Township of Fraser v. Harvey Haney ( 2022 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
TOWNSHIP OF FRASER v HANEY
Docket No. 160991. Argued October 6, 2021 (Calendar No. 3). Decided February 8, 2022.
Fraser Township filed a complaint in the Bay Circuit Court against Harvey and Ruth Ann
Haney, seeking a permanent injunction to enforce its zoning ordinance and to prevent defendants
from raising on their commercially zoned property hogs or other animals that would violate the
zoning ordinance, to remove an allegedly nonconforming fence, and to plow and coat the ground
with nontoxic material. Defendants brought a hog onto their property as early as 2006, and
defendants maintained hogs on their property through the time this lawsuit was filed in 2016.
Defendants moved for summary disposition, arguing that plaintiff’s claim was time-barred by the
six-year statutory period of limitations in MCL 600.5813. The trial court, Harry P. Gill, J., denied
the motion, concluding that because the case was an action in rem, the statute of limitations did
not apply. Defendants sought leave to appeal in the Court of Appeals. The Court of Appeals,
SWARTZLE, P.J., and SAWYER and RONAYNE KRAUSE, JJ., reversed, holding that because
defendants had kept hogs on the property since 2006 and plaintiff did not bring suit until 2016,
plaintiff’s case was time-barred. 327 Mich App 1 (2018). Plaintiff sought leave to appeal in the
Supreme Court, and in lieu of granting leave to appeal, the Supreme Court vacated the judgment
of the Court of Appeals and remanded the case to the Court of Appeals for it to address whether
defendants waived an affirmative defense under Baker v Marshall, 323 Mich App 590 (2018). 504
Mich 968 (2019). On remand, the Court of Appeals, SWARTZLE, P.J., and SAWYER and RONAYNE
KRAUSE, JJ., distinguished Baker and explained that defendants did not waive the statute-of-
limitations defense. 331 Mich App 96 (2020). Plaintiff again sought leave to appeal in the
Supreme Court, and the Supreme Court granted leave to consider whether MCL 600.5813 barred
plaintiff from enforcing its zoning ordinance. 506 Mich 964 (2020).
In a unanimous per curiam opinion, the Supreme Court held:
MCL 600.5813 did not bar plaintiff’s suit, which was an action for injunctive relief to
address violations of the zoning ordinance that occurred within the six-year limitations period.
MCL 600.5813 provides that all other personal actions shall be commenced within the period of
six years after the claims accrue and not afterwards unless a different period is stated in the statutes.
MCL 600.5827 defines when a claim accrues for purposes of MCL 600.5813. MCL 600.5827
states that except as otherwise provided, the period of limitations runs from the time the claim
accrues and that the claim accrues at the time the wrong upon which the claim is based was done
regardless of the time when damage results. In this case, plaintiff sought to enforce its zoning
ordinance through a nuisance-abatement action under MCL 125.3407 of the Michigan Zoning
Enabling Act, MCL 125.3101 et seq. Plaintiff alleged that because defendants’ land was zoned
for commercial use, rather than agricultural use, defendants could not raise hogs or other animals
on the land. The wrong alleged in plaintiff’s complaint was defendants’ keeping of hogs on their
property. The presence of the hogs on the property constituted the wrong, and that wrong, along
with the attendant harms it caused, was being committed as long as the piggery was in operation.
The plain language of the Zoning Enabling Act supported this conclusion. MCL 125.3407 states
that a “use” of land in violation of a zoning ordinance is a nuisance per se. “Use” means the
application or employment of something, especially a long-continued possession and employment
of a thing for the purpose for which it is adapted, as distinguished from a possession and
employment that is merely temporary or occasional. A use is inherently ongoing. Defendants’
use of the property to raise hogs was not a one-time occurrence that happened in 2006; the use
continued as long as the property was employed as a piggery. Therefore, whether the zoning
violation accrued continuously or each day, it accrued within the limitations period, and plaintiff’s
action was timely because its complaint was initiated within six years of defendants’ most recent
offenses. The Court of Appeals erroneously concluded that plaintiff’s action would be timely only
under the continuing-wrongs doctrine, which has been abrogated in Michigan. The continuing-
wrongs doctrine was not relevant to plaintiff’s claim for relief because plaintiff did not seek to
reach back and remedy or impose monetary fines for violations that occurred outside the period of
limitations; rather, plaintiff’s injunctive action sought to remedy only present violations, which
occurred within the six-year period of limitations.
