Urban Chickens and the Right to Farm Act

As the urban chicken farming controversy grows in West Michigan more townships and cities are considering amending their existing zoning ordinances to allow for the keeping of small chicken flocks in areas not otherwise zoned for agricultural use. While I am all for the idea of urban chickens I will be the first to tell you that if you are contemplating a backyard chicken farm in an area that is not zoned for such, don’t count on the Right to Farm Act to provide legal protection to your flock when the zoning enforcement officer comes calling.
The Michigan Right to Farm Act, P.A. 93, enacted in 1981, provides farmers with protection from nuisance lawsuits. In other words, the statute is designed to prevent lawsuits by municipalities or private individuals against farmers arising out of the odors, dust, noise or other unpleasantries associated with the business of farming. This state statute authorizes the Michigan Commission of Agriculture to develop and adopt Generally Accepted Agricultural and Management Practices (“GAAMPS”). These voluntary practices are based on available technology and scientific research to promote sound environmental stewardship and help maintain a farmer’s right to farm. In a nutshell, the Act provides that if a farm is in conformance with these standards, nobody can sue the farm or otherwise try to shut it down.
While the Right to Farm Act plays a valuable role in protecting lawful farming operations that conform with the GAAMPS, the confusion comes when people operate under the mistaken belief that the Act essentially trumps all zoning laws. Simply put, if your property is zoned residential and the keeping of livestock is not permitted under your local zoning ordinance, the Act will not supercede the zoning ordinance.

The act specifically notes that it does not affect the application of other state laws and federal laws. Therefore, a Michigan Department of Agriculture determination that an individual’s farming practices are in conformance to GAAMPs is not a determination that their farming practices are in compliance with local land use zoning.

Saying that the Right to Farm Act protects all farming operations under all circumstances is akin to the guy who defends a drunk driving charge by saying that the Constitution protects his right to travel, including home from the bar after tipping a few. While the argument has some appeal on the surface, an examination of the applicable law makes it clear that such an argument simply will not hold up in court.

The Right to Farm Act is an important piece of legislation that protects our agricultural heritage and Michigan’s multibillion dollar farming industry. But if you are looking for a legal loophole to allow you to start keeping chickens in the backyard, the Right to Farm Act is really nothing to crow about.

Child Custody: No Small Matter

In recent years an increasing percentage of my caseload involves family law, and more specifically divorce and child custody.  The other day when I informed a client that I  engage in the practice of family law she remarked “You mean divorce?  Family law sounds a bit too positive to describe that”.  Regardless of whether the term  is an accurate descriptor of the practice surrounding divorce and its aftermath, it appropriately serves to remind us that a significant portion of this country’s legal  resources are devoted to resolving family disputes including divorce, child custody, parenting time, alimony, support and the like.  In fact most of Michigan’s circuit courts have designated an entire branch of the tribunal as the  family division. 

Without a doubt the most important and most difficult aspect of family law is child custody.  Once based on  antiquated principles which included that a man had a legal right to the services of his children, and that the mother was presumed to be the superior parent to a child of tender years, the law of child custody has evolved to be based solely on the determination of what is in the best interest of the child.  The twelve “best interest factors” are now encompassed in a statute known as the Child Custody Act (MCL 722.23). The Act is based on the premise that a child has an inherent right to a close relationship with both parents.

 Sometimes I am asked by a potential client if I do “custody battles”.    Having faced this inquiry numerous times I still bristle at the question.

I often tell potential clients yes, I do custody battles.  But I try to instill in them through an understanding of Michigan’s Child Custody factors that the battle is not so much father against mother as it is a battle the child faces. And I will not represent anyone who does not grasp the concept that a child custody “battle” can be a very destructive thing.  When a custody dispute arises a child is inevitably faced with confusion over who is right and who is wrong;  Mom or Dad?  Divided loyalties.  Economic uncertainty.  Fear of losing friendships and family relationships.  Fear of changing schools.  The job of a good lawyer is to guide the client through the custody process with the idea that it is indeed a battle, but most importantly one that nobody will win.  It is a battle that should be fought by both parents on behalf of the child against those forces that in virtually every case result in irreparable loss to the child.  So if you find yourself contemplating a custody battle, keep in mind that your primary objective as a loving parent must be not to “win the battle”, but  to minimize the losses your children will suffer.  While the process is never an easy one, if this objective is kept in mind parents are much more able to resolve a custody determination out of court, which is to everyone’s benefit.

The Free Consultation

We’ve all seen them.  The attorney advertisements with the words “free initial consultation” in eye-catching font.  “Call me– it’s free”.  “1-800-call-Tom”.  I am the first to admit, the free consultation slogan is prominently displayed on many of my ads.  And if you call me for a brief bit of general information or to discuss my qualifications to handle a particular legal matter, I will not charge you.  I am always amazed though, at the number of  people who call me with the idea that in a free consultation I am going to single-handedly resolve a complex legal dispute that has been brewing for years.  Believe me, I wish I could resolve a bitter child custody battle or commercial landlord tenant situation in a single phone call or half hour office conference.  It’s just not that easy though. Why then, you may ask, do lawyers utilize the free consultation?

 Most of the time the initial consultation serves to define the legal issues to be tackled in the mind of both the attorney and potential client, to determine if the legal problem is within the lawyer’s  realm of expertise and to attempt to set out a course of action if the client decides to retain the lawyer.  You can learn much about a lawyer through the initial interview.  Does  he  have an aggressive or confrontational style?   Is she a good listener?  Does he waste your time telling self-agrandizing war stories?  How many similar cases has the lawyer handled?  This is all important  information.  So, when it comes to the free consultation, the old saying “you get what you pay for”  may not be entirely true.  If you know what questions to ask the first time you talk to a lawyer, the free consultation can be invaluable.