Right to Farm – Your garden and backyard flock June 13, 2014

On Facebook yesterday, we shared a story from Michigan. Michigan residents have just lost their Right to Farm protections. There was a variety of response to this distressing news.With the responses were a few misconceptions. For instance, some were panicked, seemingly under the mistaken impression that backyard chickens have been expressly outlawed. That’s not the case, although that doesn’t mean this news isn’t bad.

Others were not panicked; they were quite unconcerned. We saw comments like this one: “the ruling just gives local councils the right to set their own ordinances regarding ‘nuisance’ farms in areas that were rural and are now more built up. I have a permit from my city to keep my poultry and it’s always been on the understanding that if they become a ‘nuisance’ there will be issues.”

These are reasonable comments, but I think it’s worthwhile to look at why losing Right to Farm protections is such a big deal. What’s a nuisance, for example? Is it the same for everyone?

The Sierra Club spokesperson correctly explained that the changes “effectively remove Right to Farm Act protection for many urban and suburban backyard farmers raising small numbers of animals.” So while this change doesn’t expressly outlaw chickens, it does is remove your legal right to keep them in certain situations. The problem is that in many cases, it gives your neighbors virtual veto power over what you can do on your property, and you don’t have the Right to Farm legal protections, anymore.

Think about the repercussions a few moments before you continue reading.  Is that something you really want: to give that power to all neighbors within 1/8 mile that power over your flock and garden? Generally speaking, “rights” should not be up to a vote.

Right to Farm laws were originally enacted to protect small farmers from “nuisance” lawsuits. The idea was to provide legal protection to people who farm so they can continue to use their property to produce food or livestock. Let me illustrate why this is important with an example from my own life. 

As you know if you read our blog regularly, I live rurally—very rurally. In fact, to get to our house, you have to drive a few miles of gravel road.

Afterwards, you still have  more than a mile over a gravel/dirt right-of-way through land one of our neighbors keeps his horses and cattle on.  It’s a lovely drive over the ridge top, especially in autumn.

We feel very lucky. Of all the things we could be driving through to get home, we have the privilege of getting to drive through horse and cattle land.

Our neighbor with the livestock is awesome, and with his large equipment has even cleared the road of fallen trees after a storm. He doesn’t need to pass that road except once every few months, if that. There is no hurry for him to clear it. He clears it because we are his neighbors and he’s a nice and thoughtful person. Let’s call him Farmer Rose.

We have another neighbor. Sometimes we call her “Wisconsin Patty,” (she’s lived nearby for nearly a decade, and still has Wisconsin plates on her vehicle). Sometimes we call her “Patty on the Lam” (she vaguely claims she’s in hiding, and even removed her mailbox). Most times, we just refer to her as “Crazy Patty” or “The Crazy Lady.” There are stories… but I’ll just share the one that’s relevant here.

“Wisconsin Patty” has repeatedly tried to sue Farmer Rose. Why? A few reasons–for instance, she is annoyed that cattle and horses poop. She’s apparently afraid of horses. But mostly it’s because she doesn’t want to have to deal with gates when she drives to her house. To emphasize, the “right-of-way” is not a government maintained road. It is what it is: a right-of-way.

Lots of WV properties, especially hunting properties, have right-of-way access only. Farmer Rose has no responsibility to maintain the road her house. It’s actually maintained instead by the gas and oil well operators that use the road to access the wells.

Even so, because Farmer Rosss a super neighbor, he’s cleared fallen trees and even plowed snow with his tractor, just out of kindness. He’s purchased and put down stone, too. 

(Dear Farmer Rose, Please never move. Thanks, Lissa)

I do get why she would be frustrated. When it’s raining, it IS a nuisance to have to get out of the car to open the gate, and IS a nuisance to have to get out to close it behind, as well. When it’s muddy, if you’re going somewhere nice, it IS a nuisance to have to bring two pairs of shoes. I’ve had to drop my stilletto heels habit. (Okay, I’ve never had a heels habit…).

Now picture me shrugging about all that trouble: Meh, trouble!

Again, of all the things we could be driving through to get home, beautiful horse country would be among my top choices. Driving through stop-and-go, loud traffic would be far more of a nuisance—dealing with lunatic, texting drivers and all those trappings, ugh.

Nonetheless, Crazy Patty, Crazy Wisconsin Patty, Patty who doesn’t apparently want to pay property taxes in the state where she lives (taxes which would go to maintaining roads, hm), has repeatedly sued Farmer Rose because she doesn’t want to have to deal with the gates. She leaves the gates open so the horses escape, and he’s had to go to a deal of trouble to track them down.

