PETE TRAVIS V KEITH PRESTON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PETE TRAVIS, EDNA TRAVIS, RICHARD
JOHNSON, and PATRICIA JOHNSON,
FOR PUBLICATION
January 22, 2002
9:00 a.m.
Plaintiffs-Appellees,
v
KEITH PRESTON and GLENN PRESTON, d/b/a
PRESTON FARMS,
No. 221756
Branch Circuit Court
LC No. 98-010035-CZ
ON REHEARING
Updated Copy
March 29, 2002
Defendants-Appellants.
Before: Talbot, P.J. and Sawyer and Markey, JJ.
MARKEY, J.
In this case regarding alleged odors and fumes emanating from defendants Keith and
Glenn Preston's hog-farming operation, Preston Farms, defendants appeal by right the trial court's
order of judgment, entered after a bench trial, awarding plaintiffs Pete and Edna Travis $29,000
in damages and plaintiffs Richard and Patricia Johnson $29,000 in damages. We reverse and
remand.
After defendants began a hog-farming operation in 1996, plaintiffs, who lived near the
hog farm, filed this action for nuisance and injunctive relief against defendants. Plaintiffs alleged
that they had resided at their residences before the hog-farming operation began and that the hogfarming operation generated obnoxious and offensive odors that made their residences
uninhabitable, reduced the value of their homes, and deprived them of the peaceful use and
enjoyment of their homes. Plaintiffs alleged that the hog farm violated the zoning permit and
Michigan law, constituted a nuisance entitling plaintiffs to damages and injunctive relief, and
violated the local township zoning ordinance.
The township ordinance in question provided:
Control of Heat, Glare, Fumes, Dust, Noise, Vibrations and Odors. Every
use shall be so conducted and operated that it is not obnoxious or dangerous by
reason of heat, glare, fumes, odors, dust, noise or vibration beyond the lot on
which the use is located. [Algansee Township Zoning Ordinance, § 11.06.]
-1-
Thereafter, the parties stipulated that plaintiffs would not pursue any injunctive relief, and
defendants agreed not to construct any new buildings on their property. Defendants moved for
summary disposition, arguing that the Michigan Right to Farm Act (RTFA), MCL 286.471 et
seq., barred any nuisance action against defendants. Although the trial court initially denied the
motion, it appears that after defendants renewed the motion, the trial court dismissed all theories
that formed the basis for plaintiffs' complaint except that the farm operation violated the
township ordinance. The trial court concluded that a township has the authority to promulgate
ordinances that restrict the effect of the RTFA.
After a bench trial, the court decided whether the township ordinance had been violated.
Various witnesses testified regarding the hog farm operation, its odors, and its effect on plaintiffs'
residences. At the conclusion of the trial, the court reiterated its position that the RTFA did not
supersede the authority of local zoning ordinances and found that defendants had violated the
township ordinance. The court concluded that plaintiffs had standing to initiate a private action
to enforce the township ordinance and that there was clear and convincing evidence that the
odors emanating from defendants' hog farm were sometimes obnoxious and offensive. While
rendering the court's opinion, the trial judge also revealed to the parties for the first time that he
had visited the area of the hog farm and plaintiffs' residences on five separate occasions to
personally investigate the odor. The court viewed the nuisance caused by the odors of the hog
farm operation as a "partial taking of [plaintiffs'] right to a peaceful enjoyment of their property
and not as a mere diminution in their property values" and thereafter awarded $29,000 to
plaintiffs Pete and Edna Travis and $29,000 to plaintiffs Richard and Patricia Johnson.
Defendants first argue that the trial court should have dismissed plaintiffs' action because
the RTFA is a defense to plaintiffs' action and prohibits nuisance suits. In addressing this issue,
we must first decide whether a recent amendment of the RTFA should be applied retroactively.1
Statutory interpretation is a question of law that is reviewed de novo on appeal. Oakland Co Bd
of Co Rd Comm'rs v Michigan Property & Casualty Guaranty Ass'n, 456 Mich 590, 610; 575
NW2d 751 (1998).
