STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

KEITH FRITZ and

KAREN FRITZ,

Plaintiffs,
Case No. 23 - - CZ
v.
Hon.
HURON TOWNSHIP BOARD OF TRUSTEES,
AARON DISEREN, and
CANDACE KIELWASSER,
There is no other pending or
Defendants. resolved civil action arising out of
the transaction or occurrence
/ alleged in the Complaint.

William J. Stapleton (P38339)

Madeline E. Portzline (P87423) _______________________
Attorneys for Plaintiff William J. Stapleton (P38339)
HOOPER HATHAWAY, P.C. Attorney for Plaintiff
126 South Main Street
Ann Arbor, MI 48104
(734) 662-4426
wstapleton@hooperhathaway.com
mportzline@hooperhathaway.com

COMPLAINT

PARTIES, JURISDICTION AND VENUE

1. Plaintiffs Keith Fritz and Karen Fritz are husband and wife who reside at 22905

Huron River Drive, New Boston, in the Township of Huron and County of Wayne, Michigan.

2. Defendant Huron Township Board of Trustees (“Township”) is the duly elected

governing body of Huron Township, a Michigan municipal corporation located within Wayne

County.
 3. Defendants Aaron Diseren and Candace Kielwasser (“Defendants”) are individuals

who, upon information and belief, own and reside at 22845 Huron River Drive, New Boston, in

the Township of Huron and County of Wayne, Michigan.

4. This Court has jurisdiction and venue because a genuine controversy exists between

the parties, the amount in controversy exceeds $25,000 and because the subject matter of this

action is real property located in Huron Township, Wayne County, Michigan.

STATEMENT OF FACTS

Township Amendment of Ordinance to Regulate Home Businesses.

5. In August of 2022 the Township amended it Ordinance to prohibit certain home

businesses because the nature of their operations impaired “the reasonable use and value of

surrounding residential properties” Township Ordinance 530-48L.

6. Included in the prohibited home businesses were “Landscape installation and

maintenance businesses, including lawn mowing businesses” Township Ordinance 530-48L (4).

7. Defendants Diseren and Kielwasser operate a commercial landscaping business

from their home located at 22845 Huron River Drive in New Boston, Michigan (“Landscape

Business”).

8. Because the Landscape Business was in existence at the time the Township

Ordinance was amended, it constituted a nonconforming use under the Ordinance.

9. As a nonconforming use after the amendment of the Ordinance in August of 2022,

the Landscape Business was subject to the following restrictions in Section 530-153 of the

Ordinance:

A. No such nonconforming uses shall be enlarged or increased, or extended to occupy

a greater area of land than was occupied at the effective date of adoption or
amendment of this chapter

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 B. No such nonconforming use shall be moved in whole or in part to any other portion
of the lot or parcel occupied by such use at the effective date of adoption or
amendment of this chapter.

Township Issuance of a Building Permit to the Landscape Business in Violation of the

Ordinance.

10. In February of 2023, the Township issued a building permit to Defendants Diseren

and Kielwasser for the construction of a nearly 3,000 square foot building on previously vacant

land to expand the size of Defendants’ Landscape Business (“Building”) (Exhibit A).

11. In their application for a building permit, Defendants Diseren and Keilwasser

misrepresented that the Building was to be used for “residential storage” (Exhibit B).

12. Plaintiffs’ home is adjacent to the Landscape Business, and when it became clear

that the Building was being used by Defendants as an improper expansion of the Business,

Plaintiffs objected to the Township that this use was a violation of the Township Ordinance for

nonconforming uses.

13. As a result of Plaintiffs’ objections, the Township issued a letter to Defendants

Diseren and Keilwasser dated July 17, 2023, notifying them that their Landscape Business was a

“Legal Nonconforming use” and as such is prohibited from expanding in accordance with Section

530-153 of the Ordinance (Exhibit C).

14. Defendants’ construction and use of the nearly 3,000 square foot Building on

previously vacant property for their Landscape Business is clearly prohibited by Section 530-153

of the Ordinance.

15. Despite the Defendants’ clear use of the Building to expand their Landscape

Business, the Township’s letter of July 17, 2023, fails to direct Defendants that the new Building

is not permitted to be used as an expansion of the Legal Nonconforming use.

