Summary of Right to Farm Issues in Township
A Category #3 Livestock Facility can be approved next door to you on six acres, or even less.
All that is needed is a spot to put a barn or coop that has fewer than 13 residences within 660 feet.
The lot does not have to have ever been a farm. It might have always been a single family residence.
You will not be notified nor afforded any chance for input at a public hearing. There will be no public hearing.
You might be living in the home you were born in, built in 1957.
A Category #3 livestock facility means just under 50,000 pounds of live weight of animals
This could mean 4,999 chickens
Or 2750 Turkeys
Or worse yet, about 2750 honking geese.
The poultry does not have to be restrained by a fence (according to our Supervisor’s interpretation)
Our zoning ordinance might have restricted it to 37 well fenced-in chickens; that is no longer valid.
How can that be?
Because of this unbelievable paragraph in the year 2000 update to the
Right to Farm Act 93 of 1981
“(6) Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent that this act 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. Except as otherwise provided in this section, 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.”
This has already happened to one resident couple, making their backyard unusable for them, their children and grandchildren. They often cannot open their windows due to noise and odor. They were not able to celebrate Memorial Day 2020 in their own home.
There is a chance to prevent this from happening to you. In my opinion, this paragraph below from the law provides help.
“(7) A local unit of government may submit to the director a proposed ordinance prescribing standards different from those contained in generally accepted agricultural and management practices if adverse effects on the environment or public health will exist within the local unit of government. A proposed ordinance under this subsection must not conflict with existing state laws or federal laws. At least 45 days prior to enactment of the proposed ordinance, the local unit of government shall submit a copy of the proposed ordinance to the director. Upon receipt of the proposed ordinance, the director shall hold a public meeting in that local unit of government to review the proposed ordinance. In conducting its review, the director shall consult with the departments of environmental quality and health and human services and shall consider any recommendations of the county health department of the county where the adverse effects on the environment or public health will allegedly exist. Within 30 days after the public meeting, the director shall make a recommendation to the commission on whether the ordinance should be approved. An ordinance enacted under this subsection must not be enforced by a local unit of government until approved by the commission.
Nuisance Laws – Michigan
https://www.daltontomich.com/the-three-types-of-nuisance-claims-under-michigan-law/
The first form is known by many names, including: private nuisance, common law nuisance, and nuisance in fact, to name a few. Regardless of what one calls it, this first type of nuisance receives the bulk of attention in most cases. At its heart, a private nuisance is an act that causes an unreasonable interference with another’s use and enjoyment of his or her property. While this may seem like a simple and straightforward idea, its application in Michigan case law has been anything but, which has likely resulted from the fact that a private nuisance can exist in a variety of situations.
The Township, all 19,000 of us were caught unaware of implications of the new, revisions to the Right-to-Farm Act made in 1999, effective in 2000. The revision was made with strong debate and the state government totally in Republican Party control.
Michigan Department of Agriculture and Rural Development (MDARD) approved a new livestock facility on 6 acres of partial wetlands at 1700 N. Rochester Rd. just north of Fire Station #2. This approval overrules all our existing animal ordinances. Seventeen county aerial photos of the site from 1940 to 2017 show no sign of livestock at this residence. County aerial photos from 1940 to 2017
Supervisor Mike Bailey’s letter to Doug Lewan of 9/11/2019 states two goals about this situation.
1 – “..help this resident deal with the current situation..”
2 – “..preclude similar situatons…”
Bailey — Lewan Emails 9-11-2019
Mr. Lewan gave preliminary answers.
Only your Planning Commission and Board can deal with #2 for all of us.
New farms may be approved next door to you by Michigan Department of Agriculture and Rural Development (MDARD) if you live in or nextdoor to VLRD, LRD, LMRD, MRD or RC zoned properties. MDARD can legally overrule our zoning ordinance provisions concernng animals (number allowed, need for fencing, set-backs, etc.). The Township can propose animal ordinances to MDARD. We have not done this. The first opportunity was in the year 2000, when sweeping powers to overrule local ordinances were granted to MDARD by a Republican controlled Michigan State House and Senate.
