                          STATE OF MICHIGAN

                            COURT OF APPEALS



LIMA TOWNSHIP,                                                       UNPUBLISHED
                                                                     October 11, 2018
               Plaintiff-Appellee,

v                                                                    No. 338934
                                                                     Washtenaw Circuit Court
ERNEST K. BATESON and PAMELA E.                                      LC No. 10-000368-CZ
GOUGH-BAHASH,

               Defendants-Appellants.


Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

        In this action to abate a nuisance, defendants, Ernest K. Bateson and Pamela E. Gough-
Bahash,1 appeal by right the trial court’s final order enjoining them from using the property
commonly known as 8786 West Liberty Road in violation of Lima Township’s zoning
ordinances. On appeal, Bateson and Gough maintain that the trial court erred when it determined
that their use of the property was not protected under the Right to Farm Act, MCL 286.471 et
seq. We conclude that the trial court did not err when it determined that Bateson and Gough
failed to establish that the Right to Farm Act protected their storage and use of the vehicles and
equipment on the property at issue. Accordingly, we affirm.

                                        I. BASIC FACTS

         We recited the facts underlying this litigation at some length in a previous appeal to this
Court and will not repeat them here. See Lima Twp v Bateson, 302 Mich App 483, 485-491; 838
NW2d 898 (2013). In that appeal, we determined that the trial court erred in several respects,
and remanded the case to the trial court—in relevant part—to make the necessary findings of fact
for its decision to grant injunctive relief. Id. at 501. We also instructed the court to correct an
evidentiary error by considering the testimony of an additional witness, Robert Pesko. Id. at 502.
And we retained jurisdiction. Id. at 504. On remand, the trial court decided to schedule the
matter for trial. Because the trial court intended to hold a trial, we determined that the issues


1
  Gough-Bahash and Bateson married after the start of this litigation. However, for ease of
reference, we shall refer to her as Gough.


                                                -1-
remaining on appeal were moot and dismissed the appeals.2 After we relinquished jurisdiction, a
successor judge elected not to hold the trial. Instead, in September 2015, the successor judge
proceeded to hold an evidentiary hearing to take Pesko’s testimony and then decided the issue on
the record evidence with the additional testimony.3 The trial court entered an order stating its
findings in June 2016 but did not enter its final order abating the nuisance until May 2017. This
appeal followed.

                                 II. THE RIGHT TO FARM ACT

                                  A. STANDARD OF REVIEW

       On appeal, Bateson and Gough argue that the trial court erred when it determined that
they had not proved by a preponderance of the evidence that they used and stored the vehicles
and equipment at issue in the operation of a farm within the meaning of the Right to Farm Act.
They also maintain that the trial court should have found that their storage and use of the
vehicles and equipment complied with Generally Accepted Agricultural Management Practices
(accepted agricultural practices).

        This Court reviews de novo whether the trial court properly interpreted and applied the
relevant statutes. Pransky v Falcon Group, Inc, 311 Mich App 164, 173; 874 NW2d 367 (2015)
(citation omitted). Proceedings for abatement of a nuisance are equitable in nature and we
review de novo a trial court’s decision in that regard, but its findings of fact are reviewed for
clear error. Ypsilanti Twp v Kircher, 281 Mich App 251, 270; 761 NW2d 761 (2008). A trial
court’s findings are clearly erroneous when, after reviewing the record, this Court is left with the
definite and firm conviction that the trial court made a mistake. Loutts v Loutts, 298 Mich App
21, 26; 826 NW2d 152 (2012).

                                          B. ANALYSIS

        In its original complaint, Lima Township alleged that Bateson had already been sued for
violating zoning ordinances with regard to another property at 7970 West Liberty Road where he
operated a business involving the commercial production and sale of topsoil and landscaping
materials. It further alleged that, after the trial court in that case ordered the barricading of that
property, Bateson moved his commercial equipment and vehicles to the property involved in this
case and began to operate his business from there. It alleged that the operation of a commercial
contractor’s establishment or storage yard, the operation of a commercial business, and the
storing and staging of the commercial trucks, equipment, and landscaping materials were not
permitted uses for a lot zoned as an AG-1 District. It concluded that the unlawful uses amounted
to a nuisance and asked the trial court to abate the nuisance. Lima Township later amended its



2
 See Lima Twp v Bateson, unpublished order of the Court of Appeals, entered January 29, 2015
(Docket Nos. 306575 and 306583).
3
  The parties did not contest the trial court’s decision to proceed in this manner, and that decision
is not at issue on appeal.


