WOODLAND HILLS HOMEOWNERS ASSN V THETFORD TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
WOODLAND HILLS HOMEOWNERS
ASSOCIATION OF THETFORD TOWNSHIP,
UNPUBLISHED
May 20, 2008
Plaintiff-Appellant,
v
No. 275315
Genesee Circuit Court
LC No. 05-081537-NZ
THETFORD TOWNSHIP and ROGER
ALLISON,
Defendants-Appellees.
Before: Fort Hood, P.J., and Talbot and Borrello, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant, Roger Allison (Allison),
summary disposition pursuant to MCR 2.116(C)(5), MCR 2.116(C)(8) and MCR 2.226(C)(10).
On appeal, plaintiff also challenges the trial court’s subsequent order granting summary
disposition to defendant, Thetford Township (Thetford), pursuant to MCR 2.116(C)(5), MCR
2.116(C)(8) and MCR 2.116(C)(10). Plaintiff also challenges a subsequent order granting
Allison’s motion for costs. We affirm.
Plaintiff first contends that the trial court erred in determining that Allison’s property
qualified for protection under Michigan’s Right to Farm Act (RTFA), MCL 286.471, in granting
summary disposition pursuant to MCR 2.116(C)(8) and 2.116(C)(10). While we agree that the
trial court erred in granting summary disposition pursuant to MCR 2.116(C)(8), because the trial
court properly granted summary disposition pursuant to MCR 2.116(C)(10), no relief is
warranted.
This Court reviews a trial court’s decision regarding summary disposition de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). “Summary disposition is
proper under MCR 2.116(C)(10) if the affidavits and other documentary evidence show that
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law.” Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 712; 737 NW2d 179
(2007). Where summary disposition is sought pursuant to MCR 2.116(C)(8), “the motion tests
whether the complaint states a claim as a matter of law, and the motion should be granted if no
factual development could possibly justify recovery.” Feyz v Mercy Mem Hosp, 475 Mich 663,
672; 719 NW2d 1 (2006). “[A]ll well-pleaded allegations are accepted as true, and construed
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most favorably to the nonmoving party.” Wade v Dep’t of Corrections, 439 Mich 158, 162-163;
483 NW2d 26 (1992).
In addressing Thetford and Allison’s MCR 2.116(C)(8) motion, the trial court stated:
“In the instant case, there is no documentary evidence of a nuisance. The
Plaintiff’s compliant does not give any detail of what harm is being suffered nor
does their brief in opposition to the motion for summary disposition. As a result,
it’s not possible for the Plaintiff to bring suit because no specific harm has been
alleged.”
The trial court erred in considering the lack of documentary evidence while discussing the MCR
2.116(C)(8) motion. As discussed supra, only the pleadings are to be considered in reviewing a
motion for summary disposition filed pursuant to MCR 2.116(C)(8). However, because
summary disposition was proper in accordance with MCR 2.116(C)(10), reversal is not required.
The zoning ordinance in question states that no farm may operate unless that farm is at
least 20 acres in size. Allison’s property does not meet the size threshold. Plaintiff thus
contends that Thetford should be forced to apply the zoning ordinance to prevent Allison from
using his property for farming purposes. However, as this Court stated in Northville Twp v
Coyne, 170 Mich App 446, 448; 429 NW2d 185, 186 (1988):
The Michigan Right to Farm Act was enacted by our Legislature in 1981 to
provide for circumstances under which a farm and its operation shall not be found
to be a public or private nuisance. In furtherance of this purpose, this act prohibits
nuisance litigation against a farm or farm operation that conforms to generally
accepted agricultural and management practices [GAAMPS].
This Court has previously held that where a zoning ordinance prevents an individual from
operating a farm on a parcel of land because of the small size of that parcel, that ordinance is
preempted by the RTFA where the RTFA would otherwise protect the operation. Charter Twp
of Shelby v Papesh, 267 Mich App 92, 105-107; 704 NW2d 92 (2005). Therefore, if Allison’s
property is protected by the RTFA, the local zoning ordinance is preempted and a nuisance cause
of action cannot be maintained. This Court must therefore determine whether Allison’s
enterprise fit the RTFA’s definition of a farm, and, if so, whether the operation conformed to the
GAAMPS.
Pursuant to MCL 286.472, the RTFA defines a farm and farm operation in the following
manner:
(a) "Farm" means the land, plants, animals, buildings, structures, including ponds
used for agricultural or aquacultural activities, machinery, equipment, and other
appurtenances used in the commercial production of farm products.
(b) "Farm operation" means the operation and management of a farm or a
condition or activity that occurs at any time as necessary on a farm in connection
with the commercial production, harvesting, and storage of farm products, and
includes, but is not limited to:
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(ii) The generation of noise, odors, dust, fumes, and other associated conditions.
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(vii) The fencing, feeding, watering, sheltering, transportation, treatment, use,
handling and care of farm animals.
This Court has previously explained that in order to be protected by the RTFA, the farm
operation must be commercial in nature. In order to be a commercial operation, the farmer must
be engaged in “the act of producing or manufacturing an item intended to be marketed and sold
at a profit.” Papesh, supra at 100-101. Further, “there is no minimum level of sales that must be
reached before the RTFA is applicable.” Id. at 101 n 4.
In the present case, Allison stated that he has sold horses that he raised on his property.
