Posted by: Patricia Salkin | January 24, 2014

MI Appeals Court Holds Person Relying on Right to Farm Act Has the Burden of Proof in a Nuisance Suit

Appellants purchased property that was zoned agricultural in Lima Township (“Lima”), Michigan. Lima filed for an injunction against the appellants alleging that they were using the property to conduct commercial business operations and store commercial vehicles and equipment, which they claimed, was not permitted under the Lima Township Zoning Ordinance (“LTZO”) and was a nuisance per se. The appellants filed for declaratory relief to be permitted to maintain the equipment on the property because 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”).

Following four hearings, the trial court found that the appellants’ activities were not permitted nor protected. It granted injunctive relief to Lima and granted Lima’s motion for summary disposition. On appeal, the Court of Appeals held: 1) A party asserting the RTFA as a defense bears the burden to prove by a preponderance of the evidence that the challenged conduct was protected; 2) That genuine issues of material fact existed as to whether appellants alleged nuisance activities arose from the commercial production of trees, precluding summary disposition; 3) That the trial court abused its discretion when it refused to allow the testimony of a rebuttal witness; and 4) Appellants’ equal protection rights were not violated because they failed to show that they were treated differently from other similarly situated individuals.

On the matter of the RTFA, if appellants’ activity was protected under the RTFA, then the LTZO could not bar appellants from engaging in it and Lima was not entitled to injunctive relief. The RTFA affords farmers the following protection, “A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation conforms to generally accepted agricultural and management practices according the Michigan commission of agriculture.” In order for a party assert the RTFA as a defense, that party must prove the following two elements: (1) that the challenged condition or activity constitutes a “farm” or “farm operation” and (2) that the farm or farm operation conforms to the relevant GAAMPs. Here, there was a genuine issue of fact with regard to whether appellants proved by a preponderance of the evidence that they intended to produce and sell the trees and whether the alleged nuisances were related. Specifically, evidence showed that appellants kept heavy equipment on the property, removed soil from the property, and had extensive truck traffic at the property. However, other evidence showed that appellants planted a large number of trees on the property, that appellants intended to open a farm market there, and that appellants used the machinery to prepare the land and move farm products. In addition, testimony showed that the property needed significant improvements, which was done.

Moreover, the Right to Farm program’s environmental manager, did not testify that appellants were engaging in activity that fell outside the scope of the RTFA. The court held that the evidence presented by the parties required the trial court to weigh all the evidence and articulate findings of fact to determine whether appellants proved by a preponderance of the evidence that the alleged nuisance conditions and activities arose from the commercial production of trees, and the trial court erred by failing to do so.
A party must also prove that the farm or farm operation complies with applicable GAAMPs according to the policy of the Michigan commission of agriculture. A party can satisfy this element by introducing credible testimony or evidence. Here, the trial court did not make any findings with respect to the applicable GAAMPs, therefore, the trial court abused its discretion by granting Lima injunctive relief in that it erred as a matter of law when it failed to do so.

On the matter of the evidentiary error, appellants argued that the trial court abused its discretion when it refused to allow the testimony of a rebuttal witness they offered at the evidentiary hearing. Counsel for appellants did not identify Robert Pesko an engineer as a testifying witness during discovery. Lima offered testimony that appellants had removed about 500 truckloads of material from the property. Pesko’s testimony regarding the amount of material removed from the property could have contradicted Lima’s evidence. Therefore, the trial court erred as a matter of law by concluding that the testimony was not rebuttal and excluding it on that ground.

On the matter of the equal protection claim, appellants’ argued that Lima improperly singled them out as a “class of one” and denied them equal protection and due process.
They argued that Lima intentionally treated them differently from other similarly situated individuals. Specifically, Howard Sias and Kenneth Prielipp, who both testified at the hearing. They provided no factual analysis of how these individuals were similarly situated, and the record did not support that they were. Therefore, the court reversed and remanded.

Lima Twp. v. Bateson, 2013 WL 5288853 (Mich. Ct. App. 9/19/2013)

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=3477325329154618008&hl=en&as_sdt=6&as_vis=1&oi=scholarr


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