Court of Appeals judgment reversed, trial court order denying summary disposition
reinstated, and case remanded to the trial court for further proceedings.
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED February 8, 2022
STATE OF MICHIGAN
SUPREME COURT
TOWNSHIP OF FRASER,
Plaintiff-Appellant,
v No. 160991
HARVEY HANEY and RUTH ANN
HANEY,
Defendants-Appellees.
BEFORE THE ENTIRE BENCH
PER CURIAM.
Defendants, Harvey and Ruth Ann Haney, owned property in Fraser Township that
is zoned for commercial use. Defendants brought a hog onto their property as early as
2006. At some point, additional hogs were brought onto the property. Plaintiff, Fraser
Township, filed its complaint in May 2016, alleging that defendants’ property is not zoned
for agricultural use and that defendants’ actions violate its zoning ordinance and constitute
a nuisance. Plaintiff seeks a permanent injunction to enforce its ordinance and to prevent
defendants from raising on their property hogs or other animals that would violate the
zoning ordinance, to remove an allegedly nonconforming fence, and to plow and coat the
ground with nontoxic material. We must decide whether plaintiff’s action is barred by the
pertinent six-year statute of limitations. 1 We hold that it is not. Plaintiff has alleged a harm
that has occurred every day on which defendants maintain hogs on their property.
Plaintiff’s action is timely under MCL 600.5813 because its complaint was initiated within
six years of defendants’ most recent offenses. The Court of Appeals erred by analyzing
this case as a “continuing wrongs” case because plaintiff does not seek to reach back and
remedy or impose monetary fines for violations that occurred outside the period of
limitations. Rather, plaintiff’s injunctive action seeks to remedy only present violations,
which occurred within the six-year period of limitations. We therefore reverse the
judgment of the Court of Appeals, reinstate the trial court’s order denying summary
disposition, and remand this case to the trial court for further proceedings that are consistent
with this opinion.
I. BASIC FACTS AND PROCEEDINGS
Defendants began raising at least one hog on their commercially zoned property in
2006. 2 Plaintiff alleges that defendants were raising approximately 20 hogs when the
complaint was filed and that the property was saturated with animal waste, “creating a
horrible stench and attraction for flies.” The complaint alleges that defendants had a history
of illegal animal operations on the property, including a deer farm that had been ordered
1
MCL 600.5813.
2
Defendants’ property was not (and is not) zoned for agriculture.
2
closed by a circuit court and Russian boar production that had been banned by the Michigan
Department of Natural Resources.
Defendants moved for summary disposition, arguing that plaintiff’s claim was time-
barred by the six-year statutory period of limitations set forth in MCL 600.5813. The trial
court denied the motion, reasoning that this was an action in rem, as opposed to a “personal
action,” so the statute of limitations did not apply. Defendants sought leave to appeal in
the Court of Appeals, and the Court of Appeals granted leave to appeal and reversed. It
held that because defendants had kept hogs on the property since 2006 and plaintiff did not
bring suit until 2016, plaintiff’s case was time-barred. 3
Plaintiff sought leave to appeal in this Court, and in lieu of granting leave, we
vacated the judgment of the Court of Appeals and remanded the case to the Court of
Appeals for it to address whether defendants waived an affirmative defense under Baker v
Marshall. 4 On remand, the Court of Appeals distinguished Baker and explained that
defendants did not waive the statute-of-limitations defense. 5
Plaintiff again sought leave to appeal in this Court, and we granted leave to consider
whether MCL 600.5813 bars plaintiff from enforcing its zoning ordinance. 6
3
Fraser Twp v Haney, 327 Mich App 1, 11; 932 NW2d 239 (2018), vacated 504 Mich 968(2019). This opinion was originally released as an unpublished opinion, but the panel
agreed to publish its opinion per defendants’ request. See MCR 7.215(D).
