The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
AUGUSTA CHARTER TOWNSHIP, UNPUBLISHED
June 27, 2024
Plaintiff/Counterdefendant-Appellee,
v No. 366699
Washtenaw Circuit Court
SHAFIQ KASHAM and KB LANDSCAPE LC No. 22-000724-CZ
SUPPLY, LLC,
Defendants/Counterplaintiffs-
Appellants.
Before: BOONSTRA, P.J., and CAVANAGH and PATEL, JJ.
PER CURIAM.
In this zoning dispute, defendants challenge an order granting summary disposition of
plaintiff’s complaint that defendants operated a landscape supply and snow removal business in
violation of its zoning ordinance, and dismissing defendants’ equal-protection counterclaim. We
affirm those decisions, but vacate the part of that order granting injunctive relief that is overly
broad by restricting and prohibiting potentially permitted uses.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
Defendants own property located within plaintiff’s agricultural residential (AR) zoning
district, as stated in Augusta Charter Township Zoning Ordinance § 3.5(C). Starting in 2020,
defendants operated a landscape supply and snow removal business, storing salt, mulch, pavers,
commercial vehicles, and equipment on the property. In August 2021, plaintiff sent a notice to
defendants that stated:
The current use of the site as a business, KB Landscaping and Snow Removal, and
more specifically as a work staging area for employees to park personal vehicles,
and the storage of large commercial trucks, landscaping supplies and trees, and
other equipment is not a use that is permitted by right in the AR District.
A month later, Mohamad Kahala and Naji Kahala of KB Nursery and Landscape Supply
(KBNLS) applied for “no construction proposed” zoning compliance approval for use of the
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property as “a landscape supply nursery including equipment and vehicle storage.” The
application was denied. In November 2021, KBNLS applied for a special land use permit. The
proposed use stated in the application was: “KB Nursery will hold nursery stock and bulk
materials.” Plaintiff’s Planning Commission denied the application, finding the property use did
not meet the zoning ordinance definition of a “plant material nursery,” but was instead “most
similar to a landscape supply and contractor yard for the purpose of providing landscape supply
contractor services and for the storage and sale of landscape supply supplies.” KBNLS appealed
the denial of the special use permit to the circuit court.
In June 2022, before the disposition of the appeal of the special use permit denial, plaintiff
brought this action alleging that defendants’ landscape supply and snow removal business violated
plaintiff’s zoning ordinance because it was not a permitted use of property within the AR district.
Plaintiff specifically alleged that defendants’ storage of commercial vehicles, equipment, mulch,
and other materials was in violation of the zoning ordinance, in addition to:
construction of both temporary and permanent structures on the Property, to wit:
cinderblock walls and storage bins for the storage of landscape supply materials
and supplies, and the construction of a structure for the storage of landscape supply
trees and other plants used in the conduct and operation of the commercial business.
Plaintiff requested injunctive relief, requiring defendants to cease and desist numerous activities
related to the business, and “any and all use of the Property for the conduct of any commercial
activity.”
Defendants answered, denying that the list of permitted uses found in Augusta Charter
Township Zoning Ordinance § 3.5(C)(1) “represents an exhaustive permissible use, den[ying] that
the ‘list’ accounts for alternative special uses, [and] den[ying] that Plaintiff enforces said ‘list’
against all property owners within the Township.” Defendants also maintained that their use of
the property “is consistent with a special permitted use as set forth in detail in the documentation,
briefing and exhibits pending before the Court in regard to [the special use permit appeal].”
On the same date, defendants filed a counterclaim alleging, in pertinent part, an equal-
protection claim under the Michigan and United States Constitutions, US Const, Am XIV; Const
1963, art 1, § 2, asserting that the ordinance was irrationally enforced against them, while
similarly-situated property owners and users had been treated differently. This claim included an
allegation that plaintiff treated defendants as a “class of one.” In other words, defendants alleged
that other properties near defendants engaged in the same or similar businesses without special use
permission or approval and yet plaintiff did not take any action against those owners.
Meanwhile, in December 2022, the circuit court denied KBNLS’s claim of appeal
concerning the denial of the special use permit, finding that the decision was authorized by law
and supported by competent, material, and substantial evidence. A week later, articles of
organization for a new entity, Kahala Brothers Farm, LLC, were filed with the Michigan
Department of Licensing and Regulatory Affairs.
