(Editor’s Note: Lou Santucci responds to Peninsula Township’s proposed farm processing ordinance, for which there will be a public hearing at the August 9 joint meeting of the Township Board and Planning Commission, 7 p.m. at the Township Hall. See the packet and agenda on the Township website. -jb)
Protect the Peninsula Farmers LLC opposes the proposed farm processing ordinance. Our organization was formed to preserve farming as a key part of our local regional and national economy. Our members include multi generation farmers.
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The new ordinance may be intended to regulate wineries, but it has many unintended consequences for a 21st century farm economy. The following are comments and concerns about the ordinance.
No Parity For Farmers
First and foremost, rather than giving farmers the parity they sought with the current wineries, the ordinance instead seems to ensure that the only parity that will exist is with the very limited new ordinance when it comes to farm processing. Farmers who do not want to process also seek parity with the wineries to do things like host events or provide food service, sleeping rooms, etc.
We agree that these kinds of activities are appropriate not only for wineries, but for other farm operations. Cutting farmers out of the equation is unfair and not what was envisioned when the farmers asked for parity in earlier discussions.
Does the lack of a statement regarding what farmers can do on their farm mean they now have automatic parity? If this is true, why not state that any farmer in the ag zone is automatically allowed to mimic the wineries? Is it just farm processors who can do these things? The proposed farm processing ordinance is silent with regard to all the activities that have been found to be unlawful or unconstitutional.
In addition, we have the following comments:
- As drafted, the ordinance is illegal in many parts because it does not comply with the court’s order enjoining the Township from enforcing similar provisions.
- There has been no meaningful discussion of this ordinance.
- It cuts out the small farm processor, and puts further consideration off to the future.
- Some parts of the ordinance also conflict with the Right to Farm Act.
- The rationale for many of the provisions is not given, which the court deemed a violation of due process in the WOMP lawsuit.
- The 80- and 50-acre requirement will have the perverse effect of creating situations for more development, not less.
- There is no hurry to rush this through.
Read on for more detailed info about the above seven items.
1. The ordinance is illegal in many parts.
The court enjoined enforcement of certain sections of 6.2.7(19), 8.7.3(10) and 8.7.3 (12). Here is the language from the court order/preliminary injunction:
“As of 12:01 a.m. on July 20, 2022, in accordance with the opinion and order entered on June 3, 2022, Defendant Peninsula Township is ENJOINED from enforcing any subsection of 6.2.7(19), 8.7.3(10), and 8.7.3(12) of the Township Winery Ordinances that the Court found to be unconstitutional or contrary to law. IT IS SO ORDERED.”
In substantial effect, the court found a good part of the winery ordinances invalid. Many of the provisions of the proposed ordinance are duplicates of the provisions of the enjoined sections of the ordinance or go further than the ordinance allowed and would surely be struck down by the court.
Limitations on music were struck down. Limitations on sources of produce were found unlawful, as were minimum contents, requirements to sell only regional products, etc.
The new farm processing proposal will cry out for sanctions by the court for violating its order. If passed, it will certainly encounter more lawsuits. Is this what we want? We already do not know what the costs are for the current lawsuits and who will pay.
We need to go back to the drawing board and excise the parts of the proposal that do not comply with the court’s order. The ones mentioned above are just a few of them.
2. There’s been no meaningful discussion of the ordinance.
There has been no real discussion with the agricultural community. A true study session would call a meeting of just farmers and seek their input and reaction to changing a 30-year ordinance with which they have lived. This ordinance is based on a group of mostly non-farmer recommendations. No one on the Ag Committee grows wine grapes.
Protect the Peninsula Farmers LLC takes the position that there has not been adequate discussion or consideration of the impact of these ordinances which were developed by a committee with less than 30 percent farmers represented. The ordinance ignores the concerns raised by farmers on the Citizens Agricultural Committee.
The result is that the work of the committee and the township planner do not account for the needs of farmers and the reality of farming in today’s economy, especially with respect to the farm product processing provisions. Rather, the ordinance protects the interests of one constituency. Protect the Peninsula, in their unrelenting effort to bar wineries, have made the farmers collateral damage.
