UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SOIL FRIENDS LLC, a Michigan limited

liability company, BENJAMIN MARTIN, an
individual, and SARAH MARTIN, an Honorable:
individual,

Plaintiffs, Case No:1:23-cv-1267

v.

COMSTOCK CHARTER TOWNSHIP, a

Michigan municipal corporation, COMPLAINT
KALAMAZOO AREA BUILDING
AUTHORITY, a Michigan municipal
corporation or agent of Comstock Township,
JODI STEFFORIA, RANDY THOMPSON,
SCOTT HESS, MATTHEW MILLER,
JENNIFER JONES-NETWON, RON
SPORTEL, ALLAN FAUST, JEFF AMPEY,
LARRY NICHOLS, PATRICK HANNA,
CLYDE SHERWOOD III, ROXANNE
SEEBER, and CATHERINE KAUFMAN,
individuals,

Defendants.

KUSTRA & BLOOM PLC

Steven J. Kustra (P79002)
Jeffrey M. Bloom (72343)
Attorneys for Plaintiffs
21002 Mack Avenue
Grosse Pointe Woods, MI 48236
(313) 586-4444
[email protected]
[email protected]
 COMPLAINT

NOW COME Plaintiffs SOIL FRIENDS LLC, BENJAMIN MARTIN, and

SARAH MARTIN (collectively “Plaintiffs”), by and through their attorneys,

KUSTRA & BLOOM PLC, and for their Complaint against Defendants,

COMSTOCK TOWNSHIP, KALAMAZOO AREA BUILDING AUTHROITY,

JODI STEFFORIA RANDY THOMPSON, MATTHEW MILLER, SCOTT HESS,

JENNIFER JONES-NETWON, RON SPORTEL, JEFF AMPEY, LARRY

NICHOLS, PATRICK HANNA, CLYDE SHERWOOD III, MIKE ALWINE,

ROXANNE SEEBER, and CATHERINE KAUFMAN, states as follows:

THE PARTIES

1. Soil Friends, LLC (“Soil Friends”) is a Michigan limited liability

company with its principal place of business at 1701 N 33rd St, Comstock Township,

Kalamazoo County, Michigan located in the Western District of Michigan.

2. Benjamin Martin is the owner of Soil Friends, LLC who lives in

Comstock Township, Kalamazoo County, located in the Western District of

Michigan.

3. Sarah Martin is the owner of Soil Friends, LLC who lives in Comstock

Township, Kalamazoo County, located in the Western District of Michigan.

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 4. Comstock Charter Township (“Comstock Township”) is located in

Kalamazoo County, Michigan with its offices located at 5858 King Highway,

Kalamazoo, MI 49048.

5. Kalamazoo Area Building Authority (“KABA”) is located in

Kalamazoo County, Michigan with its offices located at 2322 Nazareth Road,

Kalamazoo, MI 49048.

6. Jodi Stefforia is the Community Development Director for Comstock

Township located in Kalamazoo County, Michigan with an office located at 5858

King Highway, Kalamazoo, MI 49048.

7. Randy Thompson is the Township Supervisor for Comstock Township

located in Kalamazoo County, Michigan with an office located at 5858 King

Highway, Kalamazoo, MI 49048.

8. Scott Hess is the Township Superintendent for Comstock Township

located in Kalamazoo County, Michigan with an office located at 5858 King

Highway, Kalamazoo, MI 49048.

9. Matthew Miller is the Communications Development Coordinator for

Comstock Township located in Kalamazoo County, Michigan with an office located

at 5858 King Highway, Kalamazoo, MI 49048.

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 10. Jennifer Jones-Newton is the Chair and Member of the Comstock

Township Planning Commission located in Kalamazoo County, Michigan with an

office located at 5858 King Highway, Kalamazoo, MI 49048.

11. Ron Sportel is the Vice Chair and Member of the Comstock Township

Planning Commission located in Kalamazoo County, Michigan with an office

located at 5858 King Highway, Kalamazoo, MI 49048.

12. Allan Faust is the Secretary and Member of the Comstock Township

Planning Commission located in Kalamazoo County, Michigan, with an office

located at 5858 King Highway, Kalamazoo, MI 49048.

13. Jeff Ampey is a Member of the Comstock Township Planning

Commission located in Kalamazoo County, Michigan, with an office located at 5858

King Highway, Kalamazoo, MI 49048.

14. Larry Nichols is a Member of the Comstock Township Planning

Commission located in Kalamazoo County, Michigan, with an office located at 5858

King Highway, Kalamazoo, MI 49048.

15. Patrick Hanna is a Member of the Comstock Township Planning

Commission located in Kalamazoo County, Michigan, with an office located at 5858

King Highway, Kalamazoo, MI 49048.

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 16. Clyde Sherwood III is a Member of and the Township Liaison for the

Comstock Township Planning Commission located in Kalamazoo County,

Michigan, with an office located at 5858 King Highway, Kalamazoo, MI 49048.

17. Mike Alwine is a building official for Kalamazoo Area Building

Authority located in Kalamazoo County, Michigan, with an office located at 2322

Nazareth Road, Kalamazoo, MI 49048.

18. Roxanne Seeber is an attorney of Bauckham, Sparks, Thall, Seeber &

Kaufman, P.C. (“BSTSK”) and agent of Comstock Township located in Kalamazoo

County, Michigan, with an office located at 470 W Centre Ave, Portage MI, 49024.

19. Catherine Kaufman is an attorney of BSTSK and agent of Comstock

Township located in Kalamazoo County, Michigan, with an office located at 470 W

Centre Ave, Portage MI, 49024.

JURISDICTION AND VENUE

20. This action arises under the United States Constitution and 42 U.S.C.

§§1983 and 1985.

21. The Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and

1343.

22. This Court has supplemental jurisdiction over the state law claims

under 28 U.S.C. § 1367.

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 23. This Court has the authority to grant declaratory relief under 28 U.S.C

§§ 2201 and 2202.

24. This Court has the authority to grant injunctive relief by Federal Rules

of Civil Procedure 57 and 65.

25. Venue is proper in this Court under 28 U.S.C. § 1391(b) because (i)

Comstock Township is located in Kalamazoo County which is in this judicial district,

and (ii) the events or omissions giving rise to Plaintiffs’ claims occurred in this

judicial district.