Thereafter, plaintiff moved for summary disposition under MCR 2.116(C)(10) as to its
complaint, and under MCR 2.116(C)(8) as to defendants’ equal-protection claim. Plaintiff argued
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that no genuine issue of material fact existed that the property at issue is zoned for agricultural
residential uses under its zoning ordinance and the list of permitted uses, as set forth in § 3.5(C),
does not include commercial business uses like defendants’ landscape supply and snow removal
business; accordingly, plaintiff was entitled to summary disposition. Further, plaintiff argued, in
relevant part, defendants failed to state a valid claim for an equal protection violation, and thus, its
counterclaim must be dismissed.
Defendants responded to plaintiff’s motion, arguing that after the trial court denied its
appeal with regard to the special use permit, defendants changed their use of the property. That
is, the property was no longer being used as a landscape supply and snow removal business; rather
it was being used in a manner consistent with the Michigan Right to Farm Act (RTFA), MCL
286.471 et seq., as a farm operation, which is specifically permitted under § 3.5(C) of plaintiff’s
zoning ordinance. However, defendants argued, the relief that plaintiff requested from the trial
court would prohibit defendants from even using their property in this manner, and thus, must be
denied. Further, defendants argued, plaintiff was not entitled to summary dismissal of their equal-
protection counterclaim because defendants stated a valid claim upon which relief could be granted
with respect to plaintiff’s “selective enforcement” of the ordinance at issue considering the
substantially similar businesses being operated on nearby properties. Accordingly, defendants
requested that the trial court deny plaintiff’s motion for summary disposition.
Plaintiff filed a supplemental brief in support of its motion for summary disposition,
arguing that defendants’ landscape supply and snow removal business use was the subject of the
complaint and there was no indication that defendants were allegedly operating a farm. Pursuant
to MCR 2.111, defendants waived their right to assert the RTFA as an affirmative defense or to
raise as a defense that their purported use conformed with the ordinance. Accordingly, plaintiff
argued, the trial court should not consider any such claim. Further, even if plaintiff did selectively
enforce its ordinance, which plaintiff denied, selective enforcement is not a violation of equal-
protection rights under the circumstances presented in this case. Therefore, plaintiff argued that
its motion should be granted.
At the hearing on the motion, the parties argued consistently with their briefs. The trial
court concluded that this case was quite similar to that of Lima Twp v Bateson, 302 Mich App 483;
838 NW2d 898 (2013), which, plaintiff argued, specifically stated that the RTFA is an “affirmative
defense that has to be pled.” The trial court indicated it would grant summary disposition of the
claim and counterclaim in favor of plaintiff. Defendants’ counsel requested clarification of the
ruling, to ensure that the court did not mean that defendants could not operate a business or
commercial venture. Plaintiff’s counsel interjected that, if defendants were farming on the
property, that was permitted under the ordinance pursuant to the RTFA. However, “[t]he storage
of commercial landscape supply supplies, the construction of bins on that property, the storage and
use of commercial vehicles, the parking of employee vehicles, the coming and going of employees,
the coming and going of commercial traffic to and from that property, none of that is related to a
farming operation[.]” The trial court agreed, stating “that’s exactly what happened in Bateson.”
Subsequently, plaintiff submitted a proposed order which stated:
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IT IS ORDERED that the nuisance under MCL 125.3407 shall be abated.
Defendants shall cease and desist from conduct and operations of the landscape
supply and snow removal business on the Property as follows:
1. All use of the Property for the conduct of commercial activity, including the
operation and conduct of KB Landscape and Snow Removal services or related
services for which a Certificate of Zoning Compliance was not issued;
2. All storage of commercial vehicles, equipment and landscape supplies which
shall be removed from the Property except as approved by Township;
3. All use of the Property as a contractor’s establishment, contractors storage yard,
and for a staging area for the parking of employee vehicles and the coming and
going of employees and contractors to and from the Property;
4. All use and occupancy of any buildings or structures that were constructed
without permits and for which no certificate of occupancy has been granted. Except
as permitted by Township, such structures shall be razed and removed to include
all block storage bins and storage corrals;
5. All conduct and operations related to movement, storage, and sale of landscaping
materials and supplies unless a zoning compliance certificate has been granted by
the Township; and
6. All parking, storage and operation of commercial vehicles at or on the Property.
Defendants objected to the proposed order, arguing that it created remedies not expressly
granted by the trial court. Defendants had no objection to language barring operation of the
landscape supply and snow removal company, but objected to language barring uses greater than
the existing zoning did with regard to, among other things, supplies and materials, employees,
storage, and commercial vehicles, which were arguably associated with a permitted farming use.
