Kelly Miller, Tab Faber, and Tom Dunn from We The People of Gladwin County took the time to get together this week and discuss the Mud Bog Case that Gladwin County has brought against Denise Miller and her family. We urge you to watch the video....
And read below for a timeline of the case, and some background information.
Each day, we see an increasing number of cases involving private property rights. Including this one: The Mud Bog Case in Gladwin County against Denise and Kelly Miller.
The case stems from an “ordinance violation” regarding a 40-acre private property farm belonging to the millers that has been used for years as a popular venue for mud bogs.
In the Summons and Complaint dated April 24, 2013, it is alleged that the Defendant, Denise Miller, owner of the property in question on Nettleton Road, has hosted along with her husband, Kelly Miller, mud bogs on the private property, which the county says is a violation of its Zoning Ordinance.
In the complaint, the Plaintiff, County of Gladwin, asks the court to confirm that mud bogging is a nuisance per se, and is violation of the County's Zoning Ordinance.
They also ask for an injunction against the activity on the Millers’ property, “…or any premises in Gladwin County unless a permit is obtained.”
We've said it in our blog before: This is not about a mud bog. It's about property rights. But it's also about something else - it is about examining the validity of the Zoning Department in enforcing the issue.
For many years, the mud bogs have been a staple at the Miller farm. In fact, aside from the fact that it's private, patented property, over which the county has no jurisdiction, it's been going on longer than the county's zoning has been in place. The County's Zoning Ordinance was enacted in 2007.
According to Michigan Zoning Enabling Act PA 110, 2006 - Activity should be legal nonconforming use, as confirmed by written statements in file. So why does complaint focus on mud bogging as a nuisance per se, and not the Fair/Festival aspect? In any case, non-conforming *legal* use should apply. There have been mud bogs on the property since 2002; others claim as far back as 1999.... Millers have obviously complied with requests - parking, sanitation, noise reduction (berm), which shows cooperation... Not like they have shirked requests. Uninformed on the issue does not constitute disobedience...
This case is yet another example of how Zoning is the death of property rights, and how bureaucratic departments are being used to enforce sometimes bogus "violations" over people, places, and even animals over which they should have no jurisdiction.
Take this case, for example:
Mark Baker vs. The Department of Natural Resources. DNR redefines the words "feral" and "domesticated"; issues Invasive Species Order against their definition of "feral" pigs, allowing them to build a bridge from their intended purpose - to manage wildlife on state land - to exerting their authority over farm animals on private property.
Learn more. Start here: http://www.youtube.com/watch?v=gA_OyraGo-o&feature=c4-overview&list=UU-cAVy-oC3v7ENiQu-Ls-4w
There are countless other cases where questionable measures are used as means to various ends -
FDA attack on organic egg producers by using fear tactics:
EPA making the determination that we can totally eat significantly more amounts of Monsanto's Round-Up this year:
Or a Zoning Authority's impact on a rural hobby farm.
If you read any of these cases and questioned motives, or felt at any time, "That's not fair." You're not alone.
Because of the examples of seeming overreach by unelected bureaucrats, WE - the people - should always examine cases thoroughly, even when they are controversial and emotional. The more we allow an agency to create case law, the more we bolster its authority to commit the same action again.
Think about the implications of creating case law regarding mud bog activity, and more importantly - the dangerous potential in any bureaucratic office to exert a police-like authority over a situation involving what appear to be separate incidents that are criminal in nature, to punish landowners where law enforcement was not able to, using the methods employed by the duties assigned to them by your local government.
This lawsuit was initiated by The County of Gladwin, through its Zoning Department. The County in essence gave the authority to the department to enforce the rules how they see fit, even to the point of initiating litigation, all without a vote.
That's the part that should be concerning: When unelected bureaucrats appointed by the legislative body of a municipality, in this case Gladwin County, are free to initiate lawsuits without a vote BY that legislative body - in this case, the Board of Commissioners - we have lost our representation.
We elect the county commissioners to represent us, not to turn over the checkbook to any of its unelected bureaucratic offices - in this case, the Zoning Department. We elected them to make financial decisions with our tax money, and in this case they have failed us. They have started a lawsuit without a vote.
A lawsuit on our behalf, no less. Who is the County of Gladwin? It's US, folks. It's The People, The Taxpayers. Had the issue been taken to the Board of Commissioners for a vote, we may have been able to weigh in on the potential of spending thousands of dollars of taxpayer money on what some of us feel is a frivolous lawsuit.
By the way, I thought we were broke. Whatever. Keep spending to fight this case....might cost you a deputy or two...which is a shame! They aren't the bad guys here....... But of course, their retirement isn't so near as others, nor so dependent on their usefulness to the county.
Here's a Timeline from documents located in the Millers' file, as well as from the Minutes from the Gladwin County Board of Commissioners:
April 6, 2010 - Anonymous complaint regarding "excessive noise, large crowds, and camping," in regards to 1420 Nettleton Road.
April 6, 2010 - Z.A. did a drive by. Took pictures - see attached. Called DEQ. Z.A. reports trash and old trucks all over.
