GUST PAPADELIS V CITY OF TROY
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STATE OF MICHIGAN
COURT OF APPEALS
GUST PAPADELIS, NIKI PAPADELIS,
TELLY’S GREENHOUSE & GARDEN
CENTER, INC., and TELLY’S NURSERY, LLC,
UNPUBLISHED
December 15, 2009
Plaintiffs/Counter DefendantsAppellees,
v
No. 286136
Oakland Circuit Court
LC No. 2005-067029-CZ
CITY OF TROY, MARK STIMAC, and
MARLENE STRUCKMAN,
Defendants/Counter PlaintiffsAppellants,
and
MICHIGAN FARM BUREAU,
Amicus Curiae.
Before: Beckering, P.J., and Cavanagh and M. J. Kelly, JJ.
PER CURIAM.
Defendants appeal by right the denial of their motion for an order directing plaintiffs to
remove buildings and other structures constructed without permits or approvals and the dismissal
of their counterclaim in this land use dispute that dates back to the early 1990s. We affirm.
The significant history of this matter has been set forth in previous opinions of the Court
and will not be repeated at length here. See City of Troy v Papadelis (On Remand), 226 Mich
App 90, 95-96; 572 NW2d 246 (1997) (Papadelis II); City of Troy v Papadelis, unpublished
opinion per curiam of the Court of Appeals, issued May 10, 1996 (Docket No. 172026)
(Papadelis I), vacated 454 Mich 912 (1997). In brief, plaintiffs own two adjacent parcels of land
in Troy, Michigan, which have been referred to as the north and south parcels. The Papadelises
reside on the north parcel and have operated a nursery and garden center on the south parcel for
over 25 years. Both parcels are zoned “R-1D,” or “single-family residential,” under the city’s
zoning ordinance. As such, there has been much litigation over plaintiffs’ use of the parcels.
Ultimately this Court held that the operation of the nursery business on the south parcel could
continue as a valid nonconforming use. Papadelis II, supra at 95-96. Use of the north parcel for
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business purposes,1 however, was not a valid nonconforming use because no commercial activity
occurred on the north parcel before the enactment of the zoning ordinance. Id. at 96. Thus, this
Court remanded the case “for entry of an order enjoining the commercial use of the northern
parcel.” Id. at 98.
In 2001, plaintiffs sought an agreement with the city that would allow them to develop
the north parcel so as to accommodate their nursery business. After plaintiffs attempted to obtain
a mutually agreeable consent judgment, the city council decided to pursue a court order
enjoining the commercial use of the north parcel and thereby enforcing this Court’s decision that
had been issued four years before. On March 27, 2002, that order was entered. Plaintiffs were
required to remove all commercial materials from the north parcel and were directed to use that
parcel consistent with its R-1D residential zoning.
Subsequently, plaintiffs purchased additional property that, combined with the north and
south parcels, gave them more than five acres of property, thereby meeting the requirements for
agricultural use under the city’s zoning ordinance. When the city pursued contempt charges
against plaintiffs for failing to comply with the court’s order of March 27, 2002, by continuing to
conduct commercial activity on the north parcel, the trial court held that because of the new size
of the property, plaintiffs could use the north parcel for agricultural use under the zoning
ordinance. Plaintiffs then built two greenhouses on the north parcel. Eventually they built a pole
barn and periodically, at least, used cold frames on the north parcel.
Defendants issued two citations related to the construction of the greenhouses. One
citation was for constructing a greenhouse without approval from the city’s Board of Zoning
Appeals. Defendants alleged that plaintiffs were not entitled to an agricultural exemption from
building permits under the Construction Act because such exemption did not apply when a
building is used for retail trade. The second citation was for constructing an “accessory
supplemental building” over 600 square feet, or more than one-half of the ground floor area of
the main building on the premises, contrary to § 40.57.04 of the city’s zoning ordinance.
After unsuccessfully seeking dismissal of the citations through the City of Troy, plaintiffs
sued on June 13, 2005. Their three count complaint included (1) a claim that defendants
repeatedly harassed plaintiffs by failing to follow prior court rulings, the Right to Farm Act
(RTFA), MCL 286.471 et seq., the Construction Act, and the city’s zoning ordinance in violation
of 42 USC 1983, (2) a request for declaratory judgment on the ground that their use was
protected under the RTFA and exempt from the zoning ordinance and the Construction Act, and
(3) a request for a permanent injunction, enjoining defendants from interfering with their
agricultural use of their property. Defendants filed a counterclaim seeking (1) abatement of a
nuisance, i.e., the removal of the two greenhouses and any other structures found to be an
unlawful expansion of plaintiffs’ nonconforming use, and (2) injunctive relief.