At the hearing held on defendants’ objections, plaintiff argued that the issue of farming operations
protected by the RTFA was not properly before the court because it was not pleaded. But in any
case, plaintiff argued, to qualify as a farming operation, the farm products involved need to be
produced on the property. Ultimately, the trial court overruled defendants’ objections and again
referenced a similarity with Bateson as its reasoning. On June 2, 2023, the trial court entered an
order granting summary disposition as to plaintiff’s complaint under MCR 2.116(C)(10), and
dismissing defendants’ equal-protection counterclaim under MCR 2.116(C)(8). The court held
that the conduct and operation of a landscape supply and snow removal business was not permitted
under plaintiff’s ordinance in the AR zoning district. Nevertheless, defendants commenced such
a business without zoning approval by plaintiff and no genuine issue was raised by defendants to
refute these conclusions. Further, for the reasons stated by plaintiff, defendants failed to state an
equal-protection counterclaim for which relief may be granted. Therefore, the trial court ordered
that the nuisance be abated. Defendants were to cease and desist from conduct and operations of
the landscape supply and snow removal business on the property and the list of remedies from
plaintiff’s proposed order was replicated in the trial court’s order. This appeal followed.
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On appeal, defendants argue that: (1) plaintiff was not entitled to summary disposition of
its ordinance enforcement claim under a nuisance per se theory because defendants’ modified use
of their property was permitted by the zoning ordinance; (2) the injunctive relief provided in the
order granting summary disposition was impermissibly broad because it bars uses permitted by
the zoning ordinance and the RTFA; and (3) defendants stated a valid equal-protection
counterclaim thus the trial court’s dismissal of this claim under MCR 2.116(C)(8) was improper.
II. STANDARD OF REVIEW
We review de novo summary disposition rulings. Grossman v Brown, 470 Mich 593, 598;
685 NW2d 198 (2004). A motion for summary disposition under MCR 2.116(C)(8) “tests the
legal sufficiency of a claim and is tested on the pleadings alone.” Singerman v Muni Serv Bureau,
Inc, 455 Mich 135, 139; 565 NW2d 383 (1997). This motion challenges “whether the plaintiff’s
pleadings allege a prima facie case.” Garvelink v Detroit News, 206 Mich App 604, 607; 522
NW2d 883 (1994). A court may grant the motion only if the claim is “so clearly unenforceable as
a matter of law that no factual development could possibly justify recovery.” Maiden v Rozwood,
461 Mich 109, 119; 597 NW2d 817 (1999) (quotation marks and citation omitted).
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a
claim. Id. at 120. The pleadings, affidavits, depositions, and other documentary evidence is
reviewed in the light most favorable to the nonmoving party to determine whether a genuine issue
of material fact exists for the jury to decide. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d
506 (2004). If reasonable minds could differ on an issue, a genuine issue of material fact exists.
Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). The trial court may
not make findings of fact or weigh credibility in deciding a motion for summary disposition.
Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018) (citation omitted).
A decision whether to grant injunctive relief is reviewed for an abuse of discretion. Detroit
Fire Fighters Ass’n, IAFF Local 344 v City of Detroit, 482 Mich 18, 28; 753 NW2d 579 (2008).
“An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable
and principled outcomes.” Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008). The
factual findings a trial court makes in the process of granting injunctive relief are reviewed for
clear error. Slis v State of Mich, 332 Mich App 312, 335; 956 NW2d 569 (2020).
“Ordinances are treated as statutes for the purposes of interpretation and review,” and thus,
we review the application and interpretation of ordinances de novo. Great Lakes Society v
Georgetown Charter Twp, 281 Mich App 396, 407; 761 NW2d 371 (2008). The goal “is to discern
and give effect to the intent of the legislative body.” Id. at 407-408. “Terms used in an ordinance
must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for
definitions.” Id. at 408. While we review de novo a trial court’s decision in an appeal from a
zoning board, we accord great deference to the trial court and zoning board’s factual findings.
Norman Corp v City Of East Tawas, 263 Mich App 194, 198; 687 NW2d 861 (2004).
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III. SUMMARY DISPOSITION OF ORDINANCE ENFORCEMENT CLAIM
The trial court properly granted plaintiff’s motion for summary disposition because no
genuine issue of material fact existed that defendants’ landscape supply and snow removal
business was in violation of the applicable zoning ordinance as plaintiff alleged in its complaint.
