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E-M:/ Right to Farm and Takings

Enviro-Mich message from anne.woiwode@sfsierra.sierraclub.org

I think there is an important distinction to be made here between the valid
existing right of a preexisting nuisance, which is already protected under the
law through common law applications, and the type of broad preemption of the
rights of citizens to bring a nuisance suit against a facility that is
impinging on their rights to enjoyment and use of property.  

The Right to Farm laws, and Michigan's goes farther than any other that I am
aware of, take away the right of a neighbor to protect his/her property
interests against a facility by preempting their right to bring a nuisance
claim against that facility.  That sweeping preemption has no validity, from
my point of view, and that is what has been struck down.  A case in point is
that a family in Midland County this year has been awarded a 20% devaluation
of their property for tax purposes by the MI Tax Tribunal after being unable
to convince the MDA that a hog hotel next door to them was taking away their
right to enjoy and use their property.  This family had tried through local
zoning avenues to get the facility put farther away from their home, and had
filed complaints to MDA which were dismissed.  RTF took away their right to
pursue a court effort to protect their property rights by getting the facility
to address the problems of odor, and so their only option was to seek to
diminish the value of their property.  The state law "took" their option to
pursue what in any other situation would be a legitimate claim in court.

I strongly believe existing farm operations must be protected from neighbors
who move in and then don't like the smell, but that is already provided for in
common law.  Yes, farm operations take grief from ignorant suburbanites whose
entire view of farms was from the television, and they should be supported in
their attempt to protect themselves.  But extending the right beyond that
common law protection of an existing nuisance to foist onto neighbors an
offensive and potentially environmentally hazardous facility is a breach of
the rights of those neighbors -- no other type of endeavor gets that kind of
sweeping preemption.

Anyone who questions whether there is a need to address this need only look at
the Michigan Land Use Institute report on these facilities in Michigan that
was issued in the last week and one half.  Farms must be protected, but not to
the extent that agricultural operations run rampant over the rights of their

Anne Woiwode

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