WAR-AG FARMS LLC V FRANKLIN TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
WAR-AG FARMS, L.L.C., DALE WARNER, and
DEE ANN BOCK,
UNPUBLISHED
October 7, 2008
Plaintiffs-Appellants,
v
FRANKLIN TOWNSHIP, FRANKLIN
TOWNSHIP ZONING BOARD OF APPEALS,
and FRANKLIN TOWNSHIP PLANNING
COMMISSION,
No. 270242
Lenawee Circuit Court
LC No. 05-001940-AA
Defendants-Appellees.
Before: Murray, P.J., and Whitbeck and Talbot, JJ.
PER CURIAM.
Plaintiffs appeal a circuit court order denying their appeal of a decision of the Franklin
Township Zoning Board of Appeals that denied plaintiffs’ request for a conditional use permit to
sell and distribute pesticides and fertilizer as a secondary business to their farming operation.
This Court originally denied plaintiffs’ application for leave to appeal, but the Supreme Court
remanded the case to this Court “for consideration as on leave granted.” War-Ag Farms, LLC v
Franklin Twp, 480 Mich 948; 741 NW2d 302 (2007). We reverse and remand.
I.
Facts and Proceedings
Plaintiffs operate a 1,500-acre farm in Franklin Township in Lenawee County. They
submitted an application to the Franklin Township Planning Commission for a conditional use
permit to allow them to sell and distribute seed, pesticides, and fertilizer from a 20-acre parcel of
their property secondary to their farming operation. Plaintiffs intended to store fertilizer and
pesticides on their property and directly provide those products to farmers located within 10 to
15 miles of their farm, and to sell additional product to other farmers located more than 15 miles
away, which would be shipped directly from the manufacturer to those distant farmers. At the
time plaintiffs applied for the conditional use permit, they had already been issued licenses by
the Michigan Department of Agriculture to distribute pesticides and fertilizer from the location at
issue.
The planning commission denied plaintiffs’ request for a permit because § 7.03(12) of the
Franklin Township Zoning Ordinance permitted such usage only on an operating farm as
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incidental and secondary to the use of the farm for agricultural activities. The commission
determined that plaintiffs’ proposed usage was not incidental and secondary to their farming
operation. Plaintiffs appealed to the Franklin Township Zoning Board of Appeals (“ZBA”),
which upheld the planning commission’s decision. Plaintiffs then appealed to the Lenawee
Circuit Court, which denied the appeal. In essence, the trial court ruled that the statute did not
preempt the ordinance because it did not regulate the location for the sale of the fertilizer and
pesticides, and proof of that was the fact that the Department never came out to review the
suitability of the property locations.
II.
Analysis
Plaintiffs first argue that the circuit court erred in determining that the township’s
ordinance, § 7.03(12), is not preempted by the Natural Resources and Environmental Protection
Act (NREPA), MCL 324.101 et. seq. We agree. “The issue of preemption is a legal question
that this Court reviews de novo.” Czymbor’s Timber, Inc v City of Saginaw, 269 Mich App 551,
555; 711 NW2d 442 (2006), aff’d 478 Mich 348 (2007).
Townships have no inherent powers, but only possess those limited powers conferred on
them by the Legislature or state constitution. Hess v Cannon Twp, 265 Mich App 582, 590; 696
NW2d 742 (2005). The township ordinance act, MCL 41.181, allows townships to enact
ordinances that regulate the public health, safety, and general welfare. “While the provisions of
the Constitution and law regarding counties, townships, cities, and villages must be liberally
construed in their favor, the powers granted to townships by the Constitution and by law must
include only those fairly implied and not prohibited by the Constitution. Const 1963, art 7, §
34.” Howell Twp v Rooto Corp, 258 Mich App 470, 475-476; 670 NW2d 713 (2003).
Accordingly, an ordinance may not preempt state law.