Local units of government are granted authority to regulate land use and development
through zoning under the Michigan Zoning Enabling Act, MCL 125.3101 et seq. Maple BPA, Inc
v Bloomfield Charter Twp, 302 Mich App 505, 515; 838 NW2d 915 (2013). MCL 125.3407
provides for the enforcement of a zoning ordinance and the abatement of a nuisance per se:
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. The legislative body shall in the zoning
ordinance enacted under this act designate the proper official or officials who shall
administer and enforce the zoning ordinance and do 1 of the following for each
violation of the zoning ordinance:
(a) Impose a penalty for the violation.
(b) Designate the violation as a municipal civil infraction and impose a civil fine
for the violation.
(c) Designate the violation as a blight violation and impose a civil fine or other
sanction authorized by law. . . .
Consistent with that statutory authority, plaintiff’s zoning ordinance states:
In case any building, or part thereof, is used, erected, occupied or altered contrary
to the provisions of this Ordinance, such building or use shall be deemed an
unlawful nuisance and may be required to be vacated, torn down or abated by any
legal means, and shall not be used or occupied until it has been made to conform to
the provisions of this Ordinance. Public expenditures toward abating any such
nuisance shall become a lien upon the land. [Augusta Charter Township Zoning
Ordinance § 5.2.]
Defendants’ property is located in the AR zoning district. Plaintiff’s zoning ordinance
describes its “intent and purpose” for the AR zoning district as:
The intent of the Agricultural Residential district is to provide a district in which
low-density single-family residential development and agricultural pursuits may
occur in close proximity to each other along with other compatible uses often
occupying large areas. The predominant use of the Agricultural Residential district
shall be considered residential. The regulations of this district are designed to
protect and promote low-density residential land use, while accommodating
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agricultural activities. These regulations are also designed to exclude uses and
buildings which demand substantial public services, such as major thoroughfares,
centralized sewer or water facilities, and other public services. [Augusta Charter
Township Zoning Ordinance § 3.4(C).]
The AR district permits several uses, including “Agricultural uses in compliance with the Right to
Farm Act.” [Augusta Charter Township Zoning Ordinance § 3.5(C)(1).]
Defendants argue on appeal, as they did in the trial court, that they modified their use—
after this enforcement action was filed by plaintiff—so as to conform with the requirements of the
AR zoning district. That is, defendants argued that the property is no longer being used as a
landscape supply and snow removal business; rather, it is being used in a manner consistent with
the RTFA, as a farm operation, which is specifically permitted under § 3.5(C) of plaintiff’s zoning
ordinance.1 However, even if true, the fact that defendants allegedly modified their use is
irrelevant here. The case before the trial court was based on the complaint that plaintiff filed
against defendants and that complaint asserted that defendants were operating a landscape supply
and snow removal business which was not a permitted use in the zoned AR district where the
property was located. Plaintiff asserted that defendants’ improper and illegal use of the property
violated the applicable zoning ordinance and constituted a nuisance per se. Consequently, plaintiff
requested that the trial court grant a preliminary, and ultimately a permanent, injunction to prohibit
the zoning nuisance activity.
Defendants claim that they no longer operate a landscape supply and snow removal
business on that property. In other words, defendants apparently concede that their former use
constituted a nuisance per se—as plaintiff alleged in its complaint. Nevertheless, defendants still
argue that summary disposition of plaintiff’s claim was erroneous. Defendants want us to consider
whether their modified use conforms to plaintiff’s ordinance. This we will not do. That is an
entirely different case than the case pleaded by plaintiff. If defendants’ current use of their
property—as allegedly modified—constitutes nuisance activity, plaintiff may bring another
lawsuit to that effect. But that is for plaintiff to determine in the first instance, not the trial court
or this Court. This lawsuit claimed that defendants’ landscape supply and snow removal business
was a nuisance and sought an injunction to enforce its zoning ordinance. Defendants presented no
evidence that their use of the property as a landscape supply and snow removal business was not,
in fact, a nuisance. Accordingly, there is no genuine issue of material fact that defendants’
landscape supply and snow removal business constituted a nuisance and plaintiff was properly
granted summary disposition of its claim against defendants. The issue remains whether the
specific injunctive relief granted by the trial court was proper.
1
Contrary to the trial court’s conclusion, this case is factually distinguishable from Bateson, 302
Mich App 483. In that case, the plaintiff township alleged in its complaint that the defendants’
use of their property constituted a nuisance per se and the defendants argued that their use—the
exact same use and not a later modified use as is the case here—did not constitute a nuisance per
se. Id. at 485-486.