April 7, 2010 - Handwritten note: "Complaint about mudbog on corner of Nettleton & Ridge Road." Miller indicated bogging since 2005; 4 mud bogs per year; Easter weekend largest; April through October; Smaller bogs since 2000 per Kelly Miller; Appx. 3000 people / 1000 vehicles on Easter weekend." Signed by Schneider.
NOT DATED: Photos taken by Schneider allegedly. Port a potties. Bog activity land use (mud, ruts, holes.) Camping. Photos taken daytime and nighttime.
ATTACHED - Special Permit Uses for Residential Farming. "Campground/RV Park circled."
ATTACHED - Special Permit Uses for B2 (business): Star next to "Outdoor Assembly."
ATTACHED - Definitions from Zoning Ordinance 2.1.08 - Starred: "Outdoor Amusement Facility." and "Outdoor Assembly."
ATTACHED - Further Definition of Section 7.17 Outdoor Assembly.
ATTACHED - Further Definition of Section 7.19 Recreational Vehicle Park, Campground.
NOT DATED: Handwritten notes: "Called Mrs. Sparkman 4-13-10. She had stated to Board Secretary Carmen that she had diary of when mud bogs were here...diary listed only dates 2009."
She did state they started in 2006 (miller said 2005). She told me she had contacted Zoning previously. Zoning had told her there was nothing they could do." "Talked to lawyer will talk Reed Whittington." "Due to the fact these bogs started when zoning was not in effect. Therefore was allowed because it was an existing use." "Is not permitted use. Went from mud bog casual event to a fair/festival <scribble> outdoor assembly. casual social event on a personal matter. to outdoor assembly that is not permitted." "Does not look like it's gonna fit."
April 27, 2010 - From Zoning/Schneider to Jacobson: "Enclosed please find copies of a file for Denise Miller, complaint #C10-36. If you need anything else from our office, please let me know."
April 27, 2010 - From Board of Commissioners meeting:
April 30, 2010 - Letter from Jacobson to Miller mailed (per postmark) May 1, 2010: "I am the attorney for Gladwin County... The Board of Commissioners has received several contacts recently concerning mud bog activities on your property located in Gladwin Township on Nettleton Road." No complaints included from Commissioners.
May 13, 2010 - Letter from Jacobson to Miller re: their meeting. "Personal activity such as mud bogs would not be itself a violation of the Ordinance, if it is kept as a personal activity.
May 29, 2010 - Pictures (9) taken of bog activity and later submitted to Zoning by Sparkmans; date unspecified for delivery of photos.
June 15, 2010 - Letter from Zoning/Schneider to the Sparkmans: "Thank you for submitting pictures of the last mud bog held at 1420 Nettleton Road. We would like to assure you that this office appreciates your efforts. As explained, the property owners are allowed to have small gatherings. If you feel the gatherings are becoming a problem, please let us know."
April 1, 2011 - Letter sent to Denise Miller from Zoning Dept/Schneider. "Please accept this letter as a reminder that you have agreed to limit the mud bog participation to personal activity (25 vehicles total). Large events are still not allowed in the zoning district in which you reside. Your cooperation is needed in this matter."
ENTER LONG GAP OF TIME. NOTHING NOTED.
March 30, 2013 - Deputy Goss observed mud bogging activity at 1420 Nettleton; initiated traffic stop against vehicle "which led onto grounds of the event." Not charging anything. 50 vehicles present. "5-8 actively engaged in mud bogging."
April 24, 2013 - Summons and Complaint filed against Denise Miller in Circuit Court which asks court to list mud bogging as a "nuisance per se", grant an injunction for ordinance violation; award costs to plaintiff Gladwin County; force Miller to submit "Special Use Permit."
ADDITONAL PER WRITER:
According to Michigan Zoning Enabling Act PA 110, 2006 - Activity should be legal nonconforming use, as confirmed by written statements in file. So why does complaint focus on mud bogging as a nuisance per se, and not the Fair/Festival aspect? In any case, non-conforming *legal* use should apply. There have been mud bogs on the property since 2002; others claim as far back as 1999.... Millers have obviously complied with requests - parking, sanitation, noise reduction (berm), which shows cooperation... Not like they have shirked requests. Uninformed on the issue does not constitute disobedience...
Additionally, there's only one complaint in the file.... There's only
one complaint from *a citizen* in the Public Safety notes.
And of course this latest update, a response by Attorney Doug Jacobson on behalf of Gladwin County, Plaintiff, in regards to the Defendant's Motion for Summary Disposition, and Support of the Motion to Strike Defenses, was filed Nov. 10 with the Gladwin County Clerk's office:
According to various sources we researched:
“Affirmative defenses plead matters extraneous to the plaintiff's prima facie case, which deny plaintiff's right to recover, even if the allegations of the complaint are true."
When a motion is made to strike defenses, it essentially is asking the court to establish the validity of a defensive strategy. In this case, the Plaintiff is asking the court to deny the validity of the patented land defense.
He writes in the brief:
And continued, then following up with his conclusion:
