Twp. of Rose v. Devoted Friends Animal Soc'y

TOWNSHIP OF ROSE, Plaintiff-Appellee, v. DEVOTED FRIENDS ANIMAL SOCIETY and MELISSA BORDEN, Defendants-Appellants.

No. 356599

Court of Appeals of Michigan

April 21, 2022

UNPUBLISHED

Oakland Circuit Court LC No. 2019-178042-CZ

Before: Ronayne Krause, P.J., and Murray and O'Brien, JJ.

PER CURIAM.

In this zoning dispute, defendants appeal as of right the trial court's order granting summary disposition to plaintiff. Defendants contend on appeal that the trial court erred by prematurely rejecting their equitable estoppel defense when ruling on a motion for summary disposition. We disagree and affirm.

I. BACKGROUND

This case arises from defendants housing approximately 60 to 75 dogs on a property within plaintiff Rose Township's zoning authority without the necessary special land use approval. Defendant Devoted Friends Animal Society is a nonprofit organization that serves as "an animal rescue and rehabilitation facility," and defendant Melissa Borden is a board member of defendant Society and is in charge of operations at the property. Devoted Friends previously had an established operation in Frenchtown Township; according to defendants, the operation began "as a foster site for a single dog at Borden's home" and expanded until Frenchtown Township officials objected. In May 2019, Devoted Friends purchased their property in Rose Township, hoping to avoid similar problems.

According to defendant Borden, before beginning operations and moving any dogs onto the property (but after Devoted Friends purchased the property), she reached out to David Plewes plaintiff's zoning administrator, regarding any applicable zoning requirements for the site. According to Borden, Plewes "told [her] that [she] could apply for a kennel permit with Oakland County or purchase licenses for each individual dog that [she] took in." Borden subsequently clarified that it appeared to her that Plewes "didn't have a clue," and so Plewes "was going to talk to the county and decide what we were to do between special use kennel license or individual [sic] licensing the dogs." According to Borden, ultimately "the county agreed that we were going to individually license the dogs." Defendant Borden stated that, following this advice, she purchased a license for each dog taken in. According to Plewes, however, Borden did not contact him until after he began receiving complaints in August 2019 from neighbors regarding incessant barking from defendants' property. According to Plewes, he told Borden that she needed a special land use approval to operate a dog kennel, and Oakland County also required the dogs to be licensed. Plewes maintained that defendants had moved the dogs and other animals onto the property before Plewes was aware of their presence. In an interrogatory response, defendants indicated that they first brought dogs, along with horses and other livestock, onto the property on June 8, 2019.

Plewes issued two zoning violation notices to defendants. Following defendants' failure to subsequently file any application or request for zoning approval, plaintiff filed a complaint against defendants, alleging a zoning violation and nuisance from their operating a dog kennel without applying for or obtaining the necessary approval from the Township Planning Commission. This complaint was amended to allege a separate zoning violation from the expansion of the property's permitted use as a riding facility. Plaintiff sought a preliminary injunction requiring defendants to remove the dogs and not accept any new dogs, unless and until the necessary zoning approval was obtained. The trial court issued an order prohibiting defendants from receiving additional dogs, but it otherwise denied plaintiff's requested preliminary injunction.

Plaintiff moved for summary disposition pursuant to MCR 2.116(C)(8), (9), and (10). In relevant part, defendants argued that, in light of Plewes's alleged advice to Borden before the dogs were moved to the property, and certain improvements defendants made to the property in furtherance of their operation, plaintiff was equitably estopped from enforcing its ordinances. After a hearing on plaintiff's motion, the trial court entered a thorough and thoughtful opinion and order granting plaintiff's request for summary disposition under both MCR 2.116(C)(9) and (10). Relevant to this appeal, the court found that "defendants' defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiffs right to recovery." Regarding defendants' equitable estoppel defense, the court reasoned as follows:

it would not be justifiable for defendants (Borden specifically) to rely on statements by Plewes based on her own statement that she didn't think he had a clue as to what was needed for her "type" of operation. Further, this Court finds that defendants acted prior to any discussion between Borden and Plewes since she had already moved the dogs onto the Property approximately 2 months before the discussions.

This appeal followed. We note that the only arguments defendants make on appeal pertain to the trial court's rejection of their equitable estoppel argument.

II. STANDARD OF REVIEW

This Court reviews a trial court's decision on a motion for summary disposition de novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). Although the trial court granted plaintiff's motion under MCR 2.116(C)(9) and (10), ^[1] it evaluated evidence beyond the pleadings in doing so. Therefore, "we construe the motion as having been granted pursuant to MCR 2.116(C)(10)." Cuddington v United Health Serv, 298 Mich.App. 264, 270; 826 N.W.2d 519 (2012). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Maiden v Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999). "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Johnson v VanderKooi, 502 Mich. 751, 761; 918 N.W.2d 785 (2018) (quotation omitted).

A moving party satisfies its burden under MCR 2.116(C)(10) by either "submit[ting] affirmative evidence that negates an essential element of the nonmoving party's claim[] or by demonstrat[ing] to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 7; 890 N.W.2d 344 (2016) (quotation marks and citation omitted). Once this initial burden is met, the nonmovant must "set forth specific facts showing that a genuine issue of material fact exists" and "may not rely on mere allegations or denials in the pleadings." Id. (quotation omitted). "If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted." Id. (quotation omitted).

III. APPLICABLE LAW

"Townships have statutory authority to enact and enforce zoning ordinances for the orderly planning of their communities." Lyon Charter Twp v Petty, 317 Mich.App. 482; 896 N.W.2d 477 (2016), citing MCL 125.3101 et seq., vacated in part on other grounds 500 Mich. 1010 (2017). "To achieve these goals, [i]t is the policy of this state and a goal of zoning that uses of property not conforming to municipal zoning ordinances be gradually eliminated." Id. at 488 (quotation marks and citation omitted; alteration in original). Although municipalities generally are not estopped from enforcing zoning ordinances, because persons are charged with knowledge of the provisions of those ordinances and the powers of municipal officials under those ordinances, "the doctrine of non-estoppel of a municipality in the field of zoning is not without exception." Pittsfield Twp v Malcolm, 375 Mich. 135, 146; 134 N.W.2d 166 (1965).

This Court has held that a

township can be equitably estopped from enforcing a zoning ordinance 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. [Lyon Charter Twp, 317 Mich.App. at 490 (quotation marks and citation omitted).]

The prejudice must be more than de minimis.^[2] Id. at 491. Merely being misinformed about the provisions of an ordinance by a municipal official, and expending some amount of money on that basis, is insufficient grounds to estop the municipality from enforcing the ordinance. Jourden v Wyoming Twp, 358 Mich. 496, 499; 100 N.W.2d 284 (1960); White Lake Twp v Amos, 371 Mich. 693, 698-699; 124 N.W.2d 803 (1963). Even issuance by the municipality of unlawful permits or licenses does not necessarily confer a right to rely on those permits or licenses. See Fass v City of Highland Park, 326 Mich. 19, 24-31; 39 N.W.2d 336 (1949). Rather, the presence of "exceptional circumstances" does not turn on any one factor, but whether "the entire circumstances, viewed together, present compelling reasons why equity should refuse" the municipality's enforcement of its ordinance. Pittsfield Twp, 375 Mich. at 148.

IV. ANALYSIS

Defendants argue that the trial court erred by prematurely rejecting their equitable estoppel defense when ruling on a motion for summary disposition. Defendants primarily argue that the trial court erred by engaging in impermissible fact-finding concerning their equitable estoppel defense. According to defendants, their estoppel...