4
Baker v Marshall, 323 Mich App 590; 919 NW2d 407 (2018); Fraser Twp v Haney, 504
Mich 968 (2019).
5
Fraser Twp v Haney, 331 Mich App 96, 98-99; 951 NW2d 97 (2020).
6
Fraser Twp v Haney, 506 Mich 964 (2020).
3
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary
disposition. 7 We also review de novo questions of law and statutory interpretation. 8
III. ANALYSIS
The statute of limitations at issue, MCL 600.5813, states, “All other personal actions
shall be commenced within the period of 6 years after the claims accrue and not afterwards
unless a different period is stated in the statutes.” MCL 600.5827 defines when a claim
accrues for purposes of interpreting MCL 600.5813, and it provides:
Except as otherwise expressly provided, the period of limitations runs
from the time the claim accrues. The claim accrues . . . at the time the wrong
upon which the claim is based was done regardless of the time when damage
results.
“ ‘[T]he wrong is done when the plaintiff is harmed rather than when the defendant acted’
under § 5827 . . . .” 9 “The relevant ‘harms’ . . . are the actionable harms alleged in a
plaintiff’s cause of action.” 10 We thus look to plaintiff’s complaint to determine when the
wrong upon which the claim is based was done.
Plaintiff seeks to enforce its zoning ordinance through a nuisance-abatement action.
The Michigan Zoning Enabling Act 11 permits such actions, providing, in relevant part:
7
McQueer v Perfect Fence Co, 502 Mich 276, 286; 917 NW2d 584 (2018).
8
Id. at 285-286.
9
Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 387 n 8; 738 NW2d
664 (2007) (citation omitted).
10
Frank v Linkner, 500 Mich 133, 150; 894 NW2d 574 (2017).
11
MCL 125.3101 et seq.
4
Except as otherwise provided by law, a use of land or a dwelling,
building, or structure, including a tent or recreational vehicle, used, erected,
altered, razed, or converted in violation of a zoning ordinance or regulation
adopted under 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, recreational vehicle, or land is liable for maintaining a nuisance per
se.[12]
Plaintiff alleges that defendants have used their land in violation of the local zoning
ordinances. Specifically, because defendants’ land is zoned for commercial use, rather
than agricultural use, defendants cannot raise hogs or other animals on the land.
Defendants do not argue that they have used their land in conformity with the zoning
ordinance. They have indeed maintained at least one hog on their property since 2006.
Defendants argue that because plaintiff did not bring the present suit until 2016, this action
is time-barred by the six-year period of limitations in MCL 600.5813. We conclude that
MCL 600.5813 does not bar plaintiff’s suit, which is an action for injunctive relief to
address violations of the zoning ordinance that occurred within the six-year limitations
period.
The wrong alleged in plaintiff’s complaint is defendants’ keeping of hogs on their
property. The presence of the hogs on the property constitutes the wrong, and that wrong,
along with the attendant harms it causes, is being committed as long as the piggery
operates. 13 For example, the fact that defendants had hogs on their property yesterday is
12
MCL 125.3407.
13
Cf. Woldson v Woodhead, 159 Wash 2d 215, 219; 149 P3d 361 (2006) (en banc) (“With
most torts, a single isolated event begins the running of the statute of limitations. . . . A
continuing trespass tort is different; the ‘event’ happens every day the trespass continues.