The RTFA was implemented to protect farmers from nuisance lawsuits. Belvidere Twp v
Heinze, 241 Mich App 324, 331; 615 NW2d 250 (2000). Under the RTFA, a farm or farming
operation cannot be found to be a nuisance if it meets certain criteria, such as conforming to
"generally accepted agricultural management practices." MCL 286.473(1); Belvidere, supra.
Specifically, § 3 of the RTFA, MCL 286.473, provides:
(1) A farm or farm operation shall not be found to be a public or private
nuisance if the farm or farm operation alleged to be a nuisance conforms to
generally accepted agricultural and management practices according to policy
1
In Belvidere Twp v Heinze, 241 Mich App 324, 331-332; 615 NW2d 250 (2000), this Court
recently recognized the amended statutory language of MCL 286.474(6), but rather than deciding
whether the amended statute should be applied retroactively in that case, this Court remanded the
matter to the trial court "for reconsideration in light of the amended RTFA." Thus, the Belvidere
decision provides no guidance for our decision regarding the retroactivity issue.
-2-
determined by the Michigan commission of agriculture. Generally accepted
agricultural and management practices shall be reviewed annually by the
Michigan commission of agriculture and revised as considered necessary.
(2) A farm or farm operation shall not be found to be a public or private
nuisance if the farm or farm operation existed before a change in the land use or
occupancy of land within 1 mile of the boundaries of the farm land, and if before
that change in land use or occupancy of land, the farm or farm operation would
not have been a nuisance.
There is no dispute in this case that defendants complied with "generally accepted agricultural
and management practices."
At the time this action was filed and decided, the RTFA did not exempt farming
operations from applicable federal, state, and local laws, including local zoning ordinances such
as the one at issue in this case. MCL 286.474. Thus, although a farming operation was
otherwise protected from nuisance lawsuits pursuant to MCL 286.473, it could be found to be in
violation of local zoning laws. Belvidere, supra. At the time this action was filed and decided,
§ 4 of the RTFA, MCL 286.474, stated:
(1) This act does not affect the application of state statutes and federal
statutes.
(2) For purposes of this section, "state statutes" includes, but is not limited
to, any of the following:
* * *
(b) The township rural zoning act, Act No. 184 of the Public Acts of 1943,
being sections 125.271 to 125.301 of the Michigan Compiled Laws.
However, MCL 286.474 was amended by 1999 PA 261, effective March 10, 2000, to
provide:
(5) Except as provided in subsection (6), this act does not affect the
application of state statutes and federal statutes.
(6) Beginning June 1, 2000, except as otherwise provided in this section, it
is the express legislative intent that this act preempt any local ordinance,
regulation, or resolution that purports to extend or revise in any manner the
provisions of this act or generally accepted agricultural and management practices
developed under this act. Except as otherwise provided in this section, a local
unit of government shall not enact, maintain, or enforce an ordinance, regulation,
or resolution that conflicts in any manner with this act or generally accepted
agricultural and management practices developed under this act.
-3-
(7) A local unit of government may submit to the director a proposed
ordinance prescribing standards different from those contained in generally
accepted agricultural and management practices if adverse effects on the
environment or public health will exist within the local unit of government. . . .
(8) By May 1, 2000, the commission shall issue proposed generally
accepted agricultural and management practices for site selection and odor
controls at new and expanding animal livestock facilities. The commission shall
adopt such generally accepted agricultural and management practices by June 1,
2000.
The revised statutory language of MCL 286.474 clearly puts the issue of farm odors directly in
the hands of the commission of agriculture and requires the commission to seriously address
farm odors pursuant to subsection 8. Before the amendment, the RTFA was silent regarding any
specific directive relating to farm odors.
In determining whether a statute should be applied retroactively or prospectively, the
intent of the Legislature controls. Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578,
583; 624 NW2d 180 (2001), quoting Franks v White Pine Copper Division, 422 Mich 636, 670;
375 NW2d 715 (1985). "Moreover, 'statutes are presumed to operate prospectively unless the
contrary intent is clearly manifested.'" Lynch, supra at 583, quoting Franks, supra at 671.