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 16. Plaintiffs have repeatedly objected to the Township about the Defendants’ illegal

expansion of their Landscape Business, but the Township has never made any attempt to enforce

its own Ordinance and Defendants have continued to operate their illegal Landscape Business and

cause harm to Plaintiffs’ property.

The Operation of the Landscape Business Constitutes a Nuisance Per Se.

17. Section 530-113 of the Ordinance regulates grades to control surface water runoff

onto adjacent properties and states in pertinent part:

All grades shall be established and maintained so that surface water runoff damage
does not occur to adjoining properties prior to, during, and after construction . . .
The yard around the new building shall be graded in such a manner as to meet
existing codes and to preclude excessive quantities of runoff of surface water to
flow onto the adjacent property.

18. In addition to constructing the Building, Defendants Diseren and Keilwasser also

installed a 700 ft. gravel driveway with an additional gravel pad of 90 ft. x 140 ft to accommodate

their illegal expansion of the Landscape Business.

19. Defendants also raised the building grade 12 inches for construction of the Building

and the driveway grade was raised 6 inches.

20. Defendants’ construction activities greatly reduced the natural absorption of

surface water on the property, which requires an engineered site plan for water retention to control

water flow and prevent the runoff of surface water to adjacent properties.

21. The Township failed to require an engineered site plan for water retention for

Defendants’ construction activities which has resulted in regular runoff of surface water onto, and

repeated flooding of Plaintiffs’ property.

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 22. Defendants’ operation of their commercial Landscape Business has interfered

with Plaintiffs’ use and enjoyment of their property and includes, but it not

limited to the following:

(a) Repeated flooding of their property.

(b) Noise from vehicles and equipment used in the Landscape Business.

(c) Unsightly conditions such as storage of junk, vehicles and equipment.

(d) Such other activities as may become apparent during the course of discovery.

23. Section 530-17 of the Ordinance states in pertinent part:

Buildings erected, altered, razed or converted, or uses carried on in violation of

any provision of this chapter . . . are hereby declared to be a nuisance per se and
the court shall order such nuisance abated (Emphasis added).

24. Defendants’ construction of the Building to expand the Landscape Business and

their operation of the Business constitute multiple violations of the Ordinance and as such the

Landscape Business is a nuisance per se.

COUNT I

DECLARATORY JUDGMENT – ALL DEFENDANTS

25. Plaintiffs hereby incorporate the preceding paragraphs of this Complaint, as if set

forth herein in full.

26. Pursuant to MCR 2.605, in a case of actual controversy within its jurisdiction, a

court has the power to “declare the rights and other legal relations of an interested party seeking a

declaratory judgment, whether or not other relief is or could be sought or granted.”

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 27. Defendants’ construction of the Building to expand their Landscape Business is a

violation of Section 530-153 of the Ordinance, which prohibits the expansion of nonconforming

uses.

28. The Township’s issuance of a building permit to Defendants to construct the

Building and expand their Landscape Business is a violation of Section 530-153 of the Ordinance.

29. Defendants’ operation of the Landscape Business results in regular flooding of

Plaintiffs’ property and is a violation of Section 530-113 of the Ordinance, which regulates grades

to control surface water runoff onto adjacent properties.

30. Defendants’ operation of the Landscape Business interferes with Plaintiffs’ use and

enjoyment of their property and constitutes a nuisance per se in accordance with Section 530-17

of the Ordinance.

WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment in their

favor and grant the following relief:

(a) Declare that Defendant’s construction of the Building to expand their Landscape
Business is a violation of Section 530-153 of the Ordinance, which prohibits the
expansion of nonconforming uses;

(b) Declare that the Township’s issuance of a building permit to Defendants to

construct the Building and expand their Landscape Business is a violation of
Section 530-153 of the Ordinance;

(c) Declare that Defendants’ operation of the Landscape Business is a violation of

Section 530-113 of the Ordinance, which regulates grades to control surface water
runoff onto adjacent properties;

(d) Declare that Defendants’ operation of the Landscape Business interferes with
Plaintiffs’ use and enjoyment of their property and constitutes a nuisance;

(e) Declare that Defendants’ operation of the Landscape Business constitutes a

nuisance per se in accordance with Section 530-17 of the Ordinance;

(f) Enter an order directing the Township to abate the nuisance resulting from the
operation of the Landscape Business;

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 (g) Enter an order directing Defendants Diseren and Kielwasser to abate the nuisance
by, inter alia, prohibiting the use of the Building to operate their Landscape
Business and regrading their property to eliminate flooding on Plaintiffs’ property;

(h) Award Plaintiffs damages for the interference with the use and enjoyment of their
property and loss of property value resulting from the operation of the Landscape
Business;

(i) Award Plaintiffs their costs and attorney’s fees, with interest, incurred in bringing
this action; and

(j) Grant such other and further relief as the Court deems appropriate.