Moreover, many of the provisions were not supported by the ag reps on the committee. The committee kept no minutes of their meetings. Accordingly, it is difficult to ascertain if there was any real discussion of the impact of these changes. These new rules would ensure no one would make the substantial investment in a winery or, as noted below, discussed the consequences of their recommendations.
As farmers, we view local wineries as an important and beneficial market for our farm products, especially grapes. The cherry industry is changing quickly and for the worse. Many farmers will not have a market to continue farming tart cherries and may not have land suitable for sweet cherries or apples. Grapes offer a good alternative, thanks to the climate and land.
3. It cuts out the small farmer.
Under the proposed ordinance, minimum acreage requirements will preclude, for example, maple syrup production, processing farm-grown lavender, cherry juice concentrate and cider.
What if they want to serve food with their processed product? Waffles and pancakes to go with the maple syrup comes to mind. How about lavender ice cream? And how can they make it without a kitchen? What does the term “commercial kitchen” mean anyway?
The ordinance leaves to another day the question of whether or when these interests will be accommodated. But our future is now. We cannot wait while living under the constraints of this ordinance. Will we be here in ten years asking for a zoning ordinance change? Maybe Monnie (Peters) will be around then to champion the adoption of the small farmer processing ordinance.
4. The rules conflict with the Right to Farm Act.
Has any thought been given to the Right to Farm Act? An argument can be made that the retail space of a farm processing facility would be a farm market and, therefore, subject to the Right to Farm GAAMP with regard to farm markets. This would mean that several of the ordinance requirements, such as size limits, for example, are in violation of the farm market GAAMP.
5. The rationale for many of the provisions is not given.
Many sections of the ordinance were noted at the study committee meeting as replete with questions, and people did not seem to be able to reach consensus on them. Nevertheless, they appear in the final proposal. Issues such as setbacks were bandied about, and now we see that nothing has changed. The setbacks bear no semblance to any rational basis. In fact, for many of the changes, there was no reason given for their inclusion in the proposal.
There is no real difference between a farm processing facility with indoor seating or outdoor seating. The reason given for requiring a new 80-acre minimum for a farm processing facility with outdoor seating is because of the intensity of use. How is a winery with outdoor seating limited to 50 people much more intense than one with no outdoor seating? And why do you need 80 acres for 50 people with 500 foot setbacks, as proposed?
Was this plotted out? Both the new acreage requirements were pulled out of thin air. Explain how this approach is rational. I heard a lot of discussion on noise being the reason. Really? There are many more efficient ways to regulate noise than by minimum acreage limits and setbacks for noise sources. It seems to us that the sound limit in decibels can be established at the property boundary, whether the property is a quarter of an acre or 100 acres.
6. The 80- and 50-acre requirement will have the effect of creating more development, not less.
The farm processing acreage requirements represent up to a 60 percent increase in the amount of land necessary for a facility. Coupled with the other new requirements and the fact that 11 other wineries can do things you cannot do means it will not be economically feasible to open a processing facility devoted to value added farm products.
What alternative will a farmer have if a farm processor does not buy his land? Maybe he would qualify for the PDR program. Maybe there will be enough money in it. But what if he needs to sell his land now? The point is that it most likely will mean one’s choice is very limited, and the seller will sell their land for development.
7. There is no hurry to rush.
A three-hour marathon session with three minutes allowed for residents to make statements with no give and take is insufficient to make a comprehensive review of the complicated issues involved with the ordinance.
For all these reasons, Protect the Peninsula Farmers LLC asks that the Township Board and Planning Commission table this proposed processing ordinance and set up a meeting inviting farmers to voice their views and work on a draft ordinance together where back and forth discussions can take place.
If you want to do the same with the Protect the Peninsula folks and other citizens, too, fine. But what you have done so far does not really reflect the input from the farming community at large.
Please take the time to do it right. The adage “haste makes waste” is applicable to this exercise. Haste is likely to make waste in terms of future conflicts, losses to the farm community and expensive litigation.
Also Read…
My solution is a simple one. Excise sections of current ordinance that the court found illegal. Extend ruling to all farmers in that they can hold events including farm dinners, weddings, have sleeping rooms etc.
I actually have done the simple editing with regard to farm processing provisions and presented to town trustees, planner and planning commission.
Saves needless further problems. It’s time to get off the lawsuit treadmill we find ourselves on.