Opinion
Docket No. 160991 Calendar No. 3
02-08-2022
TOWNSHIP OF FRASER, Plaintiff-Appellant, v. Harvey HANEY and Ruth Ann Haney, Defendants-Appellees.
Birchler, Fitzhugh, Purtell & Brissette, PLC (by Mark J. Brissette ) for plaintiff. Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ) for defendants. Bauckham, Sparks, Thall, Seeber & Kaufman, PC (by Robert E. Thall, Portage, and T. Seth Koches) for the Michigan Townships Association, amicus curiae. Rosati, Schultz, Joppich & Amtsbuechler, PC, Farmington Hills (by Steven P. Joppich ) and Gerald A. Fisher for the Michigan Municipal League and the Government Law Section of the State Bar of Michigan, amici curiae. Bloom Sluggett, PC (by Clifford H. Bloom ) for the Michigan Lakes & Streams Association, Inc., amicus curiae. Williams Williams Rattner & Plunkett, PC (by Jason C. Long ) for the Real Property Law Section of the State Bar of Michigan, amicus curiae.
Birchler, Fitzhugh, Purtell & Brissette, PLC (by Mark J. Brissette ) for plaintiff.
Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ) for defendants.
Bauckham, Sparks, Thall, Seeber & Kaufman, PC (by Robert E. Thall, Portage, and T. Seth Koches) for the Michigan Townships Association, amicus curiae.
Rosati, Schultz, Joppich & Amtsbuechler, PC, Farmington Hills (by Steven P. Joppich ) and Gerald A. Fisher for the Michigan Municipal League and the Government Law Section of the State Bar of Michigan, amici curiae.
Bloom Sluggett, PC (by Clifford H. Bloom ) for the Michigan Lakes & Streams Association, Inc., amicus curiae.
Williams Williams Rattner & Plunkett, PC (by Jason C. Long ) for the Real Property Law Section of the State Bar of Michigan, amicus curiae.
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. 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. 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 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.
Defendants’ property was not (and is not) zoned for agriculture.
Fraser Twp. v. Haney , 327 Mich.App. 1, 11, 932 N.W.2d 239 (2018), vacated 504 Mich. 968, 933 N.W.2d 42 (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).
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 . On remand, the Court of Appeals distinguished Baker and explained that defendants did not waive the statute-of-limitations defense.
Baker v. Marshall , 323 Mich.App. 590, 919 N.W.2d 407 (2018) ; Fraser Twp. v. Haney , 504 Mich. 968, 933 N.W.2d 42 (2019).
Fraser Twp. v. Haney , 331 Mich.App. 96, 98-99, 951 N.W.2d 97 (2020).
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.
Fraser Twp. v. Haney , 506 Mich. 964, 950 N.W.2d 748 (2020).
II. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision on a motion for summary disposition. We also review de novo questions of law and statutory interpretation.
McQueer v. Perfect Fence Co. , 502 Mich. 276, 286, 917 N.W.2d 584 (2018).
Id. at 285-286, 917 N.W.2d 584.
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 ...." "The relevant ‘harms’ ... are the actionable harms alleged in a plaintiff's cause of action." We thus look to plaintiff's complaint to determine when the wrong upon which the claim is based was done.
Trentadue v. Buckler Automatic Lawn Sprinkler Co. , 479 Mich. 378, 387 n 8, 738 N.W.2d 664 (2007) (citation omitted).
Frank v. Linkner , 500 Mich. 133, 150, 894 N.W.2d 574 (2017).
Plaintiff seeks to enforce its zoning ordinance through a nuisance-abatement action. The Michigan Zoning Enabling Act permits such actions, providing, in relevant part:
MCL 125.3101 et seq.
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.[ ]
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. For example, the fact that defendants had hogs on their property yesterday is 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.
Cf. Woldson v. Woodhead , 159 Wash.2d 215, 219, 149 P.3d 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 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 N.J. 84, 102, 675 A.2d 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.
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.
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 ...." A "use" is thus inherently ongoing. And the nature of zoning violations typically makes a limitations period of little relevance to nuisance-abatement actions concerning present or ongoing nonconforming uses.
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 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 N.W.2d 82 (2020).
A single property can be subject to many "uses." The Zoning Enabling Act refers to "residential use" as one such use. Operation of a state-licensed residential facility, for example, is a residential use. 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 ...." 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. The continuing-wrongs doctrine (or its abrogation) is not 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. 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. 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.
Fraser Twp. , 327 Mich.App. at 11-12, 932 N.W.2d 239.
See Sumner v. Goodyear Tire & Rubber Co. , 427 Mich. 505, 510, 398 N.W.2d 368 (1986), overruled by Garg v. Macomb Co. Community Mental Health Servs. , 472 Mich. 263, 696 N.W.2d 646 (2005).
See Garg v. Macomb Co. Community Mental Health Servs. , 472 Mich. 263, 280, 696 N.W.2d 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 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977).
Accrual of Claims for Continuing Trespass or Continuing Nuisance for Purposes of Statutory Limitations , 14 A.L.R.7th 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.").
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." After Garg , 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. A plaintiff is free to bring a new action each time a defendant commits a new violation. 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. But, importantly, Garg allowed the claim that accrued within the limitations period to go forward.
Garg , 472 Mich. at 282, 696 N.W.2d 646 (emphasis added).
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, 398 N.W.2d 368, overruled by Garg , 472 Mich. 263, 696 N.W.2d 646.
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.").
Garg , 472 Mich. at 282, 696 N.W.2d 646.
Id. at 286, 696 N.W.2d 646.
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 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.
McCormack, C.J., and Zahra, Viviano, Bernstein, Clement, Cavanagh, and Welch, JJ., concurred.