Baker v. Waste Management of Michigan, Inc.

• Decision Date: 07 February 1995
• Docket Number: 163677,Docket Nos. 156441
• Citation: 208 Mich.App. 602,528 N.W.2d 835
• Parties: Marvin BAKER, Plaintiff-Appellant, and South Canton Citizens Association, Plaintiff, v. WASTE MANAGEMENT OF MICHIGAN, INC., City of Farmington, City of Farmington Hills, Charter Township of Canton, Charter Township of Plymouth, Canton Waste Recycling, Inc., Industrial Materials Clearance, Inc., Northville Township, Defendants-Appellees, and Compost Systems, Inc., Defendant. Marvin BAKER, Barbara Baker, Nancy Broughton, Leonard Bush, Sandra Bush, Thomas W. Dickerson, Jeanne L. Dickerson, Joseph M. Greer, Kenneth A. Hogg, Cathy Hogg, David M. Holliday, Brenda M. Holliday, Raymond E. Kolb, Brenda Kolb, and James W. Mason, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF CANTON, Charter Township of Plymouth, Northville Township, Western Townships Utilities Authority, Canton Waste Recycling Company, Industrial Materials Clearance, Inc., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 835

528 N.W.2d 835

208 Mich.App. 602

Marvin BAKER, Plaintiff-Appellant, and South Canton Citizens Association, Plaintiff, v. WASTE MANAGEMENT OF MICHIGAN, INC., City of Farmington, City

of Farmington Hills, Charter Township of Canton, Charter

Township of Plymouth, Canton Waste Recycling, Inc.,

Industrial Materials Clearance, Inc., Northville Township,

Defendants-Appellees,

and

Compost Systems, Inc., Defendant.

Marvin BAKER, Barbara Baker, Nancy Broughton, Leonard Bush,

Sandra Bush, Thomas W. Dickerson, Jeanne L. Dickerson,

Joseph M. Greer, Kenneth A. Hogg, Cathy Hogg, David M.

Holliday, Brenda M. Holliday, Raymond E. Kolb, Brenda Kolb, and James W. Mason, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF CANTON, Charter Township of Plymouth,

Northville Township, Western Townships Utilities Authority,

Canton Waste Recycling Company, Industrial Materials

Clearance, Inc., Defendants-Appellees.

Docket Nos. 156441, 163677.

Court of Appeals of Michigan.

Submitted Nov. 10, 1994, at Detroit.

Decided Feb. 7, 1995, at 9:00 a.m.

Released for Publication March 21, 1995.

Donnelly W. Hadden, Ann Arbor, for Marvin Baker, et al.

Cooper, Fink & Zausmer, P.C. by David H. Fink and Michael L. Caldwell, Farmington Hills, for Waste Management of Michigan, Inc., City of Farmington, and City of Farmington Hills.

Pear Sperling Eggan & Muskovitz, P.C. by Andrew M. Eggan, Ypsilanti, for Materials Clearance, Inc.

Hemming, Polaczyk & Cronin, P.C. by Timothy L. Cronin, Plymouth for Plymouth Tp. and Canton Tp.

Foster, Swift, Collins & Smith, P.C. by William K. Fahey and Paul J. Millenbach, Lansing, for Western Townships Utilities Authority.

Eric J. Colthurst, Plymouth, for Canton Waste Recycling.

Vandeveer Garzia by Pamela L. Abbott, Detroit, for Northville Township.

Before WAHLS, P.J., and MARK J. CAVANAGH and LAMBROS, ^* JJ.

PER CURIAM.

In these consolidated appeals, plaintiffs appeal as of right from orders granting summary disposition in favor of defendants. We affirm.

Defendants, the charter townships of Canton, Plymouth, and Northville, and the cities of Farmington and Farmington Hills, contracted with defendants, the waste-hauling companies Canton Waste Recycling Co., Industrial Materials Clearance, Inc., and Waste Management of Michigan, Inc., to haul yard waste to a composting facility in Canton. The facility was operated by defendant Compost Systems, Inc., on land leased from Canton Township, and utilized composting equipment leased from defendant Western Townships Utilities Authority (WTUA). Plaintiffs are a citizens group and various individuals who live or work in the vicinity of the composting facility.

Unpleasant odors emanated from the composting facility. For that reason, plaintiffs filed suit against defendants, alleging nuisance and a violation of the Michigan Environmental Protection Act (MEPA), M.C.L. § 691.1201 et seq.; MSA 14.528(201) et seq.

