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Land Use Questions and Answers, Zoning Agriculture

Have a question on land use, planning, and zoning? Please email it to: schindl9@msu.edu . Please tell me what county you are from.


A large part of Extension's service is to respond to email questions on land use, planning, and zoning. This page contains questions which are among the more common ones received. The questions and answers here are compiled from those I have received/responded to, and those I have participated in discussion with on the Michigan Society of Planning discussion board.	The materials here, are written for the specifics of planning and land use law in Michigan.	Please send your comments and suggestions to me, to make these pages a better service for you. Send to schindl9@msu.edu .


Click to Jump to Questions on these topics:
Planning	Zoning, Adoption and Amendment	Zoning, Special Use & PUD	Zoning, Open Space	Zoning, Agriculture	Zoning, Other
Terms of Office Residency, property ownership Conflict of Interest Ethics with a possible conflict of interest Incompatible Office Voting Twice on the Same Issue No Ex parte contact Why Coordinated Planning Adopting Plan Under New Acts Deadline to Complete "old" plan Planning Library What is in a Plan What is in a Plan Part II What does a plan cost Land Use and Land Cover Capital Improvement Planning Housing Zoning Amendments and Plan Frequently asked questions on the Michigan Planning Enabling Act of 2008	Size of Zoning Ordinance Land Patents & Zoning Jurisdiction Public Notices for zoning Amendments Elected Body Acts, even if Planning Commission Recommends Denial Conditions on Zoning Amendment Amending the Zoning Map Have an area with out a zoning district One-to-One relationship between zoning text and zoning map. Amending Zoning, downzone Adopt Part of a Zoning Ord. Petition Zoning to a vote Permit Approval based on What Zoning Says on Date Application is Received. Amendment & Permit at same time Conditional Rezoning	Conditional Uses (compared to Special Uses & Permitted Uses) Special Use Permit Special Use Permit and Variance Zoning Permit Issued by Mistake Transfer of Development Rights (TDR)	Open Space Sample Zoning Open Space Administration Open Space; Which census is used. Open Space; Adopt Open Space provisions even if not meeting requirements Open Space in Agriculture Districts	Agriculture subject to zoning? READ THIS QUESTION FIRST, it trumps all those below. Agriculture Buildings Subject to Zoning? Exempt from Construction Code Permits Changing an Existing Right to Farm Act Limiting Number of Animal Units Right to Farm Act, Exotic Animals Riding Stables Definition of Agriculture	Bed and Breakfast Home Occupatin: employees Cottage Industry Mobile Homes Signs Oil & Gas Processing Plant Mining and mine reclamation Setbacks Waterfront Zoning Keyhole development Boat Docks, Boat Houses & Enclosed Docks Wetland Buffers Airport Zoning Model Airplanes (Do not try to write zoning for every possible use) Windmills, Radio Towers (Do not try to write zoning for every possible use)
Zoning Administrator	Zoning Appeals	Nonconforming Issues	Land Divisions	Subdivisions and Site Condominiums	Other
What Zoning Applies for a Particular Zoning Permit Application. Taking Minutes Back-up Zoning Administrator Coordination with Construction Code Enforcement; Use of Site Plans, Follow up Inspections If you disagree with a decision	Conflict of Interest Ethics with a possible conflict of interest Cross membership on Appeals Board Voting Twice on the Same Issue No Ex parte contact Dimensional Variances Use Variances and County/Township Effective Date of an Appeals Board Decision Variance Expiration/Temporary Variances Variances do not go away How to Appeal and Appeal . Appeals are public record . How it Influence an Appeal Decision	What is nonconforming? Must allow expansion of nonconforming uses Lots in a subdivision Replacing building destroyed by an act of God	Divisions can never be divided again Property Line Adjustment Dividing a lot in a subdivision Property Line boundary alternation/correction Requiring Land Surveys Zoning, Construction Code, and Land Division Act	Lot in a subdivision is too small Splitting a Lot Site Condos Site Condo v. Subdivision	Open Meeting Act Addressing, Change Road Name Nuisance Ordinance, County Authority County Enforcement of Township Ordinances County Junk Ordinance Junk Ordinance Rental Housing, county authority Dry Wells
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Zoning, Agriculture


Topic	Question	Answer