26. Plaintiffs’ claims for attorneys’ fees and costs are authorized by 42

U.S.C. § 1988.

GENERAL ALLEGATIONS

Ben Martin and His Family Farm, Soil Friends

27. Soil Friends is a 22-acre family farm and cidery located in Comstock

Township Michigan.

28. Soil Friends’ primary operation is the production of hard cider, with at

least a portion of the ingredients grown on site. Additionally, the farm produces

pumpkins, squash, lavender, jalapenos, and strawberries among other crops. It also

raises goats and chickens.

29. Soil Friends’ business includes three operations licensed, or otherwise

certified, by the State of Michigan:

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 (a) a winery and tasting room licensed by the Michigan Liquor
Control Commission (“MLCC”) (MLCC licenses attached as
Exhibit 1)

(b) a farm market pursuant to Michigan’s Right to Farm Act and

which is compliant with the Michigan Department of Agriculture
Rural Development’s (“MDARD”) Farm Market Generally
Accepted Agricultural Management Practices (“GAAMPS”)

(c) an MDARD licensed Retail Food Establishment. (Retail Food

Establishment License attached as Exhibit 2)

30. These licenses and certifications allow Soil Friends to make and sell

wine and cider to customers; grow and sell produce and farm products to customers

and sell for on premises consumption.

31. While Soil Friends’ winery license is issued by MLCC, a state of

Michigan agency, Comstock Township recommended approval of the license by a

7-0 vote on October 17, 2017. Exhibit 3.

32. At the time of the winery application, Michelle Mohney, the Comstock

Township Clerk, provided a memorandum to the Township Board wherein she stated

that the Planning and Zoning Administrator, Jodi Stefforia, determined that the small

winemaker license was “an accessory to the existing use of the property and/or

‘similar bona fide agricultural enterprise or use of land and structures’.” Exhibit 4.

33. MLCC issued the Soil Friends winery and an On-Premises Tasting

Room Permit December 19, 2018.

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 34. MLCC further issued Soil Friends two (2) permits for Outdoor Service

Areas on June 8, 2018, and on May 29, 2019, respectively.

35. Thereafter, Comstock Township no longer had any legal or statutory

authority to limit Soil Friends’ alcohol sales or related operations due to state law

preemption.

Comstock Township’s Initial Concerns with Soil Friends Red Barn

36. Over the course of 2019, Soil Friends built a new red barn on their

property to further support the company’s operations.

37. On April 1, 2022, Comstock Township notified Soil Friends by email

that it was required to obtain a special exception before it was allowed to hold private

events and parties in a barn on its property. Exhibit 5.

38. The e-mail, sent by Jodi Stefforia on behalf of Comstock Township,

contended that by hosting such activities, the barn became an “event barn” under the

ordinance. Id.

39. Furthermore, the email stated that use of the barn warranted a review to

ensure compliance with applicable building codes. Id.

40. A further email from Comstock Township, sent by Kalamazoo Area

Building Authority building official Mike Alwine on April 1, 2022, stated that Soil

Friends proposed use “would constitute a Change of Occupancy category” requiring

a “Code Compliance plan design by a registered design professional” to ensure that

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any necessary changes comply with the code provisions for “life and fire safety,

egress, ADA compliance, plumbing fixture compliance, etc.” Id.

41. On April 1, 2022, Soil Friends replied to the email agreeing to “remove

it from [Soil Friends] offering from the time being and not hold private events until

[Soil Friends] have gone through the process necessary to do so.” Id.

42. At no point in time did Soil Friends use any of its barns to host parties,

weddings, or private events. Exhibit 6, Affidavit of B. Martin at ¶8.

43. Rather, the barn had only been used as a farm market and for cider

tastings, consistent with state law, state regulations and licenses.

44. But, nowhere in Comstock Township’s letter or correspondence did it

advise Soil Friends that the remainder of its business operations were not allowed.

The letter does not mention nor discuss food, alcohol sales, or live music.

45. Following Comstock Township’s letter, Soil Friends retained architect

Jeff Crites of Slocum & Associates to assist them with seeking approval for the

change of occupancy as to the red barn.

46. The architectural drawings for the red barn were designed according to

A2-F2 regulations.

47. An A2 assembly structure contemplates occupancy usage intended for

food and/or drink consumption, including but not limited to banquet halls, casino

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(gaming areas), nightclubs, restaurants, cafeterias and similar dining facilities

(including associated commercial kitchens), and taverns and bars.

48. An F2 low-hazard factory industrial structure contemplates factory

industrial uses and occupancies that involve the fabrication or manufacturing of

noncombustible materials that during finishing, packing, or processing do not

involve a significant fire hazard and shall include beverages: up to and including 16-

percent alcohol.

49. Upon information, knowledge, and belief, an A2 assembly and

occupancy use would allow Soil Friends to operate the barn as a farm market, an on-

premises winery/cidery tasting room, and as a wedding/event space.

50. On or about September 19, 2022, Soil Friends submitted their

architectural drawings and affidavit for building intended occupant load to Mike

Alwine.

51. The affidavit for building intended occupant load outlined that the total

number of persons in the building for any use would not exceed ninety-nine (99).

52. On September 20, 2022, Mike Alwine sent an e-mail to Soil Friends

and their architect stating:

I have reviewed the code compliance plan for the proposed

change of occupancy project located at 1701 N 33rd Street. My
comments are included below:

1. Drinking fountain to be provided in accordance with Table 403.1

2018 MPC.

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 2. I find the request for intended building occupancy affidavit
acceptable, occupant load to be posted on the premises in
accordance with 2015 MBC.

3. Accessible route to be provided from public parking area to

public use area(s) and to be detailed on site plan.

Exhibit 7.

53. Based on the representations made by Mike Alwine, Soil Friends was

confident that with the proper changes implemented into their design, both KABA

and Comstock Township would grant them the special exception and approve usage

of the red barn.

Comstock Township’s Citation to Soil Friends and Complete Shutdown of the

Business

54. On October 19, 2022, Comstock Township issued a citation to Soil

Friends alleging that it did not have “zoning approval or permits for how barn is

being used to serve Food/alcohol/Live Music[sic].” Exhibit 8.

55. The citation did not reference the prior correspondence related to “barn

events” and, instead, was a pivot from the Township to a completely new issue.

56. The citation did not reference any other operations of Soil Friends and

was specifically related to activities occurring in the red barn.

