City of Troy v. Papadelis

572 N.W.2d 246 (1997) 226 Mich. App. 90

CITY OF TROY, Plaintiff-Appellant,
v.
Gust PAPADELIS and Niki Papadelis, d/b/a Telly's Greenhouse and Garden Center, Defendants-Appellees.

Docket No. 204071.

Court of Appeals of Michigan.

Submitted June 18, 1997, at Lansing. Decided October 21, 1997, at 9:10 a.m. Released for Publication January 22, 1998.

John J. Martin, III, Troy, for plaintiff-appellant.

Hutson, Sawyer, Chapman & Reilly by Thomas G. Sawyer, Troy, for defendants-appellees.

Before DOCTOROFF, P.J., and McDONALD and BANDSTRA, JJ.

ON REMAND

PER CURIAM.

We review this case on remand from the Supreme Court. The trial court denied plaintiff's request for an injunction and abatement of defendants' farming activities on their residentially zoned property in Troy. Relying in part on the Right to Farm Act (RTFA), M.C.L. § 286.471 et seq.; M.S.A. § 12.122(1) et seq., this Court, in an unpublished opinion per curiam, issued May 10, 1996 (Docket No. 172026), affirmed in part and reversed in part. The Supreme Court, in lieu of granting leave to appeal, vacated our judgment and remanded this case for reconsideration in light of the amendment of the RTFA effectuated by 1995 PA 94. 454 Mich. 909, 564 N.W.2d 893 (1997).

The facts, as set forth in our earlier opinion, are as follows:

Defendants are the owners of two adjoining parcels of land located on John R Road. The area, which had been farmed for many years, was zoned for residential use in 1956. Defendants purchased the north parcel (the residential parcel) in 1974, and purchased the south parcel (the greenhouse parcel) in 1977 or 1978. Defendant's [sic] residence is located on the residential parcel and a greenhouse nursery is located on the greenhouse parcel. In May of 1991, plaintiff filed a complaint seeking preliminary injunctive relief against certain uses which defendants were making of their property. The trial court denied plaintiff's request and this Court denied leave to appeal. Plaintiff renewed its motion, and the matter proceeded to a full hearing.

Prior to trial, the parties stipulated to certain facts, including that the greenhouse nursery was a legal nonconforming use and that defendants have utilized the southerly portion of the residential parcel for the storage, growing and display of flowers, plants, perennials and shrubs since 1978. At trial, defendant Gust Papadelis testified that, in 1980, he received permission from the Zoning Board of Appeals to build a pole barn, and in 1988 he received permission to build a new greenhouse to replace seven dilapidated greenhouses on the greenhouse parcel. The new greenhouse was approximately 4000 square feet larger than the variance granted by plaintiff. Subsequent to a widening of John R in 1988, defendants constructed a parking lot on the residential parcel.

When defendants purchased the residential parcel in 1974, there was an apple orchard on the property. The orchard had "always ... been" there, and defendants either sold or gave away the apples. There was testimony that the greenhouse parcel was farmed from 1939 to 1976. During that time produce was both sold from the parcel and trucked to market, and greenhouses and cold frames were added to the parcel. Since defendant's [sic] acquisition of the greenhouse parcel, the greenhouse business had grown from a few hundred or thousand dollars a year to close to a million dollars a year.

In denying plaintiff's request for injunction and abatement of nuisance, the trial court found: that plaintiff was bound by its stipulation, made in the initial action for a preliminary injunction, that defendants' greenhouse and nursery operation was a valid and legal nonconforming use of the greenhouse parcel; that defendants had a right to conduct their greenhouse and nursery operation under the Right to Farm Act, M.C.L. § 286.471 et seq.; M.S.A. § 12.122(1) et seq. (RTFA); that the cold frames and shade covers used to protect plants on defendants' property were permitted temporary structures under both the State Construction Code, M.C.L. § 125.1502(2); M.S.A. § 5.2949(2)(2) and the Right to Farm Act; and that plaintiff was barred by laches from enjoining defendants from storing or growing agricultural items or parking on the residential property.

In our previous opinion, this Court affirmed the trial court's decision regarding the greenhouse parcel. We found that plaintiff was bound by its stipulation that defendants' use of the greenhouse property was a legal nonconforming use. This Court also found that defendants' goods constituted "farm products" under the RTFA, and thus, the statute protected the operation.

However, with regard to the residential property, we found that defendants had no right to violate the zoning ordinance because "the expansion of the nursery business onto the residential parcel occurred after the zoning ordinance was enacted and therefore is not protected by the RTFA." In addition, we found that defendants' affirmative defense of laches did not apply because

notwithstanding the improvements made by defendants to the properties, there are no exceptional circumstances such that the residential parcel should be excluded from the zoning restrictions. Defendants have not been irreparably harmed by those improvements, and could have avoided any detriment by seeking a variance as to the use of the residential parcel. Their nonconforming use cannot be shielded by plaintiff's failure to take action more quickly.