Every moment, arguably, is a new tort. Thus, the statute of limitations does not prevent
recovery for a continuing trespass that ‘began’ before the statutory period; instead the
5
not a wrong that occurred until yesterday, and any claims arising from harms due to the
hogs’ presence yesterday could not have accrued until then either. Therefore, because
defendants had hogs on their property within the limitations period, claims accrued during
that period and plaintiff’s action is timely. 14
Our conclusion is further supported by the plain language of the Zoning Enabling
Act. MCL 125.3407 states that a “use” of land in violation of a zoning ordinance is a
nuisance per se. “Use” means “[t]he application or employment of something; esp., a long-
continued possession and employment of a thing for the purpose for which it is adapted, as
distinguished from a possession and employment that is merely temporary or
occasional . . . .” 15 A “use” is thus inherently ongoing. And the nature of zoning violations
statute of limitations excludes recovery for any trespass occurring more than three years
before the date of filing.”); Russo Farms, Inc v Vineland Bd of Ed, 144 NJ 84, 102; 675
A2d 1077 (1996) (“ ‘[I]f the nuisance or trespass is “temporary” or “continuous,” a new
cause of action arises day by day or injury by injury, with the result that the plaintiff in
such a case can always recover for such damages as have accrued within the statutory
period immediately prior to suit.’ ”), quoting Dobbs, Law of Remedies (1973), § 5.4, p 343.
14
Although not necessary to our analysis, Fraser Township’s zoning ordinance is consistent
with our conclusion, in that it describes when a violation of the zoning ordinance occurs:
“A separate offense shall be deemed committed upon each day during or when a violation
occurs or continues.” Fraser Township Zoning Ordinance, § 2503. Thus, per the plain
language of this ordinance, defendants committed a separate offense each day they had
hogs on their property in violation of the zoning ordinance. Plaintiff does not seek to
impose monetary penalties or to obtain a remedy for actions that occurred more than six
years prior to the filing of this case. Rather, plaintiff seeks only an injunction—a remedy
to enforce its ordinance against current and future violations. Defendants maintained hogs
on their property through the time this lawsuit was filed in 2016, thus violating the
ordinance during this period. These violations gave rise to the harms alleged in plaintiff’s
complaint, and thus fresh harms occurred during the limitations period. Fraser Township
Zoning Ordinance, § 2503.
15
Black’s Law Dictionary (8th ed); see also Random House Webster’s College Dictionary
(2007) (defining “use” as “the enjoyment of property, as by occupation or employment of
6
typically makes a limitations period of little relevance to nuisance-abatement actions
concerning present or ongoing nonconforming uses.
A single property can be subject to many “uses.” The Zoning Enabling Act refers
to “residential use” as one such use. 16 Operation of a state-licensed residential facility, for
example, is a residential use. 17 Land that is employed as a state-licensed residential facility
is continuously being used for a residential purpose as long as the land is so employed.
The use is not finished on the first day construction of the facility is completed or the first
day someone moves in. The same is true of the use at issue here. Defendants’ use of the
property to raise hogs was not a one-time occurrence that happened in 2006. The use
continues as long as the property is employed as a piggery. Under MCL 600.5813, “the
claim accrues at the time the wrong upon which the claim is based was done . . . .” 18
Whether the “wrong” here, a zoning violation, accrued continuously or each day, it
certainly accrued within the limitations period.
In its initial opinion, the Court of Appeals erroneously concluded that plaintiff’s
action would be timely only under the continuing-wrongs doctrine, which has been
abrogated in Michigan. 19 The continuing-wrongs doctrine (or its abrogation) is not
it”). It is unnecessary to determine whether “use” is a legal term of art because the legal
and lay dictionary definitions are substantially the same. See Sanford v Michigan, 506
Mich 10, 21; 954 NW2d 82 (2020).
16
MCL 125.3206.
17
MCL 125.3206(1).
18
MCL 600.5827.
19
Fraser Twp, 327 Mich App at 11-12.