However, the general rule of prospectivity does not apply to statutes or amendments that are
remedial or procedural, i.e., designed to correct an existing oversight in the law or redress an
existing grievance, or are intended to reform or extend existing rights. Macomb Co Professional
Deputies Ass'n v Macomb Co, 182 Mich App 724, 730; 452 NW2d 902 (1990). There is a
"strong presumption against the retroactive application of statutes in the absence of a clear
expression by the Legislature that the act be so applied." Lynch, supra at 588.
Because there is an "absence of a clear expression by the Legislature" that the amended
language of MCL 286.474(6) be retroactively applied, we conclude that the statute should not be
applied retroactively.2 Lynch, supra. There is nothing in the language of the RTFA suggesting a
legislative intent that MCL 286.474(6) be retroactively applied. For example, the Legislature
included no express language regarding retroactivity. Lynch, supra at 584. In fact, the amended
language of MCL 286.474(6) explicitly states that the RTFA will preempt any local ordinance
extending, revising, or conflicting with the act "[b]eginning June 1, 2000." Consequently, we
can only conclude that the amended RTFA cannot be retroactively applied to the case at hand.
2
We note that according to the legislative analyses written on 1999 PA 261, see, e.g., House
Legislative Analysis, SB 205 (First Analysis), October 28, 1999, and Senate Fiscal Agency
Analysis, SB 205 (Revised First Analysis), December 16, 1999, it appears that the amended
statutory language could be characterized in a sense as "remedial" because the amended statutory
language may have been designed to correct an existing oversight in the law. However, our
Supreme Court in Lynch, supra at 587, recently stated that "legislative analysis is a feeble
indicator of legislative intent and is therefore a generally unpersuasive tool of statutory
construction."
-4-
Having concluded that the amended statutory language contained in MCL 286.474(6) is
inapplicable in this matter, we must next decide whether the statute as previously written allows
plaintiffs to pursue this lawsuit. On the basis of this Court's prior decisions regarding this issue,
we conclude that it does. In analyzing the statutory language of MCL 286.474 as it appeared
before it was amended by 1999 PA 261, this Court previously held on the basis of the prior
statutory language that the RTFA is not a defense to an action filed to enforce a zoning
ordinance. See, e.g., Belvidere, supra; City of Troy v Papadelis (On Remand), 226 Mich App 90,
96; 572 NW2d 246 (1997). Although these prior cases involved lawsuits brought by a township
or a city rather than private citizens, we agree with the trial court that instant plaintiffs had
standing to pursue this action because the injury plaintiffs suffered as private citizens was of a
"special character distinct and different from the injury suffered by the public generally" in that
the odors affected only the residences located near defendants' hog-farming operation and not the
community. Towne v Harr, 185 Mich App 230, 232; 460 NW2d 596 (1990). Further, although
defendants assert that only zoning ordinances that do not impinge on farming operations are
exempted under MCL 286.474, the clear language of the statute does not make any reference to
such a distinction.3 See Rose Hill Center, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d
332 (1997) (courts must apply the statute as written if the language is clear).
Defendants also assert that the odor provision of the local zoning ordinance at issue is not
authorized by the zoning enabling acts as referenced in MCL 286.474. This argument is without
merit. As previously stated, for purposes of MCL 286.474, a state statute includes the township
rural zoning act, MCL 125.271-125.301. MCL 286.474(2)(b). MCL 125.271(1) of the township
rural zoning act provides, in relevant part:
The township board of an organized township in this state may provide by
zoning ordinance for the regulation of land development and the establishment of
districts in the portions of the township outside the limits of cities and villages
which regulate the use of land and structures; . . . to facilitate adequate and
efficient provision for transportation systems, sewage disposal, water, energy,
education, recreation, and other public service and facility requirements; and to
promote public health, safety, and welfare.
Thus, MCL 125.271(1) clearly authorizes the township ordinance at issue in the present case.
