Richmond Tp. v. Erbes
| Decision Date | 03 August 1992 |
| Docket Number | Nos. 131179,131564,s. 131179 |
| Citation | 195 Mich.App. 210,489 N.W.2d 504 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | RICHMOND TOWNSHIP, Plaintiff-Appellee, v. Garth ERBES, Rita L. Erbes, and Oneida Erbes, Defendants, and Herrinton, Herrinton & Tacoma, P.C., James C. Herrinton and Lois H. Herrinton, Appellants. RICHMOND TOWNSHIP, Plaintiff-Appellee, v. Garth ERBES, Rita L. Erbes, and Oneida Erbes, Defendants-Appellants, and Herrinton, Herrinton & Tacoma, P.C., James C. Herrinton and Lois H. Herrinton, Appellees. |
Bauckham, Sparks, Rolfe & Thomsen, P.C. by John H. Bauckham, John K. Lohrstorfer, and Eileen W. Wicklund, Kalamazoo, for plaintiff-appellee.
Marco S. Menezes, Cadillac, for Garth, Rita, and Oneida Erbes.
Herrinton, Herrinton & Tacoma, P.C. by Lois H. Herrinton, Cadillac, for Herrinton, Herrinton & Tacoma, P.C., James C. Herrinton and Lois H. Herrinton.
Before BRENNAN, P.J., and HOLBROOK, and McDONALD, JJ.
In these cases consolidated on appeal, defendants, Garth Erbes, Rita L. Erbes, and Oneida Erbes, appeal as of right an Osceola Circuit Court judgment and order enjoining them from manufacturing or assembling pallets on their farm as a business use contrary to the plaintiff's zoning ordinance. Appellants Herrinton, Herrinton & Tacoma, P.C., James C. Herrinton, and Lois H. Herrinton (the Herrintons) also appeal as of right from the part of the same judgment that ordered sanctions against them in the amount of $750. The Herrintons were the Erbes' attorneys for the circuit court action and were ordered to pay sanctions by the circuit court for filing a motion to dismiss and a supporting brief for an improper purpose. We affirm the circuit court judgment, but vacate that part of the judgment ordering sanctions against the Herrintons.
Oneida Erbes owns approximately forty acres of farmland in Richmond Township. Garth and Rita Erbes, Oneida's son and daughter-in-law, live with Oneida and maintain the property. Defendants continue a small traditional farming operation on the property.
In 1978, the Richmond Township Board adopted a resolution for zoning the township. The hearing was held on August 14, 1978. The parties dispute whether the hearing was held by the township board or by the newly established zoning board. Minutes of the meeting were taken by the township clerk, but apparently no minutes of the meeting were taken by a member of the township's zoning board. Attendance vouchers indicate that several members of the zoning board were present. The former township clerk testified at trial that neither the proposed ordinance nor a zoning map were available at the hearing.
On December 4, 1978, the Richmond Township Board adopted the proposed zoning ordinance. The version of the ordinance adopted by the board classified defendants' property as residential.
On January 18, 1983, plaintiff adopted a "compilation" of its ordinances, incorporating much of the 1978 zoning ordinance, along with amended and additional sections. The amended zoning ordinance, now included in the 1983 compilation, was entitled Ordinance No. 9.
In 1985, Garth and Rita Erbes began to make wood pallets from wood grown on the wood lot on the farm. A pallet is a wooden platform made of slats cut from low-grade lumber and nailed or stapled together. As production increased, the operation developed into an informal cooperative utilizing wood cut from neighboring farms and sawed at local mills or on portable farm sawmills. Local farmers then used the materials to make pallets, with some of the construction taking place at defendants' farm. Defendants distributed materials and collected pallets because many of the participants in the pallet operation were Amish and did not have motor vehicles or telephones.
On July 1, 1987, Garth Erbes contacted Richard Kirch, the Richmond Township zoning administrator, and inquired regarding whether defendants could construct a pole barn on the property for the purposes of storage, horse stalls, and pallet assembly. Kirch told him that the uses were permitted because the property was zoned agricultural. The parties dispute whether Kirch later told defendants that the zoning did not permit use of the building for pallet assembly. Defendants applied for and received a building permit for the pole barn.