57. On October 20, 2022, Soil Friends, through their Facebook account,

posted a picture of Comstock Township’s signage condemning their red barn

pursuant to section 108.1.1 of the property maintenance code. Exhibit 9.

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 58. Soil Friends Facebook post stated, in relevant part:

[T]he farm market building isn’t able to be open. This is what

horrendous leadership looks like from our elected officials, someone
had a hair up their you know what, and needed a power grab! You don’t
go slapping orange stickers without talking and working issues out with
local businesses, no call or visit to even try and work together! We have
email correspondence April 1 that we would continue operations as is
until we were permitted to have wedding and private events, as we are
currently working through jumping all the hoops to get that done and
in the midst of our fall season, then blindsided by this [.] Most of the
entire township board needs rebuilt and I will be part of working with
other like minded community members to make this a better township
to live, enjoy and do business in.

Id.

59. On October 27, 2022, Comstock Township’s Planning Commission

held a meeting in which the issue of amending the current ordinances to allow for

agritourism in the agricultural district should be considered. The uses considered

included a cider mill, corn maze, and other activities. Exhibit 10.

60. Patrick Hanna, a member of Comstock Township’s Planning

Commission inquired about whether this would include the operation of a restaurant

and stated that he had patronized Soil Friends “before he knew it was in violation of

Township ordinances.” Id.

61. Catherine Kaufman, attorney for Comstock Township, suggested the

Farm Market GAAMPs be the starting point for zoning language and additional uses

further stating, “The Township does not have to allow everything happening at [Soil

Friends].” Id.

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 62. When asked what is happening at Soil Friends that the ordinance may

or may not address, Jodi Stefforia answered, “the hot food, alcohol sales, bar and

live music and possibly other activities.” Id.

63. On October 31, 2022, Soil Friends held a meeting with officials of both

Comstock Township and the Kalamazoo Area Building Authority to discuss an

alleged noise complaint, alleged violations pertaining to “festivals” being held on

the property, and the condemnation of the red barn that served as a farm market/on-

premises tasting room.

64. Upon information, knowledge, and belief, Ben and Sarah Martin, on

behalf of Soil Friends, and Jodi Stefforia, Randy Thompson, Scott Hess, and Tim

Smith, in their official capacities as employees of Comstock Township, and Mike

Alwine, in his capacity as an employee of Kalamazoo Area Building Authority, were

present.

65. Upon information, knowledge, and belief, Tim Smith video recorded

the meeting.

66. In the meeting, Jodi Stefforia implied that Soil Friends had stretched

the limits of the Township’s definition of “farm market” by having music and that

Soil Friends winery/cidery was not permitted.

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 67. Furthermore, Randy Thomspon referenced Soil Friends October 20,

2022, Facebook post insinuating that such posts damage the reputation of Comstock

Township and its officials and should be stopped.

68. At the end of the meeting, it was resolved by Soil Friends that they

would cease operations in the red barn and continue to provide information to

Comstock Township and the officials present, including Ms. Jodi Stefforia, to work

through the requirements needed for usage of the red barn and to bring Soil Friends

property into compliance with zoning regulations.

69. On or about November 18, 2022, an informal hearing pertaining to

Comstock Township’s citations was held wherein a discussion occurred regarding

Soil Friends’ operations, but Magistrate Schaberg noted that these issues were

beyond the scope of the informal hearing.

70. The informal hearing was attended by Benjamin Martin for Soil Friends

and Ms. Roxanne Seeber, attorney for Comstock Township, on behalf of Comstock

Township.

71. Michigan law provides that “[a]t an informal hearing, the defendant

shall not be represented by an attorney and the plaintiff shall not be represented by

the prosecuting attorney or attorney for a political subdivision.” MCL 600.8719.

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 72. Despite the statutory prohibition, Comstock Township Attorney

Roxanne Seeber of BSTSK attended the informal hearing on behalf of Comstock

Township.

73. At the informal hearing Magistrate Schaberg imposed a $25.00 fine

upon Soil Friends for the citation.

74. In addition to her illegal attendance, Comstock Township Attorney

Roxanne Seeber of BSTSK also drafted the order which was adopted in total by

Magistrate Judge Schaberg.

75. This order went well beyond the citation and was written by Seeber as

a permanent injunction.

76. The order essentially closed Soil Friends’ entire business without any

due process.

77. The order explicitly prohibited the following operations:

(a) food, alcohol and music inside the barn,

(b) food, alcohol and music outside the barn,

(c) the sale of crops grown on the property,

(d) the sale of Christmas trees,

(e) the sale of chicken eggs,

(f) farm tours,

(g) kids’ pictures with Santa Claus,

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 (h) hayrides,

(i) you-pick sales and numerous other common farm activities.

Exhibit 11.

78. The Magistrate Judge far exceeded his authority and did not have the

jurisdiction to enter such an expansive order as drafted by Seeber.

79. Comstock Township did not have the authority to restrict the service of

food, alcohol and to have live music, because such authority is governed by the State

of Michigan, pursuant to the MLCC winemaker license, because Michigan law

preempted any local ordinance with regard to these matters.

80. Comstock Township did not have the authority to restrict other farm

related activity where rights are preserved by Michigan’s Right to Farm Act.

81. On November 30, 2022, Soil Friends posted to Facebook stating, in

relevant part:

Here’s a few ideas we should all talk about for the best interest
in our township just for starters[.]

Community development director is a hired position – We should

ask what happened with her position in previous townships,
whats [sic] the track record? Many of us believe it’s the best
interest for business owners in the community, that she pack her
boxes and go. It’s a fireable position.

Township Supervisor & Superintendent

Randy [Thompson] – you took an oath to protect the health,
safety and welfare for those in this community – Scott [Hess] you
were hired. You both clearly just let my family and our patrons
down on all of these! You guys had your attorney write an order
16
 that the magistrate stamped in order to shut down a farm that
provides the community access to fresh food and enjoyment. You
have blocked us from buying permits for improvements and also
allowed harassment to other local business leaders. Based upon
community comments here, not grown our community for the
better clearly you see the comments about the township on these
post. It’s not looking good boys I hope your not considering
reelection. You would be doing us all a favor if you packed your
boxes as well, I know the money helps – our community would
rather you it if it expedited the process of you getting out of the
way so real leaders can get to work!

Exhibit 12.

