food access should reduce food safety and security
concerns.160
157. See generally Kimberley Hodgson, Where Food Planning and Health Intersect,
PLANNING, August/September 2009, at 9.
158. See generally U.S. DEP’T. OF AGRICULTURE, ACCESS TO AFFORDABLE AND
NUTRITIOUS FOOD—MEASURING AND UNDERSTANDING FOOD DESERTS AND THEIR
CONSEQUENCES: REPORT TO CONGRESS, PUB. NO. AP-036, (2009). The USDA provides an
interactive food desert map available at: http://maps.ers.usda.gov/FoodAtlas/foodenv5.aspx.
159. See generally LAURIAN J. UNNEVEHR, INT’L FOOD POLICY RESEARCH INST., FOOD
SAFETY IN FOOD SECURITY AND FOOD TRADE (2003).
160. ANDREA KING COLLIER & CELESTE RABAUT, MICHIGAN GOOD FOOD WORK
GROUP, GOOD FOOD ACCESS FOR FAMILIES AND COMMUNITIES: MICHIGAN GOOD FOOD WORK
GROUP REPORT NO. 2 OF 5 17 (2011), available at http://www.michiganfood.
org/assets/goodfood/docs/Good_Food_Access_Report.pdf.
• Sustainability. Each of the above movements arguably is part of the

larger global sustainable communities161 and sustainable agriculture
movements. 162 Community sustainability initiatives commonly fo-
cus on interrelated goals of viable local economies that emphasize
social equity and environmental health, including minimizing ener-
gy consumption and reducing carbon footprint. Sustainable agricul-
ture goals include satisfaction of food, feed, and fiber needs; en-
hancement of environmental quality and the resource base; econom-
ic viability of agriculture; and enhanced quality of life for farmers,
farm workers, and society as a whole.163
• Green space.164 The urban agriculture movement is also driven
partly by opportunities created in shrinking cities.165 Large tracts of
open vacant land in many big cities have left local governments
looking for ways to reduce blight and make productive use of the
space. Many urban residents see these vacant parcels as an oppor-
tunity for creating more urban green space, and some propose using
at least some of that land for agriculture as a temporary or even
permanent use.166
To the extent they are achieved, these goals and objectives of urban agricul-
ture will help improve the nutrition of urban residents; expose more of them
to agriculture and the connection between food production, preparation, and
consumption; and provide a variety of personal and societal benefits to
those who participate in urban agricultural activities. Likewise, this period
of experimentation could contribute to urban revitalization and produce
lasting lessons for urban sustainability. However, these lessons are likely to
be positive only if state and local governments work together to foster urban
agriculture activities while accounting for the interests and concerns of ur-
ban residents.
161. See generally SIM VAN DER RYN & PETER CALTHORPE, SUSTAINABLE
COMMUNITIES: A NEW DESIGN SYNTHESIS FOR CITIES, SUBURBS AND TOWNS (1986).
162. See generally NATIONAL SUSTAINABLE AGRICULTURE INFORMATION SERVICE,
available at http://attra.ncat.org/fundamental.html.
163. NAT’L RESEARCH COUNCIL OF THE NAT’L ACADS., COMM. ON TWENTY-FIRST
CENTURY SYSTEMS AGRICULTURE, TOWARD SUSTAINABLE AGRICULTURAL SYSTEMS IN THE
21ST CENTURY 23 (2010).
164. SOJI ADELAJA, ET AL., LAND POLICY INST., MICHIGAN STATE UNIV., CHASING THE
PAST OR INVESTING IN OUR FUTURE: PLACEMAKING FOR PROSPERITY IN THE NEW ECONOMY
26, 48 (2009).
165. ALAN MALLACH, BROOKINGS INST., FACING THE URBAN CHALLENGE: THE FED.
GOV’T AND AMERICA’S OLDER DISTRESSED CITIES 28 (2010).
166. See Hantz Farms, supra note 29.
The urban agriculture movement is maturing rapidly, evidenced by na-

