STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS ALBERT C. PADGETT, Plaintiff-Appellant, UNPUBLISHED December 9, 2003 v Nos ; Mason Circuit Court MASON COUNTY ZONING COMMISSION, LC No AS and Defendant-Appellee, INTERNET LOCAL SERVICES, INC., a/k/a LOCAL INTERNET SERVICES, INC., Intervenor-Appellee. Before: Meter, P.J., and Saad and Schuette, JJ. PER CURIAM. In this consolidated action, plaintiff appeals by leave granted from the circuit court order affirming the Mason County Zoning Board of Appeals denial of plaintiff s request for a special use permit and its dismissal of the complaint. We affirm. I. FACTS Plaintiff is a farmer who owns a 35-acre parcel in Victory Township. Plaintiff conducted a hog farming operation of this property from 1980 to In 1993, a diseased herd led plaintiff to declare bankruptcy and to cease hog farming operations. In 1994, as a result of Victory Township relinquishing its zoning function to the county, plaintiff s land was rezoned from agricultural to residential. In 2000, another businessman assumed plaintiff s mortgage and contracted to dispose of his industrial ice cream waste as feed for hogs. The new business relationship enabled plaintiff to recommence the hog farming operation. The county, however, required plaintiff to file a request for a special use permit for his farming operation because his property was no longer zoned for such uses. Plaintiff filed the request for a special use permit in order to operate his farm. -1-

2 The Mason County Zoning Commission (the commission ) held a hearing and denied plaintiff s require for a special use permit for a hog farm operation. Plaintiff appealed this decision, and the Mason County Zoning Board of Appeals (the ZBA ) affirmed the commission s decision. In response, plaintiff filed a three-count complaint in circuit court. Count I sought an appeal of the ZBA s decision denying plaintiff s request for a special use permit for the hog farm operation. Count II sought a declaration that the zoning ordinance was invalid as violative of the Michigan Constitution and the Right to Farm Act, MCL et seq. Count III alleged a taking action for just compensation. The trial court held a hearing on the matter on May 21, 2001, and found that defendant had prevailed. The trial court found that plaintiff, despite his desire or hope to restart his farming operation, had ceased the operation in 1993 and, therefore, that it did not constitute a prior nonconforming use. The trial court also found that the ZBA had properly analyzed the special use permit factors when it declined to issue the special use permit, and that sufficient material evidence supported the ZBA s decision. The trial court also ruled that the Right to Farm Act ( RTFA ) was inapplicable. Defendant filed a proposed order with the trial court denying plaintiff s appeal and dismissing his complaint in its entirety. Plaintiff filed objections to the proposed order, arguing that defendant was bootstrapping a dismissal of counts II and III to the court s denial of plaintiff s appeal in count I. The trial court heard plaintiff s objection to the proposed order. Conceding that it may not have broken down each particular allegation in plaintiff s complaint, the trial court stated that it was nonetheless comfortable that its decision encompassed all three counts of plaintiff s complaint. The trial court signed defendant s proposed order denying plaintiff s appeal and dismissing his complaint with prejudice. In Docket No , plaintiff seeks relief from that portion of the trial court s order denying his appeal of the ZBA s decision. In Docket No , plaintiff seeks relief from that portion of the lower court s order dismissing his complaint in its entirety. These claims were consolidated in an order of this Court dated January 8, Local Internet Services, Inc., the intervening party in this action, has property across the street from plaintiff s farm at issue. II. SPECIAL USE PERMIT AND DECISION OF THE ZBA In his first issue on appeal, plaintiff claims that the ZBA erred in determining that plaintiff s hog farming facility did not constitute a prior nonconforming use and by denying plaintiff s request for a special use permit. A. Standard of Review An appeal from a decision of a zoning board of appeals is an administrative appeal. Paragon Properties Co v Novi, 452 Mich 568; 550 NW2d 772 (1996). When there is competent, material and substantial evidence in support of a decision, a reviewing court must not substitute its discretion for that of the administrative tribunal even if the court might have reached a different result. Black v Dep't of Social Services, 195 Mich App 27, 30; 489 NW2d 493 (1992). When reviewing a lower court's examination of administrative action, this Court must determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the factual findings, a standard of review -2-

