                            STATE OF MICHIGAN

                            COURT OF APPEALS



TOWNSHIP OF WILLIAMSTOWN,                                          UNPUBLISHED
                                                                   June 19, 2018
               Plaintiff-Appellee,

v                                                                  No. 337469
                                                                   Ingham Circuit Court
SANDALWOOD RANCH, LLC, ALEC                                        LC No. 15-000570-CZ
KOLENDA, and SARAH KOLENDA,

               Defendants-Appellants,
and

LOVE ADVERTISING, INC.,

               Defendant.


Before: SHAPIRO, P.J., and M. J. KELLY and O’BRIEN, JJ.

PER CURIAM.

       Defendants appeal the trial court’s order granting plaintiff’s summary disposition,
including a permanent injunction, entered pursuant to MCR 2.116(C)(9) and (C)(10); and MCR
2.504(B)(2) and MCR 2.517 (involuntary dismissal). For the reasons set forth below, we affirm.

                            I. FACTS AND PROCEDURAL HISTORY

       Defendant Sandalwood Ranch, LLC (Sandalwood Ranch), operates a commercial horse-
boarding facility and riding arena in Williamstown Township (the Township). Defendants Sara
and Alec Kolenda (the Kolendas) are the principal owners of Sandalwood Ranch.1 The property
contains a house in which the Kolendas reside, and a building that contains a barn with 26 stalls
and a riding arena. On a second floor of that building, above the riding arena, there is an



1
  The property is owned by defendant Love Advertising, who purchased the property at a
sheriff’s sale, and thereafter leased the property to Sandalwood Ranch. Love Advertising was
defaulted at the trial court level for failing to answer the complaint, and is not a party to this
appeal.



                                               -1-
apartment that has three bedrooms, a living room, bathrooms with showers, a dining room, and a
kitchen, which defendants rented to other occupants who provided some care for the horses.

        In December 2014, the Township notified the Kolendas that the use of the apartment, as a
second dwelling on the property, violated § 18.02(A)(3) of the Williamstown Township Zoning
Ordinance. This ordinance provides that (1) no building may be used as a second dwelling
beyond the principal residence of the farm; and (2) no living quarters may be located in an arena
building. Defendants responded that because the apartment fell within the protections of the
Right to Farm Act (RTFA), MCL 286.471 et seq, it was not subject to the ordinance. The
Township then filed this lawsuit claiming that because the apartment violates the ordinance, it is
a nuisance per se, and sought injunctive relief. Following defendants’ answer, the Township
filed for summary disposition asserting that the apartment did not fall within the categories
protected by the RTFA.

        Noting that there were factual matters relevant to its ruling, the trial court scheduled an
evidentiary hearing. Defendants presented evidence that the Kolendas each work full-time jobs
off the farm but that each morning, they spent three hours on the farm performing the morning
tasks of feeding, cleaning, and turning out the horses. Mrs. Kolenda testified that when she
returns from work around 5:00 or 6:00 p.m., she brings the horses in, and that they hire stable
workers to oversee the operation and the horses during the day while she is at work. She
explained that it is also necessary to conduct a “night check” at about 10:00 p.m. This check
does not involve any care of the horses, but is necessary to ensure that the horses were eating and
defecating properly, and are not in distress. According to Mrs. Kolenda, they rented the
apartment under an agreement whereby the tenant would perform the night checks in exchange
for a reduction in rent. The tenant also agreed to report any unusual sounds or activities that they
might hear during the night, which might require attention.

       As it relates to this case, the two categories protected by the Act are “farms” and “farm
operations.” MCL 286.472(a), defines “farm” as

       the land, plants, animals, buildings, structures, including ponds used for
       agricultural or aquacultural activities, machinery, equipment, and other
       appurtenances used in the commercial production of farm products.

The second category, “farm operation” is defined in MCL 286.472(b) as

       the operation and management of a farm or a condition or activity that occurs at
       any time as necessary on the farm in connection with the commercial production,
       harvesting, and storage of farm products . . . . (Emphasis added).