She has lost all those cases because she has no legal leg to stand on. He is not obstructing her access to her property; he is keeping his horses in his fields on his property. But even so, she can continue to sue, and Farmer Rose will have to continue to defend himself in court. In states with Right to Farm laws, Crazy Patty could not repeatedly sue Farmer Rose. Such a case could simply be dismissed by the judge. Before she could bring a nuisance case, she would have to show, prima facie, that the act of keeping his horses corralled on his property shows Farmer Rose was not acting reasonably, in accordance with normal horse keeping. 

THIS is the protection Michigan has just lost. The “nuisance” the Right to Farm law protects against is not the alleged “nuisance” created by the farmer. It refers to “nuisance lawsuits” initiated by the Crazy Pattys of the world. Farmer Rose’s small farm has been in the Rose family for more than 150 years… but in theory, Wisconsin Patty and her proxies can just keep suing until she wears him out.

(Dear Wisconsin… Would you please come and get your Patty, now? Thanks, Lissa)

Suburban neighborhoods are already protected by nuisance laws or ordinances; these are distinct from Right to Farm protections. Right to Farm protections create the legal presumption that agricultural practices are not inherently a nuisance and in fact are a normal part of the right to the quiet enjoyment of one’s property.

Right to Farm is not an absolute shield though—and it should not be. Right to Farm laws were originally enacted to protect small farmers, not shield huge commercial agribusinesses from their responsibility to protect our common resources. Protecting small farmers is the aim we need to keep in mind, but we don’t want to allow factory farms to fill rivers with pesticide run-off, antibiotics, and farm waste.

For instance, whether Right to Farm laws will protect the right people is in question right now in Indiana, where a proposed constitutional amendment “could also help shield large industrial dairies, feedlots, and slaughterhouses from environmental and food safety regulations—and curb lawsuits from people who get sick from the rivers of noxious animal waste they produce.” So how will Indiana strike the right balance—or will it strike a balance at all?

Typically, we see the balance shifting against individual rights, and toward industrial or corporate rights. Witness the recent spate of ag-gag laws across the country.  Ag-gag laws make it illegal to reveal animal abuse in factory farms. Note: they don’t make the ABUSE illegal. They simply protect the criminal animal abusers from being caught and prosecuted. And they punish the people who are trying to reveal the abuses. Crazy, no?

The loss of Right to Farm protections in Michigan affect areas where there are 13 homes within 1/8 mile, or a house within 250 feet of your property. In such cases you have no protected right to raise chickens or garden, for example. That doesn’t mean it outlaws chickens in those situations; it just means that if you have crazy (or maybe just snooty or mean) neighbors, you have no law protecting for your right to quietly, unobtrusively enjoy your own property and decide what to do on it. If crazy neighbors sue, you can certainly argue that your quiet hens who provide you eggs, companionship, and compost for the garden, are your right so long as they don’t violate nuisance laws… but you no longer have an explicit legal basis for that argument. The judge could decide to ban your hens simply because they’re hens. He or she could decide to ban chickens because chickens are inherently a nuisance by their nature. It won’t matter if your “farming” doesn’t violate nuisance laws. It can now legally be argued that hens—or gardens—are inherently a nuisance and should be banned.

So consider this: the loss of Right to Farm protections in Michigan has ceded a dangerous power to Michigan’s Neighbor Ladies and Neighbor Gentlemen (let’s not be sexist). If you live in an area where you’ve lost protections, you may have a judge who simply refuses to consider that your hens are not a nuisance by any objective definition, because they can subjectively be called a nuisance if your Crazy Neighbor is bothered by them.

Joel Salatin makes a great point when he says that “The average person is still under the aberrant delusion that food should be someone else’s responsibility until [they’re] ready to eat it.” While I don’t know that I would say the average person is under that delusion, I concede that minor disagreement may just be my wishful, optimistic thinking. I can’t disagree with him in essence. And I have to wonder: why should your neighbors be able to prevent you from using compost for vegetable gardens (Farming! Stinky, stinky farming!) or gathering a few eggs every day? Why should anyone be able to deny your right to keep three hens who produce a dozen or so eggs a week… but not your right to keep three enormous, loud dogs–or 16 howling, spraying cats? What would happen if a local government decided to ban other types of pets, categorically… or landscape gardening? Or fruit trees? All those blossoms attract bees. Nuisance!

