TWP v. Bateson

• Decision Date: 19 September 2013
• Docket Number: Docket Nos. 306575,306583.
• Citation: Lima TWP v. Bateson, 302 Mich.App. 483, 838 N.W.2d 898 (Mich. App. 2013)
• Parties: LIMA TWP v. BATESON.
• Court: Court of Appeal of Michigan

302 Mich.App. 483

838 N.W.2d 898

LIMA TWP

v.BATESON.

Docket Nos. 306575, 306583.

Court of Appeals of Michigan.

Submitted Feb. 6, 2013, at Lansing.

Decided Sept. 19, 2013, at 9:00 a.m.

Reading, Etter & Lillich, Ann Arbor (by Victor L. Lillich), for Lima Township.

Baker, Stringer & Garwood, LLP, Ann Arbor (by Thomas L. Stringer), for Ernest K. Bateson and Pamela Gough–Bahash.

Before: JANSEN, P.J., and WHITBECK and BORRELLO, JJ.

PER CURIAM.

In these consolidated appeals, in Docket No. 306575, appellants Ernest Bateson and Pamela Gough–Bahash (Gough) appeal as of right a trial court order denying appellants' motion for summary disposition and granting appellee Lima Township's motions for summary disposition and injunctive relief. In Docket No. 306583, Gough appeals the same order as of right.¹ For the reasons set forth in this opinion, we reverse and remand for further proceedings.

I. FACTS AND PROCEEDINGS

On December 23, 2009, Gough, Bateson's wife, purchased approximately 30 acres of land (the property) zoned AG–1 (agricultural) in Lima Township. Shortly thereafter, appellee Lima Township (Lima) filed a complaint ² for injunctive relief against appellants, alleging improper use of the property and improper storage of commercial vehicles, materials, and equipment on the property. Lima alleged that Bateson was using the property to conduct commercial business operations and store commercial vehicles and equipment.³ Lima claimed that these uses were not permitted under the Lima Township Zoning Ordinance (LTZO) and were a nuisance per se.

On the same day Lima filed its complaint, Gough filed a complaint ⁴ for declaratory relief against Lima, alleging that she and Bateson were developing a tree farm on the property, activity that was permitted in the AG–1 zone. Gough alleged that she had certain materials, supplies, equipment, and vehicles delivered to the property for purposes of preparing the property for the tree farm. Gough requested an order declaring that she was permitted to maintain the equipment on the property.

On August 11, 2010, appellants filed two motions for summary disposition. One motion requested summary disposition under MCR 2.116(C)(7) and (10) as to Gough's complaint for declaratory relief. The other requested summary disposition as to Lima's complaint pursuant to MCR 2.116(C)(7), (8), and (10). Appellants' motions were based on assertions that the activities being conducted on the property were a permitted agricultural use. Specifically, appellants asserted that it was their intent to operate a tree farm, which was permitted under the LTZO and protected by Michigan's Right to Farm Act (RTFA), MCL 286.471 et seq. Appellants supported their motions with affidavits in which they both averred that they were in the process of preparing the land for tree farming.

Lima opposed appellants' motions, arguing that appellants were not engaged in legitimate farming activities. Additionally, Lima filed a renewed motion for a preliminary injunction and a request for an evidentiary hearing. Lima also requested leave to amend its complaint and add allegations of ongoing excavation without a special use permit.

The trial court granted Lima's request for leave to file an amended complaint. In regard to Lima's motion for a preliminary injunction and evidentiary hearing, the trial court stated: “Motions for Summary disposition will be heard on October 20, 2010 ... and assuming motions for summary disposition are not granted, an evidentiary hearing on Plaintiff Lima Township's request for Preliminary injunction shall be heard on November 18, 2010.”

Lima filed its amended complaint on September 28, 2010. Shortly thereafter, the trial court entered a stipulated order dismissing Gough's complaint for declaratory relief—Case No. 10–000373–CZ—without prejudice. ⁵

On January 26, 2011, Lima filed a trial brief and brief in opposition to appellants' motion for summary disposition. Lima argued that appellants were not engaged in a legitimate farming activity protected under the RTFA. Lima supported its brief with affidavits, photographs, and other documentaryevidence and requested that the trial court deny appellants' motion for summary disposition and grant summary disposition in its favor pursuant to MCR 2.116(I)(2).

