DEPARTMENT OF AGRICULTURE EXPANDS PROTECTIONS FOUND IN FARM MARKET GAAMP

The Department of Agriculture exercised power granted by the Right to Farm Act to issue a new Farm Market Generally Accepted Agricultural Management Practices that expands preemption of local ordinances.

The Michigan Right to Farm Act, MCL 286.471 et seq, (“RTFA”) encourages agriculture.

According to MCL 286.471, “[a] farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture.”  MCL 286.473 (emphasis added). The “policy” referenced in the statute are the GAAMPs, which is an acronym for the “generally accepted agricultural and management practices” language contained in the statute. Id.  According to MCL 286.474(6), “it is the express legislative intent that [the RTFA] preempt any local ordinance, regulation, or resolution 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.”  “[A] local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.” Id.

The Michigan Department of Agriculture and Rural Development (“MDARD”) has issued a GAAMP for Farm Markets. Until a new GAAMP was issued this year, the Farm Market GAAMP distinguished between a farm, where products are grown, and a farm market, where they are sold to the public. These could occur on the same property or on an affiliated property. The old GAAMP explicitly stated that the “property on which the farm market is located does not have to be the land on which the products offered for sale are produced.”  However, the market to which the public was invited was required to comply with local zoning. According to the old GAAMP, “the market must be located on land where local land use zoning allows for agriculture and its related activities.”

This has changed with the new, 2020 Farm Market GAAMP that was recently issued. That GAAMP has eliminated the quoted references to local zoning compliance. Instead, the Department of Agriculture now has the option of reviewing a site plan that the farmer should have on hand. “A farm market should have a written site plan for potential MDARD review that preempts local government regulations.”

This is not to say that all other requirements are eliminated. For example, while the GAAMP explicitly allows that “parking and driveway surfaces may be vegetative, ground, pavement, or other suitable material,” preempting any local requirement requiring paved driveways and that would trigger potential water storage issues, “other parking and driveway requirements must comply with all applicable regulations.” Access must still be permitted. “Any farm market and affiliated parking operating along a public road must obtain all appropriate ingress and egress permits.” However, these permits are frequently given by either the Michigan Department of Transportation or the county road commission, not a local municipality. There are also requirements for signage. “The operator of the farm market must comply with all applicable state and federal regulations for signs. A minimum of one roadside sign is allowed pursuant to local sign ordinance setbacks, lighting, height and size requirements.” It is notable that the former GAAMP including “local” after “state and federal” when referencing regulations. That was eliminated, however, the Department of Agriculture must consult with the local ordinance for the specific setbacks, lighting, height, and size requirements. This provision guarantees one sign and would preempt local proscriptions against any signs.

A farmer must comply with the requirements to be a Farm Market. For example, “at least 50% of the products offered must be produced on and by the affiliated farm measured by retail floor space during peak production season, or 50% of the average gross sales for up to the previous five years or as outlined in a business plan.” Additionally, the GAAMP does not apply to property to certain subdivisions or condominium sites.

This is a significant change that should benefit farmers.  For example, municipalities generally require engineered site plans that are expensive to create, much less meet.  Now, the farmer need only create a site plan that the MDARD may review.  From a practical perspective, I understand from MDARD that if a locality asks that it review a site plan, it will do so.  It will also review them for a farmer who wants to be proactive about compliance.

I have handled a number of matters implicating the RTFA and generally deal with local municipal approvals.  If you are a farmer seeking assistance with complying with the new GAAMP or are having issues dealing with a municipality, please feel free to contact me.