Declaratory action; Whether defendant was required to plead an affirmative defense; Nonconforming use; Edward C Levy Co v Marine City Zoning Bd of Appeals; Laches; Knight v Northpointe Bank; Equitable estoppel; Hughes v Almena Twp; Admissions; MCR 2.111

The court held that the trial court properly granted summary disposition for plaintiff-township on its claim seeking injunctive relief against defendant-resident. Plaintiff sought injunctive relief to have defendant reduce the number of dogs she owned to comply with the applicable zoning ordinances. It claimed she was in violation of an ordinance “by impermissibly operating a ‘commercial kennel’ by virtue of housing, boarding, or caring for more than four dogs on the premises.” The trial court granted summary disposition for plaintiff, finding defendant failed to properly plead any affirmative defenses. On appeal, although the court agreed with defendant that she was not obligated to plead as an affirmative defense that her ownership of her dogs did not violate any current zoning ordinance, this did “not necessitate reversal.” Because her defense “did not include any acceptance of liability, it [was] not an affirmative defense, and it was not required to be pleaded as one.” However, she “admitted liability in her answer to plaintiff’s complaint, and summary disposition” for plaintiff was still warranted. The court next noted that, under “a nonconforming-use theory, a defendant admits noncompliance with a current zoning ordinance while maintaining that they nonetheless are entitled to prevail for some other reason. This meets the definition of an affirmative defense.” Here, however, “because defendant was required to plead this affirmative defense and failed to do so, the defense” was waived. In addition, if she “only became aware of the defense after discovery, [she] could have amended the responsive pleading to include that defense.” But she “made no effort to do so.” Further, she abandoned her contention that she was not required to plead laches as an affirmative defense, and even if she hadn’t, “it is well established that laches is an affirmative defense.” Moreover, “had defendant’s pleading raised the affirmative defense of equitable estoppel, and assuming . . . an offer or representation was made by someone on the Planning Commission, without pleading any facts demonstrating any ‘exceptional circumstances,’ defendant still would not be able to avail herself of the doctrine of equitable estoppel.” Finally, defendant’s failure to respond to pertinent allegations resulted “in the allegations being deemed admitted.” Where she “has raised no affirmative defenses and has effectively admitted to continuously violating the zoning ordinance, the trial court properly granted summary disposition” for plaintiff. Affirmed.