82. On December 2, 2022, Soil Friends, through counsel, filed a motion for

reconsideration of Magistrate Judge Schaberg’s Order.

83. On December 2, 2022, Matthew Miller, on behalf of Comstock

Township, published and posted a Statement (the “Statement”) on their website titled

“FOR IMMEDIATE RELEASE: Comstock Charter Township’s statement on Soil

Friends Hard Cider Company.” Exhibit 13.

84. The Statement contains numerous false allegations, including:

At the time the township approved a liquor license, it was only

for making wine (“small winemaker”) out of fruit that was
supposedly grown from the farm itself and too ugly to sell. The
“tastes” were to be served out of the shipping container, which
was the sole enclosed shelter on the property at the time. The
township determined that the small winemaker and tasting was
accessory to the farm use and did not require a special use
approval for “tasting room and sales.”

Thereafter, without notice to the township and without

permission from the township, Soil Friends added an “outdoor

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 service area”; a “manufacturer/direct shipper” license, a
“salesperson” license and an “on-premises tasting room permit”.
The addition of a tasting room and on-site sales requires a special
use permit from the Township and adherence to the parameters
of the Ordinance. Nevertheless, this permit was never applied for
and uses continued to expand.

Soil Friends has not applied for or obtained Township permission

for a brewery, food sales, or the manufacture and distribution of
hard cider. Id.

85. The Statement is provably false at the time it was issued, because Soil

Friends had the required approval for their winery/cidery operation from Comstock

Township that was issued in 2017 and a winery/cidery license from MLCC.

86. On December 5, 2022, Comstock Township held a board meeting in

which numerous individuals complained about Comstock Township’s treatment and

closure of Soil Friends business.

87. At the same meeting, Township Attorney Catherine Kaufman of

BSTSK stated that Soil Friends additional uses were not covered by their license

issued by MLCC.

88. Catherine Kaufman’s statements were false, as state law preemption is

clear on the matter.

89. Ms. Kaufman further stated that Magistrate Judge Schaberg’s order was

applicable as it came from the court, neglecting the important fact that the order was

drafted by her colleague at BSTSK Attorney Seeber, and that the order far exceeded

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the jurisdictional authority of the Magistrate and the legal authority of Comstock

Township.

90. Ms. Kaufman further indicated that Comstock Township’s approval of

Soil Friends’ MLCC liquor license was conditioned solely under a Right to Farm

accessory agricultural use, which is false because accessory use is not required, and

that condition was not included in the approval document provided to the MLCC.

91. On December 7, 2022, Ms. Jodi Stefforia, on behalf of Comstock

Township, sent Soil Friends a letter summarizing the zoning approvals and necessary

information required for bringing Soil Friends operations into compliance. Exhibit

14.

92. In the letter, Ms. Jodi Stefforia states, in relevant part:

The Zoning Ordinance presently defines cidery and lists it as a

use allowed in the LM, Light Manufacturing and M,
Manufacturing Districts. The AGR, Agriculture-Residential
District allows a winery with special exception use approval. It
will take a text change to the ordinance to list cidery as a use in
the AGR and/or revision of the definition of cider and/or winery
and related amendments.

Notwithstanding the past action by the Township Board for a

small winemaker license allowing you to make wine out of fruit
grown on your farm in the shipping container, moving the winery
operation into the new barn is a change of use and an expansion
requiring special exception use and site plan approval by the
Planning Commission. You are presently making hard cider with
cider sourced from an offsite farm – a cidery is not presently
listed as an allowed use in the zoning district.

* * *

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 The activities occurring on the property beyond the growing of
crops and the farm market, as defined by GAAMPs are
collectively considered agricultural-tourism/agri-tourism/agri-
tainment. These uses include cut Christmas tree sales, 5k runs,
visits and photos with Santa, hayrides, etc. The zoning ordinance
does not provide for this type of use in the AGR, Agriculture-
Residential District. Id.

93. On December 7, 2022, Ben Martin responded to Comstock Township’s

letter through a Facebook post, stating:

My township officials are literally concerned about selling cut

Christmas trees and Santa visiting the farm [.] This has got to be
a joke [.]

Exhibit 15.

94. Due to Soil Friends complete shutdown by the District Court and the

District Court’s failure to consider Soil Friends motion for reconsideration, Soil

Friends filed a complaint for superintending control over the 8th District Court on

January 17, 2023, in the 9th Circuit Court of the County of Kalamazoo. Exhibit 16.

95. The complaint for superintending control went unchallenged at the

Circuit Court.

96. On February 21, 2023, a Stipulated Order was entered amending the

District Court’s previous Order continuing the ban of usage on the red barn but

stating, in relevant part:

• Defendant may engage in activities allowed under the Farm

Market GAAMP and the Michigan Liquor Control Code related
to a small wine maker…Such activities may include sale of
produce, sale of wine/cider and the sale of food among other

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 activities allowed by the Michigan Liquor Control Code and the
Farm Market GAAMP.

• Within twenty-one (21) days, Soil Friends shall submit an

application for special exception with the Township for use of the
red barn for a winery tasting room and wine production space.
The Township shall review the application in good faith and
process the application in a timely manner without undue delay.

• If either party fails to abide by the terms of the Order, upon

request, the Court will enter an Order requiring the offending
party to appear before the Court at a specified date and time to
show cause why that party should not be found in contempt of
the compliance provisions of this Order and be punished
therefore as allowed by law.

Exhibit 17.

Comstock Township’s Shifting Burdens on Soil Friends

97. On March 2, 2023, Jodi Stefforia sent Soil Friends an e-mail stating that

Comstock Township had reviewed the submitted plan and related documents for Soil

Friends special exception use and site plan approval request for usage of the red barn

as a winery tasting room. Exhibit 18.

98. The email included Comstock Township’s Fire Marshall’s comments

and a checklist of missing and required information with all documentation required

to be submitted twenty-one (21) days prior to the Planning Commission meeting. Id.

99. Comstock Township’s Fire Marshall, Michael Kessler, approved the

recommendation with five (5) requirements including the installation of an

automatic sprinkler system in the red barn for approval. Id.

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 100. Soil Friends was quoted by an expert that the Fire Marshall’s

requirement for an automatic sprinkler system would cost Soil Friends in excess of

$200,000.00 and that nothing in the fire code required these items.

101. On April 13, 2023, a public hearing was held by the Planning

Commission as to Soil Friends special use exception. Exhibit 19.

102. A staff report prepared by Jodi Stefforia recommended postponing the

decision despite the Stipulated Order requiring that Comstock Township proceed in

good faith. Id.

103. Despite Catherine Kaufman stating that “the request today is for

approval to conduct in the red barn a tasting room and farm market”, the Planning

Commission denied Soil Friends special use exception on issues unrelated to the

building including the adequacy of the well and septic and approval by the Road

Commission for the current status of the driveway or a new driveway permit being

provided. None of these issues related to the special exception use for the red barn.

Id.

104. On April 27, 2023, a Comstock Township Planning Commission

meeting was held in which Soil Friends was on the agenda. Exhibit 20.

105. At the start of the meeting, Patrick Hanna tabled a motion to remove

item 5a from the agenda relating to the Special Exception Use & Site Plan Review

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for Ben Martin/Soil Friends, LLC. The motion to strike Soil Friends from the agenda

was passed by roll call vote. Exhibit 21.

106. In the meeting, Catherine Kaufman asked for clarification as to why

Soil Friends was stricken from the agenda, noting that Soil Friends had complied

with the requests from the previous hearing and that the Stipulated Order required

processing the request in a timely manner. Id.

107. As a result of Catherine Kaufman’s statements, the Planning

Commission passed a motion to add Soil Friends back to the agenda and consider

Soil Friend’s special exception use and site plan review. Id.

108. After lengthy discussion, the Planning Commission granted Soil

Friends special exception use approval for the winery with tasting room subject to

the following conditions:

• Hours are limited to 9 a.m. to 9 p.m. Monday through Sunday.

• No amplification of music outside the barn.
• No use of speakers outside the barn.
• No access to East Main Street.
• All required federal, state, county, and local licensing, and
approvals.
• Annual review of the special exception use for three years
with schedule of review may be amended.
• Lighting shall comply with the zoning ordinance.
• Any change in license type requires Planning Commission
approval.
• Any change in production beyond a small winemaker license
requires Planning Commission approval.

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 109. The Planning Commission further granted site plan approval subject to

the following:

• Fire Marshall approval.

• Road Commission of Kalamazoo County approval.

Comstock Township’s Continued Campaign to Prevent Soil Friends From

Operating Their Business

110. On May 22, 2023, Soil Friends emailed Mike Alwine, building official

for KABA, informing him that Comstock Township had approved Soil Friends

special use exception and seeking what information would be required to be

submitted to obtain building permits for the red barn. Exhibit 22.

111. On May 23, 2023, Mike Alwine replied via email stating that Soil

Friends would be required to submit a new application and plans specific for the use

of a “wine tasting room” because the previous application was for “wedding

venue/farm market”. Id.

112. The A2 occupancy use on Soil Friends’ previous application for

wedding venue/farm market would also apply to an on-premises wine tasting room.

113. On or about June 8, 2022, Soil Friends was told by MLCC that an

individual on behalf of Comstock Township informed MLCC that Soil Friends did

not have approval to manufacture wine/cider in the red barn.

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 114. Upon information, knowledge, and belief, Defendant Scott Hess,

Comstock Township Superintendent, was the individual who made the complaint

against Plaintiffs with the MLCC.

115. The complaint with MLCC was false when made as Plaintiffs had been

given approval to manufacture cider pursuant to the April 27, 2023 special exception

use approval.

116. On or about August 24, 2023, Plaintiffs sought to engage an engineer

to assist it with meeting the requirements for the building permits and site plan

approval for usage of the red barn.

117. On or about September 1, 2023, Plaintiffs were informed that the

engineer would no longer be willing to assist them based on conversations they had

with building officials of Defendants KABA and Comstock Township.

118. The engineer informed Plaintiffs that, based on their conversations with

Defendants KABA and Comstock Township officials, Defendants would never

approve any building permits to be issued to Plaintiffs because Defendants,

including Comstock Township, did not like Ben Martin nor approve of the operations

of Soil Friends.

119. The engineer informed Plaintiffs that Defendants, including Comstock

Township would make the cost of Soil Friends obtaining a building permit so cost

25
prohibitive that Soil Friends could not pursue their goal of opening a farm

market/manufacturing facility in the red barn.

120. Since the engineer’s report Plaintiffs have not been able to conduct

business on their winery/farm in any significant capacity, as Defendants have made

the cost of doing business prohibitive and have failed to abide by the tenants of the

law and due process.

Plaintiffs Have Been Damaged by Defendants’ Conduct

121. Plaintiffs have spent and committed considerable time, effort, and

financial resources to building Soil Friends into a successful farm and cidery

operation.

122. Moreover, Plaintiffs have invested significant efforts into building

business relationships with their customers, distributors, and sellers to continually

provide a premium hard cider product.

123. Soil Friends cider has been widely distributed across the State of

Michigan with a lucrative business relationship with retailer Meijer, wherein Soil

Friends is available in twenty (20) stores in Michigan.

124. Defendants’ complete shutdown of Soil Friends cidery operation in

November 2022 resulted in a loss of over $60,000.00 in product spoilation alone.

26
 125. Furthermore, Defendants’ complete shutdown of Soil Friends business

in November 2022 resulted in Soil Friends being unable to conduct their farm market

or to sell cut Christmas trees for the seasonal period.

126. Defendants’ published statements, containing widely inaccurate and

provably false claims, tarnished the reputation of Soil Friends within the community

and with its existing customers.

127. Furthermore, the actions of Defendants including Comstock Township,

KABA, and their officials acting under color of state law have jeopardized Soil

Friends future business prospects, business relationships, and the overall financial

viability of operating their farm and winery/cidery.

128. Plaintiffs have been damaged by Defendants and are entitled to

damages and equitable relief.

COUNT I
FIRST AMENDMENT RETALIATION (42 U.S.C. § 1983)

129. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

130. The First Amendment to the United States Constitution prohibits the

abridgment of the freedom of speech.

131. Political, religious, commercial, and artistic speech are the highest and

most important forms of speech protected by the First Amendment to the United

States Constitution.
27
 132. The right of an American citizen to criticize public officials and policies

is the central meaning of the First Amendment to the United States Constitution.

133. The protections of the First Amendment have been extended through

the Fourteenth Amendment to prohibit the abridgment of the freedom of speech,

freedom of expression and of the free exercise of religion by state and local

governments.