The issue in this case is whether the NREPA preempts the township’s ordinance. “State
law preempts a municipal ordinance in two situations: (1) where the ordinance directly conflicts
with a state statute or (2) where the statute completely occupies the field that the ordinance
attempts to regulate.” Czymbor’s Timber, supra at 555. In Howell Twp, supra at 476-477,
quoting Rental Prop Owners Ass’n of Kent Co v Grand Rapids, 455 Mich 246, 257, 262; 566
NW2d 514 (1997), this Court explained:
With regard to whether a statute preempts a municipal ordinance by
completely occupying the field of regulation, our Supreme Court set forth several
guidelines:
‘First, where the state law expressly provides that the state’s authority to
regulate in a specified area of the law is to be exclusive, there is no doubt that
municipal regulation is pre-empted.
Second, pre-emption of a field of regulation may be implied upon an
examination of legislative history.
Third, the pervasiveness of the state regulatory scheme may support a
finding of pre-emption. While the pervasiveness of the state regulatory scheme is
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not generally sufficient by itself to infer pre-emption, it is a factor that should be
considered as evidence of pre-emption.
Fourth, the nature of the regulated subject matter may demand exclusive
state regulation to achieve the uniformity necessary to serve the state’s purpose or
interest.’
With regard to determining whether the provisions of a municipal ordinance
conflict with a statute covering the same subject
“the test is whether the ordinance prohibits an act which the statute permits, or
permits an act which the statute prohibits. Accordingly, it has often been held
that a municipality cannot lawfully forbid what the legislature has expressly
licensed, authorized, permitted, or required, or authorize what the legislature has
expressly forbidden.
***
The mere fact that the state, in the exercise of the police power, has made
certain regulations does not prohibit a municipality from exacting additional
requirements. So long as there is no conflict between the two, and the
requirements of the municipal ordinance are not in themselves pernicious, as
being unreasonable or discriminatory, both will stand. The fact that an ordinance
enlarges upon the provisions of a statute by requiring more than the statute
requires creates no conflict therewith unless the statute limits the requirement for
all cases to its own prescription. Thus, where both an ordinance and a statute are
prohibitory, and the only difference between them is that the ordinance goes
further in its prohibition but not counter to the prohibition under the statute, and
the municipality does not attempt to authorize by the ordinance what the
legislature has forbidden or forbid what the legislature has expressly licensed,
authorized, or required, there is nothing contradictory between the provisions of
the statute and the ordinance because of which they cannot coexist and be
effective. Unless legislative provisions are contradictory in the sense that they
cannot coexist, they are not deemed inconsistent because of mere lack of
uniformity in detail.’ [Citations omitted.]
Article VII, § 7.03, of the township’s zoning ordinance addresses conditional uses of land
in agricultural districts. The ordinance provides, in relevant part:
Section 7.03. CONDITIONAL USE. The following uses shall be
permitted subject to the conditions hereinafter imposed and subject further to the
review and approval of the Planning Commission.
***
12. The sales and transporting of agricultural commodities including seed,
fertilizer, and other accessories and the service or repair of farm machinery
provided that such sales, service or repairs are conducted on an operating farm
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and incidental and secondary to the use of the farm for agricultural activities. All
potentially dangerous chemicals shall be stored in closed and locked building
[sic].
Thus, the township’s zoning ordinance imposes various conditions that must be satisfied in order
for a conditional permit involving the sale or transportation of agricultural commodities,
including fertilizer and other accessories, to be issued. The specific conditions include: (1) the
applicant has an operating farm; (2) the sale and transportation of commodities such as seed,
fertilizer, and other accessories must be incidental and secondary to the use of the farm for
agricultural activities; and (3) all potentially dangerous chemicals shall be stored in closed and
locked buildings.
In this case, plaintiffs’ application for a conditional use permit was denied by the board
on the basis that their proposed usage was not incidental and secondary to the use of their farm
for agricultural activities. Plaintiffs, who were previously issued licenses to sell pesticides and
fertilizer at the location in question by the state Department of Agriculture, argue that the
township’s attempt to regulate their sale of pesticides and fertilizer under § 7.03 of its zoning
ordinance is invalid, because the ordinance is preempted by the NREPA. We agree.