If there is to be a farm approved next to you, you will not be notified by MDARD. The Township will be notified with an obscure letter, but has only 30 days to appeal.
The Township sent letters challenging the MDARD classification as a farm in two letters in late 2019 here:Yager Document (2021)
We, the Township, have not looked to see if the farm conforms to the three plans it is required to have as mentioned in the 9/10/2018 approval letter – Manure Management Plan, Future Facility Plan, Farm Management Plan.Yager Document (2020) (003)
The township can only find out if the farm is operating according to these plans in MDARD’s opinion, by registering formal nuisance complaints to trigger inspections, as recommended to our Township in a letter from MDARD 1/23/2020, with detailed instructions. MDARD makes no routine inspections of such farms.Letter MDARD to Township Attorney Kelly 1-23-2020
This law firm site defines nuisance “The legal definition of “nuisance” is an activity or physical condition that is indecent or offensive to the senses, or interferes with another person’s reasonable use and enjoyment of life or property.” It does not require the person complaining to point to an item on a list of nuisances.
The Chronological Story
The “farm” owners bought the property in June 2017. In December 2017 , they advertised their commercial operation on a facebook page: https://www.facebook.com/rainbowbasketeggfarm/
“We are a new family farm offering farm fresh chicken, duck, quail, guinea and the occasional turkey egg. Our eggs are gathered several times a day and range in sizes from medium to huge lol! And we have a rainbow of colors hence the name! We are proud to mix our grains and ferment and actually cook for our chickens! We source as non Gmo and organic as possible and our birds enjoy soy free meals also awesome veggie scraps from the kitchen and garden! We also appreciate recycling egg cartons so dont forget to save them!”
“Our flocks are outside enjoying fresh air, skies and ground everyday, and free range on our property (when the ground is not completely snow covered).”
Doug and Lisa Caruso, The residents nextdoor at 1620, on eight acres, began to see the poultry free-ranging on their property, destroying their large organic garden, while they were at work, and making their back yard unusable due to manure, odor, and dead poultry parts. This is Doug’s boyhood home that his father built in 1957.
After complaints by the Caruso’s, the Township initially attempted to enforce the zoning ordinance limits on the number of animals, which they calculated as 37 chickens or similar animals on this size lot. Letters asking for compliance were sent on 7/5/2018, 7/13/2018 and 8/1/2018, but finally the township went to court.Illegal Activity Citations
On 6/7/2018 MDARD inspected the site and on 9/10/2018 declared it a Category #3 Livestock Facility site, acceptable for just under 50,000 pounds live weight of animals. For example, 4,999 chickens, one chicken less than 50 animal “units”. 100 chickens = one animal unit. At that time according to the Caruso’s the poultry was confined by netting near the”coops” shown in this photo, below. This photo was taken by me on 5/7/2020. Now they free-range on dirt up to and beyond the 3-1/2 foot fence, too low to stop flying poultry or keep foxes, racoons, coyotes, etc. out.
See MDARD’s approval letter here:Yager Document (2020) (003)
50 animal units approved means 50,000 pounds liver weight of animals.For example 5,000 chickens or different numbers of other animals, depending on size as shown in Table 1 on page 5 below. So 4,999 chickens is OK on Category #3 farm, or 49 steers, etc.
Site_Selection_and_Odor_Control_2020_GAAMPs_682468_7
I think a very key sentence in the above GAAMPs is
“These GAAMPs provide a planning process that can be used
to properly plan new and expanding facilities and to increase the suitability of a
particular site thus enhancing neighbor relations.”
Therefore the GAAMPs provide a planning process, NOT specific detailed requirements. To violate these GAAMPs seems to require:
- Not to have employed the planning process and /or
- Not to have followed the plans made and approved by MDARD
Again, the Manure Management and Utlization 2020 GAAMPs are not hard and fast, but provide “option’s”. From page 1 –
“The GAAMPs presented in this document provide options to assist with the
development of environmental practices for a particular farm that prevents surface water and groundwater pollution.”
