Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  October 11, 2013                                                                Robert P. Young, Jr.,
                                                                                             Chief Justice

                                                                                   Michael F. Cavanagh
                                                                                   Stephen J. Markman
  147175                                                                               Mary Beth Kelly
                                                                                        Brian K. Zahra
                                                                                Bridget M. McCormack
                                                                                      David F. Viviano,
                                                                                                  Justices
  TOWNSHIP OF RICHMOND,
           Plaintiff-Appellee,
  v                                                     SC: 147175
                                                        COA: 304444
                                                        Macomb CC: 2006-001054-CZ
  RONDIGO, L.L.C.,                                                  2006-004429-CZ
            Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the March 5, 2013
  judgment of the Court of Appeals is considered, and it is DENIED, there being no
  majority in favor of granting leave to appeal or taking other action.

        YOUNG, C.J. and VIVIANO, J., would grant leave to appeal.

        MARKMAN, J. (dissenting).

        I respectfully dissent. In my judgment, the Court of Appeals erred by holding that
  defendant could not receive attorney fees and costs pursuant to MCR 286.473b absent
  compliance by defendant’s farm or farm operation with “generally accepted agricultural
  and management practices” (GAAMPs).

        MCR 286.473b states:

               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. [Emphasis added.]
                                                                                                               2


      MCL 286.473(1) states in part:

             A farm or farm operation shall not be found to be a public or private
      nuisance if the farm or farm operation alleged to be a nuisance conforms to
      generally accepted agricultural and management practices according to
      policy determined by the Michigan commission of agriculture.

The Court of Appeals held that “the plain language of MCL 286.473(1) expressly
conditions [Right to Farm Act] immunity from characterization as a nuisance on a farm’s
or a farm operation’s conformance to [GAAMPs].” Richmond Twp v Rondigo, LLC,
unpublished opinion per curiam of the Court of Appeals, issued March 5, 2013 (Docket
No. 304444), p 6. I disagree. The provision in MCL 286.473(1) that a GAAMPs-
compliant farm or farm operation is immune from characterization as a “nuisance”
constitutes one way, but not the only way, in which a defendant farm or farm operation
can prevail in a nuisance action and thus receive costs under MCL 286.473b.
Furthermore, MCL 286.473b states that a defendant farm or farm operation that prevails
in any nuisance action in which that defendant is alleged to be a nuisance is entitled to
expenses. MCL 286.473b contains no language limiting the award of fees and costs to
defendants who are compliant with GAAMPs. Simply, if a farm or farm operation is not
compliant with GAAMPs but prevails in a nuisance action, nothing in MCL 286.473b
suggests that the farm or farm operation cannot receive costs. Because there was no
dispute that defendant’s composting activity constituted a “farm or farm operation,” and
because defendant prevailed in the litigation of the township’s failed nuisance claims
pertaining to defendant’s composting activities, defendant should have been permitted to
recover costs and expenses reasonably incurred “in connection with the defense of the
action, together with reasonable and actual attorney fees.” MCL 286.473b. Accordingly,
I would reverse this portion of the judgment of the Court of Appeals and award attorney
fees and costs to defendant.

        ZAHRA, J., did not participate because he was on the Court of Appeals panel at an
earlier stage of the proceedings.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         October 11, 2013
       s1008
                                                                             Clerk