tionally recognized examples in Philadelphia,167 Seattle,168 San Francisco,169
and Cleveland.170 In Michigan, local governments have responded to the
urban agriculture movement in a variety of ways. For example, the City of
Flint has adopted zoning amendments to its residential accessory structure
requirements to permit hoop houses in certain circumstances.171 The City of
Ann Arbor172 and nonagricultural portions of Ingham County173 permit a
limited number of chickens (and in some cases other fowl) in backyard
coops. In contrast, a similar effort to permit backyard chickens in Grand
Rapids failed in the face of strong opposition.174 Detroit has many local
initiatives underway but has not yet addressed local zoning issues.175 What
is remarkable about these examples is how different they are from one
another and how, in some locations, urban agriculture has been allowed to
exist in concert with, and not in spite of, local planning and zoning.
B. Risks From a One-Size-Fits-All RTFA
The preemption of local ordinances by the RTFA allows urban agri-

cultural enterprises to be conducted without consideration of community
interests served by the ordinances. Local master plans, zoning ordinances,
and land use regulations created by communities are rooted in nearly a cen-
tury’s worth of efforts to minimize conflicts arising from incompatible land
167. Web site consolidating material on urban agriculture in the Philadelphia region
is available at https://sites.google.com/site/urbanagriculturephiladelphia/.
168. LEAH ERICKSON, ET AL., CITY OF SEATTLE DEPT. OF NEIGHBORHOODS, URBAN
AGRICULTURE IN SEATTLE: POLICY AND BARRIERS (2009), available at
http://www.urbanfarmhub.org/wp-content/uploads/2009/12/Urban-Agriculture-in-Seattle-
Policy-and-Barriers-8_11_09.pdf.
169. Web site consolidating material on urban agriculture in the San Francisco region
is available at http://www.sfuaa.org/.
170. Collection of articles on the wide scope of urban agriculture activities in Cleve-
land is available at https://www.examiner.com/urban-agriculture-in-cleveland.
171. Erin Caudell & Megan Masson-Minock, Making Flint Edible – Creating a Legal
Framework for Urban Agriculture in Flint, MICHIGAN PLANNER, November/December 2009,
at 6.
172. Ann Arbor Chicken Ordinance is available at http://library.municode.com/
HTML/11782/level2/TITIXPORE_CH107AN.html#TITIXPORE_CH107AN_9_42KECH.
173. Ingham County chicken ordinance applicable in non-agricultural portions of the
county is available at http://www.meetup.com/LansingBackyardPoultry/events/11673905/.
174. WWMT-TV, Urban Chicken Ordinance Voted Down in Grand Rapids, Aug. 10,
2010, http://www.wwmt.com/articles/rapids-1380052-grand-ordinance.html (last visited July
14, 2011).
175. Olga Bonfiglio, Delicious in Detroit: The City is Plowing Resources into Its
Extensive Stretches of Vacant Land, PLANNING, August/September 2009, at 32.
uses.176 Planning and zoning activities reflect lengthy community conversa-

