Environmental land property law is very important

Property law for environmental law

1. Common law rules for environmental harms, continued: Fortin v. Vitali, 15 Mich. App. 657, 167 N.W.2d 355 (1969); Fortin v. Vitali (II), 28 Mich. App. 565, 184 N.W.2d 609 (1970) Saga of the Shelby Township mushroom farmer…

2. Two perspectives on farming: https://www.fox17online.com/2014/08/29/richland-township-farm-fights-for-right-to-farm-act-protection https://www.wildandscenicfilmfestival.org/film/right-to-harm/

3. Fortin v. Vitali (I and II)

4. Fortin v. Vitali (I) 15 Mich. App. 657, 167 N.W.2d 355 (1969)

5. The defendants, the Vitalis, were mushroom farmers in Shelby Twp, MI. They use composting to aid in growing the mushrooms. The compost mixture included straw, grain, and horse manure. The plaintiffs, the Fortins , lived nearby and could smell the compost from their property. The defendants began farming in the late 1930s and 1940s. The plaintiffs moved nearby in 1958. FACTS

6. Procedural history Plaintiffs filed suit alleging nuisance. The Circuit Court found evidence of a private nuisance in favor of plaintiffs. The court initially ordered certain measures to abate the nuisance and minimize the odor (08/1965), but year later the court ordered a complete cessation of the composting all together (09/1969). Defendants appealed.

7. ISSUES

8. Vitali's ARGUMENT Standing: The Fortin’s moved from their property before trial started. The court finds that since they were living on the nearby property at the time the suit was filed, they are real parties in interest. They also transferred their interest to other plaintiffs. GCR 1963, 210.2 (Michigan General Court Rules) Public Nuisance: Vitali attempts to argue that the nuisance (odor) is a public nuisance, and therefore public authorities are responsible for abatement. The court disagrees with this argument and instead agrees with the Circuit Court that the odor from the compost is a private nuisance.

9. Public Harm to public resources: fishery, river, or lake. Harm must be suffered by general members of the public. Private “…an invasion of the plaintiffs' interest in the enjoyment of their property.” 15 Mich. App. 657, 659 (Mich. Ct. App. 1969). PUBLIC v. PRIVATE NUISANCE

10. Conclusion of Fortin ( i ) The MI Court of Appeals agreed with the Circuit Court that the compost odor is a private nuisance. But…… The Circuit Court went too far in ordering the defendants to cease composting operations. Rather, the court should have taken into consideration the equitable balancing of interests, so that a " a satisfactory means can be worked out to abate the nuisance complained of without requiring the defendants to shut down the composting operation which is an integral part of the mushroom farming to which they have devoted long years of investment and labor.“ But again…… Remanded to find equitable solution. If no solution can be found, then an order of discontinuance of composting is permissible.

11. Round 2 Fortin v. Vitali (II) 28 Mich. App. 565, 184 N.W.2d 609 (1970) After COA's opinion in 1969, plaintiffs filed amotion in Circuit C ourt for an order to show cause why further composting should not be enjoined. The plaintiff's produced 13 witnesses testifying to the bad odor and flies due to the composting operation. The defendants tried some methods to minimize the smell, including chemical spraying and reduced production. Ultimately, the mitigation efforts proved ineffective. Per COA's opinion in 1969, if no abatement methods would help solve the issue, then the composting operation would have to stop. COA affirmed Circuit Court's finding that operations must cease.

12. Altering common law liability rules for environmental harms: Michigan Right-to-Farm Act, MCL 286.471 et seq . Steffens v. Keeler, 200 Mich. App. 179, 503 N.W.2d 675 (1993) (pigs in Livingston County)

13. Steffens v. kEELER 200 MICH. APP. 179 (MICH. CT. APP. 1993)

14. Visuals

15. Facts “Plaintiffs moved into their house on February 7, 1985. At that time there was a vacant dairy barn and a house on the property across the street from their home. Defendants moved into that house in the spring of 1987 and began purchasing pigs approximately 5 months later.” Steffens v. Keeler , 503 N.W.2d 675 (Mich. App. 1993). “Land in the area, including plaintiffs’ and defendants’ land is zoned agricultural/ residential. East of plaintiffs’ homes are four residential homes, one horse farm, and agricultural land. North of plaintiff's property is a 264-acre dairy farm. West of their home is a mixture of agriculture, residential and wetlands.” Steffens , 503 N.W.2d at 677.

16. Procedural Posture “Following an evidentiary hearing at which plaintiffs were the only ones to present their motion for summary disposition and denied defendants’ motion, finding that §3(1) of the RTFA, M.C.L. § 286.473(1); M.S.A. §12.122(3)(1), did not protect defendants from plaintiffs' private nuisance claim, that the land had become predominantly residential and that defendants’ farm operation constituted a nuisance.” Steffens , 503 N.W.2d at 677.

17. Right to Farm Act Overview : “The RTFA prohibits nuisance litigation against a farm or farm operation that conforms to generally accepted agricultural and management practices.” Steffens , 503 N.W.2d at 677. §3(1) “A farm or farm operation shall not be found to be  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 as determined by the state agricultural commission. Generally accepted agricultural and management practices shall be reviewed annually by the state agricultural commission and revised as considered necessary.” Steffens , 503 N.W.2d at 677.