The trial court quickly dispensed with the first issue, noting that the Township has not sought to
prevent the use of the building that comprises the barn and arena, and that therefore, subsection
(a) is not implicated. The court concluded that the controlling issue is how the building is used
and whether using part of the building as a residence was a protected “farm operation.”

         Following the hearing, the court found that the apartment was “not necessary in the
commercial farming of Sandalwood Ranch.” The court issued an opinion from the bench stating
in part, as follows:


                                                -2-
[T]he statute says what it says. . . . . I’m ruling in regard to necessary . . . . [S]o
one of the things that I did in this case is looked at the word necessary in Black’s
Law Dictionary, and when you read necessary, much of what you found in the
statute the legislature pulled from Black’s Law Dictionary, so I’m going to read a
little bit of it to you. I’m not going to belabor the point. You’ll be out of here in a
few minutes, but I’d like to make my record so whichever of you so wishes, you
may appeal me.

        Necessary. This word must be considered in the connection in which it is
used as it is a word susceptible of various meanings. It may import absolute
physical necessity or inevitability or it may import that which is only
convenience, useful, appropriate, suitable, proper, or conducive to the end sought.
It is an adjective expressing degrees and may express mere convenience or that
which is indispensable or an absolute physical necessity. It may mean something
which in the accomplishment of a given object cannot be dispensed with or it may
mean something reasonably useful and proper and of greater or lesser benefit or
convenience and its force and meaning must be determined with relation to the
particular object sought, and that part that I underlined, which I think has
particular meaning to me was where it says, or that which is indispensable or an
absolute physical necessity.

        The testimony that I heard here today was very interesting to me because
something or someone is useful or convenient does not mean that they are
necessary, so I have to look, I have to ask, is it reasonably needed? Is it
necessary? So listening to the testimony, this apartment, how it’s used doesn’t
appear to me that there’s any accountability, there’s any real regularity, that
there’s a back-up plan for if a tenant has plans of their own. They certainly do not
account to the lessor. If they go away for the holidays, if they’re sick, if they go
visiting, if they’re out to dinner, they’re not checking on the horses. This is too
loose of an arrangement to say that it must be. It’s a verbal agreement that does
not contain anything about the horses, so if there’s a dispute, it becomes a he
said/she said or she said/she said. It may very well be a contract, and we all know
there are such things as verbal contracts. This goes beyond a month to month
living arrangement. It has other parts of a contract; the care of a horse. It’s not
just one hours. It’s 20 to 30, maybe more at times.

                                       * * *

       The problem here is that the apartment is not a necessity. You have two
women who come in between certain hours for feeding the animals. That’s a
necessity. You have a specific arrangement with them. You can call them
independent contractors, but I bet if you called them to come in at night, you
could have your dinner with your husband, you could have a vacation with your
parents, or Christmas dinner, whatever it is you wanted, as your back-up plan.
This apartment is not a necessity. It’s not necessary in the commercial farming
operation of Sandalwood Ranch.



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                                         II. ANALYSIS

                             A. STATUTORY CONSTRUCTION

      On appeal, defendants first argue that the trial court erred in concluding that MCL
286.472(b) applied in this case and not MCL 286.472(a). We disagree.2

        Defendants do not dispute that Article 18 of the Williamstown Township Zoning
Ordinance permit one dwelling per farm, which serves as the principal residence of the owner,
operator, or employee(s) of the farm, nor do they dispute that Article 8 of ordinance prohibits
living quarters in an arena building.

       The RTFA was enacted in 1981 to provide for circumstances under which a farm and its
operation shall not be found to be a public or private nuisance. Northville Twp v Coyne, 170
Mich App 446, 448; 429 NW2d 185 (1988); see also Scholma v Ottawa Co Rd Comm, 303 Mich
App 12, 22; 840 NW2d 186 (2013). The RTFA provides, in relevant part, that “a farm or farm
operation shall not be found to be a public or private nuisance if the farm or farm operation
alleged to be a nuisance conforms to generally accepted agricultural and management practices
according to policy determined by the Michigan commission of agriculture.” MCL 286.473(1).
The RTFA also expressly preempts local laws, including zoning ordinances, which conflict with
the RTFA or applicable GAAMPs. MCL 286.474(6). The RTFA is an affirmative defense, and
to successfully assert it as a defense, a party must prove two conditions: (1) the challenged
condition or activity constitutes a “farm” or “farm operation,” and (2) that the farm or farm
operation conforms to the relevant GAAMPs. Lima Twp v Bateson, 302 Mich App 483, 496;
838 NW2d 898 (2013).



