A lot of people have asked me whether or not a Detroit farmer or gardener needs to get a building permit from the City of Detroit to build a hoophouse. This post will walk you through the relevant law and explain why you don’t need a building permit to build a hoophouse in the City of Detroit. However, Detroit farmers and gardeners should know that the Building, Safety Engineering and the Environment Department (“BSEED”) has expressed differing opinions to those described in this blog post, which will be discussed below.
Section 125.1510(1) of the Stille-Derossett-Hale Single State Construction Code Act states that “[e]xcept as otherwise provided in the code, before construction of a building or structure, the owner, or the owner’s builder, architect, engineer, or agent, shall submit an application in writing to the appropriate enforcing agency for a building permit.” However, there is an exception that all farmers and gardeners should be aware of. Section 125.1510(8) of the Construction Code Act states that a “building permit is not required for a building incidental to the use for agricultural purposes of the land on which the building is located if the building is not used in the business of retail trade.” The exception can be a bit confusing, so let’s unpack the legal language.
What is a building that is “incidental to the use for agricultural purposes of the land on which the building is located?” Agricultural purposes, for the meaning of this exception, has been defined to mean “the act or business of cultivating or using land and soil for the production of crops for the use of animals or humans.” The structure must also be “incidental” to the use for agricultural purposes, which is another way of saying that the building must be closely tied to the act of cultivating or using land for the production of crops. Lastly, the structure cannot be used in the business of retail trade which only means that retail transactions cannot be conducted in the structure. In simple terms, the exception applies to structures that exist to help farmers grow crops on a parcel of property.
Michigan courts have ruled some structures related to agriculture do not fall within this exception. For example, Michigan courts have said a building that exists for processing fruits and vegetables is not “incidental” to the use of land for agricultural purposes and therefore does not fall within the building permit exception. Michigan courts have said the same thing for a building that exists for a warehouse to store finished agricultural products. While Michigan courts have not directly ruled on whether a hoop house is within the exception described above, a hoop house would seem to fall directly within the exception described above. A hoop house is a structure that is directly related to the act of using land to produce crops for human consumption. The State building law is clear: a farmer or gardener does not need a building permit for a hoop house.
At this point its important to point out that the law we’ve been discussing is a state law. It’s important to ask the question of whether a City government can require a permit for a structure that is expressly exempted from obtaining a permit by state law. The answer to that question is no, the City of Detroit cannot require a permit when there is an exemption for obtaining a permit as is the case here. Section 125.1508a(1) of the Stille-Derossett-Hale Single State Construction Code Act states that the law applies throughout the state. In legal terms, this means that any local laws regarding building permits are preempted by state law. In plain English, this means that the City of Detroit cannot require a building permit for a hoop house when the State law says that a building permit is not required for a hoop house. Other cities have realized this and have established processes by which an urban farmer or gardener can proceed with building a hoop house without obtaining a building permit. The City of Lansing requires urban farmers and gardeners to submit a sworn affidavit asserting that the structure does fall within the building permit exception described above.
So why is there confusion in Detroit as to whether an urban farmer or gardener needs a building permit? Much of the confusion has come from what BSEED’s confusing response to the basic question of whether an urban farmer or gardener needs a permit. Some individuals within BSEED have stated that a hoop house requires a building permit. This is almost certainly false because of the building permit exception for agricultural-related structures discussed above. Other individuals within BSEED have also said that a building permit is not required so long as the urban farmer or gardener submits a change of use permit that signals that the urban farmer or gardener is changing the use of the property from a vacant lot to an urban farm or garden. However, this is also false. A change of use permit is required by Detroit’s zoning ordinance and Detroit’s zoning ordinance also contains limits as to the dimensions of a hoop house, one of which is that a hoop house cannot exceed 15 feet in height. However, the State building law is distinct and separate from Detroit’s zoning ordinance. The hoop house building permit exception has nothing to do with Detroit’s zoning ordinance and while an urban farmer or gardener may be found to be in violation of the Detroit zoning ordinance for failing to obtain a change of use permit or for constructing a hoop house that is taller than 15 feet, they cannot be found to be in violation of the State building law for failing to get a building permit for their hoop house based on the exception discussed above.
To make a long discussion short, an urban farmer or gardener is not, under any circumstances, required to obtain a building permit for a hoop house. However, building a hoop house on your urban farm or garden may raise some flags with the City government. While you cannot get in trouble for failing to obtain a building permit, you may get in trouble for violating Detroit’s zoning ordinance, which requires an urban farm and garden to submit a change of use permit to BSEED and requires all hoop houses to be 15 feet or under.