tions about long-term community visions and land use goals. The regula-
tions (ordinances) created to implement those visions are drafted by a local-
ly-appointed board and officially adopted by a locally-elected legislative
body (city or village council, township board of supervisors, or county
board of commissioners). In some areas, local plans, and ordinances make
space for urban agriculture, but the locations of agricultural activities and
the way in which they are carried out are agreed upon at the community
level.177 As a result, conflicts with neighboring land uses are minimized. In
contrast, the RTFA preemption of zoning ordinances presumes, generally,
that agricultural activities are compatible with all neighboring land uses.
Clearly this is not the case.178
New urban farm operations are protected by the RTFA and exempt
from local ordinances (and nuisance complaints) if they use GAAMPs.
GAAMPs are “written to provide uniform, statewide standards and accepta-
ble management practices based on sound science.”179 Because the RTFA,
with its emphasis on GAAMPs, was adopted when traditional agriculture in
rural areas was threatened by encroaching suburban and urban land uses, the
written GAAMPs have evolved to protect traditional agriculture in rural
areas. GAAMPs are intended to protect the environment and human and
animal health,180 but, unlike local zoning, they are not intended to protect
property values in the community. While some of the management practic-
es recommended by published GAAMPs may, in fact, be suitable in urban
areas, questions about the application of GAAMPs in urban agriculture are
significant.
To the extent that animals are part of urban agriculture, manure man-
agement GAAMPs that focus on manure storage and the application of ma-
nures to cropland do not address problems that are likely to arise in urban
176. The Standard State Zoning Enabling Act and the Standard City Planning Enabl-
ing Act—upon which the majority of states’ zoning and planning enabling acts are still mod-
eled—were promulgated by the United States Department of Commerce in 1924 and 1928,
respectively.
177. See Hodgson, et al., supra note 28 (providing extensive case examples of local
plans and ordinances in Chapter 4: “Linking Urban Agriculture with Planning Practice,” at
61-104).
178. Specific urban agricultural activities that have resulted in concerned contacts by
local planners with Mark Wyckoff (one of the authors) or which the author observed in local
newspaper articles include: honeybee hives; raising small numbers of chickens, ducks, pig-
eons, doves, and rabbits; larger animals like goats, sheep, cows, pigs, and horses; residential
gardens when large relative to the size of the lot, or if hoop houses or greenhouses are in-
volved; community gardens—especially if hoop houses are involved; neighborhood farm
markets; large scale greenhouses and nurseries not in warehouse or industrial zones; conver-
sion of large blocks of vacant land to row crops or animal production.
179. See preface of GAAMPs documents, supra note 71.
180. Supra notes 83-84, at 20.
neighborhoods where space may be limited and neighbors are nearby. Pes-
ticide application methods that are appropriate in rural areas could well
prove hazardous in areas of dense population. Neither pesticide application
labels nor fertilizer runoff control practices in GAAMPs address the unique
challenges of applying these materials in urban settings where cultivated
areas are likely to drain into storm sewers that take untreated water directly
to rivers. While the focus of this article is on preemption of zoning ordin-
ances, other types of local ordinances are also preempted by the RTFA. The
implications are equally problematic. Agricultural irrigation from private
wells is an acceptable practice in rural areas, but the proliferation of private
irrigation wells in urban communities complicates local authorities’ protec-
tion of water supplies, for example, administration of cross connection pro-
grams required by state rules.181 GAAMPs defer to state regulations for
dead animal disposal options, including burial or composting.182 Most local
governments adopt regulations that defer to standards in the state penal
code183 or adopt other ordinances that conflict.184 Enforcing the RTFA in
urban areas and relying on GAAMPs that are appropriate in rural locations
with lower population densities poses unique risks to urban communities
and their residents.
The potential land use conflicts present a problematic political dimen-
sion. Despite a host of reasons to promote urban agriculture, negative im-
pacts from agricultural activities that cause widespread citizen complaints
could result in a public backlash against such activities. Urban community
leaders could well exercise the political strength that comes with population
numbers and seek state-level legislative recourse.185 A united effort by ur-
ban residents to significantly modify the RTFA could be detrimental to
agriculture generally, not just urban agriculture, and could compromise the
goals of both the RTFA and the urban agriculture movement.
181. MICH. ADMIN. CODE r. 325.11404 (2011). See also model ordinance provided in
MICHIGAN DEPT. OF ENVTL. QUALITY, CROSS CONNECTION RULES MANUAL, OCTOBER 2008,
available at http://mi.gov/deq/0,1607,7-135-3313_3675_3691---,00.html.
182. Michigan Bodies of Dead Animals Act codified at MICH. COMP. LAWS §§
287.651-.683 (2011).
183. Compare MICH. COMP. LAWS § 750.57 (2011) (requiring burial of dead animals
at a depth of at least four feet), with MICH. COMP. LAWS §§ 287.651-.683 (requiring a mini-
mum of two feet for burial of dead animals).
184. See, e.g., LIVONIA, MI, CODE § 13.36.245, available at http://li
brary1.municode.com/default-now/home.htm?infobase=13598&doc_action=whatsnew (pro-
hibiting inclusion of meat, bones, fish, dairy products, vegetable or animal fats, or carnivor-
ous animal manure in compost piles/bins in residential zones).
185. See H.B. 6458, 95th Leg., Reg. Sess. (Mich. 2009) (introduced to exempt cities
of more than 900,000 population (Detroit) from the RTFA).
GAAMPs are adopted by the Commission, which is not elected186 and

