Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Hog Farmers Sued for Violating
Zoning Ordinance

Harrison M. Pittman
Staff Attorney

The Michigan Court of Appeals has reversed a decision that awarded damages to four landowners who brought an action against the owners of a neighboring hog farming operation alleging that the operation violated a local zoning ordinance that prohibited the spreading of obnoxious odors. Travis v. Preston, 643 N.W.2d 235, 243-44 (Mich. App. 2002). The court of appeals ruled that the awarding of monetary damages to the plaintiffs was an error because the only remedy authorized by the zoning enabling act was to abate a nuisance. See id. at 243. The court also ruled that Michigan's amended Right to Farm Act did not apply retroactively and that the former version of the Michigan Right to Farm Act authorized the landowners to bring their action. See id. at 240. The appeals court reversed the trial court's decision and remanded the case to be heard by a new trial judge. See id. at 243-44.

Keith and Glenn Preston began a hog farming operation ("Preston Farms") in 1996. See id. at 237. Pete and Edna Travis and Richard and Patricia Johnson, plaintiffs, resided on land that was adjacent to the defendants' hog farming operation. See id. at 237-38.

The plaintiffs brought an action alleging that the owners of Preston Farms violated §§ 11.06 of the Algansee Township Zoning Ordinance and that they were entitled to damages and injunctive relief because the hog farming operation constituted a nuisance. See id. at 238. The plaintiffs asserted that the hog operation "generated obnoxious and offensive odors that made their residences uninhabitable, reduced the value of their homes, and deprived them of the peaceful use and enjoyment of their homes." Id. The plaintiffs subsequently agreed to drop their claim for injunctive relief and the defendants agreed, in return, not to construct any new buildings on their property. See id.

The defendants moved for summary disposition, arguing that the Michigan Right to Farm Act ("RTFA"), Mich. Comp. Laws § 286.471-474 (West 1996 && Supp. 2001), was "a defense to the plaintiffs' action and prohibits nuisance suits." Id. The trial court granted the defendants' motion, and dismissed all of the plaintiffs' arguments except their argument that the hog farm violated the township ordinance. See id.

The zoning ordinance at issue provided that "'[e]very use shall be so conducted and operated that it is not obnoxious or dangerous by reason of heat, glare, fumes, odors, dust, noise, or vibration beyond the lot on which the use is located.'" Id. (quoting Algansee Township Zoning Ordinance §§ 11.06).

The trial court ruled that the township had the authority to enact ordinances that restricted the effect of the Michigan RTFA, that Preston Farms had violated the zoning ordinance, and that "there was clear and convincing evidence that the odors emanating from defendants' hog farm were sometimes obnoxious and offensive." Id. The trial court viewed this nuisance as a "'partial taking of [plaintiffs'] right to a peaceful enjoyment of their property and not as a mere diminution in their property values.'" Id. The trial court awarded $29,000 to Pete and Edna Travis and $29,000.00 to Richard and Patricia Johnson. See id. As the trial judge rendered his opinion, he notified the parties for the first time that he had been to the area in question on several occasions to personally examine the odors emanating from the hog farm. See id. The defendants appealed this decision to the Michigan Court of Appeals. See id.

The appeals court explained that the Michigan RTFA "was implemented to protect farmers from nuisance lawsuits." Id. (citing Belvidere Twp. v. Heinze, 615 N.W.2d 250 (2000)). The court also explained that "[u]nder the RTFA, a farm or farming operation cannot be found to be a nuisance if it meets certain criteria, such as conforming to 'generally accepted agricultural management practices.'" Id. (quoting Mich. Comp. Laws §§ 286.473). RTFA §§ 286.473 provides that:

(1) 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. Generally accepted agricultural and management practices shall be reviewed annually by the Michigan commission of agriculture and revised as considered necessary.

(2) A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation existed before a change in the land use or occupancy of land within 1 mile of the boundaries of the farm land, and if before that change in land or occupancy of land, the farm or farm operation would not have been a nuisance.

Id. at 239.

The appeals court noted that there was no dispute over whether the defendants complied with "'generally accepted agricultural management practices.'" Id. (quoting §§ 286.473(1)). The court also noted that at the time the plaintiffs brought this action and when the case was decided, the Michigan RTFA "did not exempt farming operations from applicable federal, state, and local laws, including local zoning ordinances such as the one at issue in this case." Id. (citing §§ 286.474). "Thus, although a farming operation was otherwise protected from nuisance lawsuits pursuant to [§§ 286.473], it could be found to be in violation of local zoning laws." Id. (citing Belvidere, 615 N.W.2d 250).

The court stated, however, that "§§ 286.474 was amended by 1999 PA 261, effective March 10, 2000," to provide that:

(5) Except as provided in subsection (6), this act does not affect the application of state statutes and federal statutes.

(6) Beginning June 1, 2000, except as otherwise provided in this section, it is the express legislative intent that this act preempt any local ordinance, regulation, or resolution that purports to extend or revise in any manner the provisions of this act or generally accepted agricultural and management practices developed under this act. Except as otherwise provided in this section, a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts in any manner with this act or generally accepted agricultural and management practices developed under this act.

(7) A local unit of government may submit to the director a proposed ordinance prescribing standards different from those contained in generally accepted agricultural and management practices if adverse affects on the environment or public health will exist within the local unit of government . . . .