6/14/2018 – Doug Caruso wrote a formal complaint letter
Complaint Letter 6-14-2018 Doug Caruso
6/14/2018 – Code Enforcement Officer visits the site – ten visits in log ending 11/12/2018
Enforcement Activity – Township at 1700 N. Rochester Rd.
See also Exhibit E here:Yager Document (2021)
6/20/2018 Police report. chickens from 1700 digging up yard at 1620 , no fence, dumping manure on 1620 property; hard to sleep; can’t open windows due to noise and odor. Police advise so state law agains chickens at large, will advise chicken owner of situation, explained to owner need to keep fowl on property, owner says erecting fence to prevent that.Police Report 6-20-2018
7/18/2018 Letter from MDARD to “farm”, copy to Township Clerk. “Pro-Active GAMMPs Determination.,..poultry facility at 1700 N. Rochester Road, Oakland, conforms to the GAAMPs for Management and Utilization.”
(This was based on 6/7/2018 MDARD inspection and subsequent review of submitted facility plans, manure and farm management plans). It is unknown how exactly the Township reacted to this letter. (Note: Sentinel has entered FOIA requests for these plans, except manure management plan that is exempt from FOIA. The Township can request a copy of the manure management plans, but so far has not. At this writing MDARD has responded they cannot locate ANY facility plans and farm managment plan is exempt from FOIA, we are appealjng that.)
Letter MDARD TO Huss cc Twp Clerk 7-18-2018
On 9/11/2018 at District Court 52 in Rochester Hills,
Township Attorney Maccrone recommended dismissing the Townhip’s case “without prejudice” while they reviewed 9/10/2018 MDARD letter below. The court actions took exacrly two minutes.
The Caruso’s told me they were promised by the Township that they would be called to be available to testify, but say they were not called. This was on Manager Dale Stuart’s “watch”. The court transcript is here:Court Records Transcript 9-11-2018
According to MDARD rules the Township had 30 days to appeal the ruling in the 9/10/2018 letter. See an explanation of this appeal process here:30 Day Appeal Window
No appeal was made by the Township
10/26/2018 – The Caruso’s who had not been invited to court as promised were notified of the court decision six weeks later by a phone message on 10/26/2018 on their phone recorder. A transcipt of that announcement is in this document: timeline chickens
This court decision nullifed our zoning ordinance provisions about animals.
From Act 93 of 1981 (Right to Farm Act)
http://legislature.mi.gov/doc.aspx?mcl-Act-93-of-1981
“(6) Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent that this act 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. Except as otherwise provided in this section, 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.”
So this means that the items in our zoning ordinance to allow animal ownership, but protect the health, safety and welfare of us all were unenforecable unless the Township has previously submitted them for approval to MDARD by the process described in the RTF Act below.
As far as I know the Township has never considered this zoning ordinance revison process as explained in a section of the Right-to-Farm Act below.
http://legislature.mi.gov/doc.aspx?mcl-Act-93-of-1981
MCL 286.474 Sec. 4 (7)
“(7) A local unit of government may submit to the director a proposed ordinance prescribing standards different from those contained in generally accepted agricultural and management practices if adverse effects on the environment or public health will exist within the local unit of government. A proposed ordinance under this subsection must not conflict with existing state laws or federal laws. At least 45 days prior to enactment of the proposed ordinance, the local unit of government shall submit a copy of the proposed ordinance to the director. Upon receipt of the proposed ordinance, the director shall hold a public meeting in that local unit of government to review the proposed ordinance. In conducting its review, the director shall consult with the departments of environmental quality and health and human services and shall consider any recommendations of the county health department of the county where the adverse effects on the environment or public health will allegedly exist. Within 30 days after the public meeting, the director shall make a recommendation to the commission on whether the ordinance should be approved. An ordinance enacted under this subsection must not be enforced by a local unit of government until approved by the commission.”