has no accountability to an electorate, as would a local governing body.
Nor are the rules it develops reviewed by an elected body, unlike adminis-
trative rules, which are reviewed by the state legislature.187 The Commis-
sion is charged, generally, to “foster and encourage the expansion and pro-
motion of all agricultural goods and services and improve public awareness
of Michigan food products.”188 Consideration of broader social concerns,
while of importance to the Commission’s decisions, is secondary. The
Commission includes among its objectives protection of consumers and the
environment, but there is no explicit attention to different ways in which its
objectives and policies may be brought to bear in urban rather than rural
communities. With respect to policy development, the Commission “recog-
nizes that good public policy requires a balance of competing interests, so-
cial and economic values, science, and the political environment.”189 How
such a balance is sought or achieved is not addressed and is not apparent in
GAAMPS when applied in an urban setting.
A provision in the RTFA offers local governments the opportunity to
propose an ordinance prescribing standards that are different from those
contained in GAAMPs if environmental or public health would otherwise
be adversely affected.190 The proposed ordinance is subject to approval by
the Commission. The Commission is charged with hosting a public meeting
in the community to review the proposed ordinance;191 however, such a pub-
lic meeting is likely to be “one-and-done,” unlike the public planning and
zoning processes directed by locally-elected and appointed officials, where
the give-and-take of multiple meetings increases the likelihood of reaching
outcomes satisfactory to multiple stakeholders. Local development of or-
183. A five member Commission is appointed by the governor with the advice and
consent of the Senate. MICH. COMP. LAWS § 16.279 (2011). The term of office for commis-
sioners is four years. MICH. CONST. 1963 art.V, § 3.
187. MICH. COMP. LAWS §§ 24.235, 24.245A, 24.250 (2011). These sections, respec-
tively, create a joint committee on administrative rules (JCAR) made up of members of the
legislature, establish the process and standards by which they review proposed rules, and the
process by which other committees of the legislature are notified of rules pending before
JCAR.
188. Mich. Comm’n of Agric. & Rural Dev., Policy No. 4, Promotion of Agriculture,
in MICHIGAN COMMISSION OF AGRICULTURE AND RURAL DEVELOPMENT POLICY MANUAL (re-
approved March 16, 2011), available at
http://www.mi.gov/documents/mda/Commission_Policy_Manual_Update_3_16_11-
Approved_348124_7.pdf.
189. Mich. Comm’n of Agric. & Rural Dev., Overview: Policy Development, in
MICHIGAN COMMISSION OF AGRICULTURE AND RURAL DEVELOPMENT POLICY MANUAL (re-
approved March 16, 2011), available at http://www.mi.gov/documents/
mda/Commission_Policy_Manual_Update_3_16_11-Approved_348124_7.pdf.
190. MICH. COMP. LAWS § 286.474(7) (2011).
191. Id.
dinances that are different from GAAMPs, but meet Commission approval,
is also made difficult by the existence of GAAMPs that have yet to be dis-
covered or articulated.192
Municipal ordinances provide requirements that are tailored to local
circumstances and reflect residents’ social and property concerns. This sys-
tem of addressing land use issues has been in place across Michigan for
nearly a century. The successful evolution of urban agriculture in a way
that results in achievement of its goals will require respect for and flexibility
in local responses, which are not provided by the one-size-fits-all RTFA and
its reliance on GAAMPs. Even if a set of Urban Agriculture GAAMPs
were developed by the Commission, such a document is unlikely to be suf-
ficiently comprehensive to account for the wide variety of agricultural activ-
ities that might be conducted in urban areas193 and the wide variety of sur-
rounding potentially-affected land uses found in a complex urban environ-
ment. If local governments are unable to plan and zone for urban agricul-
ture in concert with urban agriculture advocates, urban residents, and local
officials, and find the best way to fit urban agriculture in with other urban
land uses, a very real risk exists that additional growth in urban agriculture
could be stopped cold. From the municipal perspective, removing urban
agriculture uses from local land use decision-making processes reverses
ninety years of efforts to keep the nuisance parts of the country out of the
city and undermines the integrity of the most important local land use tool.
V. STATUTORY CHANGES TO BALANCE AGRICULTURAL AND URBAN

