
    TOWNSHIP OF WILLIAMSTOWN, Plaintiff-Appellee, v. SANDALWOOD RANCH, LLC, Alec Kolenda, and Sarah Kolenda, Defendants-Appellants, and Love Advertising, Inc., Defendant.
    No. 337469
    Court of Appeals of Michigan.
    Submitted May 1, 2018, at Lansing Decided June 19, 2018 Approved for publication August 7, 2018, at 9:15 a.m.
    Murphy & Spagnuolo, PC, East Lansing (by Gary L. Bender ) for Williamstown Township.
    Dickinson Wright PLLC (by Dennis C. Kolenda ) for Sandalwood Ranch, LLC, Alec Kolenda, and Sarah Kolenda.
    Before: Shapiro, P.J., and M. J. Kelly and O'Brien, JJ.
   Per Curiam.

Defendants appeal the trial court's order granting plaintiff's motion to dismiss pursuant to MCR 2.504(B)(2) and MCR 2.517, granting plaintiff's motion for summary disposition pursuant to MCR 2.116(C)(9) and (10), and entering a permanent injunction pursuant to MCR 3.310. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Defendant Sandalwood Ranch, LLC, operates a commercial horse-boarding facility and riding arena in Williamstown Township (the Township). Defendants Sarah and Alec Kolenda are the principal owners of Sandalwood Ranch. The property contains a house in which the Kolendas reside and a barn with 26 stalls and a riding arena. On a second floor of the barn, above the riding arena, there is an apartment that has three bedrooms, a living room, bathrooms with showers, a dining room, and a kitchen. Defendants rented the apartment 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 violated the Williamstown Township Zoning Ordinance. The letter mistakenly referred to "Section 2.03(7) of the Zoning Ordinance," but it was later made clear that the Township was referring to § 18.02(A)(3), which permits only one farm dwelling per farm. Later, the Township also claimed reliance on § 8.02(AA)(3)(j), which bars living quarters 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 seeking injunctive relief, claiming that because the apartment violates the ordinance, it is a nuisance per se. Following defendants' answer, the Township moved 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 spend three hours on the farm performing the morning tasks of feeding, cleaning, and turning out the horses. Ms. 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 are eating and defecating properly and not in distress.

According to Ms. 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 during the night that might require attention.

As it relates to this case, the two categories protected by the RTFA are "farms" and "farm operations." Section 2(a) of the RTFA, 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 § 2(b) of the RTFA, 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 a 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:

[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 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 [sic: convenient], 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 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 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 horse. It's 20 to 30, maybe more at times.
* * *
The problem here is that this 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.

II. ANALYSIS

A. STATUTORY CONSTRUCTION

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

Defendants do not dispute that Article 18 of the Williamstown Township Zoning Ordinance permits 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 establish circumstances under which a farm and its operation may not be deemed a public or private nuisance. Northville Twp. v. Coyne , 170 Mich.App. 446, 448, 429 N.W.2d 185 (1988) ; see also Scholma v. Ottawa Co. Rd. Comm. , 303 Mich.App. 12, 22, 840 N.W.2d 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, that conflict with the RTFA or applicable generally accepted agricultural and management practices (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) the farm or farm operation conforms to the relevant GAAMPs. Lima Twp. v. Bateson , 302 Mich.App. 483, 496, 838 N.W.2d 898 (2013).

As stated earlier, § 2(a) of the RTFA 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, uses that 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 the apartment in connection with the business of boarding horses is a protected "farm operation" under § 2(b).

Indeed, there is no dispute that the structure itself is not in violation of the ordinance or that the structure was within the definition of "farm" under § 2(a). In dispute, however, is the use of the structure as a residence, which violates the Township ordinance; therefore, to avoid a finding that the use is a nuisance, that use must qualify as a farm operation under the RTFA- that is, it must 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, this Court is required to give effect to the Legislature's intent. Van Buren Co. Ed. Ass'n & Decatur Ed. Support Personnel Ass'n, MEA/NEA v. Decatur Pub. Sch. , 309 Mich.App. 630, 643, 872 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 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 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 10:00 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. Afterward, 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. Ms. 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 provided 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 use of the apartment 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 as a second dwelling was not necessary to the operation and management of the farm.

B. AFFIRMATIVE DEFENSES

Next, defendants argue that the equitable doctrines of estoppel and laches preclude 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.

An affirmative defense must state the facts constituting such a defense. MCR 2.111(F)(3). Therefore, 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 N.W.2d 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, 550, 443 N.W.2d 354 (1989) (opinion by 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 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, taking [sic] any action to restrain the same. Now is much too late." In Lyon Charter Twp. v. Petty , 317 Mich.App. 482, 490, 896 N.W.2d 477 (2016), vacated in part on other grounds 500 Mich. 1010, 896 N.W.2d 11 (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.]

Equitable estoppel arises when:

(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 N.W.2d 180 (1988) (quotation marks and citation omitted).]

"The general rule is that zoning authorities will not be estopped from enforcing their ordinance absent exceptional circumstances." Id ."Just as with a laches defense, prejudice is a mandatory element." Lyon Charter Twp. , 317 Mich.App. at 491, 896 N.W.2d 477.

In support of their allegations, defendants 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 Freedom of Information Act (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 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 owner of the land and structures at issue, or any of that owner's predecessors that the apartment in the arena 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, taking [sic] 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.

Shapiro, P.J., and M. J. Kelly and O'Brien, JJ., concurred. 
      
      The property is owned by defendant Love Advertising, which 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. As used in this opinion, the term "defendants" refers only to Sandalwood Ranch and the Kolendas.
     
      
      Section 18.02(A)(16) provides for a limited exception to the one-dwelling rule, but defendants have not asserted that it is applicable.
     
      
      The language quoted is from Black's Law Dictionary (6th ed).
     
      
      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 N.W.2d 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 N.W.2d 472 (2012) (quotation marks and citation omitted). Although plaintiff's motion was brought under both MCR 2.116(C)(9) and (10), we 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 v. Liquid Mfg. , 499 Mich. 491, 506-507, 885 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 468 (2003).
     
      
      We review questions of statutory interpretation de novo. In re Wayne Co. Treasurer Petition , 478 Mich. 1, 6, 732 N.W.2d 458 (2007).
     
      
      This Court reviews de novo the application of equitable doctrines. Blackhawk Dev. Corp. v. Village of Dexter , 473 Mich. 33, 40, 700 N.W.2d 364 (2005).
     