The parties filed cross-motions for summary disposition. On February 17, 2006, the
court granted defendants’ motion as to plaintiffs’ § 1983 claim (Count I) and denied plaintiffs’
request for injunctive relief (Count III). It granted summary disposition for plaintiffs on
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It appears that plaintiffs used the parcel in part for storage and display of farm products, and the
parking of customer and employee automobiles. Papadelis II, supra at 96.
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defendants’ counterclaim. The court also granted summary disposition in plaintiffs’ favor with
regard to their request for a declaratory judgment (Count II), holding that plaintiffs’ use of their
property was agricultural use that was protected under the RTFA, and was exempt from the
pertinent section of the zoning ordinance and exempt from the Construction Act, MCL 125.1501
et seq. Defendants appealed and plaintiffs cross appealed.
This Court affirmed the trial court’s decision to grant summary disposition in plaintiffs’
favor with regard to Count II of their complaint seeking declaratory relief. Papadelis v City of
Troy, unpublished opinion per curiam of the Court of Appeals, issued September 19, 2006
(Docket No. 268920) (Papadelis III). This Court held that (1) plaintiffs’ use of the north parcel
was protected under the RTFA and could not be found to be a nuisance, (2) the greenhouses on
the north parcel were exempt from building permit requirements under the Construction Act,
MCL 125.1510(8), and (3) the city’s zoning ordinances regarding building size and permit
requirements conflict with the RTFA and thus could not be enforced against plaintiffs with
regard to the north parcel. Papadelis III, slip op at 6-8. This Court also affirmed the trial court’s
dismissal of plaintiffs’ claim under 42 USC 1983. Id., slip op at 8.
Leave to appeal to our Supreme Court was sought by both parties and, in lieu of granting
leave, the Supreme Court reversed in part the judgments of the trial court and this Court “to the
extent that they hold that the Right to Farm Act, MCL 286.471 et seq. (RTFA), and the State
Construction Code, MCL 125.1502a(f), exempt the plaintiffs from the defendant city’s
ordinances governing the permitting, size, height, bulk, floor area, construction, and location of
structures used in the plaintiffs’ greenhouse operations.” The June 29, 2007, order continued:
Assuming that the plaintiffs’ acquisition of additional land entitled them under the
city’s zoning ordinances to make agricultural use of the north parcel (a point on
which we express no opinion, in light of the defendant city’s failure to exhaust all
available avenues of appeal from that ruling after the remand to the Oakland
Circuit Court in the prior action, see City of Troy v Papadelis (On Remand), 226
Mich App 90; 572 NW2d 246 (1997)), the plaintiffs’ structures remain subject to
applicable building permit, size, height, bulk, floor area, construction, and
location requirements, under the defendant city’s ordinances. The plaintiffs’
greenhouses and pole barn are not “incidental to the use for agricultural purposes
of the land” on which they are located within the meaning of MCL 125.1502a(f).
As no provisions of the RTFA or any published generally accepted agricultural
and management practice address the permitting, size, height, bulk, floor area,
construction, and location of buildings used for greenhouse or related agricultural
purposes, no conflict exists between the RTFA and the defendant city’s
ordinances regulating such matters that would preclude their enforcement under
the facts of this case. We REMAND this case to the Oakland Circuit Court for
further proceedings not inconsistent with this order. In all other respects, the
applications are DENIED, because we are not persuaded that the remaining
questions presented should be reviewed by this Court. [Papadelis v City of Troy,
478 Mich 934; 733 NW2d 397 (2007) (Papadelis IV).]
On July 11, 2007, defendants filed in the trial court their “motion for order directing
plaintiffs to remove buildings and structures constructed without permits or other approvals as
required by ordinance.” Defendants sought the removal of “two large greenhouses, the pole
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barn, the several cold frame structures, and every other structure constructed on said property
without permit and/or in violation of Troy ordinances.” Defendants first argued that all of the
structures were built without permits or other approvals required under § 40.55.00(C) of the
zoning ordinance. Second, the two greenhouses—sized at 2,250 and 1,800 square feet—and
cold frames violated former § 40.57.04 that limited the size of accessory buildings on one
residentially zoned parcel to 600 square feet, or one half the ground floor area of the main
building on the property. Third, under § 04.20.03(D), a greenhouse falls within the definition of
a supplemental accessory building and, under § 40.56.03, the total area of a residential parcel
that may be occupied by supplemental accessory buildings is only 200 square feet—another
violation. Fourth, the pole barn violated several sections, including §§ 40.56.02(E) [height],
40.56.00(B) [occupies more than 25 percent of yard], 40.56.02(C) [excess ground floor area],
40.56.02(D) [too close to main building], and 30.10.05 [covers more than 30 percent of lot].