INTERESTS
When it was adopted, the RTFA was an attempt to balance the inter-
ests of farms and their neighbors. That those neighbors would be found on
a small adjacent urban lot cannot have been given much, if any, thought.
The growth of urban agriculture requires that this potentiality now be expli-
citly considered by the legislature. In this Part, two alternative modifica-
tions to state statutes are considered to address the questions of balance
raised in the previous Parts. The first approach is simple—exemption of
urban places from application of the RTFA. The second approach is more
complex and involves changes to Michigan’s planning and zoning enabling
laws, as well as the RTFA. There are potential positive and negative results
of either, yet either would also likely result in a rosier future for urban agri-
culture.

193. See generally HODGSON ET AL., supra note 28.
A. Simple Approach
The simple approach is to amend RTFA to apply different rules re-

garding preemption and nuisance protection in cities, villages, and the parts
of townships with particularly dense populations—the appropriate density
threshold would be the subject of considerable political negotiation in the
state legislature. Such a differentiation acknowledges the different social,
environmental, and property value dynamics that exist in our urbanized
areas. This approach was recently advocated in a guest commentary in the
Detroit Free Press.194 Under this approach, the zoning and other land use
regulations of cities, villages, and densely-populated areas of townships
would not be preempted by the RTFA in all cases.195 Farm operations that
existed prior to being annexed into an incorporated city or village—or be-
fore the township reached the defined threshold density—could continue to
operate as before and be exempt from most regulations found in the local
zoning ordinance, but the non-conforming use restrictions would continue
to operate to limit the expansion of the operation or prohibit its reestablish-
ment once it has been discontinued. Under this approach, the “coming to
the nuisance” principle upon which the RTFA is founded remains in place,
but farm operators would no longer be able to establish operations and
claim protection under the RTFA preemption provisions in violation of lo-
cal zoning in urban areas.
The same principle would be applied to the nuisance protection provi-
sions. The “coming to the nuisance” protections now provided by the
RTFA196 would continue to apply to farming operations that existed lawfully
prior to being annexed into the city or village, but the farm operator’s ability
to move into such an area and claim nuisance protections by using
GAAMPs would be curtailed.
Undoubtedly, this approach could be construed as an attack on agri-
culture in general and the RTFA in particular. While this approach would
allow local governments to decide, based on local goals and preferences, the
appropriate place for urban agriculture and its benefits within local com-
munities, it would not assure that urban agriculture would be acceptable
everywhere. This simple approach allows for urban agriculture, but it does
not expressly promote or encourage it. It places no affirmative obligation
194. John Mogk, Farms Next to Neighborhoods Pose Special Challenges Only Cities
Can Address, DET. FREE PRESS, Mar. 2, 2011 (on file with author).
195. See, e.g., IDAHO CODE ANN. § 22-4504 (West 2010) (city zoning inapplicable to
farms existing and operating lawfully prior to being annexed into city). For the same prin-
ciple operationalized in a different manner, see N.C. GEN. STAT. § 106-701(d) (2010) (act
does not preempt local ordinances when applied to agricultural operations that existed within
the city limits on date RTFA enacted).
196. See MICH. COMP. LAWS § 286.473(1)-(2) (2011).
on communities to plan and zone for agricultural uses and makes it easy for
them to simply do nothing and thereby not accommodate urban agricultural
activities. This approach is relatively straightforward and addresses the
principal problem. However, it could limit the growth of urban agriculture
in some urban communities.
B. Comprehensive Approach
The comprehensive approach goes beyond merely accommodating ur-