7
relevant to plaintiff’s claim for relief. The doctrine allowed a plaintiff to reach back to
recover for wrongs that occurred outside the statutory period of limitations. If a plaintiff
could establish that a wrong or injury experienced within the permitted time period was
part of a series of sufficiently related “continuing wrongs,” the plaintiff might have been
able to recover damages for each wrong that was part of the series—including those that
otherwise would have been time-barred. 20 But even under the continuing-wrongs doctrine,
a plaintiff had to establish that one of the wrongs or injuries occurred within the statutory
period of limitations. 21 The doctrine has never operated to toll the statutory period of
limitations for such claims, which were timely because the claim accrued during the
limitations period. 22
When we abrogated the continuing-wrongs doctrine in Garg, we explained that the
relevant statute of limitations there, MCL 600.5805, “requires a plaintiff to commence an
action within three years of each adverse employment act by a defendant.” 23 After Garg,
20
See Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 510; 398 NW2d 368 (1986),
overruled by Garg v Macomb Co Community Mental Health Servs, 472 Mich 263 (2005).
21
See Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 280; 696
NW2d 646 (2005), as amended on denial of reh July 18, 2005 (“[M]erely demonstrating a
‘present effect to a past act of discrimination’ is insufficient to create a continuing
violation.”), quoting United Air Lines, Inc v Evans, 431 US 553, 558; 97 S Ct 1885; 52 L
Ed 2d 571 (1977).
22
Accrual of Claims for Continuing Trespass or Continuing Nuisance for Purposes of
Statutory Limitations, 14 ALR7th Art 8 (2016) (“[C]ontinuing torts do not avoid the statute
of limitations; rather, such torts remain timely not because the limitation period is tolled
but because the cause of action continues to accrue.”).
23
Garg, 472 Mich at 282 (emphasis added).
8
a plaintiff in Michigan may not revive stale claims even if the claims are part of a series of
“continuing violations.” But Garg, of course, did not operate to immunize future wrongful
conduct. In other words, a plaintiff’s failure to timely sue on the first violation in a series
does not grant a defendant immunity to keep committing wrongful acts of the same
nature. 24 A plaintiff is free to bring a new action each time a defendant commits a new
violation. 25 Garg simply held that a plaintiff may not recover for injuries that fall outside
the statutory period of limitations—regardless of how related those injuries are to timely
claims—when the Legislature has not permitted such recovery by statute. 26 But,
importantly, Garg allowed the claim that accrued within the limitations period to go
forward. 27
Defendants here are not free to continue committing zoning-ordinance violations
simply because plaintiff did not bring an action against their first zoning violation.
Whether Michigan recognizes the continuing-wrongs doctrine has no bearing on a
plaintiff’s ability to bring an action for claims that accrued within the statutory period of
limitations. Thus, Michigan’s abrogation of the doctrine is irrelevant to this case because
plaintiff does not seek a remedy for violations outside the limitations period. Defendants
24
Even our opinion adopting the continuing-wrongs doctrine recognized that it would be
incorrect to bar a suit based on misconduct occurring within the limitations period simply
because the defendants had committed the same acts before. See Sumner, 427 Mich at 537
& n 11, overruled by Garg, 472 Mich 263.
25
See 1A American Law of Torts (December 2021 update), § 5:33 (“The continuing tort
theory does not apply when tortuous instances, though similar, constitute distinctly separate
transactions.”).
26
Garg, 472 Mich at 282.
27
Id. at 286.
9
violate the law as long as they keep hogs on their property, and plaintiff seeks to remedy
only violations that occurred within the statutory period of limitations in the form of an
injunction.
IV. CONCLUSION
We hold that plaintiff’s action to enforce its zoning ordinance is not barred by MCL
600.5813. The wrong alleged is defendants’ retention of hogs on their commercially zoned
property. Plaintiff’s action is timely because it was commenced while defendants’
unlawful conduct was ongoing. We reverse the judgment of the Court of Appeals, reinstate
the trial court’s order denying summary disposition, and remand this case to the trial court
for further proceedings that are consistent with this opinion.
Bridget M. McCormack
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
10