And fifth, at the time plaintiffs constructed their greenhouses and cold frames, § 40.57.10
required approval from the Board of Zoning Appeals to construct accessory buildings and no
approval was sought or received. Pursuant to the former City and Village Zoning Act in effect at
the time this lawsuit was filed (MCL 125.587) and the current provisions of the Michigan Zoning
Enabling Act (MCL 125.3407), the use of any structure or building erected in violation of a
zoning ordinance was a nuisance per se. Thus, defendants argued, abatement by the court was
required and they were entitled to such an order.
On July 24, 2007, plaintiffs filed their response in opposition to defendants’ motion for
an order to compel removal of structures. Plaintiffs argued that the ordinances defendants cited
were not applicable to their greenhouses or agricultural structures. Their structures were for
commercial agricultural uses and were necessary to the greenhouse/floricultural industry.
Plaintiffs’ uses of their property were both residential and commercial and neither use was
subordinate to the other—they were complementary. Therefore, the greenhouses and other
agricultural structures were not “accessory” because they were not “supplemental and
subordinate to the main use and used for purposes clearly incidental to those of the main use.”
Further, under § 04.20.03(D), a “greenhouse” is one of a group of accessory supplemental
buildings “for recreation or pleasure,” which was not applicable to plaintiffs’ commercial
agricultural use. Therefore, plaintiffs argued, they were not subject to the height, bulk, and size
requirements of “greenhouses” or “accessory buildings” as those structures were defined by
defendants. Plaintiffs requested an evidentiary hearing to develop the record in this matter.
After a four-day evidentiary hearing, the trial court (1) denied defendants’ motion,
holding that plaintiffs’ greenhouses, cold frames, and pole barn do not violate any applicable
ordinance, (2) dismissed defendants’ counterclaim, and (3) granted judgment in plaintiffs’ favor.
Defendants’ motion for reconsideration was denied and this appeal followed. Subsequently, this
Court entered an order granting a motion to file an amicus curiae brief on behalf of Michigan
Farm Bureau. Papadelis v City of Troy, unpublished order of the Court of Appeals, entered
March 4, 2009 (Docket No. 286136).
On appeal, defendants first argue that the trial court failed to properly construe the
provisions of the zoning ordinance which led to the erroneous conclusion that they were not
applicable to plaintiffs’ greenhouses, cold frames, and pole barn. We disagree.
A lower court’s interpretation of the meaning of an ordinance is reviewed de novo.
Ballman v Borges, 226 Mich App 166, 167; 572 NW2d 47 (1997). The rules of statutory
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construction apply to the interpretation of an ordinance. Goldstone v Bloomfield Twp Pub
Library, 479 Mich 554, 568 n 15; 737 NW2d 476 (2007). The primary goal of such
interpretation is to give effect to the intent of the legislative body. Ballman, supra. The specific
language used in the ordinance is the first criterion in determining intent. Id. at 168. If the plain
and ordinary language is clear, judicial construction is normally neither necessary nor permitted.
Id.
It is undisputed that plaintiffs’ north parcel is zoned R-1D, which is single-family
residential. It may, therefore, be used for the purposes described in §§ 10.00.00 through
10.20.08 of Troy’s zoning ordinance. Section 10.20.00 describes the “principal uses permitted”
and provides that “no building or land shall be used and no building shall be erected except for
one or more of the following specified uses, unless otherwise provided in this Chapter.” Those
specified uses are set forth in sections. Section 10.20.01 provides for one-family dwellings,
§ 10.20.02 provides for “agriculture,” § 10.20.03 provides for publicly owned and operated
libraries, parks, parkways, and recreational facilities, § 10.20.04 provides for cemeteries,
§ 10.20.06 provides for “accessory buildings,” and so forth. Thus, “agriculture” is specified as a
permitted principal use of property zoned R-1D.
Next we turn to the definition of “agriculture.” Article IV sets forth the definition of
“agriculture” as “[f]arms and general farming, including horticulture, floriculture, dairying,
livestock, and poultry raising, farm forestry, and other similar enterprises, or uses . . . .” See
§ 04.20.05. In this case, defendants do not contest that the floriculture and horticulture that are
occurring on plaintiffs’ property are “agriculture” and thus constitute a permitted principal use of
plaintiffs’ property. Rather, defendants seem to claim that, although the use is permitted, the two
greenhouses, pole barn, and cold frames are not permitted because they are in violation of other
provisions of the zoning ordinance. In particular, defendants claim that they are all “accessory
buildings” or “accessory supplemental buildings” under the ordinance and thus subject to certain
regulations.
Turning back to Article IV, an “accessory building” is defined at § 04.20.01 as follows:
A building, or portion thereof, which is supplemental or subordinate to the main
building or to the use of the land and is devoted exclusively to an accessory use.
The various types of accessory buildings shall be further defined as follows:
A. Barn: A building specifically or partially used for the storage of farm animals
such as, but not limited to: horses, cattle, sheep, goats, and fowl, other than a dog
house.
B. Garage: A building, or portion of the main building, of not less than one
hundred eight [sic] (180) square feet designed and intended to be used for the
periodic parking or storage of one or more private motor vehicles, yard
maintenance equipment or recreational vehicles such as, but not limited to boats,
trailers, all terrain vehicles and snowmobiles.
C. Storage Building/Shed: A building designed and intended to be used for the
storage of tools, garden tractors, lawn mowers, motorcycles, small recreation
vehicles such as, but not limited to, snowmobiles, ATV’s, and motor scooters.
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Defendants argue that the two greenhouses, pole barn, and cold frames meet this definition
because the main use of the property is residential so the buildings are subordinate to that use. In
the alternative, defendants argue, if the main use is agriculture, these structures support the
agricultural use and are subordinate to that use. We disagree with both claims.
First, at the evidentiary hearing, defendants’ only witness, Mark Stimac, the Director of
Building and Zoning, testified that he, in fact, did not know what the principal use of the north
parcel of plaintiffs’ property was, but the principal uses could be both agriculture and residential
without either being subordinate to the other use. Stimac did not know if the residence on the
north parcel was the main use of the property. Further, Stimac testified that “[t]he greenhouses
in building area certainly exceed by almost ten-fold the size of the residential single family house
that’s on the property.” Plaintiffs’ witness, Leslie Meyers, testified that over 75 percent of the
north parcel was used for floriculture and agricultural activities and were not accessory to
residential use. Thus we reject defendants’ unsubstantiated claim that the main use of the
property is residential and that “the buildings are subordinate to the main residential building.”
We also reject defendants’ alternative argument that, even if the main use is agriculture,
the two greenhouses, pole barn, and cold frames meet the definition of “accessory building” as
defined in § 04.20.01. The second sentence of the definition, set forth above, provides: “The
various types of accessory buildings shall be further defined as follows” and then specifically
lists barns, garages, and storage buildings/sheds, with definitions for each. We note that under
§ 04.10.01, “the word ‘shall’ is mandatory and not directory.” Further, it is well established that,
like statutes, if the ordinance defines a term, that definition controls. See Haynes v Neshewat,
477 Mich 29, 35; 729 NW2d 488 (2007). Thus, if the greenhouses, pole barn, and cold frames
are not a barn, a garage, or a storage building/shed as defined by the ordinance, they are not
“accessory buildings” under the ordinance.
Section 04.20.01(A) defines a “barn” for purposes of the ordinance as a building for the
storage of farm animals. Plaintiffs did not store farm animals in any of the contested structures;
therefore, none of their buildings could be considered a “barn.” Section 04.20.01(B) defines a
“garage” for purposes of the ordinance as a building “designed and intended to be used for the
periodic parking or storage of one or more private motor vehicles, yard maintenance equipment
or recreational vehicles such as, but not limited to boats, trailers, all terrain vehicles and
snowmobiles.” Plaintiffs did not store private vehicles, yard maintenance equipment or
recreational vehicles in any of the contested structures; therefore, none of their buildings could
be considered a “garage.” Section 04.20.01(C) defines a “storage building/shed” for purposes of
the ordinance as a building “designed and intended to be used for the storage of tools, garden
tractors, lawn mowers, motorcycles, small recreation vehicles such as, but not limited to,
snowmobiles, ATV’s, and motor scooters.” There is no record evidence that plaintiffs used any
of the contested buildings as a “storage building/shed,” i.e., to store tools, garden tractors, lawn
mowers, motorcycles, or small recreation vehicles. Accordingly, contrary to defendants’ claims,
the two greenhouses, pole barn, and cold frames do not meet the definition of “accessory
building” as set forth in § 04.20.01. Therefore, they are not accessory buildings within the plain
meaning and defined terms of the ordinance.