ban agriculture and more actively promotes the inclusion of agriculture in
urban communities. This approach respects local differences and makes use
of traditional land use planning and zoning tools. In this way, all affected
stakeholders and property owners are provided an opportunity to participate
in the process.
Since 1921, cities and villages in Michigan have had authority to
adopt and enforce zoning ordinances.197 Townships and counties received
that authority later in the 1920s and in an updated form in 1943.198 Three
zoning enabling acts were consolidated into the Michigan Zoning Enabling
Act (MZEA) in 2006.199 Similarly, cities, townships, and counties were
given the authority to adopt master plans by three separate planning enabl-
ing acts that were consolidated into the Michigan Planning Enabling Act
(MPEA) in 2008.200 The MZEA and MPEA permit, but do not require, local
planning and local zoning in cities, villages, townships, and counties.201
Communities that choose to adopt zoning controls must first prepare a mas-
ter plan with a zoning plan element.202 The master plan must address a va-
riety of land use and infrastructure considerations.203 The legislature has, on
occasion, amended the planning and/or zoning enabling acts to direct local
197. City-Village Zoning Act, 1921 Mich. Pub. Acts 207, repealed by Michigan
Zoning Enabling Act, 2006 Mich. Pub. Acts 110 (codified as amended at MICH. COMP. LAWS
§ 125.3702(1)(a) (2011)).
198. County Zoning Enabling Act, 1943 Mich. Pub. Acts 183, repealed by Michigan
Zoning Enabling Act, 2006 Mich. Pub. Acts 110 (codified as amended at MICH. COMP. LAWS
§ 125.3702(1)(b) (2011)); Township Rural Zoning Act, 1943 Mich. Pub. Acts 184, repealed
by Michigan Zoning Enabling Act, 2006 Mich. Pub. Acts 110 (codified as amended at MICH.
COMP. LAWS § 125.3702(1)(c) (2011)).
199. Michigan Zoning Enabling Act, 2006 Mich. Pub. Acts 110 (codified as amended
at MICH. COMP. LAWS §§ 125.3101-3702 (2011)).
200. Michigan Planning Enabling Act, 2008 Mich. Pub. Acts 33, (codified as
amended at MICH. COMP. LAWS §§ 125.3801-3885 (2011)).
201. MICH. COMP. LAWS § 125.3201(1) (2011) (“A local unit of government may
provide by zoning ordinance for the regulation of land development . . . .”[emphasis added]).
MICH. COMP. LAWS § 125.3807(1) (2011) (“A local unit of government may adopt, amend,
and implement a master plan as provided in this act.” [emphasis added]).
202. MICH. COMP. LAWS § 125.3833(2)(d) (2011).
203. MICH. COMP. LAWS § 125.3833(2)(a)-(c) (2011).
governments to specifically address emerging land use issues; the most re-
cent example is the requirement that local governments address the provi-
sion of public transportation services204 and complete streets.205 A similar
approach could be applied to clarify local governments’ planning and zon-
ing responsibilities relative to agriculture.
First, through an amendment to the MPEA, local governments could
be required to address certain agricultural considerations such as urban agri-
cultural uses in local master plans. Local zoning ordinances would then be
required to include regulations consistent with the urban agriculture goals
and objectives described in the master plan. With a few possible excep-
tions, the form, content, and extent of local zoning ordinances could be left
up to local governments. This permits urban communities the flexibility to
foster agricultural activities that match local goals and capacities.
MZEA amendments could require communities to address farm mar-
kets, hoop houses, nurseries, greenhouses, keeping of farm animals, etc.,
specifically identifying in the zoning ordinance in which zones such activi-
ties are allowed and the standards they must meet. Separate zoning districts
could be established to regulate larger scale activities like nurseries and
greenhouse operations—as is presently done in the zoning ordinances of
many urban communities.206 GAAMPs are designed to provide uniformity
for large commercial agricultural operations that cross jurisdictional boun-
daries. The diversity of small-scale urban agricultural operations located
within a single jurisdiction removes the need for such uniformity.
Protecting urban agriculture as a legitimate set of land uses would re-
quire that MPEA and MZEA be very clear about what local master plans
and zoning ordinances must cover and what they may not do as part of this