Article II of the NREPA addresses pollution control. Part 83 of that article, MCL
324.8301 et seq., addresses pesticide control, and Part 85, MCL 324.8501 et seq., addresses
fertilizers. With respect to pesticides, MCL 324.8328 provides:
(1) Except as otherwise provided in this section, it is the express
legislative intent that this part preempt any local ordinance, regulation, or
resolution that purports to duplicate, extend, or revise in any manner the
provisions of this part. Except as otherwise provided for in this section, a local
unit of government shall not enact, maintain, or enforce an ordinance, regulation,
or resolution that contradicts or conflicts in any manner with this part.
(2) If a local unit of government is under contract with the department to
act as its agent or the local unit of government has received prior written
authorization from the department, then that local unit of government may pass an
ordinance that is identical to this part and rules promulgated under this part,
except as prohibited in subsection (7). The local unit of government’s
enforcement response for a violation of the ordinance that involves the use of a
pesticide is limited to issuing a cease and desist order as prescribed in section
8327.
(3) A local unit of government may enact an ordinance identical to this
part and rules promulgated under this part regarding the posting and notification
of the application of a pesticide. Subject to subsection (8), enforcement of such
an ordinance may occur without prior authorization from the department and
without a contract with the department for the enforcement of this part and rules
promulgated under this part. The local unit of government shall immediately
notify the department upon enactment of such an ordinance and shall immediately
notify the department of any citations for a violation of that ordinance. A person
who violates an ordinance enacted under this subsection is responsible for a
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municipal civil infraction and may be ordered to pay a civil fine of not more than
$500.00.
(4) A local unit of government may enact an ordinance prescribing
standards different from those contained in this part and rules promulgated under
this part and which regulates the distribution, sale, storage, handling, use,
application, transportation, or disposal of pesticides under either or both of the
following circumstances:
(a) Unreasonable adverse effects on the environment or public health will
exist within the local unit of government. The determination that unreasonable
adverse effects on the environment or public health will exist shall take into
consideration specific populations whose health may be adversely affected within
that local unit of government.
(b) The local unit of government has determined that the use of a pesticide
within that unit of government has resulted or will result in the violation of other
existing state laws or federal laws.
(5) An ordinance enacted pursuant to subsections (2), (3), and (4) shall not
conflict with existing state laws or federal laws. An ordinance enacted pursuant
to subsection (4) shall not be enforced by a local unit of government until
approved by the commission of agriculture. If the commission of agriculture
denies an ordinance enacted pursuant to subsection (4), the commission of
agriculture shall provide a detailed explanation of the basis of the denial within 60
days.
(6) Upon identification of unreasonable adverse effects on the
environment or public health by a local unit of government as evidenced by a
resolution submitted to the department, the department shall hold a local public
meeting within 60 days after the submission of the resolution to determine the
nature and extent of unreasonable adverse effects on the environment or public
health due to the use of pesticides. Within 30 days after the local public meeting,
the department shall issue a detailed opinion regarding the existence of
unreasonable adverse effects on the environment or public health as identified by
the resolution of the local unit of government.
(7) The director may contract with a local unit of government to act as its
agent for the purpose of enforcing this part and the rules promulgated pursuant to
this part. The department shall have sole authority to assess fees, register and
certify pesticide applicators, license commercial applicators and restricted use
pesticide dealer firms, register pesticide products, cancel or suspend pesticide
registrations, and regulate and enforce all provisions of this part pertaining to the
application and use of a pesticide to an agricultural commodity or for the purpose
of producing an agricultural commodity.
(8) For any ordinance enacted pursuant to this section, the local unit of
government shall provide that persons enforcing the ordinance comply with the
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training and enforcement requirements as determined by the director. A local unit
of government shall reimburse the department for actual costs incurred in training
local government personnel. [Emphasis added.]