                                                 -2-
complaint to include allegations that Bateson and Gough were removing soils and materials from
the property without obtaining a special use permit as required by its zoning ordinances.

         It was undisputed that the property commonly known as 8786 West Liberty Road was
zoned as an AG-1 District under Lima Township’s zoning ordinance. The zoning ordinances
permitted various uses, which included, in relevant part, “[a]gricultural uses and customary farm
accessory buildings, including apiaries and greenhouses,” “[r]oadside stands selling seasonal
farm produce,” “single-family dwelling,” “[t]ree, sod farm,” “[f]ertilizer sales, feed or seed
sales,” and “[s]tructures or roads for the development, protection and conservation of open space,
watersheds, water, soil, forest and wildlife resources.” Lima Township Zoning Ordinances
(Zoning Ord), § 4.5.2, 4-11. The term “agriculture” was further defined to mean the “use of land
for tilling of the soil, the raising of tree and field crops, or raising animals as a source of
income.” Zoning Ord, § 2.2, 2-2.

        The ordinance did not permit the storage or staging of commercial vehicles and
equipment for a commercial operation in a district zoned AG-1. The ordinances did allow a
landowner in a district zoned AG-1 to conduct the “off premise storage of service vehicles” and
permitted “[q]uarries, mineral mining, sand and gravel pits, soil removal and other extractive
excavations” as special uses. Zoning Ord, § 4.5.2, 4-12. However, a landowner or occupier had
to obtain a permit for those special uses. See, generally, Zoning Ord, § 3.3; see also Zoning Ord,
§ 5.27.2, 5-35 (requiring a permit for quarry or extractive operation). Notably, the ordinances
provide that a “quarry” means any “pit, excavation or mining operation for the purpose of
removal of excavated materials such as earth, topsoil, sand, aggregate, clay or stone, for sale,
transportation, exchange or barter, away from the premises.” Zoning Ord, § 2.2, 2-21.

        In response to Lima Township’s complaints, Bateson and Gough claimed that they were
conducting a tree farm and nursery on the property and that all the equipment and vehicles were
being used to prepare the land for the tree farm and to conduct tree farming operations. They
further claimed that, to the extent that their storage and use of the equipment and vehicles were
prohibited by Lima Township’s zoning ordinances, those ordinances were preempted by the
Right to Farm Act.

        As this Court observed in the previous appeal, “a violation of a zoning ordinance
constitutes a nuisance per se, and a court must order it abated.” Lima Twp, 302 Mich App at
493, citing MCL 125.3407. However, activities falling under the purview of the Right to Farm
Act cannot be barred by a local zoning ordinance. Id., citing MCL 286.474(6). In order to be
protected under the act, the activity alleged to be a nuisance must be a “farm” or “farm
operation” within the meaning of the Right to Farm Act and must conform to accepted
agricultural practices. Id. at 494, citing MCL 286.473(1). This Court also held that the party
asserting the Right to Farm Act as a defense to an abatement action has the burden to prove by a
preponderance of the evidence that the challenged condition or activity constitutes a farm or farm
operation within the meaning of the act and conforms to accepted agricultural practices. Id. at
496.

       The Right to Farm Act protects the right to engage in the commercial production of farm
products. See Lima Twp, 302 Mich App at 498 (recognizing that the act protects commercial
farms and farm operations). For example, a “farm” is defined under the act to be “the land,

                                               -3-
plants, animals, structures, including ponds used for agricultural or aquacultural activities,
machinery, equipment, and other appurtenances used in the commercial production of farm
products.” MCL 286.472(a) (emphasis added). Similarly, a “farm operation” is defined to mean
“the operation and management of a farm or a condition or activity that occurs at any time as
necessary on a farm in connection with the commercial production, harvesting, and storage of
farm products . . . .” MCL 286.472(b). As for the storage and use of machinery, such use will
constitute a farm operation if the use is “necessary for a farm”—that is, necessary for the
commercial production of farm products. MCL 286.472(b)(iii).