(8) By May 1, 2000, the commission shall issue proposed generally accepted agricultural and management practices for site selection and odor controls at new and expanding animal livestock facilities. The commission shall adopt such generally accepted agricultural and management practices by June 1, 2000.

Id. at 239-40 (quoting P.A.1999, No. 261, Eff. March 10, 2000, amending Mich. Comp. Laws §§ 286.474).

The appeals court explained that before it could examine the defendants' argument that the Michigan RTFA prohibited the plaintiffs from bringing a nuisance action against them, it had to determine whether the amendment to the RTFA could be applied retroactively. See id. at 238. The court noted that in making such a determination "the intent of the legislature controls." Id. at 240 (citing Frank W. Lynch & Co. v. Flex Technologies, Inc., 624 N.W.2d 180 (Mich. 2001)). The court also noted that unless the legislature clearly states otherwise, the presumption is that statutes operate prospectively. See id. (citing Lynch, 624 N.W.2d at 180). The court stated that there is a "'strong presumption against the retroactive application of statutes in the absence of a clear expression by the legislature that the act be so applied.'" Id. (quoting Lynch, 624 N.W.2d at 180).

The appeals court explained that there was "nothing in the language of the RTFA suggesting a legislative intent that [§ 286.474(6)] be retroactively applied." Id. The court added that "the amended language of [§ 286.474(6)] explicitly states that the RTFA will preempt any local ordinance extending, revising, or conflicting with the act "'[b]eginning June 1, 2000.' Consequently, we can only conclude that the amended RTFA cannot be retroactively applied to the case at hand." Id.

The appeals court next examined whether the former version of § 286.474 authorized the plaintiffs to bring the lawsuit. See id. After reviewing some of its earlier decisions dealing with the statutory language of § 286.474, the court stated that it agreed "with the trial court that [the plaintiffs] had standing to pursue this action because the injury the plaintiffs suffered as private citizens was of a 'special character distinct and different from the injury suffered by the public generally' in that the odors affected only the residences located near defendants' hog-farming operation and not the community." Id. at 240-41 (citing Belvidere, 615 N.W.2d at 250) (quoting Towne v. Harr, 460 N.W.2d 596 (Mich. App. 1990)).

The appeals court also rejected the defendants' argument that the odor provision contained in the local zoning ordinance was not authorized by the zoning enabling acts as referenced in §§ 286.474. See id. at 241. The court noted that Mich. Comp. Laws §§ 125.271(1) of the township rural zoning act states that "[t]he township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures . . . ." Id. The court concluded that based upon this language the zoning ordinance was clearly authorized by the township ordinance. See id.

The court ruled that the trial court's awarding of monetary damages was improper because monetary damages was not a remedy authorized by the township rural zoning act. See id. at 243. The trial court awarded damages to the plaintiffs because the nuisance caused by the odors emanating from the hog farm constituted a "'partial taking of [plaintiffs'] right to a peaceful enjoyment of their property and not as a mere diminution in their property values.'" Id. Mich. Comp. Laws § 125.294 states that:

A use of land, or a dwelling, building, or structure including a tent or trailer coach, used, erected, altered, razed, or converted in violation of a local ordinance or regulations adopted pursuant to this act is a nuisance per se. The court shall order the nuisance abated and the owner or agent in charge of the dwelling, building, structure, tent, trailer coach, or land is liable for maintaining a nuisance per se. The township board shall in the ordinance enacted under this act designate the proper official or officials who shall administer and enforce that ordinance and do either of the following for each violation of the ordinance: (a) impose a penalty for the violation; (b) designate the violation as a municipal civil infraction and impose a civil fine for the violation.

Id. (quoting Mich. Comp. Laws § 125.294).

The appeals court noted that the plaintiffs agreed and an order was entered by the trial court establishing that the plaintiffs would not seek injunctive relief (i.e., abate the nuisance) against Preston Farms, and that Preston Farms agreed, in return, to forego any potential claim against the plaintiffs for monetary damages. See id. The appeals court stated that the RTFA, "and specifically the version of [Mich. Comp. Laws] § 286.474 that was in effect at the time this action was filed and decided, subjected the rights of farmers under the RTFA to the township rural zoning act." Id. The court concluded that "[t]he township rural zoning act, pursuant to Mich. Comp. Laws] § 125.294, allows the court to abate a nuisance and no more. Only the township board through its designated official is allowed to impose a penalty or a civil fine." Id.

The court agreed with the defendants' argument that the trial court judge "improperly visited the scene of the controversy on five separate occasions without any notice to the parties and without the parties' knowledge." Id. at 241-42. In People v. Eglar, 173 N.W.2d 5 (Mich. App. 1969), the appeals court expressed concern about a trial judge viewing a scene during a bench trial without the knowledge of the parties. See id. at 242. In Eglar the appeals court ruled that the judge committed error when he viewed the premises involved in the litigation without giving the parties an opportunity to be present with him. See id.

The appeals court ruled in the present action stated that "'[a]lthough the trial court had authority to conduct a view pursuant to M.C.R. 2.513(B), we conclude that a reversal and remand for further proceedings are necessary to avoid a substantial injustice to defendants." Id. The appeals court also instructed that the case be remanded to a new trial judge. See id.

This case summary was prepared in September, 2002.