Next we consider whether the greenhouses and cold frames are accessory supplemental
buildings as defendants claim. We again turn to Article IV, and find that an “accessory
supplemental building” is defined at § 04.20.03 as follows:
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An accessory building used by the occupants of the principal building for
recreation or pleasure, such as a gazebo, a swimming pool cabana, a building
housing a spa or greenhouse. The various types of accessory supplemental
buildings shall be further defined as follows:
* * *
D. Greenhouse: A detached building that is used for non-commercial purposes,
constructed of permanent or temporary framing that is set directly on the ground
and is covered with glass panels or plastic or other transparent material, and is
used to grow plants.
Clearly, this definition contemplates a residential use as the main use of the property by its
reference to a “building used by the occupants of the principal building for recreation or pleasure
. . . .” And there is no evidence that plaintiffs’ greenhouses and cold frames were used “for
recreation or pleasure.”
In fact, the evidence of record indicates that the greenhouses and cold frames were used
in conjunction with plaintiffs’ horticulture and floriculture commercial business that is located on
the south parcel. Again, the ordinance sets forth a mandatory and limited definition of the
various types of accessory supplemental buildings and it includes the definition of a
“greenhouse” as a detached building that “is used for non-commercial purposes.” Defendant
Stimac testified at the evidentiary hearing that agricultural operations in residentially zoned
districts can sell their products, but not by retail sale operations occurring on the property. That
is, commercial operations can occur on the property without violating an ordinance.
Accordingly, plaintiffs’ greenhouses and cold frames do not meet the definition of “accessory
supplemental building” as defined in § 04.20.03 and, thus, are not accessory supplemental
buildings within the plain meaning and defined terms of the ordinance.
Nevertheless, defendants argue that the trial court’s conclusion that the greenhouses, cold
frames, and pole barn are neither “accessory buildings” nor “accessory supplemental buildings,”
was erroneous. Defendants contend that even if these are “agricultural buildings,” as the trial
court held, they still must comply with the regulations for structures on residentially zoned
properties. In other words, plaintiffs were allowed to either build a “one-family dwelling,”
pursuant to §10.20.01 or an “accessory building” pursuant to § 10.20.06. We disagree.
Sections 10.20.00 through 10.20.08 list the principal uses permitted and, although onefamily dwellings and accessory buildings are included in that list, so is “agriculture” under
§ 10.20.02. In other words, § 10.20.00 describes the “principal uses permitted” and provides that
“no building or land shall be used and no building shall be erected except for one or more of the
following specified uses . . . agriculture.” As discussed above, plaintiffs’ buildings were not
“accessory buildings.” For clarity purposes, the trial court appears to have termed plaintiffs’
buildings “agricultural buildings.” We will do the same.
Defendants argue that these agricultural buildings had to comply with the same
regulations that would apply if the principal use of this property had been a one-family dwelling.
But there is no indication in the ordinance of such requirement. An ordinance must give a person
of ordinary intelligence a reasonable opportunity to know what is prohibited or required. See
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English v Blue Cross Blue Shield of Michigan, 263 Mich App 449, 469; 688 NW2d 523 (2004).
In fact, as the trial court noted, there are significant indications to the contrary. The definition of
“agriculture” is “general farming, including horticulture, floriculture, dairying, livestock, and
poultry raising, farm forestry, and other similar enterprises, or uses . . . .” § 04.20.05. This
definition implies that such agricultural use would occur in buildings. Stimac testified that,
according to his interpretation of the ordinance, a 100 acre farm, being used for agricultural
purposes, that also has a 1,000 square foot home could only have 600 square feet of barns, silos,
and other agricultural buildings. But, again, the ordinance does not set forth such a requirement
with regard to agricultural buildings.