2
   The trial court’s ultimate decision on a motion for involuntary dismissal under MCR
2.504(B)(2) is reviewed de novo, and the underlying findings of fact are reviewed for clear error.
Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995). Clear
error “occurs when the reviewing court is left with a definite and firm conviction that a mistake
has been made.” Douglas v Allstate Ins Co, 492 Mich 241, 256-257; 821 NW2d 472 (2012)
(quotation marks omitted). Although plaintiff’s motion was brought under both MCR
2.116(C)(9) and (10), we would review the motion under MCR 2.116(C)(10) because it is clear
that the trial court considered evidence outside the pleadings when it ruled on plaintiff’s
summary disposition motion. See Innovation Ventures, LLC v Liquid Mfg, LLC, 499 Mich 491,
506–507; 885 NW2d 861 (2016). When reviewing a motion under MCR 2.116(C)(10), this
Court “must consider the pleadings, affidavits, depositions, admissions, and other documentary
evidence in favor of the party opposing the motion.” Baker v Arbor Drugs, Inc, 215 Mich App
198, 202; 544 NW2d 727 (1996). The motion is properly granted if (1) there is no genuine issue
related to any material fact and (2) the moving party is entitled to judgment as a matter of law.
See Klein v HP Pelzer Auto Sys, Inc, 306 Mich App 67, 75; 854 NW2d 521 (2014). “A genuine
issue of material fact exists when the record, giving the benefit of reasonable doubt to the
opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen
Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).



                                               -4-
       As stated above, MCL 286.472(a) defines “farm” as

       the land, plants, animals, buildings, structures, including ponds used for
       agricultural or aquacultural activities, machinery, equipment, and other
       appurtenances used in the commercial production of farm products.

Defendants contend that the apartment is part of the arena building, and that any use of the
building falls within the definition of “farm” under § 2(a). Defendants misconstrue the statute.
The building itself is protected under § 2(a) given its use as a barn and arena, which are plainly
agricultural activities. However, this does not mean that every activity within the building is
necessarily shielded from local regulation. Such a holding would immunize unlawful activity
simply because it occurs in a farm building. Accordingly, like the trial court, we hold that the
proper inquiry is whether the use of that apartment building in connection with the business of
boarding horses is a protected “farm operation” under § 2(b).

        Indeed, there is no dispute that the apartment structure itself is not in violation of the
ordinance, and was within the definition of “farm” under § 2(a). In dispute however, is the use
of the apartment structure as a residence, which violates the Township ordinance, and which has
to be “necessary on a farm in connection with the commercial production, harvesting, and
storage of farm products.” MCL 286.472(b). Accordingly, § 2(b), not § 2(a), is implicated.

        Next, defendants argue that even if § 2(b) applies, the trial court erred by finding that the
use of the apartment as a second dwelling on the farm, was not necessary in connection with the
boarding of horses. We disagree.

        With respect to statutory interpretation,3 this Court is required to give effect to the
Legislature’s intent. Van Buren Co Ed Ass'n & Decatur Ed Support Personnel Assn, MEA/NEA
v Decatur Pub Sch, 309 Mich App 630, 643; 872 NW2d 710 (2015). The Legislature is
presumed to intend the meaning clearly expressed, and this Court must give effect to the plain,
ordinary, or generally accepted meaning of the Legislature’s terms. Lorencz v Ford Motor Co,
439 Mich 370, 376; 483 NW2d 844 (1992). If a statute defines a word or phrase, that definition
is controlling. Orthopaedic Assoc of Grand Rapids, PC v Dep't of Treasury, 300 Mich App 447,
451; 833 NW2d 395 (2013). “A statutory provision is ambiguous only if it irreconcilably
conflicts with another provision, or when it is equally susceptible to more than a single
meaning.” People v Fawaz, 299 Mich App 55, 63; 829 NW2d 259 (2012) (quotation marks and
citation omitted). Only when ambiguity exists does the Court turn to common canons of
construction for aid in construing a statute's meaning. People v Borchard-Ruhland, 460 Mich
278, 284-285, 597 NW2d 1 (1999).