Defendants also argue that the judgment in this case must be reversed because the trial
court improperly visited the scene of the controversy on five separate occasions without any
notice to the parties and without the parties' knowledge. Although defendants failed to object or
move for a new trial after the trial court revealed that it had visited the scene of the dispute, we
will nevertheless review this issue in the interest of justice. People v Hanna, 85 Mich App 516,
3
Although we recognize that, in effect, there is no difference between the township ordinance
violation relating to obnoxious odors and a nuisance claim based on the same obnoxious odors,
the statutory language of MCL 286.474 before it was amended by 1999 PA 261 specifically
granted an exception for the township rural zoning act, which allows the local ordinance in
question.
-5-
519, n 5; 271 NW2d 299 (1978); People v Eglar, 19 Mich App 563, 565-566; 173 NW2d 5
(1969).
In rendering its opinion at the conclusion of the bench trial, the court stated:
[O]n five separate occasions before and after the trial, the Court visited the
site to determine whether any odor was present near the Plaintiffs' homes. On one
occasion, there was no odor at all. Two times the odor was barely noticeable until
very close to the containment buildings. The two other times near the Plaintiffs'
properties the odor was very strong. Clearly it was obnoxious and offensive, and
by any reasonable perception highly objectionable, disagreeable, displeasing, and
distasteful.
Further, in response to defendants' questions regarding the court's visits to the scene of
the dispute, the trial court stated:
I visited the sites about the week before—the site approximately a week
before the hearing, four times since, once the night of the last day of the hearing in
June and as recently as last evening.
Moreover, the trial court stated:
By plaintiffs' testimony, that of their witnesses and the court's
observations in the courtroom, at the site, this court concludes, not by mere
preponderance of the evidence but by clear and convincing evidence, that those
odors are sometimes are [sic] both obnoxious and offensive and there is no doubt
that they're highly objectionable, disagreeable, displeasing and distasteful.
[Emphasis added.]
MCR 2.513(B) provides that "[o]n application of either party or on its own initiative, the
court sitting as trier of fact without a jury may view property or a place where a material event
occurred." In Eglar, supra at 565, this Court addressed the issue of a trial judge conducting a
view of a scene without knowledge of the parties in a bench trial. This Court expressed concern
about the trial court's observations and the context of those observations. Id. For example, this
Court stated that the trial judge may have viewed an incorrect location and that the parties' lack
of presence at the judge's viewing may have hindered the parties' decisions whether to offer
additional proofs at trial. Id. In reversing the defendant's conviction and remanding for a new
trial, this Court stated that the trial judge erred in viewing the premises without giving the
defendant and counsel for both parties an opportunity to be present with him. Id.; see, also,
Vanden Bosch v Consumers Power Co, 56 Mich App 543, 556-557; 224 NW2d 900 (1974), rev'd
on other grounds 394 Mich 428; 230 NW2d 271 (1975) ("An unauthorized view by the finder of
fact is misconduct").
Although the trial court had authority to conduct a view pursuant to MCR 2.513(B), we
conclude that a reversal and remand for further proceedings are necessary to avoid a substantial
injustice to defendants. MCR 2.613(A). We base this conclusion on the trial court's own
-6-
statement that it relied on the observations made during the five visits in rendering its decision,
and because it was error to conduct the view without the parties' knowledge. The trial court's
personal observations irreparably tainted the trial and judgment. The trial court was not merely
clarifying its understanding of undisputed facts, cf. Toussaint v Conta, 292 Mich 366, 369-370;
290 NW 830 (1940), but was instead making an independent investigation and observation
regarding the strength of the odors coming from defendants' farm. We further note that the trial
court viewed the scene during a time when damages could not be awarded because of a
stipulation by the parties. In reversing and remanding this case, we remand to a different judge
because a proceeding before a different trier of fact is the only way to definitively prevent any
claims that the trial court relied on its prior personal knowledge in rendering a new decision.