option. The specific elements of new statutory language would be nego-
tiated through the legislative process. With the structure for local planning
and zoning for agriculture established in the MPEA and MZEA, as is done
for all other land uses, the institutional structure that is well understood by
property owners, neighborhoods, communities, and the courts will be main-
tained.
Under this approach, amendments to the RTFA would also be neces-
sary to acknowledge that urban agriculture is regulated under local zoning
when the zoning ordinance is adopted consistent with local master plans
under the MPEA and MZEA.207 In communities with such local zoning or-
204. 2010 Mich. Pub. Acts 305 (amended at MICH. COMP. LAWS §125.3203) (2011);
2010 Mich. Pub. Acts 306 (amended at MICH. COMP. LAWS. § 125.3833) (2011).
205. 2010 Mich. Pub. Acts 134 (amended at MICH. COMP. LAWS § 125.3833) (2011).
206. See discussion supra note 37 (regarding zoning for greenhouses in Detroit).
207. Amending the RTFA at this juncture would offer the opportunity to clarify legis-
lative intent, adding to the law a statement of purpose, which does not currently exist. In the
spirit of this approach, such an addition could clarify that it is the intent of the legislature to
dinances, the protections of the RTFA would not be available to farm opera-
tions. However, as an incentive for local governments to engage in such
proactive planning and zoning to accommodate urban agriculture, protec-
tions under the RTFA would still be extended to urban farm operations un-
less local zoning consistent with the amended MPEA and MZEA were
adopted. Practically, communities would need some reasonable period of
time to conform with the new requirements.208 Over time, communities
would learn from each other and refine their approaches, but urban agricul-
tural uses would become part of the legal framework of local community
development. This active promotion of urban agriculture could result in an
explosion of activity as community after community figured out what was
appropriate to allow, where, and under what circumstances. The benefits of
urban agriculture would then be broadly available, and urban revitalization
and community sustainability goals would be furthered.
By comparison, the legislative work to implement the simple approach
described above would be quicker and more straightforward. However,
because it could be perceived as threatening the future of urban agriculture
in some locations, debate could be lively. On the other hand, it could em-
power local communities to create their own agricultural areas according to
their own local preferences once they are freed from the shadow of RTFA
preemptions. The legislative work to implement the more comprehensive
approach would be more detailed and take considerably longer. However,
the comprehensive approach would better accommodate the full range of
urban community types and provide space for the beneficial effects of agri-
cultural activities in urban places. It more fairly addresses and balances
farmer and neighbor interests. More importantly, all such interests will be
at the table when draft plans and zoning regulations are being formulated,
and a balanced result is more likely. A likely positive consequence of either
alternative would be greater acknowledgement by courts of the appropriate
role and purpose of the RTFA for both rural and urban areas and a more
coherent state policy promoting agriculture across all regions.
VI. CONCLUSIONS AND RECOMMENDATIONS
The RTFA and Courts’ interpretations of its provisions have left urban
communities interested in urban agriculture in a quandary. The potential
see that the interests of farm operators, nearby landowners, and local governments are ba-
lanced in the application of the law. Such a statement would signal to Michigan courts that
previous interpretations that have heavily favored the protection of farm operations—to the
detriment of other interests—are to be rejected. The need to include a purpose statement in
the RTFA was recognized by Walker, supra note 135, at 487.
208. See, e.g., MICH. COMP. LAWS § 125.3301(2) (2011) (giving local units of gov-
ernment five years to transfer the powers and duties of the zoning commission to the plan-
ning commission).
benefits from a vigorous urban agriculture are widely acknowledged; yet,