        There are no published cases interpreting the definition of the word “necessary” as used
in the RTFA. Defendants ask us to interpret the word broadly to mean “useful or proper,” while



3
 We review questions of statutory interpretation de novo. In re Wayne Co Treasurer Petition,
478 Mich 1, 6; 732 NW2d 458 (2007).



                                                 -5-
plaintiff asks us to interpret the word narrowly to mean “absolutely essential, indispensable, or
vital.”

        The testimony elicited at the evidentiary hearing reveals that the use of the apartment as a
second dwelling by a tenant, who can perform the 10 p.m. check on the horses, is not necessary
to defendants’ horse-boarding business. Defendants’ first tenant, who rented the apartment in
2013, performed the nightly checks and moved out in the summer of 2013. Afterwards, a second
tenant stayed in the apartment for a year or a year-and-a-half, but did not perform the nightly
checks on the horses. Mrs. Kolenda testified that they rented the apartment to this second tenant,
without a discount, for $950 because they needed the income. After the second tenant moved
out, defendants rented out the apartment to tenants who performed the nightly checks until April
2016, when they stopped. The Kolendas’ testimony establishes that use of the apartment as a
second dwelling by a tenant is a matter of convenience. While we do not accept the plaintiff’s
contention that “necessary” should be read to mean “absolutely necessary,” it is clear that in this
case, the rental of the apartment was intended to induce a third party to perform work that
defendants had performed in the past and for which they could hire workers without providing a
rental apartment. The fact that having a person other than themselves perform the night check
was of assistance in providing the Kolendas with a desirable degree of flexibility and time off
does not mean that such a tenant is “necessary” for farm operations under the RTFA. And the
fact that the apartment rental also served as a source of non-farm income is clearly not an activity
necessary to the farming operation. Put simply, defendants’ use of the apartment as a second
dwelling on the farm is not the type of activity that the RTFA was intended or designed to
protect.

       Accordingly, the trial court properly determined that the use of the apartment building
was not necessary to the operation and management of the farm.

                                 B. AFFIRMATIVE DEFENSES

        Next, defendants raised the equitable doctrine of estoppel and laches as precluding
plaintiff’s case. We hold that the equitable doctrines are inapplicable to the present case where
defendants failed to provide factual support for the defenses.4

       An affirmative defense must state the facts constituting such a defense. MCR
2.111(F)(3). Thus, a party must assert its defenses and has the burden of providing evidence in
support. Attorney General ex rel Dep't of Environmental Quality v Bulk Petroleum Corp, 276
Mich App 654, 664; 741 NW2d 857 (2007). Only after such evidence has been introduced does
the burden shift to the plaintiff to produce “clear and decisive evidence to negate” the defense.
Palenkas v Beaumont Hosp, 432 Mich 527, 548; 550; 443 NW2d 354 (1989) (ARCHER, J.).

       Defendants raised the defenses of estoppel and laches in their answer to the complaint.
With respect to the defense of estoppel, defendants argued that the Township “is estopped from


4
  This Court reviews de novo the application of equitable doctrines. Blackhawk Dev Corp v
Village of Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005).



                                                -6-
asserting that the use of the subject apartment violates any provision of its zoning ordinance
because the Township, fully aware that the arena would contain the apartment now there, granted
to the then-owner of the premises permission to build the arena inclusive of the apartment at
issue.” With respect to the defense of laches, defendants asserted that the Township “has known
for many years, since its construction and before, of the presence of the apartment at issue, but
has not, for those many years, taken any action to restrain the same. Now is much too late.”