Similarly, with respect to fertilizers, MCL 324.8517 provided1:
(1) Except as otherwise provided in this section, it is the express
legislative intent that this part preempt any local ordinance, regulation, or
resolution that purports to duplicate, extend, or revise in any manner the
provisions of this part. Except as otherwise provided for in this section, a local
unit of government shall not enact, maintain, or enforce an ordinance, regulation,
or resolution that contradicts or conflicts in any manner with this part.
(2) If a local unit of government is under contract with the department to
act as its agent or the local unit of government has received prior written
authorization from the department, that local unit of government may enact an
ordinance that is identical to this part and rules promulgated under this part,
except as prohibited in subsection (6). The local unit of government’s
enforcement response for a violation of the ordinance that involves the
manufacturing, storage, distribution, or sale use of products regulated by this part
is limited to issuing a cease and desist order in the manner prescribed in section
8511.
(3) A local unit of government may enact an ordinance prescribing
standards different from those contained in this part and rules promulgated under
this part and that regulates the manufacturing, storage, distribution, or sale of a
product regulated by this part under either or both of the following circumstances:
(a) Unreasonable adverse effects on the environment or public health will
exist within the local unit of government. The determination that unreasonable
adverse effects on the environment or public health will exist shall take into
consideration specific populations whose health may be adversely affected within
that local unit of government.
(b) The local unit of government has determined that the manufacturing,
storage, distribution, or sale of a product regulated by this part within that unit of
government has resulted or will result in the violation of other existing state or
federal laws.
(4) An ordinance enacted pursuant to subsections (2) and (3) shall not
conflict with existing state laws or federal laws. An ordinance enacted pursuant
1
MCL 324.8517 was amended by 2008 PA 14, effective February 29, 2008. The amendments
appear to be grammatical only. For purposes of this case, we rely on the former version of MCL
324.8517, which was in effect when this matter was decided.
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to subsection (3) shall not be enforced by a local unit of government until
approved by the commission of agriculture. The commission of agriculture shall
provide a detailed explanation of the basis of a denial within 60 days.
(5) Upon identification of unreasonable adverse effects on the
environment or public health by a local unit of government as evidenced by a
resolution submitted to the department, the department shall hold a local public
meeting within 60 days after the submission of the resolution to determine the
nature and extent of unreasonable adverse effects on the environment or public
health due to the manufacturing, storage, distribution, or sale of a product
regulated by this part. Within 30 days after the local public meeting, the
department shall issue a detailed opinion regarding the existence of unreasonable
adverse effects on the environment or public health as identified by the resolution
of the local unit of government.
(6) The director may contract with a local unit of government to act as its
agent for the purpose of enforcing this part and the rules promulgated under this
part. The department shall have sole authority to assess fees, register fertilizer or
soil conditioner products, cancel or suspend registrations, and regulate and
enforce provisions of section 8512.
(7) For any ordinance enacted pursuant to this section, the local unit of
government shall provide that persons enforcing the ordinance comply with the
training and enforcement requirements as determined appropriate by the director.
MCL 324.8328 and MCL 324.8517 both allow some local regulation and, therefore, do
not expressly preempt all local legislation. Instead, they allow for limited local regulation to the
extent that it does not conflict with or contradict any portion of parts 83 or 85 of the NREPA,
“[e]xcept as otherwise provided in [those] section[s].” MCL 324.8328(1); MCL 324.8517(1).
Therefore, these portions of the NREPA do not completely occupy the field of regulation of farm
chemicals to exclude local government intervention. Thus, local regulation is permissible,
except where it is specifically preempted by MCL 324.8328 or MCL 324.8517, or conflicts with
the NREPA. Fraser Twp v Linwood-Bay Sportsman’s Club, 270 Mich App 289, 294; 715 NW2d
89 (2006). Therefore, the township’s ordinance is enforceable to the extent that it is not
inconsistent with the state’s licensure of plaintiffs’ operation. And, if they are inconsistent, the
ordinance could still be valid if it was submitted to and approved by the agricultural commission.
MCL 324.8328(5); MCL 324.8517(4).