134. Persons violating the First and Fourteenth Amendments under color of

state law are liable under 42 U.S.C. § 1983.

135. The repeated denials and onerous burdens placed on Soil Friends, by

Defendants and others, in seeking their approval for special exception use, was and

continues to be retaliation against Plaintiffs’ engagement in protected speech, which

violates the First Amendment.

136. Plaintiffs’ Facebook posts criticizing Comstock Township and their

officials is constitutionally protected speech.

137. Plaintiff’s statement that Comstock Township was anti-business was a

comment on a matter of public concern–namely the effectiveness of governmental

entity Comstock Township.

138. Plaintiff’s statement toward Jodi Stefforia that the community “should

ask what happened with [Jodi Stefforia’s] position in previous townships” and that

28
“she pack her boxes and go” was a comment on a matter of public concern–namely

the effectiveness of a governmental official acting under color of state law.

139. Plaintiff’s statements toward both Randy Thompson and Scott Hess that

they have “blocked [Soil Friends] from buying permits for improvements and also

allowed harassment to other business leaders” and that “[Soil Friends] hope your not

considering reelection” was a comment on a matter of public concern – namely the

effectiveness of a governmental official acting under color of state law.

140. Plaintiff’s statement toward KABA that “[Comstock Township] should

make due without it” was a comment on a matter of public concern – namely the

effectiveness of a governmental unit.

141. Defendants in concert and with others acting under color of state law

took adverse action against Plaintiffs by imposing onerous burdens on their business

plans and approvals, filing frivolous complaints with State agencies, and delaying to

the extent possible any opportunity for Soil Friends to conduct its business.

142. This adverse action was taken by Defendants in concert with others to

punish Plaintiffs for their Facebook posts criticizing Comstock Township, KABA,

and their officials acting under color of state law to deter Plaintiffs from further

public comment.

143. Defendants in concert and with others including Defendant Jodi

Stefforia have taken adverse action against Plaintiffs for their comments directed

29
towards her including altering the conditions for approval, recommending that

Plaintiffs agenda continue to be tabled despite all necessary information being

provided, and ensuring that Plaintiffs be held up at every possible stage to ensure

denial of their building permits.

144. Defendants in concert and with others including Defendant Scott Hess

have taken adverse action against Plaintiffs for their comments directed towards him

including falsely reporting to MLCC that Plaintiffs were not approved for

manufacturing cider in the red barn after the special use exception was issued.

145. Defendants in concert and with others including Defendant KABA, on

behalf of Defendant Mike Alwine, have taken adverse action against Plaintiffs for

their comments directed towards them including denying Plaintiff’s building permits

wherein the previous site plan contemplates the usage sought.

146. Upon information, knowledge, and belief, the adverse actions of

Defendant KABA are being directed by Defendants Comstock Township and/or their

officials acting under color of state law.

147. The adverse actions taken by Defendants in concert and with others

acting under color of state law are attributed to Plaintiffs continued use of protected

speech.

148. These actions would deter an ordinary person from continuing to

exercise his or her free speech rights regarding a governmental unit or their officials.

30
 149. Defendants cannot point to any interest that could outweigh Plaintiffs’

interest in exercising their free speech rights.

150. Accordingly, Defendants in concert and with others acting under color

of state law, have retaliated and continue to retaliate against Plaintiffs for their

exercise of protected speech in violation of the U.S. Constitution’s First Amendment.

151. Plaintiffs are entitled to both nominal and compensatory damages as a

result of Defendants’ violation of Plaintiffs’ constitutional rights and the retaliation

as to those rights as well as injunctive relief.

COUNT II
UNCONSTITUTIONAL CONDITIONS

152. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

153. The unconstitutional conditions doctrine prohibits the government from

conditioning the receipt of a government benefit on the relinquishment of a

constitutional right.

154. The government violates the unconstitutional conditions doctrine when

it pressures a person to give up constitutional rights in order to obtain a public

benefit.

155. The government also violates this doctrine when it denies a person a

benefit because that person exercised his or her constitutional rights.

31
 156. Defendants including Comstock Township have violated the

unconstitutional conditions doctrine by pressuring Plaintiffs to give up their

constitutional rights to free speech to criticize a municipality’s government and

officials by conditioning their receipt of special use exception, site plan approval,

and building permits for the red barn on Plaintiffs refraining from further public

comment against Comstock Township, KABA and/or their officials.

157. Furthermore, Defendants including Comstock Township, KABA,

and/or their officials have violated the unconstitutional conditions doctrine by

delaying Plaintiffs’ the benefits of special exception use, site plan approval, and the

issuance of their building permits because Plaintiffs have exercised their right to free

speech.

158. In October 2022, Plaintiffs began publicly stating their political

viewpoint about actions taken by Comstock Township and its officials calling into

question their integrity and clear anti-business stances on Facebook.

159. When Comstock Township Official Defendant Randy Thompson met

with Plaintiffs on October 31, 2022, he insinuated that Plaintiffs Facebook posts

criticizing Comstock Township must cease because it placed Comstock Township in

a negative light and would cause further issues with Plaintiffs seeking special

exception use from Comstock Township for Plaintiffs’ operations.

32
 160. Despite Defendant Randy Thompson’s request, Plaintiffs continued to

post on Facebook statements that criticized Comstock Township, KABA, Jodi

Stefforia, Randy Thompson, and Scott Hess in their official capacities.

161. At the April 27, 2023, Planning Commission meeting, Defendant

Patrick Hanna, a member of the Planning Commission stated that Plaintiffs’ approval

for their special exception use and site plan review should be denied due to Plaintiff

Ben Martin’s character.

162. Defendants have taken the position that as long as Plaintiffs continue to

exercise their right to criticize the governmental entities and their officials, they will

not obtain the public benefit of having a building permit issued.

163. Plaintiffs’ statements regarding the effectiveness of governmental

entities and their officials are completely unrelated to whether a building permit

should be issued for their property.

164. These actions therefore violate the unconstitutional conditions doctrine,

and Plaintiffs are entitled to both nominal and compensatory damages as a result of

Defendants’ actions as well as injunctive relief.

COUNT III
VIOLATION OF DUE PROCESS (42 U.S.C. § 1983)

165. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

33
 166. The Due Process Clause of the Fourteenth Amendment, through the

Fifth Amendment, provides that no state shall “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1.