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IV. INJUNCTIVE RELIEF
Because the order granting injunctive relief appears to prohibit uses of the property that are
permitted in the AR zoning district, including agricultural uses that comply with the RTFA, see
Augusta Charter Township Zoning Ordinance § 3.5(C)(1), the trial court abused its discretion in
entering the order. See Detroit Fire Fighters Ass’n IAFF Local 344, 482 Mich at 28.
After plaintiff’s motion for summary disposition was granted by the trial court, plaintiff
submitted a proposed order in that regard, as discussed above. Defendants objected to the proposed
order, arguing that it was overly broad because it restricted or barred uses permitted by the zoning
ordinance. As set forth above, in brief, the order requires defendants to cease and desist:
1. All use of the Property for the conduct of commercial activity . . . ;
2. All storage of commercial vehicles[ and] equipment . . . ;
3. All use of the Property . . . for . . . the coming and going of employees and
contractors to and from the Property;
* * *
5. All conduct and operations related to movement, storage, and sale of landscaping
materials and supplies . . . ; and
6. All parking, storage and operation of commercial vehicles at or on the Property.
While these activities may be prohibited as to defendants’ landscaping supply and snow removal
business, the prohibitions are broadly drafted and may be misunderstood to also apply to even
potentially allowable activities under the applicable zoning ordinance. For example, some of these
prohibited activities are potentially allowable under the RTFA as associated with a farm operation,
and yet no exception is mentioned in the order to allow for this distinction. See Bateson, 302 Mich
App at 493; see also MCL 286.474(6). Instead the injunction language seems to be an attempt to
preclude all commercial activity, though protection of farm commercial activity was argued by
defendants as an objection to the proposed order. Because of the likelihood of confusion and over-
reach with regard to the specific injunctive relief awarded plaintiff, the trial court abused its
discretion entering the order. See Khouri, 481 Mich at 526. We vacate that part of the order and
remand this matter to the trial court for entry of an order granting injunctive relief that is not overly
broad so as to restrict and prohibit potentially permitted uses. The injunctive relief should pertain
only to defendants’ operation of the landscape supply and snow removal business which
constituted the zoning violation.
V. EQUAL-PROTECTION CLAIM
After de novo review, we conclude that defendants’ equal-protection counterclaim was
legally insufficient and summary disposition of this claim under MCR 2.116(C)(8) was proper.
See Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 317; 783 NW2d
695 (2010).
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Equal protection of the law is guaranteed by both the federal and Michigan constitutions.
US Const, Am XIV; Const 1963, art 1, § 2; Shepherd Montessori Ctr Milan, 486 Mich at 318.
Both guarantees afford similar protection. Id. The purpose of the equal-protection guarantee is to
secure every person against intentional and arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper execution. Village of Willowbrook v Olech, 528 US
562, 564; 120 S Ct 1073; 145 L Ed 2d 1060 (2000) (citations omitted). The equal-protection
guarantee requires persons under similar circumstances be treated alike; it does not require persons
under different circumstances be treated the same. El Souri v Dep’t of Social Servs, 429 Mich 203,
207; 414 NW2d 679 (1987); Champion v Secretary of State, 281 Mich App 307, 324; 761 NW2d
747 (2008).
As aptly explained by the United States Court of Appeals for the Sixth Circuit Court in
Futernick v Sumpter Twp, 78 F3d 1051, 1056 (CA 6, 1996), overruled on other grounds by Olech,
528 US 562:
There is no right under the Constitution to have the law go unenforced
against you, even if you are the first person against whom it is enforced, and even
if you think (or can prove) that you are not as culpable as some others who have
gone unpunished. The law does not need to be enforced everywhere to be
legitimately enforced somewhere . . . .
Sometimes the enforcement of an otherwise valid law can be a means of
violating constitutional rights by invidious discrimination. To address this
problem, courts have developed the doctrine of selective enforcement. Usually, a
claim of selective enforcement arises as a defense in a criminal prosecution or
regulatory enforcement action. In this context, the court should dismiss a case, or
take other appropriate action, if the defendant can prove that the prosecutor or
investigator intentionally “singled him out” for punishment because of membership
in a protected group or the exercise of a constitutionally protected right.