He also stated that he has raised chickens, cattle and pigs and sold them for their meat. He
classifies his farm as a commercial operation. Plaintiff has presented no evidence to contradict
Allison’s alleged commercial history on the property. As a result, Allison has established that
his facility qualifies as a farm under the RTFA and no nuisance action may be brought against
the facility so long as it complies with the GAAMPS. Kristin Linderman of the Michigan
Department of Agriculture submitted an affidavit stating that Allison’s operation complies with
the applicable GAAMPS. Therefore, because Allison’s facility qualifies as a commercial
farming operation that complies with the GAAMPS, it is afforded protections by the RTFA.
Specifically, no nuisance cause of action may be maintained against the property. Coyne, supra
at 448. When viewing the evidence in the light most favorable to the plaintiff, there is no
genuine issue of material fact. As a result, summary disposition in favor of Allison and Thetford
was appropriate pursuant to MCR 2.116(C)(10).
Plaintiff next contends that the trial court erred in concluding that it did not possess
standing. We disagree. This Court reviews a trial court’s decision regarding whether a party has
standing to maintain a cause of action de novo. Michigan Ed Ass'n v Superintendent of Pub
Instruction, 272 Mich App 1, 4; 724 NW2d 478 (2006).
MCR 2.116(C)(5) provides that a party is entitled to summary disposition where “the
party asserting the claim lacks the legal capacity to sue.” In granting Allison summary
disposition, the trial court specifically stated that plaintiff lacked standing. The Michigan
Supreme Court has explained that in order to have standing, a party must establish that it has
suffered an injury in fact, that the injury in fact can be traced to the conduct of the defendant, and
that the injury would “likely” be “redressed by a favorable outcome.” Lee v Macomb County Bd
of Comm'rs, 464 Mich 726, 739; 629 NW2d 900 (2001). The Supreme Court further explained
that an injury in fact is an injury that is “concrete and particularized” and that is “actual or
imminent” as opposed to “conjectural or hypothetical.” Id. (internal quotation marks omitted).
Additionally, it is recognized that a private citizen does not have standing where he is unable to
establish that he has been harmed in a manner different than a member of the general public.
Detroit Fire Fighters Ass'n v Detroit, 449 Mich 629, 634; 537 NW2d 436 (1995).
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In plaintiff’s complaint, it alleged that Allison owned property “in extremely close
proximity to the homes of the members of the Woodland Hills Homeowners Association.” It
further alleged that Allison was engaging in activity on his property in violation of the Thetford
Township zoning ordinances. Finally, plaintiff stated that there were numerous “nuisance
aspects of the horse farm” and that Thetford failed to protect the health, safety and welfare of the
citizens of Woodland Hills.
While plaintiff alleged that the farm was in close proximity to its members’ homes, and
the farm possessed numerous “nuisance aspects,” it failed to explicitly state the injury that the
residents of Woodland Hills suffered or identify a specific nuisance that was objectionable. At
the time the trial court granted summary disposition, plaintiff had not produced a single
deposition or affidavit of a Woodland Hills resident. The trial court had no evidence
demonstrating that a resident of the subdivision had been injured by Allison’s conduct, nor did it
have specific allegations regarding aspects of Allison’s farm that created a nuisance (such as
offensive smells or visuals). Plaintiff, therefore, failed to distinguish its residents from members
of the general public who did not belong to the association. As a result, the trial court properly
held that plaintiff lacked standing to bring the suit against Allison.
Plaintiff next contends that the trial court erred in granting Allison’s motion for costs and
it is entitled to a new hearing on that motion. We disagree. This Court reviews a trial court’s
decision to award costs and fees for an abuse of discretion. Windemere Commons I Ass’n v
O’Brien, 269 Mich App 681, 682; 713 NW2d 814 (2006).
Pursuant to the RTFA, MCL 286.473b:
In any nuisance action brought in which a farm or farm operation is
alleged to be a nuisance, if the defendant farm or farm operation prevails, the farm
or farm operation may recover from the plaintiff the actual amount of costs and
expenses determined by the court to have been reasonably incurred by the farm or
farm operation in connection with the defense of the action, together with
reasonable and actual attorney fees.
The parties do not dispute that where a party prevails in a nuisance action, it is entitled to its
reasonable costs and fees if it is a facility protected by the RTFA. As discussed supra, the RTFA
affords protection to Allison’s operation. Therefore, because Allison prevailed in this cause of
action, he is entitled to his costs and fees. However, plaintiff further contends that it must be
given an opportunity in the form of an additional hearing to contest certain charges awarded to
Allison. This Court notes that the trial court held a hearing on the motion for costs. Plaintiff
primarily used this opportunity to contest the trial court’s determination that the RTFA applied
even though the parties conceded the issue had already been settled by the trial court. Plaintiff
was not precluded from challenging specific details of Allison’s bill of costs. The trial court
briefly stated that it reviewed the costs and fees and found them to be reasonable. Plaintiff has
failed to provide this Court with any specific examples or detail regarding the contested charges
and does not suggest an amount, or in any manner delineate, which charges were allegedly
inflated. Because plaintiff has failed to provide this Court with an adequate explanation or
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assertion of why the initial hearing conducted on the motion for costs was insufficient, it is not
entitled to a subsequent hearing.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Michael J. Talbot
/s/ Stephen L. Borrello
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