        In Lyons Charter Twp v Petty, 317 Mich App 482, 490; 896 NW2d 477 (2016), vacated
in part on other grounds 500 Mich 1010 (2017), this Court stated:

              The doctrine of laches is founded upon long inaction to assert a right,
       attended by such intermediate change of conditions as renders it inequitable to
       enforce the right. The application of the doctrine of laches requires the passage of
       time combined with a change in condition that would make it inequitable to
       enforce the claim against the defendant. To merit relief under this doctrine, the
       complaining party must establish prejudice as a result of the delay. Proof of
       prejudice is essential. [Quotation marks and citations omitted.]

Further, equitable estoppel arises where:

               (1) a party by representation, admissions, or silence, intentionally or
       negligently induces another party to believe facts; (2) the other party justifiably
       relies and acts on this belief; and (3) the other party will be prejudiced if the first
       party is permitted to deny the existence of the facts. . . . [Howard Twp Bd of
       Trustees v Waldo, 168 Mich App 565, 575; 425 NW2d 180 (1988) (quotation
       marks and citation omitted).]

“The general rule is that zoning authorities will not be estopped from enforcing their ordinance
absence exceptional circumstances.” Id. “Just as with a laches defense, prejudice is a mandatory
element.” Lyons Charter Twp, 317 Mich App at 490-491.

       In support of their allegations, defendant relied on an affidavit from their counsel and two
handwritten sketches attached to the affidavit. Defendants’ counsel averred that he had received
documents “pertaining to the parcel of land on which sits the structure at issue in this case”
pursuant to a FOIA request, that he had reviewed the materials, and that he was “competent to
authenticate the documents” attached to the affidavit. He averred in pertinent part as follows:

               4. Also included among the documents provided in response to the FOIA
       request were multiple documents showing the title history of the property at issue,
       which history is summarized at the beginning of the brief submitted by
       Sandalwood Ranch, LLC, in opposition to the Township’s motion for summary
       disposition.

              5. Two handwritten sketches from the Township’s file appear to be part of
       an application for a permit to build on the premises at issue a barn with an arena.
       Notations on it indicate that the permit application was from late 1992-1993. The
       sketches, which appear to have been drafted in the same hand as dated the permit
       application, make reference to an “upper apartment” with dimensions of 36 x 24


                                                -7-
       feet and show the placement in the proposed arena of a “24 x 36 apt on 2nd flr.”
       Said sketches are attached hereto as Exhibits B and C.

                6. Nothing in the documents provided by the Township indicates that the
       apartment was excepted from the permit granted by the Township, nor does
       anything indicate that, until the Township threatened Sandalwood Ranch with a
       civil infraction ticket in the Fall of 2014, any township official had expressed any
       concerns within the township government about the apartment known to be in the
       arena/barn or that anyone from the township ever communicated to Sandalwood
       Ranch, its principals, the owners of the land and structures at issue, or any of that
       owner’s predecessors that the apartment in the area was of questionable validity
       under the Township’s zoning ordinance.

Although defense counsel averred that he had reviewed documents related to the title history of
the property, defendants did not produce the documents. Counsel did produce the handwritten
sketches, but he merely provided his interpretation of what the sketches “appeared to be.”
Defendants did not produce evidence that would support the allegation that “plaintiff was fully
aware that the arena would contain the apartment now there, granted to the then-owner of the
premises permission to build the arena inclusive of the apartment at issue,” nor did they produce
evidence to support the allegation that the Township “has known for many years, since its
construction and before, of the presence of the apartment at issue, but has not, for those many
years, taken any action to restrain the same.” Further, defendants made no allegation regarding
prejudice as a result of any delay.

       Therefore, defendants failed to meet the burden of producing evidence to support the
affirmative defenses of estoppel and laches.

       Affirmed. No costs may be taxed pursuant to MCR 7.319.



                                                             /s/ Douglas B. Shapiro
                                                             /s/ Michael J. Kelly
                                                             /s/ Colleen A. O'Brien




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