Next, defendants argue that allowing plaintiffs to maintain the contested agricultural
buildings violates the intent of the ordinance which is to “provide for environmentally sound
areas of predominantly low density single family detached dwellings.” We disagree. The
intention of providing low-density, single-family dwellings actually appears to be furthered by
plaintiffs’ agricultural use of their property. Preserving agricultural uses compatible with limited
residential development, protecting the decreasing supply of agricultural land by allowing only
limited residential development and/or maintaining some rural character to the community
arguably provides “for environmentally sound areas of predominately low density single family
detached dwellings.” In any case, this argument is without merit.
Defendants also argue that the trial court’s interpretation and conclusion that defendants’
ordinance contains no provisions that relate to agricultural buildings “defies common sense” and
leads to an absurdity. We disagree. The wisdom of an ordinance, like a statute, is for the
determination of the legislative body and must be enforced as written. See City of Lansing v
Lansing Twp, 356 Mich 641, 648; 97 NW2d 804 (1959). Agriculture is a principal use
permitted, as are one-family dwellings, accessory buildings, and others. That defendants’
ordinance provides detailed and specific regulations with respect to some principal uses and does
not include agriculture within the ambit of those regulations is the prerogative of the legislative
body and we may not second-guess such wisdom. Further, plaintiffs’ expert witness, Leslie
Meyers, testified that as a zoning administrator in every municipality she has worked where there
has been farming, agricultural buildings have been exempt from such regulation.
Defendants also claim that the trial court’s decision must be reversed because it “failed to
accord great weight to how the ordinance has been applied by the officer or agency charged with
its administration.” We disagree. Stimac testified that plaintiffs’ two greenhouses, pole barn,
and cold frames were “accessory structures” but, clearly, they did not meet the definition
provided by defendants’ own ordinance. Stimac testified that the greenhouses and cold frames
were “accessory supplemental buildings” but they clearly did not meet the definitional
requirements of a “greenhouse.” Stimac also testified that he did not know what the principal
use of the north parcel was but that such a determination would be necessary in deciding whether
a use complied with the zoning ordinance provisions. Stimac did not know the difference
between a “hobby greenhouse” and a “commercial greenhouse.” Stimac did not know that to
operate a floriculture or horticulture operation in Michigan, flowers would have to be grown in
greenhouses and cold frames. Stimac did not take into consideration what might be normal for
an agricultural operation that is a permitted use when he is determining whether a building is in
compliance with a zoning ordinance. Although the trial court made findings that were contrary
to or inconsistent with Stimac’s testimony, defendants have failed to show that such findings
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were erroneous. The trial court was permitted to draw its own conclusions from all of the
available evidence and to make credibility determinations.
In summary, defendants’ arguments in support of their claim that the trial court failed to
properly construe certain provisions of the zoning ordinance leading to an erroneous conclusion
that they were not applicable to plaintiffs’ greenhouses, cold frames, and pole barn are all
without merit. The trial court’s decision on the matter is affirmed.
Next, defendants argue that the trial court abused its discretion and violated the
constitutionally mandated separation of powers in determining that Troy’s zoning ordinance
requiring site plan approval was not applicable to the buildings constructed by plaintiffs.
However, that was not entirely the trial court’s ruling. Rather, the trial court held that, plaintiffs
did attempt to comply with the ordinance by seeking permits and site plan approvals, but Stimac
refused to review those requests on the ground that the proposed buildings violated the zoning
ordinance. Stimac testified that plaintiffs’ site plans were not reviewed because the structures
violated the ordinance with regards to the allowable size of accessory buildings. Stimac also
testified that if plaintiffs had requested permits for the structures on the north parcel, they all
would have been denied, presumably also on the grounds that they were “accessory buildings” or
“accessory supplemental buildings.” Accordingly, the trial court’s conclusion that, “[p]laintiffs’
attempts to obtain a building permit or site plan approval were futile,” was supported by the
record evidence. Thus, this issue is without merit.
Next, defendants argue that the trial court abused its discretion in allowing the testimony
of plaintiffs’ expert witnesses. We disagree. The admissibility of expert testimony is reviewed
for an abuse of discretion. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). An
abuse of discretion occurs when the trial court’s decision is outside the principled range of
outcomes. Id.
First, as they did in the trial court, defendants argue that Donald Juchartz should not have
been allowed to testify as an expert witness because his expertise in horticulture would not assist
the trial court to determine a fact in issue, i.e., whether plaintiffs’ buildings violated ordinance
provisions, as required under MRE 702. Plaintiffs responded, as they do here, that the testimony
was relevant to the issue of what is involved with an agricultural use, which was a principal use
permitted by defendants’ ordinance. We agree.