So what is in our current ordinance for which the Township did not seek approval for in this or revised form? Primarily Section 16-306 and the “Animal” definition below. Perhaps we could propose a lower number of animals than 4,999. I think the fencing requirements of our zoning ordinance too keep animals on the farm, would be hard for MDARD to reject.
Animal Definition – Zoning Ordinance
10-31-2018 – Lisa complains to MDARD by phone to Olivia. Summary of conversation and events written by Lisa Caruso here:
“D.O.A. – Lisa Caruso first called the DOA on 10/31/18 after observing 20 to 30 chickens once again on her property. She spoke to Olivia and stated her concerns. Olivia said that someone from her department would be out in 7 days. Lisa told her that there had been a road added to the back of the property and was concerned that they would be knee deep in flooded fowl feces in the spring. She was told by Olivia that she would need to wait until that happens to call and complain. Olivia did state that it was muddy because of all of the rain we were getting and expected to get more. Exactly! Lisa asked Olivia how the manure management could be possible if there were dozens of chickens in my yard. Who is cleaning up the manure at 1620 N Rochester Road? Olivia stated that was a very good question. Olivia was told by Lisa about the pile of manure on the side of the greenhouse on her property as well. Drains being dug and land being cleared for chickens with no fence to “free range” on top of the wet lands that drain directly into the Clinton River…”
D.O.A. – Lisa Caruso 2nd call to the DOA on 11/7/18 and asked how the visit to the Rainbow Farm next door went? She was told that it would take 7 working days. They hadn’t been there to make a report yet. Call back later.
D.O.A. – Lisa Caruso called two additional times and got an answering machine and left messages and did not get a return call between 11/9/18 and 11/16/18.”
Above was taken from this document below from Lisa Caruso attached to email to R. Yager 5-30-2020
11-16-2018 – visit to farm by MDARD’s Mahoney (See 12-7-2018 letter)
MDARD Letter Mahoney to Huss cc Twp. Clerk 12-7-2018
12-7-2018 letter to farm on complaint says
- “…reviewed manure management practices…”
- “..in response to complaint of… odor, manure runoff, pile of manure on neighboring property…”
- “…did not detect excessive odors…”
- “…did not see evidence of manure run-off…”
- “…material was straw, not manure…”
- “…following management plan…”
- “…not verified…”
- “…did not determine conformance with all GAAMPs…”
Did township give copy to Caruso’s?
11/5/2018 Ten free-range turkeys on Caruso property.
10 Free-Range Turkeys in Caruso Yard 11-5-2018
11/27/2018 Rainbow Basket Egg Farm was unhappy about legal expenses (facebook page)
A woman at MDARD reportedly told the Caruso’s that if they complained too much, they would be fined.
They contacted a lawyer who did some research for $800 and told them he needed a $10,000 retainer to begin anything. He suggested live-trapping the poultry and making the farm owner call the police to get them returned. Caruso’ s rejected this advice as a too hostile approach.
According to our zoning ordinance 16-306 above, the complaint process is supposed to be this. As far as we know, no one in the Township told them that this was the process. In fact they were criticized by Township officials for not contacting the state directly.
“F: Nuisance: The keeping of animals shall not be permitted to constitute a nuisance to persons living in the surrounding area. Upon written complaint filed by an abutting property owner with the Township stating animals under the provisions listed above constitute a nuisance, the Township Zoning Administrtor shall determine whether the animals consitute a nuisance. If the nuisance claim is found to be for a farm operation protected under the Right to Farm Act, the zoning administrator shall file the complaint to determine to determine if such a nuisance is present and appropriate action taken.”
The Zoning Ordinance in 16-200 says “The word “shall” is always mandatory.
According to my Freedom of Information Act responses below from both MDARD and the Township, no records of such complaints filed with MDARD exist
Robert Yager FOIA Response – Denial 05-15-20 Signed
But this seems to differ
On July 29, 2019 the Caruso’s visited Township Officer Office Hours to make a case for help from the Township. Officer Hours is 3-5 every Monday. The three Board officers, Supervisor Mike Bailey, Treasurer Jeanne Langlois and Clerk Karen Reilly are all together in the Board room and will discuss any topic.