The trial court held a four-day evidentiary hearing on March 24, May 12, July 28, and July 29, 2011. At the hearing, several farmers from the area testified. This testimony showed that appellants kept heavy equipment on the property including trailers, flatbeds, gravel haulers, bulldozers, pay loaders and cranes. One witness testified that a farmer would want a lot of appellants' equipment. In addition, testimony showed that there were piles of dirt, rocks, asphalt millings, and large excavation sites on the property. Several area farmers testified that trucks regularly came and went from the property and two farmers approximated the number of trucks at 500. Several witnesses testified that appellants planted a number of trees near the front of the property, but other testimony showed that there was no harvestable hay on the property and one area resident with a farming background testified that the property was not desirable for farming. Other evidence showed that appellants were not violating the township's soil erosion ordinance, and the township supervisor testified that there was no claim that appellants were operating a quarry.

Wayne Whitman, the environmental manager for the Right to Farm Program at the Michigan Department of Agriculture and Rural Development (MDOA), also testified at the evidentiary hearing. Whitman inspected the property and reviewed aerial photographs of the property. He testified that some of the photographs depicted ground cover that appeared to be in “some sort of rows” or serving as “some kind of erosion control practice on that ground.” However, Whitman could not determine whether any farming was taking place because he did not know what type of vegetation was growing. Whitman testified that vegetation could suggest ongoing farming and that prairie grass and trees could be farm products. Whitman had written a letter after inspecting the property that addressed the RTFA and generally accepted agricultural and management practices (GAAMPs), and he agreed at the hearing that “tree planting and the use of water to irrigate the crops would be included in the definition” of farming activities protected by the RFTA. Whitman agreed that trees were planted on the property and he agreed that a pond used to irrigate crops would be protected under the RTFA. Whitman testified that the trees planted on the property indicated the potential for a farm market because they could be sold on the property.

In regard to the vehicles and equipment stored on the property, Whitman stated that he could not form an opinion as to whether they fell under the RFTA because he did not know what the equipment was used for. However, Whitman testified that if it was being used for the commercial production of a farm product, then it would be permitted under the RTFA. Whitman further testified that the RTFA refers to the use of equipment and does not limit the amount of equipment that a person can maintain on a farm. Whitman also testified that he was aware of other farms that used heavy equipment for farming purposes, including bulldozers, cranes, and other “rather substantial equipment.”

Gough testified that she purchased the property intending to start a tree farm and that appellants had made significant improvements to the property in order to prepare it for farming. Specifically, appellants graded the property, made improvements to the driveway, and extended it to provide access to the rest of the property. Gough stated that Bateson hauled in several truckloads of asphalt millings and had to dig up soil to lay the asphalt. Gough further stated that the previous owners left large piles of dirt along the driveway when they built it so appellants had to remove that dirt. Gough testified that neighbors who saw a large number of trucks coming and going from the property were observing the property at the time appellants were doing asphalt work.

Gough denied that appellants were engaged in commercial activity other than farming. Gough admitted that appellants removed some soil, but stated that it was in relation to the paving and grading projects, and she denied that 500 truckloads of material had been removed. Gough estimated that appellants removed about 30 truckloads, explaining that most of the loads went to Bateson's industrial site for processing and use elsewhere. Gough was also aware of two instances in which material was removed from the property and delivered to some customers.

In regard to the tree farming operation, Gough testified that Bateson used his equipment to move topsoil, prepare the land for planting, and dig holes for planting trees. Gough and family members followed behind and planted about 500 or 600 trees by hand. Gough stated that appellants planned to use two cranes stored on the property to dig an irrigation pond. Gough also stated that she intended to build a barn on the property, obtain livestock, and build a farm market with a parking lot. Gough planned to use hay that Bateson baled for the livestock.

Bateson testified that he was involved in the business of contracting and supplying landscape materials and that he previously owned two commercial locations in Michigan. Bateson testified that he planned to use the property for farming and as a residence, but explained that the property required significant improvements because it was wet and improperly graded. According to Bateson, appellants improved the driveway, installed gravel and asphalt near the rear of the property where they intended to erect a farm market, and performed extensive landscaping. Bateson testified that he laid 10,000 yards of sod, used a lot of equipment to prepare the soil and move the sod,...