Summary of a Recent
Judicial Development in
Urbanization & Agriculture

Township Ordinance Regulating Sale of Fertilizer
and Pesticide Preempted by State Law

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In War-Ag Farms, L.L.C. v. Franklin Township, 2008 WL 4604392 (Mich. Ct. App. Oct. 7, 2008), the Michigan Court of Appeals held that a township's ordinance placing restrictions on the sale of pesticides and fertilizer conflicted with provisions of the Natural Resources and Environmental Protection Act and was thus preempted by state law.

Background

The plaintiffs submitted an application to the Franklin Township Planning Commission for a conditional use permit (CUP) to sell and distribute seed, pesticides, and fertilizer stored on their farm to other nearby farms. Id. at *1. They had already been issued licenses by the Michigan Department of Agriculture to distribute pesticides and fertilizer from their farm. Id. The Commission denied the application because a local zoning ordinance only permitted such use on an operating farm as incidental and secondary to the use of the farm for agricultural activities, and the Commission determined the plaintiffs' proposed use would not be secondary and incidental to their farming operation. Id.

Arguments

The plaintiffs argued that the township's ordinance was preempted by the Natural Resources and Environmental Protection Act (NREPA). Id.

Analysis and Holdings

"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." Id. at *2 (quoting Czymbor's Timber, Inc. v. City of Saginaw, 711 N.W.2d 442, 445 (Mich. Ct. App. 2006)). The court found that the township's ordinance imposed additional conditions relating to the sale and transportation of agricultural chemicals that were not found in the NREPA and conflicted with the Department of Agriculture's decision to allow the plaintiffs to sell and distribute pesticides and fertilizer from their farm, and therefore held that the ordinance was unenforceable. Id. at *7.

The case was decided on October 7, 2008.