COUNT II

NUISANCE PER SE – ALL DEFENDANTS

31. Plaintiffs hereby incorporate the preceding paragraphs of this Complaint, as if set

forth herein in full.

32. Defendants’ construction of the Building to expand their Landscape Business and

their operation of the Business constitute violations of Section 530-153 of the Ordinance, which

prohibits expansion of nonconforming uses.

33. The Township’s issuance of a building permit to Defendants to construct the

Building and expand their Landscape Business is a violation of Section 530-153 of the

Ordinance.

34. Section 530-17 of the Ordinance states that any building erected in violation of

the Ordinance is declared to be “a nuisance per se” and that a court “shall order the nuisance

abated.”

35. The Michigan Zoning Enabling Act states that any building erected in violation of

a zoning ordinance constitutes a “nuisance per se” and that the owner of the building is “liable for

maintaining a nuisance per se” and that the court “shall order the nuisance abated.” MCL 125.3407.

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 36. Due to the Township’s failure to enforce its Ordinance, Plaintiffs have standing

under the Michigan Zoning Enabling Act to bring an action to enforce the Ordinance and abate the

nuisance.

37. Plaintiffs’ property is adjacent to the Defendants’ Landscape Business and

therefore Plaintiffs’ damages are of a special character distinct and different from the injury

suffered by the public generally, including, but not limited to, repeated flooding of their property

due to the operation of the Landscape Business.

WHEREFORE, Plaintiffs respectfully requests that this Court enter a judgment in their

favor and grant the following relief:

(a) Order the Township to enforce its Ordinance and abate the nuisance resulting from
the operation of the Landscape Business;

(b) Order Defendants Diseren and Kielwasser to abate the nuisance by, inter alia,
prohibiting the use of the Building to operate their Landscape Business and regrading their
property to eliminate flooding on Plaintiffs’ property;

(c) Award Plaintiffs damages for the interference with use and enjoyment of their
property and loss of property value resulting from the operation of the Landscape Business;

(d) Award Plaintiffs their costs and attorney’s fees, with interest, incurred in bringing
this action;

(e) Grant such other and further relief as the Court deems appropriate.

COUNT III

NUISANCE – DEFENDANTS DISEREN AND KIELWASSER

38. Plaintiffs hereby incorporate the preceding paragraphs of this Complaint, as if set

forth herein in full.

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 39. Defendants Diseren and Kielwasser own and operate the Landscape Business and

due to their multiple violations of the Ordinance as more fully set forth above, have created a

nuisance and are maintaining a nuisance that has damaged, and will continue to damage Plaintiffs’

property.

40. Defendants have continued to maintain and have failed to abate the nuisance which

they created.

41. Defendants’ illegal construction of the Building and operation of the Landscape

Business has caused damage to Plaintiffs’ property, including, but not limited to, repeated flooding

from surface water runoff and which constitutes a continuing nuisance which unreasonably

interferes with Plaintiffs’ use and enjoyment of their property.

42. The nuisance which Defendants have created and which unreasonably interferes

with Plaintiffs’ use and enjoyment of their property can be abated, but Defendants have failed to

do so.

43. Defendants’ substantial and unreasonable interference with Plaintiffs’ use and

enjoyment of their property constitutes a continuing nuisance for which Defendants are liable to

Plaintiffs for all damages arising from such nuisance.

44. As a direct and proximate result of the nuisance created by Defendants and

Defendants’ failure to abate the same, Plaintiffs have sustained significant damages as more fully

described above.

WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment in its favor

and grant the following relief:

(a) An award of damages to Plaintiffs resulting from the nuisance created and
maintained by Defendants as more fully described above;

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 (b) Order Defendants to abate the nuisance by, inter alia, prohibiting the use of the
Building to operate their Landscape Business and regrading their property to
eliminate flooding of Plaintiffs’ property;

(c) Award Plaintiffs their costs and attorney’s fees, with interest, incurred in bringing
this action; and

(d) Grant such other and further relief as the Court deems appropriate.