18. Issue #1 Whether or not the defendants were in compliance with generally accepted and recommended livestock waste management practices? Facts : ”After an inspection of the defendant's farm was conducted by Department of Agriculture employees Jon Lauer, Jeffrey Friedle, and Christine Lietzau on July 14, 1989, defendants were notified that their farm operation was not in compliance with generally accepted and recommended livestock waste management practices. The notice stated defendants could comply with and be protected by the RTFA if they developed and implemented a waste utilization plan by May 30, 1990.” Steffens , 503 N.W.2d at 677. The plan was accepted and approved on July 16, 1990. Court: ”In the light of this evidence, the appeals court found that the trial court erred in determining that Lietzau, department of agriculture employed, opined that the operation did not comply.” Steffens , 503 N.W.2d at 677.

19. Issue #2 Whether or not the defendants were protected by the RTFA (as plaintiffs relied on the residential use of the land that was previously farm)? Court: ”There is no dispute that defendants moved onto their property after plaintiffs purchased their property… However, the change in land use that is relevant is that which occurred within one mile of the property in question before defendants’ use of their land as a pig farm.” “Thus, it is irrelevant that plaintiffs moved in first… because while there is some residential development, the surrounding land bis predominantly agricultural. Further, a dairy farm with 60 head of cattle is adjacent to the defendant's property.” “This does not demonstrate that the land use within one mile of defendants’ property has changed to residential. Therefore, insufficient evidence was presented to deny defendants protected under §3(2).” Steffens , 503 N.W.2d at 677 .

20. Issue 3 Whether or not the trial court erred in making factual findings about what constitutes existence of a nuisance? Court: I mmune from a nuisance suit so it won't be addressed. Steffens , 503 N.W.2d at 677.

21. Section 3(1) of the Michigan Right to Farm Act: “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 as determined by the state agricultural commission. Generally accepted agricultural and management practices shall be reviewed annually by the state agricultural commission and revised as considered necessary.”

22. Section 3(2) of the Michigan Right to Farm Act: “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.” Result: nuisance law does not apply, history and circumstances do not matter, only farm’s status.

23. State versus local regulation of environmental harms: Charter Twp. of Shelby v. Papesh , 267 Mich. App. 92, 704 N.W.2d 92 (2005) (chickens). “We are maintaining the traditional and acceptable use of the existing poultry barns to accommodate our meat and egg chickens. Each spring I purchase approximately 50 day old chickens and raise them until they begin to lay in the early fall, and then cull the older hens to maintain production. A few turkeys are raised to provide meat. The meat is a significant and important part of our diet, and the eggs are much coveted by us and by many of our family members, friends and neighbors....

24. Key definitions from RTFA section 2: (a) “Farm” means the land, plants, animals, buildings, structures, including ponds used for agricultural or aquacultural activities, machinery, equipment, and other appurtenances used in the commercial production of farm products.

25. (b) “Farm operation” means the operation and management of a farm or a condition or activity that occurs at any time as necessary on a farm in connection with the commercial production, harvesting, and storage of farm products … .

26. (c) “Farm product” means those plants and animals useful to human beings produced by agriculture and includes, but is not limited to, forages and sod crops, grains and feed crops, field crops, dairy and dairy products, poultry and poultry products, cervidae , livestock, including breeding and grazing, equine, fish, and other aquacultural products, bees and bee products, berries, herbs, fruits, vegetables, flowers, seeds, grasses, nursery stock, trees and tree products, mushrooms, and other similar products, or any other product which incorporates the use of food, feed, fiber, or fur, as determined by the Michigan commission of agriculture. .

27. Conflict with zoning law Shelby Township Zoning Ordinance § 9.10 : “For the purpose of this section, the term “farm” shall mean the raising of vegetables or the keeping of small farm animals, including poultry, for any purpose, and shall have a minimum lot size of three acres.” And D’s farm is only 1 acre. But … .

28. Section 4(6) of the Michigan Right to Farm Act: “ … .Except as otherwise provided in this section, a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.” Court holds that “the ordinance conflicts with the RTFA to the extent that it allows plaintiff to preclude a protected farm operation by limiting the size of a farm.”

29. Food and Farming Law assignment 1. Identify the origin state of one of your food items from another state, noting why you selected the item. You must submit a photo of the food item for full credit. You may not use Michigan or other countries for your selection. (1 point.) 2. Research and answer how the right-to-farm law of your food’s origin state objectively compares to Michigan’s, specifically with respect to preemption of local regulation and recovery of attorney fees. You must properly cite your research in your answer for full credit. (2 points.)

30. 3. Briefly analyze and evaluate the policy choices made by Michigan and your food’s origin state, including but not limited to preemption of local regulation and recovery of attorney fees. Your analysis should also include your views on these policy choices as a citizen and (student) attorney. (2 points.) Limit narrative response to 500 words total. Please submit photo via file submission and narrative response via text entry on canvas assignment.