The Caruso’s followed up their visit to Board Officers with this email on 8/4/2019.
The Caruso’s have many photos and videos illustrating the nuisances claimed above.
Wet, flooded, conditions on May 19, 2020. MDARD recommends dry yards to minimize odor of decomposing manure. A local, well-known, highly respected contractor reportedly told the owners that good drainage is not possible, without dumping the run-off onto neighbboring properties.
The GAAMPs for Manure Management and Useage Manure_Management_and_Utilization_2020_GAAMPs_682465_7 has a section on odor mamagement, pages 5-7
“ODOR MANAGEMENT
“The goal for effective odor management is to reduce the frequency, intensity, duration
and offensiveness of odors, and to manage the operation in a way that tends to create a
positive attitude toward the operation. Because of the subjective nature of human
responses to certain odors, recommendations for appropriate technology and
management practices are not an exact science. The recommendations in this section
represent the best professional judgment available.
The following eight management practices (GAAMPs numbered 12 to 19) provide
guidance on how to minimize potential odors from livestock operations. Producers
should select those practices which are applicable to their livestock operations and
develop an Odor Control Plan as part of their MMSP. See Appendix C, Section IX, for a
sample MMSP that contains an example Odor Control Plan.”
The Township can request a copy of the “farm’s” Manure Management Systems Plan.
MCL 286.474 Sec 4
“(9) If generally accepted agricultural and management practices require the person responsible for the operation of a farm or farm operation to prepare a manure management plan, the person responsible for the operation of the farm or farm operation shall provide a copy of that manure management plan to the city, village, or township or the county in which the farm or farm operation is located, upon request. A manure management plan provided under this subsection is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.”
Satellite Photo of 1700 N. Rochester Road, April 23, 2017 – before poultry farm. Caruso’s house at top of photo, north half cut off in photo. Driveway shown is Caruso’s south drive.
Satellite photo March 24 , 2019 – poultry farm in operation. White specks are poultry.
Caruso back yard before decimated by poultry
Backyard — before
Turkeys and guinea hens on way to devour raspberries, on security camera while Caruso’s were at work
Turkeys and guinea hens on way to devour raspberries, on security camera while Caruso’s were at work
Back yard – after
8/13/2019 – The Board went into closed session during a special meeting “…to discuss legal opinion regarding applicability of Right to Farm Act to the farm at 1700 N. Rochester Road”
9/11/2019 – This correspondence Bailey — Lewan Emails 9-11-2019 took place between Township Supervisor Mike Bailey and Doug Lewan. Supervisor Bailey was seeking advice from Mr. Lewan on two matters. Mr. Lewan is with our contract planning firm, Carlisle-Wortman.
This firm tries to maintain expertise on planning and zoning law and our own ordinances and advises our Planning Commission and others by giving opinions about items on the PC agenda and attending all their meetings
Mr. Lewan then wrote this letter to Supervisor Bailey on 9-16-2019 with his recommedations. The letter was made part of the May 2020 Planning Commission meeting package, which I noticed.
I alerted Caruso’s to this item, as I had heard from another resident that they had a “chicken problem”. I did not realize this packet item was based on their problem, nor have a clue of the extent of their suffering of nuisances. They were very interested and told me about their problems in an email. I went out to look at the site. I began researching the history. The Caruso’s attended the May Planning meeting to comment under “items not on the agenda” and summarized the nuisances. I encouraged the Planning Commission members to make a site visit if they had not.
Don Mende, our own Township Planning Coordinator, explained that it would be on the June agenda. Don Mende Info
According to our Zoning Ordinance in 16.105.06, one of the Planning Commission Duties and Responsibilites is “To consider and recommend the adoption of this ordinance and amendments to this ordinance.” Such amendments, in my view can only be wisely made with a strong background in the issues.