Agriculture Subject to Zoning?	Does zoning have authority over agricultural operations? (May 7, 2007)	Because this issue is changing, the answer given here is subject to change. Check back often. Also the answer, here, trumps any other statements or answers given on this web page. What falls under the Right to Farm Act (RTFA), and does not, has been a moving target, and difficult for anyone to grasp at this point. The answer given here, is our best read on the situation at this time (May 2007), and tomorrow could change. Our best understanding at this time: To fall under the RTFA the operation must be (1) an agricultural use (read "agricultural use" in the broadest possible context, e.g., a corn maze, renting horses, are agricultural uses) (2) commercial, even to the smallest extent, as in "sell one egg", and (3) involves "harvesting" (but read "harvesting" in the broadest possible context, e.g., a hunting preserve, where animals are shot for sport, is "harvesting"). If it is agriculture that falls under RTFA, then zoning can not restrict the activity, can not say it is not allowed in a particular zoning district. That means agriculture is allowed in a residential district -- or, apparently, a pig in the parlor is okay. Also the way courts read this: If a farm exists, and follows Generally Accepted Agricultural Practices (GAAMPS) the farm is protected from nuisance complaints, even if the farm is brand new to the neighborhood. If the farm was in the neighborhood first, then it is protected from nuisance complaints regardless if it follows GAAMPS or not. Here is how Dr. Pat Norris at MSU explains it: "When Right to Farm Act (RTFA) and GAAMPS were first written it was to apply to animal operations of 50 animal units (25 horses)or greater. And those GAAMPs specifically state that animal operations of that size should be sited in areas where zoning makes agriculture is a permitted use. Based on that, we thought for a while that local zoning would continue to apply to operations of fewer than that many animal units. However, the Papesh court case (Michigan Appeals Court) suggests that is not the case. They had a few chickens. The deciding factor appears to be whether or not the use constitutes a "farm operation" producing a "farm product" "commercially". The Papesh case was the first to focus largely on the "commercial production" aspect of the RTFA definitions. The Court said that there is no minimum amount of sales that would be required for the RTFA to apply. But they remanded the Papesh case back to the lower court for it to determine whether the Papesh's poultry production was commercial in nature. I don't know what the outcome was.... In both Papesh and the Papedelis court cases the court has made clear that zoning ordinances which create residential districts and preclude legitimate farm operations (producing farm products commercially) conflict with the preemptions written into the RTFA in 1999. While the Court has said they think this is an unwise outcome, they stand by their opinion. Thus, as outlandish as it seems, unless the legislature revisits this, or the outcome is appealed successfully to the Supreme Court (on what legal basis, I don't know), farm operations can move into residential areas. However, they must use GAAMPs to be protected from nuisance complaints by the RTFA. I do not think this was an anticipated or desired outcome of the legislature's 1999 amendment of the RTFA. Perhaps they will revisit it if there is sufficient pressure to do so." Keep in mind, all this is based on Michigan Appeals Court decisions. The Michigan Supreme Court has not heard a case on this yet, so that could change the whole ball game. Also the Michigan legislature could decide the way the courts are interpreting the RTFA is not what they wanted, and they could amend the RTFA. Stay tuned. To answer your question about RTFA preemption from zoning, one will need to know if the operation includes "commercial", "harvesting" or "agriculture". ----Kurt H. Schindler,
Agriculture Buildings Subject to Zoning?	Our township wants an ordinance that requires agriculture buildings to comply with zoning setback requirements. Examples - barns, sheds, etc.	Unless the zoning ordinance specifically exempts agriculture buildings from the zoning ordinance provisions they --like all buildings-- would already be subject to the zoning ordinance. The exemption of agricultural buildings is a part of, and only applies to the construction permit (State Construction Code provided in section 4 of P.A. 230 of 1972, as amended, (being the State Construction Code Act of 1972, M.C.L. 125.1501 et. seq.) (M.C.L. 125.1504)). There is not any blanket agricultural exemption from zoning, other than what is found through the Right To Farm Act/GAAMPS. Then the only time the construction of an ag building is not subject to local zoning (setbacks, etc.) is if it is constructed as part of a new or expanding livestock production facility that will involve 50 or more animal units. Even then, the siting GAAMPs do not refer to setbacks from roads or surface water bodies (streams, etc.) so they would still be the purview of local zoning. A widely accepted view is