        As Lima Township correctly notes on appeal, the machinery and equipment must be used
in the commercial production of farm products. It is not enough to show that the property is
being used as a farm or farm operation and that the equipment or machinery is on the farm; the
landowner must show that the machinery and equipment are used to further the farm operations.
If the use and storage are not “necessary for a farm,” MCL 286.472(b)(iii), the municipality may
enforce its ordinances regulating the use and storage of the machinery. See Papadelis v City of
Troy, 478 Mich 934, 934; 733 NW2d 397 (2007) (holding that the municipality could enforce its
ordinances regulating the construction of a greenhouse because no part of the Right to Farm Act
or accepted agricultural practices addressed the permitting, size, height, bulk, floor area,
construction, and location of buildings used for greenhouses).

        In the previous appeal, this Court acknowledged that Bateson and Gough claimed to be
preparing the land for, and actually operating, a tree farm. The Court further recognized that
trees are a farm product protected by the Right to Farm Act. Lima Twp, 302 Mich App at 498.
However, this Court also determined that the evidence before the trial court presented a question
of fact as to whether Bateson and Gough actually intended to produce trees and sell them for a
profit, which was a prerequisite for commercial production, and determined that there was a
question of fact as to whether the activities alleged to be a nuisance were “necessarily related to
the production and sale of the trees.” Id.

        On remand, the trial court resolved those questions of fact.4 The trial court recognized
that the activities at issue were: the constant coming and going of commercial gravel haulers and
other commercial vehicles to and from the property; the continuous storage of commercial
equipment and vehicles on the property; and the excavation and removal of materials from the
property. The court then found that Bateson and Gough had engaged in “a poorly constructed



4
   The trial court elected to rely on the evidence previously presented during the evidentiary
hearing that spanned four days, along with the testimony taken from Pesko in September 2015.
It denied Lima Township’s request to expand the record to include evidence collected since the
evidentiary hearings. Nevertheless, Bateson and Gough have attached exhibits to their appeal
that were not before the trial court, and Lima Township argues that this Court should consider
the evidence that it collected and submitted after this Court’s remand. We decline to consider
the additional evidence; instead, we shall review the trial court’s findings of fact by considering
only the record established by the trial court. See Sherman v Sea Ray Boats, Inc, 251 Mich App
41, 56; 649 NW2d 783 (2002).


                                                -4-
attempt to cover for an illegal gravel pit operation.” It was “persuaded” that the alleged activities
were “not typically found on commercial tree growing operations.” The evidence, the court
related, “established that [the] removal of materials of the quantity and type occurring on
Bateson and Gough’s property [did] not arise from tree farming operations.” It also found that
the “commercial vehicles used and stored on the property [were] not the type that have any
logical use in tree farming operations.” On the basis of the evidence that “trucks regularly came
and went from the property” and that the property was used to store “drag lines, gravel haulers,
bull dozers, road graders, semi-truck trailers, and pay loaders” as well as “piles of dirt, steel, and
asphalt millings,” the trial court found that Bateson and Gough were “actually engaged in a
gravel hauling operation.”

        The trial court rejected Bateson and Gough’s evidence that they were engaged in a tree
farm operation. The court recognized that there was evidence that they had planted trees on the
front acreage of the property, but it stated that there was also evidence that the land was not
suitable as a farm. It discounted the evidence that Bateson and Gough had baled some hay
because there was testimony that the hay was not harvestable. The court then found that Bateson
and Gough failed to meet their burden to persuade the court that they were using the property as
a farm. For that reason, it indicated that it did not need to determine whether the activities at
issue conformed to accepted agricultural practices.

       The trial court’s findings were fully supported by the record evidence. There was
evidence that Bateson had been engaged in the commercial production and sale of landscaping
materials and that he provided contractor services related to landscaping. Bateson testified that
he was in the business of contracting and supplying landscaping materials. Gough similarly said
that Bateson was in the “dirt business” and dug ponds as a sideline. After Gough purchased
8786 West Liberty Road, Bateson began moving commercial equipment and vehicles to the
property.