167. The Due Process Clause of the Fifth Amendment, and as applied to

states through the Fourteenth Amendment, governs both procedural and substantive

due process claims.

168. Procedural due process imposes constraints on governmental decisions

which deprive individuals of “liberty” or “property” interests within the meaning of

the Due Process Clause of the Fifth or Fourteenth Amendment. Mathews v. Eldridge,

424 U.S. 319, 332 (1976).

169. Procedural due process claims are not concerned with the deprivation

of a constitutionally protected interest in ‘life, liberty, or property’, but deprivation

of those interests without due process of law. Id.

170. The substantive due process component of the Fourteenth Amendment

bars “certain government actions regardless of the fairness of the procedures used to

implement them.” Daniels v. Williams, 474 U.S. 327, 331 (1986).

171. Substantive due process claims fall into two categories: (i) “claims that

an individual has been deprived of a particular constitutional guarantee,” and (ii)

“claims that the government has acted in a way that shock[s] the conscience.”

Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 547 (6th Cir. 2012)

34
 172. Defendants and others’ actions confirm a repeated pattern to avoid

procedural due process by depriving Plaintiffs of their rights to operate their farm,

cidery and associated business ventures.

173. Defendants have repeatedly tabled, postponed, or otherwise delayed

Plaintiffs special exception approvals and site plan approvals at Planning

Commission meetings despite Plaintiffs timely filing the appropriate paperwork.

174. Defendants have taken further adverse action against Plaintiffs by

striking them from Planning Commission meetings without any valid reason when

Comstock Township was court ordered to proceed in good faith.

175. Additionally, Defendants violated Plaintiffs’ due process rights by

Attorney Seeber illegally attending an informal hearing on behalf of Comstock

Township, and drafting an order that was tantamount to an injunction in favor of

Comstock Township all while Plaintiffs were prohibited from having attorney

representation.

176. Defendants then utilized this ill-gotten and wrongful order to further

violate Plaintiffs’ due process rights.

177. Defendants violated Plaintiffs due process rights by continuously

altering and changing the requirements for approval of Plaintiff’s building permits

during the process.

35
 178. Defendants required paving the entirety of a farm driveway and

installing a $200,000.00 sprinkler system wherein the fire code does not require such

action, inter alia.

179. Defendants’ most recent position that Plaintiff’s prior A2-F2

architectural drawings need to be amended or restarted because they were for a

“wedding/event space” and Plaintiff is now seeking permission for a “winery

tasting” room ignores that the critical fact that the same structural and occupancy

stringency applies.

180. Defendants’ conduct shows a complete disregard for the fairness

required in such actions.

181. Defendants’ behavior and actions are designed to prevent Plaintiffs

from ever meeting the township ordinances and deprive Plaintiffs of their right to

due process and equal protection under the law.

182. Upon information, knowledge, and belief, Defendants have discussed

and made determinations outside their required public forum that is further

supported by representations to Plaintiffs by their engineer that Defendants will

never approve Plaintiff for a building permit.

183. Moreover, Defendants, including Patrick Hanna, have made it known

they do not approve of Plaintiff Ben Martin or his character and will never approve

any future special use exceptions or permits for Plaintiffs.

36
 184. Defendants pre-determined denial of Plaintiffs’ current and future

abilities to utilize their property lawfully would shock the conscience of any ordinary

person or community.

185. Accordingly, Defendants actions have denied and violated Plaintiffs

constitutional rights to both procedural and substantive due process, and Plaintiffs

are entitled to damages and equitable relief.

COUNT IV
REGULATORY TAKINGS
(Fifth and Fourteenth Amendment)

186. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

187. The Takings Clause of the Fifth Amendment, applicable to the States

through the Fourteenth Amendment, provides: “[N]or shall private property be taken

for public use, without just compensation.” U.S. Const. amend. V.

188. The Fifth Amendment prohibits both “physical takings” and

“regulatory takings”. Cedar Point Nursery v. Hassid, 141 S. Ct. 20163, 2071-2072

(2021).

189. A regulatory taking occurs when government regulation goes “too far”

in restricting an owner’s use of the property. Id.

190. The regulatory takings doctrine exists primarily in the context of land-

use restrictions such as zoning ordinances. Id. at 2072.

37
 191. A regulatory taking can either be “categorical” or “non-categorical”.

Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 482-83 (6th

Cir. 2004).

192. A taking is “non-categorical” if the challenged regulation does not

deprive the property of all economic value, but nonetheless goes “too far”. Id.

193. Defendants’ actions, interpretation and application of Comstock

Township’s zoning regulations as to Plaintiff’s property are a non-categorical

regulatory taking because the regulations imposed upon Plaintiffs for their special

exception use, site plan approvals, and building permits overly restricts Plaintiffs

land use.

194. Defendants’ actions, interpretation and application of Comstock

Township’s zoning regulations as to Plaintiff’s property are a non-categorical

regulatory taking because Defendants are ignoring state law preemption and failing

to allow Plaintiffs the freedom to conduct a lawful business enterprise.

195. Plaintiffs have the right to commercialize their business interests in

their property and to offer all services permitted under their MLCC license.

196. Plaintiffs have a right to be free from Defendants interference,

retaliation, and onerous application of Comstock Township’s zoning regulations.

38
 197. Defendants’ unlawful interference and unreasonable

restrictions/conditions on Plaintiffs’ property are designed to ensure that Plaintiffs

cannot offer any cidery/farm-adjacent activities or events.

198. Defendants have weaponized the Comstock Township’s zoning

regulations and approval process to prevent Plaintiffs from conducting business on

their cidery/farm.

199. Defendants’ weaponized use of zoning ordinances requires, inter alia,

Plaintiffs to spend thousands of dollars to pave their driveway and to install

automatic sprinkler systems, without any necessity in the fire code, deprives

Plaintiffs of their ability to use their property and buildings.

200. Plaintiffs will suffer irreparable harm if Defendants are allowed to

continue enforcing its policies and zoning regulations against Plaintiffs.

201. These actions by Defendants violate the protections granted by the

Constitution and Plaintiffs are entitled to damages as well as injunctive relief.

COUNT V
CONSPIRACY TO INTERFERE WITH CIVIL RIGHTS (42 U.S.C. § 1985)

202. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

203. “If two or more persons in any State…for the purpose of depriving

either directly or indirectly, any person…of equal privileges and immunities under

the laws…the party so injured or deprived may have an action for the recovery of
39
damages, occasioned by such injury or deprivation, against any one or more of the

conspirators.” 42 U.S.C. § 1985(3).