Defendants then constructed the pole barn at an approximate cost of $10,000. The county building inspector inspected the barn and issued the compliance permit on August 6, 1987. Defendants commenced pallet assembly in the barn. On October 1, 1987, Garth Erbes contacted Kirch concerning proposed additions to the barn. Kirch informed him that pallet assembly activities on defendants' property were in violation of the township zoning ordinance. Garth Erbes then applied for a zoning permit and a building permit to make the additions to the barn. The permit applications were denied.
On December 4, 1987, Kirch issued defendants a notice of zoning violation, stating that defendants were violating Ordinance No. 9 by conducting an industrial operation in a nonindustrial-use zone. Kirch issued a similar notice on January 14, 1988, and a third notice on March 7, 1988. The third notice charged defendants with violating Secs. 20.804 to 20.806 of the zoning ordinance. Defendants claim that these sections are not included in the 1983 compilation of the ordinance, and are instead found in the 1978 zoning ordinance, which the township contends was incorporated into the 1983 version.
Plaintiff then brought criminal charges against defendants in district court alleging violation of Ordinance No. 9. Those charges were dismissed without prejudice. Plaintiff also instituted a civil action in circuit court, seeking injunctive relief for the zoning violation. Defendants counterclaimed, contending that the township's zoning ordinance was invalid because it was improperly enacted. Defendants further contended that even if the zoning ordinance were valid, the Michigan Right to Farm Act, M.C.L. Sec. 286.471 et seq.; M.S.A. Sec. 12.122(1) et seq., permitted defendants to carry on their pallet operation.
Following an eight-day bench trial held between June 20, 1989, and January 12, 1990, the trial court issued its opinion on April 11, 1990. Relevant to the issues on appeal, the trial court found that the August 14, 1978, hearing was a joint hearing by the township board and the zoning board. The court found that the text of the ordinance and a zoning map were available at the hearing and that the zoning board did not make substantive changes to the ordinance after it was adopted by the township board on December 4, 1978. The trial court then held that plaintiff was not obligated to strictly comply with the procedural requirements of the Township Rural Zoning Act, M.C.L. Sec. 125.271 et seq.; M.S.A. Sec. 5.2963(1) et seq., and that defendants were estopped on the basis of public policy from challenging any procedural irregularities in the enactment of the ordinance. The trial court rejected defendants' argument that the Right to Farm Act protected their pallet operation. The court concluded that defendants were precluded by the ordinance from conducting the pallet operation, which constituted an unlawful extension of a nonconforming use.
During the proceedings before the circuit court, the Herrintons filed a motion to dismiss on behalf of defendants. The motion sought dismissal pursuant to MCR 2.116(C)(8) and (9), and was filed with documentary evidence appended. Plaintiff responded to the motion on November 2, 1989. The Herrintons also filed a brief supporting the motion, but did not file the brief until November 1, 1989, and it was not received by plaintiff's counsel until November 3, the Friday before a scheduled Monday hearing. Plaintiff moved for an award of attorney fees, contending that both the motion and the brief were untimely.
On July 5, 1990, the circuit court issued an opinion and order granting plaintiff's request for sanctions. The circuit court found that defendants' motion to dismiss was untimely, that the documentary evidence was improperly appended to the motion, and that the brief supporting the motion was filed untimely and improperly.
On July 18, 1990, the circuit court issued its judgment and order permanently enjoining defendants from conducting their pallet operation on their property, except for pallets constructed from wood grown on their property.
In this case, defendants appeal the circuit court's order permanently enjoining them from conducting their pallet operation, raising several issues. We find their third issue dispositive of most of their remaining issues, and address this issue first.
Defendants contend that the trial court erred in holding that they were estopped on the basis of public policy from challenging any procedural irregularities in the enactment of the ordinance. Defendants maintain that they should not be barred because plaintiff has failed to show that it would be prejudiced by such a challenge. We disagree.
When a zoning ordinance has been the subject of public acquiescence and reliance for a lengthy time, the reasonableness of a belated challenge is questionable. Edel v. Filer Twp, 49 Mich.App. 210, 214, 211 N.W.2d 547 (1973), Northville Area Non-Profit Housing Corp v. Walled Lake, 43 Mich.App. 424, 434-435, 204 N.W.2d 274 (1972). In Edel, a challenge to a zoning ordinance eighteen years after its enactment based on a claim that the township failed to strictly comply with the notice requirements of the enabling legislation was held to be precluded by estoppel and by overriding policy considerations. The Court in Northville concluded that a challenge to a zoning ordinance four years after its enactment on the ground that the ordinance was improperly enacted was precluded on public policy grounds. In this case, defendants...
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