Wednesday, November 24, 2010

Right to Farm Isn't an Excuse

The Detroit Free Press chronicled the challenges to urban farming in Detroit earlier this month. One of the issues that they cited is the city officials are reluctant to approve these farms out of concern that the Michigan Right to Farm Act will make it impossible to regulate these farms once they are established. In my opinion, that concern is simply devoid of any legal or factual merit.

In order to for a farm in Michigan (urban or otherwise) to claim protection from zoning or other regulations, the Right to Farm Act sets two specific conditions. First, the farm in question must conform to generally accepted farm management practices as specified by the Michigan Agriculture Commission. This is the simple one. The second condition is more relevant to urban farming in Detroit.

MCL 286.473 further states (emphasis added):
(2) 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.
Please note the explicit requirement that the farm has to be in existence before any changes in ownership or land use in the surrounding areas. If the farm came into existence after, or as a result of, such a change in land use then it does not meet the explicit black letter requirements of the Michigan Right to Farm Act and the Act simply does not apply to any such case.

All of this makes me wonder: Do I really have to explain to Mayor Dave Bing and his Administration what the words before and after mean?

Do they really need someone to explain this to them?

Or is this argument about the Michigan Right to Farm Act simply a lame excuse to avoid doing anything? Are they simply hoping that no one will bother to read the Act and notice its requirements and conditions?

I'm not sure which is worse - having a Mayor who needs basic concepts like "before" and "after" explained to him or one who uses lame excuses to avoid doing any work?

7 comments:

Nick Kovach said...

Frank, I have to correct your analysis here since the concern about the right to farm act is valid and your contention would not stand up in court. If a city permits the land use, by definition, it is not a nuisance at that time. The statute prohibits the city from regulating after that approval on the basis on any nuisance regulations. Thus, essentially, if the city approves a farm, it cannot later change the surrounding land use to prohibit/ regulate it again.

Nick Kovach said...

the "change in land use" is not the initial change to a farm ( as would occur here in the city). It typically refers to suburban lands that were former farms and had been converted into residential developments. The residential developments could not put pressure on the suburban gov. to push the farm out on the basis of the farm being a nuisance.

FrankNemecek said...

Nick:

I love you, but I think you need to go back and re-read subsection 2 of the Act.

In order to trigger the protections of RtF, the area around the farm has to change its use and it has to change after the farm goes into operation. In the proposed cases, the area surrounding these farms would still have their same use therefore the Act would not apply.

Nick Kovach said...

frank ill try to respond after i come back from the bar :)

FrankNemecek said...

I look forward to your thought either here or in my email.

Garnet said...

But isn't there a Right to Lame Excuses Act? *laughs*

FrankNemecek said...

Garrett is correct. There is indeed a Right to Lame Excuses Act.

Now all we need is a Right to Make Fun of People Who Make Lame Excuses Act and all will be right with the world.