SBM Real Property Law Section eNewsletter

April 2012

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Co-Editors:
Howard A. Lax, Lipson, Neilson, Cole, Seltzer & Garin, PC

Patricia Paruch, Kemp Klein Law Firm

Farm Law Changes May Produce More Fruitful Urban Agriculture

By Gregory Gamalski, Giarmarco, Mullins & Horton, PC and Melanie Duda, University of Detroit Mercy School of Law, 3L UDM Law Review, Symposium Editor

Michigan is a hothouse for the national urban agriculture movement. But commercial agriculture remains illegal in many Michigan municipalities because the Right to Farm Act (RTFA) protects farmers and preempts local ordinances that prohibit or control agriculture once established. A sticking point has been the RTFA provision that allows industrial agriculture as long as it complies with Generally Accepted Agriculture and Management Practices (GAAMPs). Allowing agriculture can be like letting the camel's nose in the tent. By authorizing agricultural operations, municipalities may have no control over the operation if it complies with GAAMP. Once established, an agricultural operation could expand to unwelcome things like concentrated animal feeding operations (CAFOs). The Michigan Agricultural and Rural Development Commission responded to this problem by changing the GAAMPs' Prefaces in January, 2012. The Prefaces now state that GAAMPs do "not apply in municipalities with a population of 100,000 or more." See, e.g., Michigan Department of Agriculture and Rural Development, Generally Accepted Agricultural and Management Practice for Site Selection and Odor Control for New and Expanding Livestock Production Facilities, (January 2012). The revision allows large municipalities to approve agricultural activities while preserving the right to regulate them. The change may encourage municipalities to write ordinances opening the Urban New Frontier to agricultural uses. While urban farmers may still desire changes to the Right to Farm Act, large municipalities are now exempt from GAAMPs and may start to encourage urban agriculture so it more fully blossoms. To paraphrase Horace Greeley: Go urban, young people!

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April 19, 2012
Groundbreaker Breakfast Roundtable Unexpected Recourse Liability in a Non-Recourse World
7:30–9:30 a.m.
Detroit Athletic Club

May 3, 2012
Homeward Bound
Commercial Lease Defaults and the Remedies of Landlords, Tenants, & Lenders
2:00–5:00 p.m.
Inn at St. Johns, Plymouth

July 18-21, 2012
Summer Conference 2012
Reinventing Michigan Cities Through Redevelopment
Boyne Mountain, Mountain Grand Lodge & Spa, Boyne Falls

Interested in writing a future article for the e-Newsletter?
Please contact co-editors:
Howard Lax at HLax@lipsonneilson.com or Patricia Paruch at Pat.Paruch@kkue.com.

Landowner Misunderstands Wetland Review Scope, Can't Cash In

By C. Leslie Banas, Banas and Associates PLLC

A landowner unable to close the lucrative sale of 29 acres of undeveloped land because it contained regulated wetlands couldn't pursue a claim against the environmental engineer that performed the "wetland review" of the land. Just Us Four, L.L.C. v. Villa Environmental Consultants, Inc., (Mich.App. No. 300215, unpublished, 2011) highlights the difference between a "wetland review" and a "wetland delineation."

Plaintiff landowner purchased land in anticipation of a proposed casino development. Before closing, it hired defendant environmental engineer to perform a Phase I ESA and a wetland review.

The engineer's report stated that MDEQ's wetland inventory map indicated potential wetlands near the creek flowing through the land. It advised performance of a wetland delineation "should there be any filling of a water feature or depression." Verbally, the engineer's representative volunteered that "you'll be fine." After acquiring title, the landowner attempted reselling the land to a hotel developer. The developer withdrew from the purchase after a "wetland delineation" found the site contained 15.2 acres of unbuildable regulated wetlands. At trial, the engineer's expert testified that industry standards define a "wetland review" as review of government documentation to determine the potential for wetlands. A "wetland delineation" determines the presence and size of wetlands. The landowner argued the court should consider the landowner's "subjective understanding" that a wetland review contains a conclusion regarding the presence of wetlands. The trial court disagreed, granting summary disposition for the engineer. The court of appeals affirmed.

A purchaser engaging an environmental engineer to provide a report regarding wetlands prior to purchasing land should understand the difference between a wetland review and wetland delineation so it obtains a report containing information suited to its needs.