Defendants argue that they may regulate the locations of businesses distributing
pesticides and fertilizer without running afoul of the NREPA, because the NREPA is not
concerned with location. We disagree.
MCL 324.8310(1) and (2) address the licensure of not only persons, but also locations for
selling or distributing pesticides. Similarly, MCL 324.8504 addresses licenses to distribute or
sell fertilizer, and also the location of the site where the fertilizer may be sold or distributed. In
this case, plaintiffs were issued licenses by the Department of Agriculture that clearly state that
they are for both the establishment and the address listed on the licenses and that the licenses are
not transferable. Plaintiffs had to obtain separate licenses for each location at which they
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intended to sell or distribute pesticides and fertilizers. Accordingly, the NREPA regulates not
only the licensure of persons who may deal in pesticides and fertilizers, but also the locations of
any businesses dealing in those products.
Furthermore, the Legislature has authorized the Department of Agriculture to adopt
regulations related to not only the licensure of pesticide and fertilizer distributors, but also the
proper storage, transportation, and distribution of these products. See MCL 324.8325(1), MCL
324.8513, and MCL 324.8518(1). The Department of Agriculture has adopted several
regulations that relate to the location and operation of businesses dealing with pesticides and
fertilizers that address various concerns, including security or possible contamination. See 2
Michigan Administrative Code, RR 285.640 and 285.641 et seq. The regulations also require
applicants to submit site plans for the proposed location and a discharge response plan. R
285.640.a(1). Accordingly, in issuing the license, the state has regulated the storage and
distribution of pesticides and fertilizers.
In this case, the township’s ordinance imposes additional conditions relating to the sale
and transportation of agricultural chemicals and requires that these activities be (1) conducted on
an operating farm, and (2) incidental and secondary to the use of the farm for agricultural
activities. These requirements are not found in the NREPA and conflict with the Department of
Agriculture’s decision to allow plaintiffs to sell and distribute pesticides and fertilizer from their
farm. This is an area of regulation expressly reserved for the state under the NREPA. MCL
324.8328; MCL 324.8517.2
However, even if the ordinance provisions were considered permissible enlargements to
the statute, Howell Twp, supra at 476-477, the ordinance provisions could not be enforced
against plaintiff. As previously noted, MCL 324.8328(4) allows local governments to enact
ordinances to adopt “standards different from those contained in this part and rules promulgated
under this part and which regulates the distribution, sale, storage, handling, use, application,
transportation, or disposal of pesticides under” two different circumstances. MCL 324.8517(3)
provides for similar local ordinances with respect to the regulation of fertilizers. MCL
324.8328(4)(a) and (b), and MCL 324.8517(3)(a) and (b), both allow local governments to adopt
their own standards based on the adverse effects of pesticides and fertilizers on the environment
or public health, or if the use of a pesticide or fertilizer within a local unit of government will
result in a violation of other existing state or federal laws. However, such an ordinance may not
be enforced until the local government receives the approval of the commission of agriculture.
MCL 324.8328(5) and MCL 324.8517(4). The ordinance at issue here was not approved by the
2
We also have some difficulty with the Township’s position that the ordinance only regulates
the location, while the statute only regulates the person, or licensee. First, as already shown, the
statute and, more particularly the regulations, make repeated reference to providing a license for
a particular location, and require the applicant to submit material regarding the location sought to
be licensed. See R 285.640 et. seq. Second, under the zoning ordinance the sale and
transportation of these materials is permitted in the agricultural district, but only particular
entities are allowed to do so. Those entities are farms where the sale and transportation of
material will be incidental or secondary to its other farming operations.
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commission of agriculture, and did not otherwise comply with MCL 324.8328 or MCL
324.8517. Thus, it is not enforceable against plaintiffs, who were previously licensed by the
Department of Agriculture to sell and distribute pesticides and fertilizer on their farm.
Because of our resolution on the preemption issue, we need not address plaintiffs’
remaining arguments.
Reversed and remanded. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ William C. Whitbeck
/s/ Michael J. Talbot
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