so start here ...

then read this ...

so...

a year has passed. in that time i have followed several chicken ordinance-related cases in other cities throughout the state. i decided it was time to write another letter (and to be honest, i'm not sure why, as it didn't really go well the first time!)

here was the letter i sent last week - this time, to the City Attorney, Mayor, and Director of Planning and Community Development -

Dear Sirs and Madam,

Let me first thank you for your prompt response to my letter dated May 21, 2012, regarding raising chickens and planting a garden at my residence in the City of Midland.

While I understand that your letter represents the position of the City, I find it wholly inadequate that you might fail to recognize and counsel the City Council that such opinions are in direct contrast to stated law, and court precedence.

While just over a year has passed since I last wrote, several developments have arisen that compelled me to write again, and further address this issue.

First and foremost, I would like to cite a court case, decided in late 2012, that further supports commercial farming in all areas, regardless of zoning. Several points you made in your letter are directly addressed in this court case, one which required much time and many resources, including financial, that became the responsibility of the township. The decision in Buchler v. Forsyth Township, from the Circuit Court for the County of Marquette, Michigan, filed by the Hon. Thomas Solka on December 18, 2012, specifically addresses issues related to GAAMPS for Site Selection and residential zoning.

The Solka opinion states:

Despite the Buchler property being zoned Lake Residential, with no allowance for commercial farming or livestock production in zoning regulations, their commercial farming operation is protected under the MRTFA.
“The Right to Farm Act at MCL 286.474(6) clearly and unambiguously expresses a legislative intent that the state law preempts “any local ordinance” and bars enforcement of local ordinances against any farm that complies with the Right to Farm Act. The GAAMPS, themselves, are not administrative rules adopted pursuant to the Administrative Procedures Act with force of law. The GAAMPS are described in the statute as “policy”. MCL 286.473(1).”
Hon. Solka’s decision also cites several other court decisions, including Charter Township of Shelby v. Papesh – concluding that “…the RTFA no longer allows township zoning ordinances to preclude farming activity that would otherwise be protected by the RTFA. Rather, any township ordinance, including a zoning ordinance, is unenforceable to the extent that it would prohibit conduct protected by the RTFA.”

An article about this case is enclosed. A copy of this decision can be found at - http://www.farmtoconsumer.org/news_wp/wp-content/uploads/2012/12/Buchler-v-ForsythTwp-Solk-opinion2012-12-18.pdf

In addition, the more local Lincoln Township Planning Commission recently approved a request for chicken keeping on a residential lot, at their March 19, 2013, and indicated that future requests would also be granted. J******* L******, a resident of Lincoln Township, addressed her Planning Commission in much the same manner that I did the City of Midland. The Planning Commission consulted their attorney, who provided a response (see attached), indicating that the Lowe’s chicken keeping is protected by the MRTFA.

Once again, I believe it to be indisputable that the Michigan Right to Farm Act allows me to establish a farm in a residentially-zoned area.

Secondly, I would like to recommend that the Planning Commission and City Council revisit an ordinance change in Midland, to allow for ‘backyard chicken keeping’ in a manner that does not have to meet requirements for the Michigan Right to Farm Act (specifically referring to the commercial nature). Planning Commission meeting minutes dated January, 2011, indicated significant interest by residents, which was then further supported by the efforts of community members speaking on-behalf of an ordinance change when the proposal was addressed in the case of Mr. Joseph Fiordaliso. I have heard that city staff state that the public opinion was against this ordinance change. However, I strongly believe this is NOT the case. No one spoke in opposition of the change at the August 23, 2011 Planning Commission meeting, with eight households showing support. At the September 13, 2011 Planning Commission meeting, written opinions were one in support, and one in opposition, with three households speaking in favor of change, and only one in opposition. Again, it is clear; the voice of the people was speaking in favor of an ordinance change.

I believe this is why, after much due diligence and research of other ordinances in the state, that the Planning Commission recommended an ordinance change at that time. The City Council vote on October 24, 2011 was not representative of the residents those members represent. Once again, multiple households spoke in favor of the change, while no one spoke in opposition. Written opposition was received from three households at this time, per a Staff Memorandum pertaining to the ordinance change, but again, articles supporting backyard chicken keeping were also provided.

I am sure that the council is concerned with issues related to non-traditional animals on residential property, including food storage, sizes of coops and building requirements, odors, pests and predators, noise, and disease. However, all of these issues can also apply to household pets, such as cats and dogs. There are 11,000 – 12,000 single-family homes in the City of Midland. With nearly 20,000 registered dogs in the city, only approximately 60 complaints are noted annually. I am certain that a fewer percentage of residents will opt to raise backyard chickens, making the likelihood of complaints even lower. This makes backyard chicken keeping in the city a non-issue.

I also believe that there is much interest in responsible backyard chicken keeping in the Midland area.

There is a growing, renewed trend of the people to be closer to their food and to know where it came from. It is evidenced every week, a couple of times as week, at our very own Farmer’s Market, where vendors fill every available space, and parking is at a premium.

In summary, I firmly believe in my right to raise chickens for eggs on my own plot of land, regardless of its location and zoning designation. This is supported in multiple court decisions in the state, including the most recent decision in Buchler-v-Forsyth Twp. I plan to establish a small backyard flock, under the protection of the Michigan Right to Farm Act. Secondly, I urge the Planning Commission to bring their recommendation for an ordinance change back to the City Council for approval. This will provide Midland residents guidelines for establishing a small flock within the City, even if they are not commercial in nature, and do not intend to research and/or adhere to GAAMPS.

I thank you for your attention to this matter, and hope that once again, this proactive attempt to avoid any zoning violations and/or nuisance complaints is appreciated.

Best regards,

Enclosed Victory in Michigan! Shady Grove Farm Protected by Right to Farm Act

Letter to Kevin Wray, Lincoln Township Supervisor, from Peter Poznak, Attorney representing Lincoln Township, Michigan

in the over 18 months since i've started this venture, i've met many people in support of backyard chicken keeping. one of them lives just outside the city of midland, in a nearby township. she wrote a letter to their planning commission, much like i did, and they forwarded it on to their lawyer, much like the city of midland did. HOWEVER, their lawyer (in my opinion) actually DID HIS JOB - and this is the letter that i reference, and included, in my second correspondence. his letter was lengthy and thorough, and includes the following points :

The current state of judicial interpretations of the RTFA supports their position, generally, with a caveat. Those judicial interpretations are Charter Township of Shelby v Papesh... and Papadelis v City of Troy...
The foregoing confirms the generality of the ******'s underlying claim of conflict between the Zoning Ordinance and RTFA.
Currently, if a property owner such as the *******s seeks the benefits of the RTFA it is incumbent upon them to do so with the intent to produce a profit. If they do so, they will have the protection of the RTFA without amending the Zoning Ordinance.

hmmm...so he referenced the same court cases i did....and acknowledges that there is a conflict between the ordinance and the RTFA....and says that if their farm is commercial it is protected (he specifically states to make a profit - here's where i disagree...there is no court precedence that the farm has to be profitable, just commercial....) so...they get to keep their chickens...because the township's lawyer did his job.

and me. guess i'll keep fighting.

on to the next step...