the potential for conflicts with other urban land uses is great. Absent the
ability of local governments to effectively manage those conflicts, the fall-
back position of urban communities could well be to avoid the issue by
looking for ways to prevent urban agriculture altogether. The practical real-
ity is that ongoing disaffection and alienation among local governments and
other stakeholders over RTFA preemptions is likely to result in legislative
action sooner rather than later. A considered legislative response is prefera-
ble to a hurried, piecemeal approach, such as the proposal made in the last
legislative session to simply exempt the City of Detroit from the RTFA
preemptions.209
Part V presents two alternative statutory changes that could be pursued
to address the problems with the RTFA identified in this article. Other pro-
posals for legislative action have been offered elsewhere.210 Michigan’s
Food Policy Council has recognized the need for policy changes to accom-
modate urban agriculture.211 If conflicts between agricultural interests, ur-
ban communities, and stakeholders with a genuine desire to realize the spe-
cial benefits of urban agriculture continue to escalate, positions will harden
and effective resolution of the issues discussed in this Article becomes less
likely. As a result, legislative action in the near future appears advisable.
The analysis and legislative alternatives presented herein are one attempt to
inform legislative debate.
209. See supra note 185.

210. MICHIGAN ASSOCIATION OF PLANNING, Right to Farm Act Policy Platform (Feb.
19, 2010), available at http://www.planningmi.org/downloads/ rtfa_board_adopted_policy_
feb_19_2010.pdf; see also Walker, supra note 135, at 495.
211. Collier & Rabaut, supra note 160, at 10.

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WHEN URBAN AGRICULTURE MEETS MICHIGAN’S

RIGHT TO FARM ACT: THE PIG’S IN THE PARLOR

2011 MICH. ST. L. REV. 365

INTRODUCTION ........................................................................................... 366

* Guyer-Seevers Chair in Natural Resource Conservation and Professor in Com-

V. STATUTORY CHANGES TO BALANCE AGRICULTURAL AND

The city of Troy, Michigan, a second-ring suburb of Detroit, saw ex-

1. SOUTHEAST MICHIGAN COUNCIL OF GOVERNMENTS (SEMCOG), HISTORICAL

dential, commercial, and industrial development patterns typical of most

tive.14 Amidst concerns about loss of farmland and agricultural production

• The RTFA affords nuisance protection to those farms using general-

20. See infra Section II.B and Section IV.B.

RTFA, the Court of Appeals nevertheless has chosen to resolve a number of

I. EMERGENCE OF URBAN AGRICULTURE

Urban agriculture, in simplest terms, involves growing, processing,

24. Id. § 7.215(B).

30. Urban agriculture is:

pushed agriculture further and further from population centers.34 Eventual-

• Security: concern about squatters, criminal hiding places,

34. Early considerations of spatial relationships between agricultural and residential

II. RIGHT TO FARM NUISANCE PROTECTION FOR AGRICULTURAL

40. Communities commonly require setbacks or separation distances between dif-

private nuisance because of changing conditions.42 Many right to farm laws

A. Is the Activity in Question a Farm or Farm Operation?

the operation and management of a farm or a condition or activity that occurs at

In addition, the Michigan Court of Appeals has provided broad inter-

gan Commission of Agriculture54 (the Commission) resolution recognized

1. Is the Farm or Farm Operation Producing a Farm Product?

Farm product is defined in the RTFA as:

In Richmond Township v. Erbes, the Court of Appeals concluded that wood

54. Renamed the Michigan Commission of Agriculture and Rural Development as

2. Is the Farm or Farm Operation Engaged in Commercial

61. 489 N.W.2d 504 (Mich. Ct. App. 1992).

B. Does the Farm or Farm Operation Comply with GAAMPS?

The RTFA does not formally define GAAMPs beyond describing

68. Id. at *6.

(a) Establish an advisory committee to provide recommendations to the commis-

vided access to a farm operation in order to carry out an investigation of air

Similarly, the Commission recognizes that the generally accepted practices

In Jaworski, the Court of Appeals concluded that the absence of GAAMPs

MDA concluded that the farm was in con-formance with GAAMPs.99 As a

The “coming to the nuisance” protection included in RTFA102 was ad-

III. THE VAGARIES OF PREEMPTION UNDER RTFA

The 1999 amendments to the RTFA provided new protections to farm

108. MICH. COMP. LAWS ANN. § 286.473(2) (West 1995).

As with the previous review of the nuisance protections of the RTFA,

A. Does the Local Ordinance, Regulation, or Resolution Extend, Revise, or

Broadly speaking, there are three major regulatory thrusts of the

enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in

122. 704 N.W.2d 92.

B. Does the Local Ordinance, Regulation, or Resolution Extend, Revise, or

As discussed previously, the 1999 amendments to the RTFA placed an

ceivably allows a landowner to challenge a zoning enforcement action on

130. MICH. COMP. LAWS § 286.472(d) (2011).

Because the preemption of local zoning raised considerable concern

Relying on its reasoning in Papesh, the Court of Appeals held in its

IV. THE RISKS OF RTFA FOR THE URBAN AGRICULTURE MOVEMENT

A. Goals and Objectives of Urban Agriculture

• Access to fresh, healthy, and nutritious food.157 The principal goal