As similarly stated by this Court in Recreational Vehicle United Citizens Ass’n v Sterling Hts, 165
Mich App 130, 141; 418 NW2d 702 (1987), “the equal protection clause is concerned with acts of
invidious discrimination among classes and not with mere acts of unequal enforcement which may
be the result of erroneous or even arbitrary administration of facially-neutral ordinances.”
A “class-of-one” equal protection claim asserts that an individual has been “irrationally
singled out” for discriminatory treatment. Engquist v Oregon Dep’t of Agricultural, 553 US 591,
601; 128 S Ct 2146; 170 L Ed 2d 975 (2008). That is, the individual alleges that he has “been
intentionally treated differently from others similarly situated and that there is no rational basis for
the difference in treatment.” Id. (quotation marks and citations omitted). As the Engquist Court
explained:
[T]the Fourteenth Amendment “requires that all persons subjected to . . . legislation
shall be treated alike, under like circumstances and conditions, both in the
privileges conferred and in the liabilities imposed.” Hayes v Missouri, 120 US 68,
71-72; 7 S Ct 350; 30 L Ed 578 (1887). When those who appear similarly situated
are nevertheless treated differently, the Equal Protection Clause requires at least a
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rational reason for the difference, to ensure that all persons subject to legislation or
regulation are indeed being “treated alike, under like circumstances and
conditions.” Thus, when it appears that an individual is being singled out by the
government, the specter of arbitrary classification is fairly raised, and the Equal
Protection Clause requires a “rational basis for the difference in treatment.” Olech,
528 US at 564. [Id. at 602.]
The Engquist Court further explained that in the case of Olech, 528 US 562, the complaint alleged
that the zoning board was seeking to enforce a 33-foot easement as to the plaintiff’s property,
although the zoning board had consistently required only a 15-foot easement. Id. at 602-603. In
other words, there was a “clear standard against which departures, even for a single plaintiff, could
be readily assessed.” Id. at 602. And because the “differential treatment raised a concern of
arbitrary classification,” a rational basis for it had to be provided. Id. at 603. The Engquist Court
contrasted that situation—where a clear standard was not applied by the zoning board—to a
situation that by its nature involves discretionary decisionmaking based on subjective and
individualized assessments, i.e., no set standard exists to compare with the disputed action. Id.
The Court cautioned that in such situations “a challenge based on the arbitrary singling out of a
particular person would undermine the very discretion that such state officials are entrusted to
exercise.” Id.
In this case, defendants alleged in their counterclaim that they were singled out by plaintiff
for enforcement of the ordinance while others similarly situated to defendants were not and there
was no rational basis for the different treatment. Further, defendants alleged, plaintiff’s denial of
its application for special use was irrational and arbitrary. Defendants alleged that there was “no
conceivable basis” that could support these actions. However, as the trial court concluded, these
generalized allegations, alone, are not sufficient to state a valid equal-protection claim. It is clear
that plaintiff was entitled to enforce its ordinance; no specific similarly-situated property owners
were identified by defendants; no specific standard was identified that could be assessed with
regard to the purported misconduct; and this claim is wholly premised on discretionary
decisionmaking—involving subjective, individualized assessments, to which plaintiff is entrusted
to exercise. In summary, defendants’ generalized accusations of equal-protection violations do
not set forth a valid claim that they were irrationally singled out for differential or discriminatory
treatment. See Engquist, 553 US at 601. Even if defendants were the only property users among
the allegedly similarly-situated users against whom the ordinance has been enforced, plaintiff may
assert a rational explanation such as that defendants were the first to be known or identified as
violators of the ordinance. In any case, the trial court properly held that defendants failed to state
an equal-protection counterclaim and dismissal under MCR 2.116(C)(8) was proper.
VI. CONCLUSION
Summary disposition of plaintiff’s zoning enforcement action was proper because no
genuine issue of material fact existed that defendants’ landscape supply and snow removal
business was in violation of the applicable zoning ordinance as plaintiff alleged in its complaint.
Summary disposition of defendants’ equal-protection counterclaim was proper because defendants
failed to state a claim upon which relief could be granted. However, the part of the June 2, 2023
order granting summary disposition that is labeled “Remedies” is vacated because it is overly
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broad by restricting and prohibiting potentially permitted uses. We remand this matter for entry
of an order granting injunctive relief that is proper in scope, i.e., pertains only to defendants’
operation of the landscape supply and snow removal business which constituted the zoning
violation.
Affirmed in part, vacated in part, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Mark J. Cavanagh
/s/ Sima G. Patel
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