Feaheny v Caldwell, 175 Mich App 291, 309-310; 437 NW2d 358 (1989) (this Court may
remand a case to a different judge if the original judge would have difficulty discarding
previously expressed views or findings and reassignment is advisable to preserve the appearance
of justice).
Because we conclude that further proceedings are warranted in this case, we also must
address an issue that may arise again: What are the available remedies? In this case, the trial
court awarded monetary damages to plaintiffs because it viewed the nuisance caused by the odors
of the hog farm operation as a "partial taking of [plaintiffs'] right to a peaceful enjoyment of their
property and not as a mere diminution in their property values." We conclude that the trial
court's award of monetary damages was not an available remedy under the township rural zoning
act.
A distinction must be made between an action to abate a nuisance and an action seeking
damages for the nuisance. In previously stating that plaintiffs had standing to pursue this action,
we relied on this Court's decision in Towne, supra. Towne involved only the issue of standing
for a private citizen to abate a nuisance under MCL 125.294. MCL 125.294 of the township
rural zoning act provides for an abatement of a nuisance by the court. Specifically, MCL
125.294 provides:
A use of land, or a dwelling, building, or structure including a tent or
trailer coach, used, erected, altered, razed, or converted in violation of a local
ordinance or regulation adopted pursuant to this act is a nuisance per se. The
court shall order the nuisance abated and the owner or agent in charge of the
dwelling, building, structure, tent, trailer coach, or land is liable for maintaining a
nuisance per se. The township board shall in the ordinance enacted under this act
designate the proper official or officials who shall administer and enforce that
ordinance and do either of the following for each violation of the ordinance:
(a) Impose a penalty for the violation.
(b) Designate the violation as a municipal civil infraction and impose a
civil fine for the violation.
In the present case, pursuant to an agreement between the parties, plaintiffs were not seeking to
abate the nuisance. The parties stipulated and an order was entered that plaintiffs would not seek
-7-
to abate the operation of the hog farm, and defendants, in return, agreed to forgo any potential
claim against plaintiffs for monetary damages. We recognize that damages for a nuisance can be
recovered for a diminution of the value of property or on the basis of a claim that the nuisance
was of such an extent as to prevent the use of a home. Kobs v Zehnder, 326 Mich 202, 207; 40
NW2d 120 (1949). However, the RTFA, and specifically the version of MCL 286.474 that was
in effect at the time this action was filed and decided, subjected the rights of farmers under the
RTFA to the township rural zoning act. The township rural zoning act, pursuant to MCL
125.294, allows the court to abate a nuisance and no more. Only the township board through its
designated official is allowed to impose a penalty or a civil fine.
In conclusion, we provide the following guidance to the trial court on remand. Absent a
valid, legal reason for setting aside the stipulation and order entered by the trial court, the
agreement between the parties appears to preclude plaintiffs from now seeking abatement.
However, any such determination is not before this Court and if undertaken, at all, must be
brought before and heard by the trial judge to whom this matter is reassigned on remand. If the
trial court determines that the stipulation and order should be set aside, then a new trial should be
held to determine if the local ordinance was violated. If it is determined that the local ordinance
in this case was violated, thus, establishing a nuisance per se, the court shall4 order that the
nuisance be abated pursuant to MCL 125.294, because abatement of the nuisance is the only
remedy the statute makes available to the court. See Towne, supra at 231-232. If the trial court
determines that the stipulation and order were properly entered, the need for a new trial would be
moot. If plaintiffs do not move to set aside the stipulation and order, it would appear that an
order of dismissal pursuant to MCR 2.504 should enter.
In light of our resolution of the above issues, we need not address the issue regarding
whether plaintiffs established a violation of the township ordinance.
We reverse and remand for further proceedings before a different trial judge. We do not
retain jurisdiction.
/s/ Jane E. Markey
/s/ Michael J. Talbot
/s/ David H. Sawyer
4
The word "shall" is used to designate a mandatory duty or requirement. Depyper v Safeco Ins
Co of America, 232 Mich App 433, 438; 591 NW2d 344 (1998).
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.