The court granted summary disposition in favor of defendant municipalities on the basis of governmental immunity, and in favor of defendant waste haulers on the ground that they did not have ownership or control over the facility. Plaintiffs now appeal. Defendant Compost Systems, Inc., is not a party to this appeal, and the MEPA claim is no longer at issue.

I

A

We first consider whether the WTUA is an entity that is entitled to governmental immunity from tort liability. This presents a question of law that we review de novo. Rapistan Corp. v. Michaels, 203 Mich.App. 301, 306, 511 N.W.2d 918 (1994).

Pursuant to M.C.L. § 691.1407(1); MSA 3.996(107)(1), a governmental agency that is engaged in the discharge of a governmental function is immune from tort liability. For purposes of that provision, a governmental agency is "the state, political subdivisions, and municipal corporations." M.C.L. § 691.1401(d); MSA 3.996(101)(d). A municipal corporation is "any city, village, township or charter township, or any combination thereof, when acting jointly." M.C.L. § 691.1401(a); MSA 3.996(101)(a). A political subdivision is "any municipal corporation, ... township, charter township, ... or any combination thereof, when acting jointly, and any district or authority authorized by law or formed by 1 or more political subdivisions." M.C.L. § 691.1401(b); MSA 3.996(101)(b).

The charter townships of Plymouth, Canton, and Northville formed the WTUA pursuant to M.C.L. § 124.281 et seq.; MSA 5.2769(51) et seq., which provides for the establishment of sewage-disposal, water-supply, and solid-waste management system authorities.

Applying the above definitions, the WTUA is a political subdivision, and possibly also a municipal corporation, that is entitled to governmental immunity. The lower court's ruling in this respect was not erroneous.

B

Next, we consider whether the trespass-nuisance exception to governmental immunity bars the municipalities and the WTUA from raising the defense of governmental immunity.

Our Supreme Court recognized the trespass-nuisance exception to governmental immunity in Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988). Trespass-nuisance is defined as "a direct trespass upon, or the interference with the use or enjoyment of, land that results from a physical intrusion caused by, or under the control of, a governmental entity." Id. at 145; see Continental Paper & Supply Co., Inc. v. Detroit, 205 Mich.App. 404, 407-408, 521 N.W.2d 844 (1994).

The dispute in this case concerns the element of control. Control may be found where the defendant creates the nuisance, owns or controls the property from which the nuisance arose, or employs another to do work that he knows is likely to create a nuisance. Continental Paper, supra; Stemen v. Coffman, 92 Mich.App. 595, 598, 285 N.W.2d 305 (1979). It may also be found where the governmental defendant is under a statutory duty to abate the nuisance. McSwain v. Redford Twp., 173 Mich.App. 492, 498-499, 434 N.W.2d 171 (1988).

Plaintiffs have not alleged facts that would show that defendants created or were under a statutory obligation to abate the nuisance, controlled the property where the nuisance arose, ¹ or employed another to do work that they knew was likely to create a nuisance. Plaintiffs' claim, that defendants could have withheld the delivery of yard waste to the site, is simply insufficient to establish control over the nuisance, particularly in light of their acknowledgement that others could have continued to send yard waste to the facility. In other words, because defendants' withholding of waste would not necessarily have eliminated the nuisance, defendants may not be considered to have had control over the nuisance.

Accordingly, the trial court properly found inapplicable the trespass-nuisance exception to governmental immunity.

C

Plaintiffs next argue that the municipal defendants are not entitled to immunity because they were engaged in a proprietary, and not a governmental, function.

This argument is unpersuasive. A governmental function is an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law. M.C.L. § 691.1401(f); MSA 3.996(101)(f); Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 591, 363 N.W.2d 641 (1984); Adam v. Sylvan Glynn Golf Course, 197 Mich.App. 95, 97, 494 N.W.2d 791 (1992). This definition should be broadly applied; there need only be some constitutional, statutory, or other legal basis for the activity in which the governmental agency is engaged. Adam, supra.

Defendants were expressly authorized to operate a solid-waste management system, M.C.L. § 124.282(1); MSA 5.2769(52)(1), and were impliedly required to seek an alternative to the disposal of yard waste in landfills or by incineration, M.C.L. § 299.418a; MSA 13.29(18a). We conclude that in so doing, they were...