that GAAMPs exemption from zoning applies only to siting of large-scale livestock; and that does not preempt local zoning's ability to have yard setbacks and to enforce them, nor does it preempt the requirement to get a zoning permit for all the other aspects of zoning (setbacks; building height; parcel size, width; parking; driveway/access; road access; etc. etc.) Courts have held on several occasions that a preemption of zoning must be (1) very specific, (2) in statute or court ruling. Absent both those, then the activity is subject to zoning. However another view (possibly held by Michigan Department of Agriculture's Wayne Whitman) would say that these kinds of requirements conflict with GAAMPs, and thus not subject to zoning. For a list of what is exempt from zoning see Restrictions on Zoning Authority . -----Kurt H. Schindler, Gary Taylor, Patricia Norris [See also answer to first question, above]
Exempt from Construction Code Permits	Our township recognizes that agriculture buildings are exempt from the building permit requirement. So can we put in our zoning that if someone builds a new barn or other agricultural building that is not inspected, then that person has to sign an affidavit to that effect. So that, in the event of some future problem, they (or future owner) cannot attempt to place liability at the township's door?	(Please note there is a difference between the words "construction" code permit and "zoning" permit.) Does the township have its own construction code inspector, or is that function done by the county? If the county performs the construction code inspections then the township might consider not bothering with an affidavit. (Why bother, they do not have construction code enforcement liability exposure in the first place.) If the township performs the construction code inspections, and the township zoning ordinance does not specifically exempt agricultural buildings, then they are already getting a zoning permit for the buildings, and already have state statute indicating "agricultural buildings" do not need a construction code permit. Also the state construction code people have very narrowly defined what is meant by "agricultural building". In the past it has meant a building which is exclusively used for purely agricultural purposes. For example if one builds a "barn" and then stores one's boat in it, the building ceases to be "exclusively" for agriculture and needs a construction code permit. Likewise the farmer's home needs a construction permit. It is a dwelling needing a permit, even through it is an "agricultural building" in that it is the dwelling for the farmer. I think this is still the case, but can be verified by contacting the State Bureau of Construction Codes. I suspect the narrow definition of "agricultural building" is, in part, a risk management strategy so that people do to not use the agricultural "loophole" to build commercial warehouses, garages, storage facilities, etc. If the township is requiring a zoning permit they will already have a handle --through the zoning permit process-- for what the building will be used for and can require other permits as appropriate. Given this method of operation, the affidavit would also not be needed. Finally, the affidavit idea/question should be directed toward the township's attorney. I have the suspicion such a document would have little or no affect on preventing someone from being able to sue the township. The better strategy to avoid law suits, or at least from loosing a law suit, is knowing one's job and doing it correctly. -----Kurt H. Schindler, Gary Taylor, Patricia Norris [See also answer to first question, above]
Right to Farm Act	The Right to Farm Act restricts what zoning can do to regulate farms. So what can we do concerning regulating horse stables, and what regulations might be appropriate? (September 21, 2000)	The amended right to farm law, and the associated GAAMPs on site selection, are very general, and still untested. I am not an attorney, but here is my impression based on my involvement with the drafting of the GAAMPs. First, the guidelines in the GAAMPs for site selection kick in for 50 animal units (which would be 25 horses). Below that size, there are no guidelines for where facilities should be cited in order to receive protection against nuisance complaints afforded by the right to farm law. Second, local jurisdictions still have the authority over where different zoning districts are located and the specific land uses that occur in the difference districts. Your note said that your township has said that boarding horses are not allowed in the agriculture/residential district. That in itself seems odd to me. Certainly, under the right to farm law, a boarding operation would fit the definition of commercial agriculture (according to the right to farm folks at MI Dept. of Ag.). But that doesn't