3 "indistinguishable from the clearly erroneous standard of review. Boyd v Civil Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). As defined in numerous other contexts, a finding is clearly erroneous when, on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made. Id. at B. Analysis The question before us is whether the trial court misapplied the competent, material, and substantial evidence standard of review to the ZBA s decision that the hog farm operation did not constitute a prior nonconforming use. In applying the competent, material, and substantial evidence standard of review to an administrative decision, the trial court is required to review the entire record, and not just portions that support the agency's findings. Great Lakes Sales, Inc v State Tax Comm, 194 Mich App 271, 280; 486 NW2d 367 (1992). Substantial evidence is less than a preponderance of the evidence, but is more than a mere scintilla. In re Payne, 444 Mich 679, 692; 514 NW2d 121 (1994). Our Supreme Court has cited the dictionary definitions of "competent," "material," and "substantial" with regard to a Worker's Compensation Appellate Commission decision: "Competent, material, and substantial evidence... is solid, true, reliable, authoritative, [and] capable...." Goff v Bil-Mar Foods, Inc (After Remand), 454 Mich 507, 514 n 5; 563 NW2d 214 (1997). Plaintiff argues that his construction and use of the property as a hog farming operation predated the zoning ordinance; therefore, the hog farming operation constitutes a prior nonconforming use for which no special use permit was required. Plaintiff also argues that because he never evidenced any abandonment of hog farming operations, the ZBA improperly applied section 301 of the ordinance at issue, which prohibits the reestablishment of a prior nonconforming use that has been discontinued for a period of more than one year. states: Specifically, the portion of the Mason County zoning ordinance at issue, section 301, Whenever a nonconforming use has been discontinued for a period of one year, such use shall not be re-established, and any future use shall be in conformity with the provisions of this ordinance.... The ordinance comports with MCL , the codification of the common law concept of prior nonconforming uses that existed before the enactment or amendment of an ordinance. Specifically, MCL (1) states, in pertinent part: The lawful use of a building or structure and of land or a premise as existing and lawful at the time of enactment of a zoning ordinance, or in the case of an amendment of an ordinance, then at the time of the amendment, may be continued although that use does not conform with the provisions of the zoning ordinance or amendment. A prior nonconforming use is a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because it lawfully existed at the time of the zoning regulation s effective date. MCL ; Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993). Accordingly, we note that it has been established that a zoning restriction s -3-

4 enactment date is the critical point in determining when a nonconforming use vests. Id. That is, where a party's lawful use existed before and at the time of the enactment of the zoning regulation, the use may continue after the zoning restriction takes effect. Id. Consequently, once a property owner establishes a prior nonconforming use, the subsequent enactment of a zoning restriction will not divest the property owner of the vested right. Id. The trial court was correct in concluding that the ZBA s decision, that plaintiff s use of the property as a hog farm did not constitute a prior nonconforming use, was supported by competent, material or substantial evidence. Specifically, the ZBA record reflects that, by his own admission, in 1993, before the zoning was relinquished to the county and changed from agricultural to residential, plaintiff discontinued the use that he presently seeks to recommence. Specifically, plaintiff expressly confirmed that when he went bankrupt in 1993, he went out of the business and ceased hog farming. Further, the record indicates that plaintiff s use of the property for hog farming operations was terminated from that time until 2000, a period of seven years. Additionally, the record reflects that the intervenor had expressly asked plaintiff if he intended to continue to raise hogs in the future, to which plaintiff responded in the negative. Moreover, no evidence indicates that plaintiff intended to reestablish his pig farming operations during that time. It is not disputed in this case that if the use of land does not constitute a prior nonconforming use, a special use permit would be required in order for a party to use land in a way not conforming to the zoning restrictions. As noted, the record supports the ZBA s conclusion that plaintiff s hog farming operation did not constitute a nonconforming use. Accordingly, the ZBA s requirement of a special use permit in this case was warranted. Furthermore, there was competent, material and sufficient evidence supporting the ZBA s decision to deny the special use permit. Specifically, as evidenced by the transcript of the ZBA, the ZBA considered the evidence and testimony presented and specifically applied the criteria for special use set forth in section 502 of the ordinance at issue. For example, the transcript reflects that each ZBA member expressly reviewed each of the criteria for the issuance of a special use permit, in conjunction with the factual record, and found the proposed use to be in violation of items 1, 2, 4 and 7 of the ordinance. Accordingly, the denial of the special use permit was supported by substantial facts on the record and the terms of the ordinance, and the trial court did not err in upholding the ZBA s denial of such a permit. III. MICHIGAN RIGHT TO FARM ACT Next, plaintiff asserts that the Mason County zoning ordinance, and the ZBA s denial of his request for a special use permit, to the extent his farm was being zoned out due to odors, constitute violations of Michigan s Right to Farm Act (RTFA). A. Standard of Review This issue was set forth in Count II of plaintiff s complaint. The trial court did not indicate upon what theory it dismissed Counts II and III of the complaint. However, because the trial court summarily dismissed Counts II and III, the standard of review for a motion for summary disposition is appropriate. This Court reviews de novo a trial court's ruling on a motion for summary disposition. Spiek v Dep t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Further, issues of statutory construction are reviewed de novo on appeal. Id. -4-