        There was photo evidence and testimony that Bateson improved the driveway, created
additional access roads around the pond and to the north end of the property, dredged the pond,
and created a parking area. Bateson and Gough claimed that the driveway improvements,
alterations to the pond, and the creation of a parking area—characterized as the farm market area
by Bateson—were necessary to prepare the property for a tree farm. But those improvements
were also consistent with the use of the property as a storage and staging area for Bateson’s
commercial business and as an area for the commercial extraction and processing of landscaping
aggregates. A neighboring farmer, Joseph Egan, testified that the use of millings on the property
helped make a “hard packed base for heavy equipment” and described the road around the pond
as being 100 feet wide. The scale and nature of the improvements suggested that Bateson and
Gough made and used the improvements to support Bateson’s commercial landscaping business
rather than for establishing a tree farm or other farm operation.

        The photo evidence showed that the driveway, parking area, and additional roads were all
located well beyond the area where Bateson and Gough planted trees. The additional access
roads also appeared to facilitate the extraction, storage, and processing of landscaping materials;
they did not appear consistent with any ordinary farming practices. The size of the parking
area—described by Egan as half a football field in length—was also inconsistent with the small
tree farm that the property could support. It was, however, well adapted to store equipment and

                                                 -5-
vehicles for a commercial landscaping business. The improvements to the driveway also plainly
aided the ingress and egress of the heavy commercial vehicles actually operating from the
property. Similarly, although Bateson and Gough described the pond as an irrigation pond,
Gough in effect testified that the pond was not suited to irrigate the trees planted on the front
acreage. That, she explained, was why she wanted Bateson to construct another pond in the
wetlands nearer to the trees that they had planted. Moreover, the removal of nutrient rich soil
from the pond—and any future pond created in the wetlands—was consistent with supporting
Bateson’s landscaping business because it provided him with more materials for sale to the
general public. Thus, although the improvements could in theory have been done to develop the
property as a tree farm, the improvements were also consistent with—and perhaps better suited
to—the use of the property as a staging and storage area for Bateson’s landscaping business.

        The equipment and vehicles actually kept on the property, when considered as a whole,
also strongly suggested that Bateson and Gough were not actually using them to operate a tree
farm, or any other type of farm. The number and types of vehicles and equipment were
consistent with Bateson’s landscaping business, but were not well suited to a small tree farm
operation. Bateson pointed to the fact that some farm owners in the vicinity had one or more
vehicles or pieces of equipment on their farms that were similar to his equipment and machinery.
But there was no evidence at the evidentiary hearing that any farm used or stored a comparable
number of vehicles and equipment so specialized for landscaping and soil extraction and
blending, and did so for such a modest acreage.

        There was also testimony that the numbers and types of vehicles and pieces of equipment
were inconsistent with the type of farming activities claimed by Bateson and Gough. Bateson
and Gough correctly note that one neighboring farmer—Howard Sias—testified that many
farmers would love to have the equipment that Bateson had available to him, but they omit the
fact that he clarified that purchasing such equipment was not practical for a property of that size:
“We’d all like a big digger and a bulldozer, and you know. Gravel trains make great grain
haulers,” but a gravel train was “just too expensive for what—what we do.”

        The implications from the testimony and other evidence was that a farmer might be able
to put some of the equipment and vehicles that Bateson stored on the property to use for farming,
but that the items were not practical or well suited to farming. Instead, the testimony suggested
that a reasonable farmer would hire a contractor—such as Bateson—to come to his or her farm
and make the occasional landscaping improvements rather than incurring the expense of
acquiring and maintaining such a large inventory of vehicles and equipment for limited use.

        It was also noteworthy that the evidence showed that Bateson hired Sias to cut and bale
what Bateson characterized as hay, but Sias testified that he used his own equipment to cut and
bale the hay. Thus, there was evidence that Bateson did not even have the necessary equipment
to cut and bale hay. Additionally, Gough admitted that they planted the trees by hand. The trial
court could infer from this evidence that Bateson and Gough did not have the equipment
reasonably necessary to run the type of farm they claimed to be starting but instead had
equipment and vehicles that—although in theory capable of being adapted for farm use—were
not actually being used to maintain a tree farm or other farm operation.