“Agriculture” is specified in defendants’ ordinance as a permitted principal use of
property zoned R-1D. Horticulture and floriculture are included within the definition of
“agriculture” provided in § 04.20.05 and plaintiffs were engaged in these activities on the north
parcel. MRE 702 provides for the admission of specialized knowledge if the court determines
that it would be of assistance “to understand the evidence or to determine a fact in issue . . . .”
That the trial court found this standard was met with respect to the admission of Juchartz’s
testimony does not constitute an abuse of discretion. Testimony relating to the normal incidents
and practicalities of an agricultural use clearly could be helpful to the trial court in this case.
Second, defendants argue that the trial court abused its discretion in allowing the
testimony of Leslie Meyers because she was not on plaintiffs’ witness list and her testimony did
not meet the requirements of MRE 702. We disagree. Although Leslie Meyers was not
specifically listed on plaintiffs’ witness list that was tendered about two years before this
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hearing, the witness list did include “all necessary rebuttal expert witnesses” and Meyers was
offered as a rebuttal witness to Stimac’s testimony. Apparently, before this hearing on
defendants’ motion for an order directing plaintiffs to remove the contested structures was
conducted, plaintiffs requested that additional discovery occur and defendants objected. Under
MCR 2.401(I)(2), the trial court likely could have prohibited the testimony, but in light of the
circumstances apparently declined to do so. This decision does not constitute an abuse of
discretion.
Further, the trial court did not abuse its discretion when it admitted Meyers’ testimony.
She was offered as an expert in planning and zoning matters. Defendants objected to her
testimony on the grounds that she was not an expert in Troy’s zoning ordinance, particularly
since she had just recently reviewed the ordinance online; therefore, Meyers could not be a
benefit in assisting the court on the issue whether the buildings in question comply with the
ordinance. Plaintiffs responded that Meyers had a long history and expertise in zoning matters
and planning. Stimac testified as to his understanding of the ordinance provisions and Meyers
was offered to give the court another perspective as to the interpretation and applicability of
those provisions. The court permitted the testimony.
Again, MRE 702 provides for the admission of specialized knowledge if the court
determines that it would be of assistance “to understand the evidence or to determine a fact in
issue . . . .” In light of Stimac’s testimony, it appears that the testimony of Meyers would be of
significant assistance to the court. For example, Stimac testified that he did not know the
primary or principal use of the north parcel, although that information would be required to
determine whether the use complied with ordinance provisions. Stimac also testified that all
agricultural structures, on an area not less than five acres in size, had to meet the same
requirements applicable to single-family residences that were on 8,500 square foot lots.
Testimony that might provide additional details with regard to plaintiffs’ specific use of the
property, including their agricultural use, how that lawful use is impacted by the application of
various ordinance provisions, as well as her interpretation of the provisions clearly could be
helpful to the court in this case. Thus, the trial court did not abuse its discretion in admitting the
testimony.
Finally, defendants argue that the trial court’s ruling conflicts with our Supreme Court’s
order that held that plaintiffs’ structures remained subject to the applicable building permit, size,
height, bulk, floor area, construction, and location standards under defendants’ ordinances. We
disagree.
The Supreme Court’s order, as quoted above, indicates that “the plaintiffs’ structures
remain subject to applicable building permit, size, height, bulk, floor area, construction, and
location requirements, under the defendant city’s ordinances.” Papadelis IV, supra. We
disagree with defendants’ claim that the Supreme Court directed the trial court to apply the
zoning ordinance provisions discussed above, including those applicable to “accessory
buildings” and “accessory supplemental buildings.” The issue whether these or any of
defendants’ ordinances apply to plaintiffs’ greenhouses, pole barn, and cold frames was never
reached or decided. While a lower court, on remand, has a duty to comply strictly with the
mandate of an appellate court, we discern no such mandate in the order. See Schumacher v
Dep’t of Natural Resources, 275 Mich App 121, 128; 737 NW2d 782 (2007). Accordingly, the
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trial court’s decision, that the particular structures do not violate any applicable zoning
ordinance, does not conflict with our Supreme Court’s order.
Affirmed. Plaintiffs are entitled to tax costs under MCR 7.219(A).
/s/ Jane M. Beckering
/s/ Mark J. Cavanagh
/s/ Michael J. Kelly
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