11-1-2019 – Letter to MDARD’s Mahoney from Township Attorney Dan Kelly –
- Questioning siting 1700 N. Rochester Road as Category #3 Livestock Facility.
- Citing complaints
Township Attorney Dan Kelly made arguments that it should be classified Category #4 (no livestock facility allowed) and was rebuffed by MDARD by saying “too late, past the 30 day window”. The opening for the Township to pursue is the statement made by MDARD welcoming complaints below. See Exhibit B here:Yager Document (2021)
11-13-2019 MDARD inspects; reports “complaint not verified” to the farm in 11-19-2019 letter
11-19-2019 Letter MDARD Mahoney to Huss.
- “…in response to a complant received by our office…the complaint concerned odor and the location (siting) of your livestock facilities…
- “…you indicated making continuing improvement to your property to manage stormwater and erecting permanent fencing for your poultry and livestock…’
- MDARD made a determination that your facility conforms to the Generally Accepted Agricultural Management Practices for Site Selection and Odor Control for New and Expanding Livestock Facilities (Site Selection GAAMPs) in 2018.
- (Note that he does not say it conforms to GAAMPs at this visit.)
Letter MDARD Mahoney to Huss 11-19-2019
12-3-2019 MDARD denies Mr. Kelly’s “complaint”.
Letter MDARD Mahoney to Kelly 12-3-2019
12-18-2019 Attorney Kelly appeals the denial
1-23-2020 MDARD responds rejecting siting appeal as too late (past 30 days) and inviing complaints
Letter MDARD to Township Attorney Kelly 1-23-2020
March 11, 2020 Township Manager Adam Kline wrote this letter to Caruso’s
Letter Kline to Caruso’s After 1-23-2020
5-11-2020 Lisa Caruso formal complant about farm siting
5-17-2020 Lisa Caruso entered a seven page letter chronologically detailing the history of problems.
5/18/2020 – I discussed the issue by phone with Treasurer Langlois during the time alloted for Officer Office Hours, and sent this follow-up email to the Board and Manager
Letter Yager to Board, Manager, 5-17-2020
5-21-2020 – Then Lisa Caruso wrote this formal complaint letter 5/21/2020 citing nuisances under the zoning ordinance section 16-306 F, addressing it to our Zoning Administrator (Township Manager) and copying the Board of Trustees.
Lisa’s Complaint Letter 5-21-2020
5-29-2020 – The Planning Commission will be meeting on 6/2/2020, as I understand it, to discuss very minor changes to the zoning ordinance that will not, in my opinion do much help ward off future problems like this one. I have proposed that Planning Commission consider closely the possible benefit to be achieved by using this part of the Right to Farm Act to get reasonable animal ordinance provisions. Here are my letters to Plannng Commission:
Letter for Plannng Commission 6-2-2020
Right-to-Farm Act http://legislature.mi.gov/doc.aspx?mcl-286-474
MCL 286.474 Sec. 4 (7)
“(7) A local unit of government may submit to the director a proposed ordinance prescribing standards different from those contained in generally accepted agricultural and management practices if adverse effects on the environment or public health will exist within the local unit of government. A proposed ordinance under this subsection must not conflict with existing state laws or federal laws. At least 45 days prior to enactment of the proposed ordinance, the local unit of government shall submit a copy of the proposed ordinance to the director. Upon receipt of the proposed ordinance, the director shall hold a public meeting in that local unit of government to review the proposed ordinance. In conducting its review, the director shall consult with the departments of environmental quality and health and human services and shall consider any recommendations of the county health department of the county where the adverse effects on the environment or public health will allegedly exist. Within 30 days after the public meeting, the director shall make a recommendation to the commission on whether the ordinance should be approved. An ordinance enacted under this subsection must not be enforced by a local unit of government until approved by the commission.”
Bob Yager – Editor – Oakland Township Sentinel
yagerra@comcast.net
Oakland Township Sentinel 