change the fact that the township still gets to say what goes on where. I would argue that the township has simply failed to consider specifically where boarding of horses should be done. You should know, however, that in townships and counties that HAVE addressed the horse stable issue, the following kinds of guidelines and restrictions have been used. - Commercial stables permitted as a special use (requiring a special use permit) in agricultural zones. - Limit of 1 horse for every 3-4 acres on the parcel, often with a minimum parcel size of at least 20 acres. This does not give you very much guidance, I'm afraid. I suspect that both local ordinances and the right to farm law will continue to see challenges over issues such as yours. ----Patricia E. Norris [See also answer to first question, above]
Limiting Number of Animal Units	I am working with a northern Michigan Township that wants to consider a land-based density provision to regulate and limit animal units on agricultural parcels. They are looking for some kind of a simple formula, based on parcel acreage, that would specify how many animals of various types would be permitted on any given parcel of land. I am hoping that such provisions may exist in some of the zoning ordinances in Michigan, although I have not been able to identify any such provisions. Any examples or directions to such provisions would be greatly appreciated. (June 10, 2002)	Section 4(6) of Act 93 of 1981, as amended, (being Michigan Right to Farm Act, M.C.L. 286.474(6)) and the respective Michigan Department of Agriculture adopted Generally Accepted Agricultural Management Practices (GAAMPS) preempts zoning from regulating the site selection, odor control for new and expending livestock production facilities, as well as manure management and manure/nutrient utilization, and care of farm animals. One should review the above carefully to determine if a township has the legal authority to do what is being asked. Yes, there have been many examples of zoning doing this, but this zoning preemption was adopted by the Michigan Legislature in 2000 or 2001. See also Dr. Pat Norris's publication Planning and Zoning for Animal Agriculture in Michigan which can be accessed on the web . ----Kurt H. Schindler [See also answer to first question, above]
Right to Farm Act --Exotic Animals	I have a township that is concerned about exotic animals, and wants to regulate/prohibit them. First question is, can they? Second question is does GAAMPS apply? Third question is what are exotic animals, and what are "normal" farm animals (and pets) according to Michigan Department of Agriculture (e.g. a list of the animals in each category, or definition).	Summary answer (which by definition is an over-simplification and thus not 100% accurate): First question is can they regulate exotic animals? No, or very limited under the new amendments to the right to farm act. Second question is does GAAMPS apply? Yes, when the number of animal units threshold is reached. Third question is what are exotic animals, and what are "normal" farm animals (and pets) according to Michigan Department of Agriculture (e.g. a list of the animals in each category, or definition). No such list is known, but check directly with MDA. ----Kurt H. Schindler My experience tells me that if the exotic animals are being "produced" or raised to "produce" a commodity, then they will be considered agriculture and thus protected, as such, by the right to farm act. That said, despite discussions about whether pleasure horses, and the "farms" where they reside, ought to be protected by the right to farm act, they are in fact protected -- which means they are subject to GAAMPs. I suspect that Wayne Whitman, if called with a complaint about an exotic animal operation, would go investigate the complaint and advise the "farmer" about what he or she ought to be doing. Also, if there are enough exotic animals on the farm, then the site selection GAAMPs would apply. So the zoning would be restricted by the RTFA. You might suggest that the township contact MDA (The right to farm program is in the environmental stewardship division) and verify this. They may also have some kind of list of what is exotic and what is normal, but I doubt it. I doubt anyone has ever made such a list. ----Pat Norris [See also answer to first question, above]
Riding Stable, Agriculture Exemption	Someone wants to build a riding stable on 90 acres. She will be boarding and giving lessons. Her property is zoned agriculture. She is facing some permit challenges. The county inspector does not believe her endeavors will fall under agriculture construction. Therefore, she would have to follow commercial fire code, etc. She has already been advised to contact Ernie Berchmire of Farm Bureau and Wayne Whitman of MDA. (August 24, 2001)	There are two parts to your question. First concerns building permits under the state Construction Code. The Construction Code exempts "agricultural buildings" from needing Construction/Building permits. However the building must be exclusively for agricultural purposes. A barn would be an example. However, as soon as one starts to store a boat in the barn, then the "exclusive use for agriculture" no longer applies, and it must meet construction code requirements. The same would apply for the a riding stable, and the issue (I would guess) would be if it is exclusively agriculture, or if there is an element of commercial business taking place. This would be the decision the county building inspector is trying to make. One should be aware that there is a county construction code board of appeals, and if she does not agree with the building inspector's decision/ruling on the issue, she has the right to ask the construction board of appeals to review the issue and make their own ruling (which would over-ride the building inspector's decision). The right to farm act would come into play when dealing the zoning (e.g. a zoning administrator, and land use/zoning permits). The GAAMPS created under the Right to Farm Act will come into play when the number of horses exceeds various thresholds of "Animal Units" for siting purposes. This can reduce the role local zoning would have. For specifics on GAAMPS, zoning jurisdiction, etc. your best contact is Pat Norris (Ag. Econ. on campus). ----Kurt H. Schindler [See also answer to first question, above]
Definition of Agriculture	One property owner with a substantial block of land (120 acres) has had this land classified as Agriculture land for years. This land, however, is not farmed and nothing (trees or anything else) is harvested. Portions of the land are buildable, lots of wetlands, lots of cedar swamp, but not of the size or quality to be harvested. This entire parcel is also protected under a conservation easement from Little Traverse Conservancy, but allows for building of a house and any accompanying outbuildings. and in fact, there is an existing pole building on the property, built two years ago. This property owner lives downstate as of now and expected to build upon retirement (perhaps within the next 5 or so years). Property owner has taken the property assessment to the board of review and tax tribunal in the past object to proposed increase in assessment. The real question is "what constitutes Agriculture property" the working and real definition? The township supervisor would like to change the classification from agriculture to residential and feels that the property owner will protest again. (January 25, 2001)	Who is classifying the land "agriculture"? (Most likely there are two possible answers: (1) The tax assessor, for the classification 201 seen on the tax bill, or (2) it is in a agricultural zoning district.) If the answer is tax assessor, then the process to change is to go to his township board of review in March. Most likely the tax change will not occur until the actual use of the land changes. The tax classification has absolutely nothing to do with zoning. The state tax code sets up the definition. Details on this should come from John Amrhein , State and Local Government Specialist with MSU Extension. If the answer is zoning district, then the process is to amend the zoning ordinance, so it is in another zoning district. There is a long series of steps to do this, see this Land Use Page's pamphlets . There are many zoning definitions for farm/agriculture. One might read: "FARM means a business enterprise engaged in agricultural production, (and otherwise known as farms, ranches, dairies, nurseries, orchards) of crops, livestock and trees and: A. Includes forty (40) or more acres of land in one ownership which is primarily devoted to agricultural use, or B. Has five (5) or more acres of land in one ownership, but less than forty (40) acres, devoted primarily to agricultural use, which has produced a gross annual income from agriculture of two hundred dollars ($200.00) per year or more per acre of cleared and tillable land, or C. Has been designated by the Michigan Department of Agriculture as a specialty farm in one ownership which has produced a gross annual income from an agricultural use of two thousand dollars ($2,000.00) or more." This is modeled after the Farmland and Open Space Act definition. The Right to Farm Act uses yet another. ----Kurt H. Schindler [See also answer to first question, above]

2001 Planning & Zoning Amendments | 2004 Land Use Legislation | 2006 Michigan Zoning Enabling Act | 2008 Michigan Planning Enabling Act |Kurt Schindler

Kurt H. Schindler, Regional Land Use Educator, MSU Extension, Wexford County; 401 N. Lake Street, Cadillac, Michigan 49601 | (231)779-9480 |schindl9@msu.edu | fax(231)779-9105 | Map to office

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