After this Court issued its opinion, defendants appealed to the Michigan Supreme Court, arguing that this Court erred in finding that defendants could not continue to use the residential parcel for parking and other nursery-related uses. Defendants claimed that, since the time they filed the appeal in this Court, the RTFA had been amended to provide greater protection to farming operations. In light of the amendment of M.C.L. § 286.472; M.S.A. § 12.122(2), 1995 PA 94, the Supreme Court vacated our earlier decision and remanded the case to this panel for reconsideration. Because our entire opinion in the earlier decision was vacated, the law of the case doctrine does not apply, and we must reconsider each issue. Hill v. Ford Motor Co., 183 Mich.App. 208, 212, 454 N.W.2d 125 (1989).

We first consider plaintiff's argument that defendants' use of their property for a nursery should be enjoined as a nuisance per se because it does not conform with the city's zoning regulations. A nonconforming use of land that lawfully existed before the enactment of a zoning ordinance and that is maintained after the effective date of the ordinance will be allowed to continue, even though it does not comply with the applicable restrictions. See Jerome Twp. v. Melchi, 184 Mich.App. 228, 231, 457 N.W.2d 52 (1990). Generally speaking, nonconforming uses may not expand, and one of the goals of zoning is that nonconforming uses be gradually eliminated. Id.

Initially, we note that plaintiff stipulated that the nursery operation on the greenhouse parcel was a legal nonconforming use. Plaintiff also stipulated that the residential property had been used for nursery purposes since 1978. Although plaintiff moved to set aside this stipulation, it cites no authority for its apparent position that the trial court erred in denying the motion. A party may not leave it to this Court to search for authority to sustain or reject its position. Hover v. Chrysler Corp., 209 Mich.App. 314, 319, 530 N.W.2d 96 (1994). In addition, a stipulation is given full force and effect and is binding upon the parties unless abandoned or disaffirmed. Nuriel v. Young Women's Christian Ass'n of Metropolitan Detroit, 186 Mich.App. 141, 147, 463 N.W.2d 206 (1990).

In this case, plaintiff stipulated that the business operation on the greenhouse parcel was a valid nonconforming use, and the evidence indicated that the land had been used for farming, greenhouse, and nursery purposes since before the area was zoned for residential use in 1956. Accordingly, we affirm the trial court's finding that defendants' operation of a nursery on the southern parcel may continue as a valid nonconforming use.

A closer question involves defendants' use of the residential parcel for the operation of the nursery, including the storage and display of farm products and the parking of customer and employee automobiles. The evidence indicated that there had been no commercial activity on the residential parcel before 1974, when defendants purchased it. Because the use of the residential parcel did not exist before the enactment of the zoning ordinance, it is not a valid nonconforming use. See Jerome Twp., supra at 231, 457 N.W.2d 52.

Defendants argue that the RTFA protects their business. The RTFA states that a farm or farm operation that conforms to "generally accepted agricultural and management practices" shall not be found to be a public or private nuisance. M.C.L. § 286.473; M.S.A. § 12.122(3). However, M.C.L. § 286.474; M.S.A. § 12.122(4) specifically provides that the RTFA "does not affect the application of state statutes and federal statutes," including but not limited to the County Rural Zoning Enabling Act, M.C.L. § 125.202-125.232; M.S.A. § 5.2961(2)-5.2961(32), and the Township Rural Zoning Act, M.C.L. § 125.271-125.301; M.S.A. § 5.2963(1)-5.2963(31). Because this cause of action was filed to enforce a zoning ordinance, the RTFA is not a defense to this action. See Village of Peck v. Hoist, 153 Mich.App. 787, 791, 396 N.W.2d 536 (1986).

Defendants also argue that plaintiff is barred by laches from enforcing the ordinance against them. 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 defendants. Sedger v. Kinnco, Inc., 177 Mich.App. 69, 73, 441 N.W.2d 5 (1988). In determining whether a party is guilty of laches, each case must be determined on its own particular facts. Id. The defendant must prove a lack of due diligence on the part of the plaintiff resulting in some prejudice to the defendant. Badon v. General Motors Corp., 188 Mich.App. 430, 436, 470 N.W.2d 436 (1991).

Defendants presented testimony that Carl Debrewick, a building inspector for plaintiff, frequently visited the property and was aware that the residential parcel was being used to park cars from as early as 1988. Nevertheless, plaintiff did not file this action to enforce the zoning ordinance until May 1991. Therefore, defendants have demonstrated a lack of due diligence on the part of plaintiff. However, a lack of due diligence alone is not sufficient. The defense of laches does not apply unless the delay of one party has resulted in prejudice to the other party. Tomczik v. State Tenure Comm., 175 Mich.App. 495, 438 N.W.2d 642 (1989). "It is the effect, rather than the fact, of the passage of time that may trigger the defense of laches." Great Lakes Gas Transmission Co. v. Mac-Donald, 193 Mich.App. 571, 578, 485 N.W.2d 129 (1992). Defendants have not demonstrated any prejudice that has resulted from plaintiff's delay in bringing this action to enjoin the use of the residential parcel as a parking lot for defendants' business. Although the evidence indicates that defendants paved part of their residential property to provide parking for the greenhouse business, there is no indication in the record that this action was taken in reliance on plaintiff's failure to initiate suit earlier. See Citizens Ins. Co. of America v. Buck, 216 Mich.App. 217, 228, 548 N.W.2d 680 (1996). Therefore, the defense of laches does not apply.

Affirmed in part and reversed in part. Remanded for entry of an order enjoining the commercial use of the northern parcel. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full. We do not retain jurisdiction.