By LeAnn R. Ralph
TOWN OF FOREST — The Town of Forest comprehensive plan does not need a reference to supporting the right to farm because Wisconsin has “right to farm” legislation.
That was the explanation given when Lee Tellijohn, plan commission member, objected to the removal of a reference to supporting the “right to farm” from the township’s comprehensive Smart Growth plan at the October 9 meeting of the Forest Plan Commission.
State law requires comprehensive land use plans to be updated at least once every ten years.
The first comprehensive land use plan for the Town of Forest was adopted in December of 2009 after following a written public participation plan, as is required by state law.
State law also requires zoning ordinances to be consistent with the municipality’s comprehensive Smart Growth plan, which means that if an industry is not supported in the comprehensive plan, then the zoning ordinance cannot support the industry.
At the October 9 meeting, the Forest Plan Commission removed references to supporting wind energy from the comprehensive plan. The township has a 52-page wind energy systems licensing ordinance that heavily regulates the wind industry. Among other restrictions, the ordinance requires wind turbines to be located no closer than one mile to residences that will not be hosting a wind turbine.
Even though the wind energy systems licensing ordinance is a licensing ordinance and not a zoning ordinance, it still regulates wind turbines.
Since the Forest Plan Commission removed references to supporting the right to farm from the comprehensive plan, favoring the right to farm in the zoning ordinance also would be inconsistent and would violate that portion of state law requiring zoning ordinances to be consistent.
In the original comprehensive plan, Objective 4 said, “protect the right to farm.”
The strategy was to “adopt a town ‘right to farming and forestry’ resolution consistent with the state ‘right to farm law’ and provide a copy of the resolution with building permit applications. This resolution should recognize that a wide variety of agricultural and forestry practices are compatible with our Town’s rural setting and vision.”
Objective 4 in the new version reads, “protect the rural farming character of our Town.”
The strategy is to “consider adopting subdivision and zoning requirements, such as density restrictions (and) open space requirements that encourage the long term protection and maintenance of open space.”
For planning and zoning purposes, “open space” is generally defined as land that is retained for its conservation value or land that enhances surrounding property or provides recreational opportunities. In cluster developments, a homeowners’ association holds the ownership of the open space, and the open space is available for the recreational use of people who own homes in the subdivision.
Under the “growth trends” section of Forest’s comprehensive plan, a reference to the new Stillwater bridge was added: “residential growth is expected to increase as a result of the new Stillwater bridge, which will greatly improve access to the Twin Cities area.”
Under the land use goals, objectives and strategies section, the new version of the comprehensive plan states that wind farms would slow population growth: “The Town anticipates consistent population growth over the next twenty years, which will generate increased demand for residential housing … utility scale wind farms, if permitted, would inhibit the Town’s plans for future residential development by rendering thousands of acres of optimal building sites unsuitable for new residential uses.”
Under the codes and ordinances section of the original comprehensive plan, it was clear that farming was a protected activity: “Require ‘right to farm and forestry’ deed restrictions on new residences in the agriculture areas to put new homeowners on notice they are moving into a farming area and reflect the rural character of the community and help reduce land use conflicts and nuisance complaints.”
That section of the new version of the comprehensive plan is now completely blank.
The comprehensive plan also uses the word “scenic” in reference to rural character and rural landscapes.
As Tellijohn pointed out at the October 9 plan commission meeting, however, there is no definition of “scenic”, and scenic can be in the eye of the beholder — such as a “scenic open space” not being the same as a farm field.
Under the land use map section of the original comprehensive plan, the agriculture section also made it clear that farming in Forest was to be protected: “New residential development in or near this area shall have ‘Right to Farm’ language applied to the deed.”
The new version of the comprehensive plan has completely removed the “Right to Farm” deed restriction from new residential development in agricultural areas.
The original version of the plan states, “when multiple residences are planned, conservation subdivision design will be encouraged.”
The new version of the plan states, “when multiple residences are planned, conservation subdivision design principals may be explored.”
Right to Farm
Each of the 50 states has some version of a “right to farm” law.
But “right to farm” legislation has been challenged in various states around the country, including Wisconsin, California and Vermont, on the grounds that it is unconstitutional to tell a landowner that he or she cannot file a lawsuit when another land use creates a nuisance, such odors, dust, or noise.
The Iowa Supreme Court overturned Iowa’s right to farm law, and the U.S. Supreme Court declined to take the case.
The courts also have invalidated right to farm laws in Pennsylvania and New York.
Wisconsin’s right to farm law is state statute 823.08.
The introduction to the law indicates that local units of government, through their zoning power, can mitigate much of the conflict between farmers and other landowners.
“The legislature therefore deems it in the best interest of the state to establish limits on the remedies available in those conflicts which reach the judicial system. The legislature further asserts its belief that local units of government, through the exercise of their zoning power, can best prevent such conflicts from arising in the future, and the legislature urges local units of government to use their zoning power accordingly.”
The law goes on to state that agricultural uses or practices cannot be found to be a nuisance if the land was in agricultural production before the plaintiff began the use of his or her property and the agricultural use does not present a substantial threat to public health and safety.
If an agricultural use is found to be a nuisance, the relief granted to the plaintiff may not restrict or regulate the agricultural use, unless the use is a substantial threat to public health and safety.
If the court orders the farmer to take any action to mitigate the effects of the agricultural use, the court must request public agencies to provide suggestions and must allow the farmer one year or more to mitigate the nuisance.
If the court orders the farmer to take any action, the court cannot order any action that substantially affects the economic viability of the farming operation.