It’s hard to imagine that there wouldn’t be a veritable avalanche of outrage. I’m not especially clear on why some people regard cats and dogs as okay, but find chickens wildly objectionable. It seems to me that if we were going to select animals to permit and others to forbid, it’s the chickens who should stay. They’re quiet. They produce less waste than cats and dogs; that waste can be composted and used in your garden. And they produce eggs, and reduce reliance on factory farms. We’ve discussed this in detail before.

So what is your opinion–what should the balance be? When corporations—including factory farms—are legally considered to be “people,” how do you make sure the laws protect actual, rather than figurative, people? Has Michigan got it right in removing Right to Farm protections for small farmers, or is Indiana on the right path, with its efforts to release factory farms from any responsibility to regulate how they affect the environment and their surroundings? Isn’t there a happy medium we can strike, where small farmers and hobbyists can get legal protection from nuisance suits, and be assured of their right to garden and keep small numbers of animals, while factory farms would still be appropriately regulated? What would such a balance look like?

Yizhen June 14th, 2014

I’ve tried, many times, to explain how amazing chickens are, but I have a habit of comparing them to dogs…then whoever I’m trying to enlighten goes “Don’t you compare your stinky chickens to dogs!”

Great article. I hope the best to the Michigan farmers.

Shreyas Yagalla June 24th, 2014

Turns out our meanie neighbors used this to their advantage to file a legal complaint to get my childrens’ chickens and goats removed. Any advice?

Lissa June 24th, 2014

Used what–the loss of Right to Farm protections in Michigan? How to respond would depend on what specific legal authority they used to remove your animals. You might contact the Michigan chapter of the Sierra Club and see if they are interested in defending your right to keep chickens and goats. In any case, our sympathies!

Mikki July 5th, 2015

I’m counting the days when I can move out of Michigan.

rdavis1 April 19th, 2017

I am not at all against farming. However this is my perspective. We live in a residential neighborhood, including a designated housing development. I’ve lived here for 10 years enjoying picnics and residential living. We host block parties. My neighbor moved here from VA beach and started a farming operation on about 4 usable acres. On these acres he has 8 Dexter cattle, pigs, chickens, goats, and bees. He houses these animals on 4 acres, within 40 feet of my front door and windows. The smell is intolerable. He has disrupted our enjoyment of our home(as well as 5 other families that surround him). The nearest cattle are 4 miles away on about 76 acres and they’ve been there forever. We are good and kind people and we’ve all had wonderful relationships here. There haven’t been farm animals here for 50 years. Should we be forced to endure the smell just because he wants to farm? Or should he have chosen a place that more so matched his goals to become a farmer?

Lissa April 20th, 2017

Based solely on what you’ve said here, I’m on your side. This is just my opinion, mind you. Obviously I’m in favor of farming (who-da thunk it?) but I also tend to be biased in favor of property rights of the folks who were there first (in other words, you). If you moved into a farming area and then got mad at the local farmers for farm smells, it would be a little different. That’s what “right-to-farm” is about: protecting established farms from nuisance suits when people move in next door, but you’ve said he moved to your residential area, not the other way around. You deserve protection, too. Four acres is certainly enough space for a bit of farming, but out of that area it’s pretty unfortunate that he chose to locate the barn or housing so close to neighbors… but that said, I don’t know the lay of the land. From my experience, pigs are the stinkiest. STINKY! (Goat bucks are pretty durn stinky, too, but the does shouldn’t be.)

Have you and the other neighbors tried speaking to him about housing the animals further away (if that’s possible) or about perhaps dropping the pigs out of neighborliness? Maybe moving any bedding he’s mucked out of the barn to an area that doesn’t offend? You might also look to see if there are zoning laws where you are. I live in rural WV, and one of the problems we experience here is that there’s a lack of zoning. I have a little acreage, and am surrounded by horse and cattle land, which I love.(The cattle are also much further away from me than 40 feet.) But we’re in a frack zone, so family farms not too far away from me, farms that have been here for more than a century, can essentially have a city built up beside them with lights on 24-7 and decibels of jaw-grinding noise, diesel fumes spewed by trucks, and with their once-quiet rural roads torn up by traffic, and officials simply seem to want to help the industrial invasion rather than the folks who live here.
I wish I could help you. If I were you, I’d start by talking to the neighbor (my guess is that you have, but just in case), and if that fails, then looking to see if there are zoning ordinances in your local or state codes, or what nuisance laws might apply. In WV, for example, there are some laws to protect agricultural production… but property here isn’t considered “agricultural land” unless it’s at least five acres, so those nuisance protections wouldn’t apply. That could be quite different where you are, though. Hopefully you can work it out with your neighbor. Best wishes to you.

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