COUNT IV

VIOLATION OF THE TOWNSHIP ORDINANCE

AND DUE PROCESS VIOLATION - TOWNSHIP

45. Plaintiff hereby incorporates the preceding paragraphs of this Complaint, as if set

forth herein in full.

46. Article I, Section 17 of the Michigan Constitution and the Fourteenth Amendment

to the Federal Constitution guarantees that a person shall not be deprived of life, liberty, or property

without due process of law.

47. Article I, Section 17 of the Michigan Constitution states: “The right of all

individuals, firms, corporations and voluntary associations to fair and just treatment in the course

of legislative and executive investigations and hearings shall not be infringed.”

48. Section 530-153 of the Ordinance prohibits the expansion of nonconforming uses

in the Township.

49. In violation of the Ordinance the Township issued a building permit to Defendants

to construct the Building and expand their Landscape Business.

50. Defendants’ construction of the Building and expansion of their Landscape

Business constitutes a nuisance per se and has caused substantial damage to Plaintiffs’ property as

more fully described above.

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 51.. The Township’s unlawful actions were arbitrary and capricious and deprived

Plaintiffs of their constitutionally protected interest in their real property.

52. The Township’s deprivation of Plaintiffs’ property interest has caused Plaintiffs to

sustain loss and damage in excess of $25,000.

WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment in its favor

and grant the following relief:

(a) A declaratory judgment that the Township has deprived Plaintiffs of their protected
property interest in violation of rights secured by the Federal Constitution and the
Michigan Constitution;

(b) Award Plaintiffs just compensation for the Township’s deprivation of their property
rights;

(c) A declaratory judgment awarding Plaintiffs damages in an amount in excess of

$25,000 to which the proofs show Plaintiffs to be entitled, together with interest
and costs;

(d) Award Plaintiffs their costs and attorney’s fees, with interest, incurred in bringing
this action; and

(e) Grant such other and further relief as the Court deems appropriate.

COUNT V

MANDAMUS - TOWNSHIP

53. Plaintiff hereby incorporates the preceding paragraphs of this Complaint, as if set

forth herein in full.

54. MCL 600.4401 et. seq. and MCR 3.305 provide for an action for mandamus against

public officials.

55. A writ of mandamus shall issue where (1) the plaintiff has a clear legal right to the

performance of a specific duty; (2) the defendant has a clear legal duty to perform the requested

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act; (3) that act is ministerial; and (4) the plaintiff has no other legal or equitable remedy Taxpayers

for Mich Constitutional Gov’t v Michigan, 508 Mich 48, 82 (2021).

56. As owners of property in Huron Township, Plaintiffs have a legal right to have the

Township enforce its Zoning Ordinance and abate a nuisance which is causing damage to

Plaintiffs’ property.

57.. Section 530-153 of the Ordinance prohibits the expansion of nonconforming uses

in the Township.

58. In violation of the Ordinance the Township issued a building permit to Defendants

to construct the Building and expand their Landscape Business.

59. Defendants’ construction of the Building and expansion of their Landscape

Business constitutes a nuisance per se and has caused substantial damage to Plaintiffs’ property as

more fully described above.

60. The Township has failed and refused to enforce its Ordinance and abate the

nuisance resulting from Defendants’ operation of the Landscape Business, despite repeated

requests from Plaintiffs.

61. Section 530-17 of the Ordinance declares Defendants’ Landscape Business to be a

nuisance per se and states that a court “shall order such nuisance abated.”

62. Based on the clear language of the Ordinance, abatement of the nuisance resulting

from the operation of the Landscape Business is ministerial and involves no exercise of discretion

and no other remedy exists, legal or equitable.

63. An order of mandamus should issue which requires the Township to enforce its

Ordinance and abate the nuisance resulting from the operation of the Landscape Business.

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 WHERFORE, Plaintiff respectfully requests that this Court enter an order directing the

Township to enforce its Ordinance and abate the nuisance resulting from the operation of the

Landscape Business and grant such other relief as the Court deems appropriate.

Respectfully submitted,

HOOPER HATHAWAY, P.C.

Dated: January 10, 2025 BY:

William J. Stapleton (P38339)
Madeline E. Portzline (P87423)
Attorneys for Plaintiffs
126 South Main Street
Ann Arbor, MI 48104
(734) 662-4426

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