5 B. Analysis The RTFA prohibits nuisance litigation against farm operations that conform to generally accepted agricultural practices. MCL ; Steffens v Keeler, 200 Mich App 179, 181; 503 NW2d 675 (1993). Specifically, the RTFA establishes that a farm operation will not be found to be a public or private nuisance if the farm operation existed before a change in the land use and, if before that change in land use, the farm operation would not have been a nuisance. MCL The 1999 amendment to the RTFA simply indicates that local zoning ordinances cannot preempt the RTFA. MCL (6); Belvidere Twp v Heinze, 241 Mich App 324, ; 615 NW2d 250 (2000). Ultimately, as set forth in Heinze, the purpose of the RTFA is to protect farmers from nuisance suits, not to make farms exempt from zoning. Id. at 331. Based on the foregoing, we conclude that the RTFA is inapplicable in the instant action. Plaintiff s hog farming operation, contrary to his contention, was not being zoned out due to odors. There is no indication that the commission or the ZBA based its ordinance or its decisions on grounds that the hog farming operations constitutes a nuisance. Rather, as noted, facts on the record clearly show that plaintiff had ceased use of his property as a hog farm before the ordinance at issue was enacted and had no vested prior nonconforming use when the county zoned the property in Accordingly, the county has not eliminated plaintiff s farm based on nuisance, but has simply denied plaintiff s special use application. Consequently, the RTFA is inapplicable and offers no support for plaintiff s appeal. IV. TAKING OF PROPERTY WITHOUT JUST CAUSE Next, plaintiff argues that the Mason County zoning ordinance, and the denial of his request for a special use permit, amount to an unconstitutional taking of his property entitling him to just compensation. A. Standard of Review Zoning ordinances are presumed to be constitutional. For example, in Northville Area Non-Profit Housing Corp v City of Walled Lake, 43 Mich App 424, 431; 204 NW2d 274 (1972), this Court stated: It is a well-settled principle of law that there is a presumption in favor of the validity of a legislative enactment, to wit: the amendment to the city zoning ordinance, by virtue of its adoption. It is also well-settled that he who claims the ordinance to be invalid has a burden of proving the invalidity by a preponderance of the evidence. B. Analysis In this case, plaintiff argues that the application of the ordinance to his property constitutes a taking because it prohibits him from using his property as a hog farm, the only use to which the property is reasonably adapted. However, the prohibition of taking property without just compensation extends only to vested rights in property. 8A Mich Civ Jur (2002), p 228; Snow v Freeman, 55 Mich App 84, 87, 222 NW2d 43 (1974), rev d on other grounds 405 Mich 837 (1979). In this case, as set forth supra, the operation of a pig farm on plaintiff s -5-

6 property did not constitute a prior nonconforming use at the time the property was zoned. Accordingly, at the time he submitted his application for a special use permit, plaintiff had no vested interest in a prior nonconforming use. Because plaintiff did not have a vested right to use his property as a hog farm in violation of the zoning ordinance, there can have been no taking. Rather, the ZBA simply followed its duly enacted zoning ordinance in denying plaintiff s request for a special use permit. Accordingly, there has been no taking of plaintiff s property and the county s enforcement of its zoning ordinance was a valid exercise of its police power. Finally, plaintiff contends that the trial court erred when dismissing Counts II and III of his complaint. Again, as noted, plaintiff did not have a valid nonconforming use at the time the ordinance at issue was enacted. Accordingly, the trial court could grant no meaningful relief on any counts because plaintiff had no right to use his property as a hog farm. Consequently, plaintiff could not prevail on any claim contained in his complaint. An issue is moot when it presents "nothing but abstract questions of law which do not rest upon existing facts or rights. East Grand Rapids School Dist v Kent Co Tax Allocation Bd, 415 Mich 381, 390; 330 NW2d 7 (1982). Therefore, the decision on the merits of plaintiff s appeal rendered Counts II and III of plaintiff s complaint moot. As a general rule, a court will not decide moot issues. Id. Therefore, defendant and intervenor were entitled to judgment as a matter of law on these counts. In light of the foregoing, that the fact that there was no express recitation that defendant and intervenor were seeking a dismissal pursuant to MCR 2.116(C)(1)-(10) is of no consequence. Affirmed. /s/ Patrick M. Meter /s/ Henry William Saad -6-

