If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

AUGUSTA CHARTER TOWNSHIP,

Plaintiff/Counterdefendant-Appellee,

UNPUBLISHED

June 27, 2024

v No. 366699

Washtenaw Circuit Court

SHAFIQ KASHAM and KB LANDSCAPE 

SUPPLY, LLC,

LC No. 22-000724-CZ

Defendants/CounterplaintiffsAppellants.

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 equalprotection 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 equalprotection 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 equalprotection 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 overreach 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