Costs and Attorney Fees Under the Michigan Right to Farm Act
The Right to Farm Act (“RTFA”) was enacted to protect farmers. The Court in Northville Twp v Coyne, 170 Mich App 446 (1988) stated:
The Legislature undoubtedly realized that, as residential and commercial development expands outward from our state’s urban centers and into our agricultural communities, farming operations are often threatened by local zoning ordinances and irate neighbors. It, therefore, enacted the Right to Farm Act to protect farmers from the threat of extinction caused by nuisance suits arising out of alleged violations of local zoning ordinances and other local land use regulations as well as from the threat of private nuisance suits. Id. at 448.
Just how big is the umbrella of protection created by the RTFA? Not as big as one would think.
The RTFA protects farms or farm operations from nuisance suits in two ways. MCL 286.473 provides:
(1) A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agricultural and management practices according to policy determined by the Michigan commission of agriculture.
(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.
Further protection is offered by MCL 286.473b. It provides that if a farm or farm operation prevails in any nuisance suit,the farm or farm operation may recover the actual amount of costs and expenses determined by the court to have been reasonably incurred in connection with the defense of the action, together with reasonable attorney fees.
The Court of Appeals considered the breadth of protection offered by MCL 286.473b in Township of Richmond v Rondigo LLC, 2013 WL 951100. It agreed the RTFA shields a farm or farm operation from a nuisance suit if the farm complies with generally accepted agricultural and management practices, GAAMPs for short. The Court then seemed to imply that the only way a farm or farm operation could recover fees under MCL 286.473b is if the farm or farm operation satisfied any applicable GAAMPs. In doing so, it ignored MCL 286.473(2) and any other potential nuisance claim that could be asserted against farmers.
The defendant in Rondigo filed an application for leave to appeal. That application was denied. Justice Markman dissented. He agreed that GAAMP compliant farms or farm operations are immune from characterization as a nuisance.While that is one way to fit under the RTFA umbrella of protection, it’s not the only way.Justice Markman observed that MCL 286.473b states a prevailing farm or farm operation in any nuisance action is entitled to expenses and that there is no language limiting an award of fees and costs to defendants who are GAAMP compliant. He concluded nothing in MCL 286.473(b) suggests that a farm or farm operation that is not compliant with GAAMPs but nonetheless prevails in a nuisance suit is somehow barred from receiving costs.
The benefits offered by the RTFA are even more restrictive when one considers the scope of existing GAAMPs. Some farming activities are not covered by a GAAMP. Drainage is one such area. While there are a couple minor references in the nutrient GAAMP, drainage issues are left to the Drain Code. If a farm or farm operation prevails in a nuisance suit alleging a drainage issue, the holding of Rondigo would bar any recovery of fees or costs. The financial impact of a nuisance suit filed against a farm or farm operation for a drainage issue would appear to not have any different financial impact than one for irrigation water use, which is covered by a GAAMP. If the goal is to protect farmers from the threat of extinction caused by nuisance suits, shouldn’t all nuisance suits be treated the same.