                                                -6-
        There was also testimony, photos, and logs that showed that trucks and equipment
frequently traveled to and from the property. Three neighboring farmers—Egan, Kenneth
Prielipp, and Dale Frey—each agreed that about 500 trucks left the property at issue over the
course of the summer before the evidentiary hearing. The testimony and evidence documenting
the truck traffic showed that some trucks left full and came back empty, and on other occasions
came back with aggregates and dumped them on the property. Bateson and Gough maintained
that these coming and goings were all in furtherance of the development of their small tree
farming operation. But again, the scale of the documented comings and goings of trucks and
heavy equipment strongly implied that the vehicles and equipment were being used in
furtherance of Bateson’s commercial landscaping business. Indeed, Gough admitted that some
trucks carried materials to another property for use in Bateson’s business. Gough also admitted
that Bateson’s employee sometimes came to the property to retrieve a vehicle and use it
elsewhere. Bateson too testified that vehicles occasionally left to go to other sites and work on
projects. Indeed, there was testimony that Bateson delivered aggregates to a local athletic club
and performed landscaping at that site. Gough claimed that Bateson did not charge for the
aggregates removed from the property at issue and transported to the athletic club—he only
charged for his services and the use of the equipment—but that did not change the fact that there
was direct evidence that Bateson continued to use the vehicles and equipment stored on his
property to further Bateson’s commercial landscaping business.

        There was also testimony that a township official—Kenneth Unterbrink—followed one
of Bateson’s trucks after it left the property at issue. After following the truck to the expressway,
the truck’s driver pulled off the highway and parked at a gas station. After some time, Bateson
arrived and used his vehicle to block the township official as the truck drove back to the
highway. Bateson’s aggressive and intimidating behavior gave rise to an inference that he was
trying to hide the fact that he was using the property for purposes beyond those permitted by
Lima Township. If he were using the trucks as part of protected farm operation, Bateson would
have no reason to prevent the township official from observing the truck’s cargo and destination.

        Bateson and Gough make much of the fact that the evidence did not show that there was
a substantial disturbance of the surface of the land at issue. From that and other evidence, they
maintain that the trial court ignored the evidence that they did not conduct a gravel pit or quarry
at the property. However, Bateson and Gough admitted at the evidentiary hearing that Bateson
had extracted aggregates from the property and delivered them to other locations—albeit less
than claimed by the other witnesses. Bateson testified that he removed about 1500 cubic yards
from the property, which he opined was all perfectly legal. He also presented testimony by a
retired engineer who calculated the total material removed from the property at about 722 yards,
which, he offered, would not require even close to 500 truckloads to transport. Nevertheless,
aggregates are not a farm product under the Right to Farm Act. See MCL 286.472(c) (defining
farm products to be “plants and animals useful to human beings”). Thus, the extraction and
delivery of aggregates are not protected activities under the Right to Farm Act, see MCL
286.473, and there was no evidence that the extraction and delivery of aggregates in any way
furthered the use of their property as a tree farm or other farm.

        Bateson and Gough suggested before the trial court that the extraction of aggregates from
the property was permitted under Lima Township’s zoning ordinances to the extent that they
extracted less than 500 yards per year per lot. However, the zoning ordinances prohibit all

                                                -7-
unauthorized extraction, removal, or processing of sand, gravel, and stone. Zoning Ord,
§ 5.27.2, 5-35. The zoning ordinances additionally define a “quarry” to mean an excavation or
extraction or mining operation done for the purpose of removing or excavating material “such as
earth, topsoil, sand, aggregate, clay, or stone, for sale, transportation, exchange or barter, away
from the premises.” Zoning Ord, § 2.2, 2-21. The ordinance does not permit the extraction of
the identified materials up to a threshold amount; rather, it provides that the extraction of the
identified materials, when done for the purpose of transporting the materials away from the
premises, constitutes a quarry. Bateson and Gough provided testimony from which the trial
court could have found that they operated a quarry when they admitted that they transported
aggregates away from the premises. Bateson’s opinion that he could extract up to 500 yards per
year was simply not supported by the plain language of the ordinance. The ordinance provided
that the removal of more than 500 “cubic yards in any calendar year shall be deemed a quarry
operation.” Zoning Ord, § 2.2, 2-21 (emphasis added). Stated another way, even if the
landowner does not extract the material for sale, transportation, exchange or barter, away from
the premises, his or her removal of more than 500 yards of material will automatically constitute
a quarry operation that requires a special use permit. Therefore, the testimony and evidence
supported the trial court’s finding that Bateson and Gough operated a quarry without a permit.

