Macomb County Circuit Court File Nos. 2006-001054-CZ
and 2006-004429-CZ

Unpublished Court of Appeals Case No. 304444

While all of us enjoy our work and have a passion for the areas that we practice in, the fact is that we need to get the bills paid. The Rondigo case is not only an important case in protecting our ability to be paid for our services, but even more important in protecting farmers from nuisance cases that they usually could not afford to defend.

At issue in this case is MCL 286.473b of the 1981 Right to Farm Act (the “act”). Section 3b of that statute reads:

“In any nuisance action brought in which a farm or farm operation is alleged to be a nuisance, if the defendant farm or farm operation prevails, the farm or farm operation may recover from the plaintiff the actual amount of costs and expenses determined by the court to have been reasonably incurred by the farm or farm operation in connection with the defense of the action, together with reasonable and actual attorney fees.”

The purpose of the section was and is to protect farmers from the deep pockets of the local governing authorities with the ability to fund a lawsuit, or an unfriendly neighbor with the ability to fund a lawsuit, from filing unwarranted nuisance suits against farmers and forcing them to try to defend these actions that they scarcely can afford. Essentially, it levels the playing field.

The Rondigo case involves a situation in which the plaintiff Township of Richmond (“Richmond”)filed two nuisance per se claims against Rondigo for the operation of a composting area. The trial court ruled that there was no cause of action in either action. Rondigo filed a motion for all fees and costs as a prevailing party and also under MCL 286.473b, which was denied by the trial court. Both parties appealed the trial court’s decisions.

The Court of Appeals found that Richmond’s ordinances were not unconstitutional and that Rondigo was entitled to fees and remanded back to the trial court for findings consistent with their ruling. Both parties filed motions for costs and fees with the trial court. The trial court returned a surprising decision and only allowed Rondigo to recover a small portion of its costs and fees and also denied all costs and fees to Richmond because there had been no decision as to whether the denial of Rondigo’s site plan for the composting operation was arbitrary and capricious, therefore, they could not be a “prevailing party” under MCR 2.625.

Once again both parties looked to the Court of Appeals for resolution. This time, the court affirmed the limitation of Rondigo’s costs and fees and reversed the denial of Richmond’s costs and fees. As a result, Rondigo has submitted two issues to the Michigan Supreme Court:

1. The first issue, which is a case of first impression for the Michigan Supreme Court, is whether a prevailing farm or farm operation may recover its costs and fees in successfully defending a nuisance lawsuit under the Right to Farm Act even if it does not comply with GAAMP’s (Generally Accepted Agricultural Management Practices)as adopted by the MDA (Michigan Department of Agriculture.
2. The second issue is whether taxation of costs can be allowed under MCR 2.625 even when the party is not a “prevailing party” under the court rule and where opposing party’s actions did not rise to the level of wrongful conduct. This is not a case of first impression for the Michigan Supreme Court, however, the Court of Appeals’ decision on this issue seems to be in direct conflict with prior Michigan Supreme Court decisions.
Those of you who are familiar with the GAAMP’s know that compliance with GAAMP’s is not mandatory but voluntary and that there is no penalty for “non-compliance”. GAAMP’s were required to be established by the MDA under the act as guidelines for farmers. In fact, the GAAMP’s is not even an all-inclusive list of farming activities. For example, none of the eight categories of farm operations provides any guidance on the harvesting of crops. So under the theory advanced by the Court of Appeals, harvesting crops is not covered by the act.

In essence, the trial court upon remand did not follow the Law of the Case Doctrine when they revisited the issue of whether Rondigo’s composting operation qualified as a farm operation under the act. Once the Court of Appeals reversed and remanded the issue of costs and fees back to the trial court, it was incumbent on the trial court to follow that decision. By re-litigating the composting issue itself the trial court seemingly rewrote legislation that has remained in place for over 30 years.

So what does this mean for our clients? If the Michigan Supreme Court does not hear this case, or hears the case and affirms the Court of Appeals’ decision, this will leave farmers in a very vulnerable position. Without the ability to have costs and fees covered in successfully defending a warrantless nuisance action through the protection of MCL 286.473b very few farmers will be able to adequately defend these claims. As the urban sprawl continues to extend to the farm areas this puts the farmers in the frightening position of being challenged by the “city slickers” who seek to live in the country but do not want to be bothered by the realities of the farm operation (odors, noises, non-standard work hours). The Agricultural Law Section of the State Bar of Michigan will be following the path of this case and will provide an update as the case proceeds.