7 STATE OF MICHIGAN COURT OF APPEALS ALBERT C. PADGETT, Plaintiff-Appellant, UNPUBLISHED December 9, 2003 v No ; Mason Circuit Court MASON COUNTY ZONING COMMISSION, LC No AS and Defendant-Appellee. INTERNET LOCAL SERVICES, INC., a/k/a LOCAL INTERNET SERVICES, INC., Intervenor-Appellee. Before: Meter, P.J., and Saad and Schuette, JJ. SCHUETTE, J. (dissenting). I respectfully dissent form the majority s opinion and would reverse and remand the trial court s decision because there exist genuine issues of material fact whether plaintiff abandoned his farming operation and whether plaintiff s use of his land was non-conforming and protected by the Michigan Right to Farm Act (RTFA) from nuisance lawsuits. This case concerns whether a long-time family farmer who filed for bankruptcy when a disease wiped out his herd will have the opportunity to maintain his livelihood and recommence his hog farming operation. Plaintiff, it would appear from the record of this case, has been in the farming business in Victory Township in Mason County since the 1940 s. Plaintiff owns 35 acres of land and raises hogs. Plaintiff s hogs became infected with a disease which eliminated his entire herd and as a result, plaintiff filed for bankruptcy protection in However, plaintiff maintained ownership of his land, retained barns on the property as well as farm equipment and other farm machinery. In particular, plaintiff retained a sizeable underground storage pit or pond for hog manure. -1-

8 It would appear from the record that while plaintiff experienced financial difficulty he did not divest himself of farm assets nor did he subdivide and sell any real property which he owned. Indeed his Padgett Farms sign remained on the property with a picture of pigs on the sign. On January 1, 1994, a new Mason County Zoning ordinance came into effect which rezoned plaintiff s property in Victory Township from agricultural to residential-recreational. In 2000, plaintiff chose to recommence his farming operation, gained a new business partner and placed 1,000 hogs in his barns. He was informed of the zoning change and told he needed a special use permit. He removed the hogs and applied for a special use permit. The Mason County Zoning Board of Appeals denied plaintiff s request for a special use permit. The circuit court issued an order which upheld the Mason County ZBA s decision. This is a consolidated appeal which joins an appeal from the ZBA decision. Count I of plaintiff s complaint is an appeal of the ZBA decision. Count II of plaintiff s complaint alleged that plaintiff s use of the property was a non-conforming use and protected by the RTFA, MCL et seq, and in count III, plaintiff alleged an unjust taking without compensation. While the issues merge and overlap, a review of the record of this case and the analysis of pertinent case law and application of relevant Michigan statutes require a reversal of this matter. First, it is well established under Michigan law that a prior, non-conforming use is a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because it lawfully existed at the time of the zoning regulation s effective date. MCL , Heath Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993); Belvidere Twp v Heinze, 241 Mich App 324, ; 615 NW2d 250 (2000). A hearing was conducted by the trial court on May 21, The trial court declared that defendant had prevailed and affirmed the ZBA s denial of a special use permit and dismissed the remaining counts of plaintiff s complaint. The trial court erred. There exist genuine issues of material fact concerning whether plaintiff s use of the land was a prior non-conforming use and as such superceded the Mason Township ordinance which required a special use permit. On the issue of nonconforming use, no proofs were taken and no witnesses were called to testify or to be cross examined, only the presentations of the party s attorneys were considered. Secondly, as a corollary to the issue of nonconforming use, there exist genuine issues of material fact as to whether plaintiff abandoned his use of the land for farming purposes. It is well established case law in Michigan that mere nonuse or temporary discontinuance of use in and of itself does not constitute abandonment. Dusdal v City of Warren, 387 Mich 354; 196 NW2d 778 (1972). Rather, to establish abandonment, which would further substantiate defendants claim of a special use permit, an act or omission of abandonment plus intent to abandon the property or use of the property must be established. Id. at 359. Here, the trial court did not conduct an evidentiary hearing to assess the intent of plaintiff to abandon the property and to ascertain the veracity of the purported comments made by plaintiff to defendant intervenor that he would not start farming again. Thirdly, given the existence of genuine issues of material fact on the issues of nonconforming use and abandonment, the trial court should have applied the legal principles of the RTFA. Of great importance is (4)(6) of the RTFA which became effective June 1, 2000 which preempts local ordinances that conflict with RTFA. The real significance of the RTFA is -2-

9 to protect farmers from nuisance lawsuits including odors stemming from farm operations and the like, as long as a farmer adheres to generally accepted agricultural management practices. While defendants disclaim this matter is a nuisance suit, the air of the Mason County Zoning Commission proceedings reflected high anxiety concerning the odors associated with hog farming. In this case, because an evidentiary hearing was not conducted by the trial court, there exist genuine issues of material fact concerning plaintiff s use of the land and his intent to resume farming operations. If this case were remanded, the trial court might determine that plaintiff conclusively abandoned his land with the requisite intent and therefore a special use permit would be required in order for a proper resumption of farming operations. On the other hand, the trial court might determine that abandonment did not occur and therefore plaintiff s intended use was nonconforming. If so, plaintiff s protections and responsibilities under the RTFA would be triggered. Of particular significance would be plaintiff s adherence to generally accepted agricultural management practices concerning the storage of hog manure and the odors associated with hog farming. Farmers have the right to farm in Michigan. Farmers also have responsibilities as stewards of the land in Michigan. In this case, there was an insufficient determination of plaintiff s rights and responsibilities. I would reverse. /s/ Bill Schuette -3-