        This Court previously determined that there was a question of fact as to whether Bateson
and Gough’s storage and staging of the vehicles and equipment at issue was part of a farm or
farm operation. Lima Twp, 302 Mich App at 498. The trial court found that their storage and
staging of the equipment and vehicles were not part of a farm or farm operation. Indeed, it found
that Gough and Bateson sought to portray their activities as a farm or farm operation as part of a
“poorly constructed attempt to cover for an illegal gravel pit operation.” Stated another way, the
trial court impliedly found that Bateson and Gough fabricated a defense under the Right to Farm
Act in order to evade the applicable zoning ordinances.5 While one might disagree with the trial
court’s findings, there was record support for them. And we are not left with the definite and
firm conviction that the trial court was incorrect. See Loutts, 298 Mich App at 26.

         The trial court did not clearly err when it found that Bateson and Gough did not engage in
the activities about which Lima Township complained as part of a farm or farm operation. See
Ypsilanti Twp, 281 Mich App at 270. It follows then that it did not err when it determined that
the Right to Farm Act did not preempt Lima Township’s zoning ordinances. See Lima Twp, 302
Mich App at 494-496. Moreover, because the trial court did not err when it determined that
Bateson and Gough failed to establish the first element of their defense under the Right to Farm
Act, it did not err when it declined to consider the second element. See id. at 500-501.


5
  Gough and Bateson rely on the decision in Brandon Twp v Tippett, 241 Mich App 417; 616
NW2d 243 (2000), for the proposition that they could store and stage their equipment and
vehicles on the property at issue consistent with the Right to Farm Act if they used the
equipment and vehicles to farm on their other properties. The trial court in this case found that
Bateson and Gough were not using the vehicles and equipment at issue for farming. As such,
whether they would be protected by the Right to Farm Act if they were using them for farming
elsewhere is irrelevant.


                                                -8-
                                  III. VEXATIOUS APPEAL

        On appeal, Lima Township argues that this Court should dismiss the appeal by Bateson
and Gough and sanction them for filing a vexatious proceeding. More specifically, Lima
Township maintains that this Court should sanction Bateson and Gough under MCR 7.216(C)(1),
and should do so without requiring Lima Township to file a motion under MCR 7.211(C)(8).
This Court has the authority to assess actual and punitive damages for a vexatious appeal on its
own initiative. See MCR 7.216(C)(1). However, when a party requests “damages or other
disciplinary action under MCR 7.216(C),” the request must be made in a motion filed under
MCR 7.211(C). See MCR 7.211(C)(8). “A request that is contained in any other pleading,
including a brief filed under MCR 7.212, will not constitute a motion under this rule.” Id.
Although Lima Township has framed this issue as a request for this Court to assess actual and
punitive damages on its own initiative, the request is in effect a motion for actual and punitive
damages that must be made by a properly filed motion. See Bonkowski v Allstate Ins Co, 281
Mich App 154, 182; 761 NW2d 784 (2008). Because Lima Township has not filed a motion
with this Court, we decline to consider the request. See id.

                                      IV. CONCLUSION

        Bateson and Gough failed to identify any errors that warrant reversing the trial court’s
final order compelling them to abate the nuisance conditions and activities identified in Lima
Township’s amended complaint. Accordingly, we affirm.

       Affirmed. As the prevailing party, Lima Township may tax costs. See MCR 7.219(A).



                                                           /s/ Mark J. Cavanagh
                                                           /s/ Jane E. Markey
                                                           /s/ Anica Letica




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