Agenda - Planning Commission - 09/01/2005

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Page 8 --August 10, 2005 Ordinance-- Local ordinance states farms must be at least three acres in size State Right to Farm Act contains no such limitation Citation: Charter Town, ship of Shelby v. Papesh, Court of Appeals of Michigan, No. 259965 (2005) ~ MICHIGAN (06/23/05) ~ In t995, Papesh purchased less than two acres of land in Shelby Township. A farmhouse and two chicken coops were located on the property. The area surrounding the property was largely undeveloped. The township's ordinance allowed farming, but stated farms had to be geater'than three acres. In 1996, Papesh began raising chickens for sale on the property. In the next few years, the area around Papesh's land became developed and'neighboring property owners complained. Papesh claimed he was protected by the state's Right to Farm Act and ignored bis neighbors' complaints. The Act was implemented to protect farmers from nuisance lawsuits. It also sought to protect farms against development and lawsuits ar/sing from alleged violations of local zoning ordinances. The township sued, and the court ruled in its favor. Papesh appealed, arguing his operation was protected by the Act because the Act did not designate a size limitation on protected farms. / DECISION: Affivlned, State law preempted a municipal ordinance where the ordinance directly conflicted with a state statute or the statute completely occupied the field the' ordinance attempted to regulate. A direct conflict existed when the ordinance permitted what the statute prohibited or the ordinance prohibited what the statute permitted. Tl~e language of the Act was unambiguous and clearly stated a local ordi- nance was preempted when .it purported to extend or. revise the Act or its practices. It further stated 'a'local unit of government could not enforce an ordinance that conflicted in any manner with the Act or its practices. The ordinance, in effect, prohibited raising po.ultry on a parcel smaller than three acres. Papesh's property did not exceed two acres. The Act's relevant practices provided for the proper management practices for poultry farming, including, but not limited to, facilities, manure management, and care of chickens and turkeys. However, there was no practice that limited poultry farming to property consisting of more than three acres. If Papesh's farm was commercial in nature' and in compliance with the Act's practices, it was a farm operation protected by the Act. The ordinance con- flicted with the Act to the extent it allowed the township to preclude a protected farm operation by Limiting the size of a farm. see also: Travis v. Preston, 643 iV. W. 2d 235 (2002). see also: Koontz v. Ameritech Services Inc., 645 iV. W. 2d 34 (2002). @ 2005 Quintan Puolishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 7O