204. “Every person who, having knowledge that any of the wrongs conspired

to be done…are about to be committed, and having power to prevent or aid in

preventing the commission of the same, neglects or refuses so to do, if such wrongful

act be committed, shall be liable to the party injured…for all damages caused by

such wrongful act, which such person by reasonable diligence could have

prevented.” 42 U.S.C. §1986.

205. Upon information, knowledge, and belief, Defendants in concert and

with others have held discussions outside the required public record to determine

Defendant Comstock Township’s position as to Plaintiff’s special use exception, site

plan approvals, and building permits.

206. Defendants’ discussions and determinations outside the public record

were designed and held to ensure that Plaintiffs would be denied and never be

awarded any special use exception, site plan approvals, or building permits.

207. Defendants in concert and with others have collectively determined that

Plaintiffs, and specifically Plaintiff Ben Martin, lacks the appropriate character to be

approved for special exception use, site plan approval, and building permits in

violation of the law.

40
 208. Defendants’ striking of Plaintiffs’ special use exception and site plan

approval from a meeting agenda, violated Plaintiffs’ procedural and substantive due

process of law rights.

209. Defendants have made it known that Plaintiffs will be continually

denied any current or future special use exceptions, site plan reviews, or building

permits because of Plaintiffs’ character and their Facebook posts against them.

210. Defendants have conspired to purposely interfere with Plaintiffs’ civil

rights including his exercise of free speech and due process of law in violation of the

constitution.

211. Defendants knew or were aware of the wrongs, including striking

Plaintiffs from the Planning Commission agenda, denying and/or delaying Plaintiff’s

special use exception and site plan approval, and instructing Defendant KABA to

deny Plaintiffs a building permit for the red barn.

212. Defendants Comstock Township and Scott Hess’ false complaint to the

MLCC indicating that Plaintiffs did not have special exception use approval and

were operating an illegal winery/cidery, after this had been granted, is prima facie

evidence of such a conspiracy.

213. Defendants in concert and with others conspired to deprive Plaintiffs of

their constitutionally protected rights by illegally having Attorney Seeber attend an

informal hearing and drafting a wrongful order tantamount to an injunction.

41
 214. As attorneys, Defendants Catherine Kaufman and Roxanne Seeber ‘s

failure to thwart or prevent such deprivations by other Defendants including, relying

on an ill-gotten order and allowing other members to conspire to prevent Plaintiffs’

from exercising their constitutional rights to due process are particularly egregious.

215. Accordingly, Defendants are liable to Plaintiff for their conspiracy to

deny Plaintiffs their constitutional rights including the right to due process and equal

protection of the law, and their failure to intervene.

216. As such Plaintiffs are entitled to damages and equitable relief.

COUNT VI
STATE LAW PREEMPTION BY MICHIGAN LIQUOR CONTROL CODE

217. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

218. Comstock Township’s zoning ordinance is preempted by the Michigan

Liquor Control Code.

219. MLCC has the exclusive authority to regulate the sale of alcohol in the

state of Michigan and, pursuant to MCL 436.110 et seq., has devised a

comprehensive set of statutes which regulate the sale of alcohol in this State.

220. When MLCC issues a license, it comes with certain privileges which

Comstock Township may not restrict.

221. To operate a winery in Michigan, a license from MLCC is required.

42
 222. Soil Friends has both a Small Wine Maker license and an On-Premises

Tasting Room issued by MLCC.

223. A tasting room permit allows Soil Friends to “provide samples of or sell

at retail for consumption on or off the premises…wine it manufactured…[or]

bottled.” MCL 436.1113(1)(b).

224. Soil Friends’ tasting room permit also allows the performance or

playing of any type of musical instrument and singing without the need for an

additional permit. MCL 436.1916(11).

225. Once a tasting room permit is issued by MLCC, the winery may also

receive from MLCC “a Sunday sales permit, catering permit, dance permit,

entertainment permit, specific purpose permit, extended hours permit, [and]

authorization for outdoor service.” MCL 436.1536(11).

226. None of these additional MLCC permits related to a tasting room

require the Township’s approval.

227. According to the Michigan Liquor Control Code, “[a] license issued

under this act is a contract between the commission and the licensee.” MCL

436.1501.

228. Defendants, including Comstock Township, does not have authority to

restrict any permissions granted to Soil Friends by virtue of their licenses granted by

the MLCC.

43
 229. “Any permit issued to a licensee by the commission or any privilege

granted to a licensee by the commission may be revoked or suspended by the

commission or a hearing commissioner, after due notice and proper hearing, if the

licensee or the establishment no longer qualifies for the permit or the privilege or if

the licensee is found to be in violation of the act or a commission rule which directly

pertains to the permit issued or the privilege granted.” MLCC Rule 436.1061.

230. Defendants’ restrictions and actions to keep Plaintiffs from exercising

their rights under the MLCC licenses are preempted by state law.

231. A local unit of government may not add conditions to a state statute if

because the additional regulation to that of a state law constitutes a conflict.” Nat’l

Amusement Co. v. Johnson, 270 Mich. 613, 616 (2015).

232. Where a state statute allows certain conduct and a local ordinance

forbids it, “the ordinance is void.” Id.

233. A local municipality may not enjoin activity allowed by state law

“simply by characterizing the conduct as a zoning violation.” Beek v. City of Wyo.,

495 Mich. 1, 21 (2014).

234. Defendants have no authority to enforce an ordinance which restricts,

or prohibits, live music, retail sales, food, alcohol or beverage service on the

property, in light of the MLCC’s authority.

44
 235. Currently, Comstock Township has imposed conditions on Plaintiff’s

special use exception including that there be “no amplification of music outside the

barn”, “no use of speakers outside the barn”, and that “hours are limited to 9 a.m. to

9 p.m. Monday through Sunday.”

236. Each of these activities is explicitly allowed under the Michigan Liquor

Control Code.

237. Thus, the restrictions imposed by Comstock Township on Plaintiffs’

special exception use are preempted by state law.

238. As such Plaintiffs are entitled to declaratory and injunctive relief that

Defendants’ conditions and requirements are preempted by state law.

COUNT VII
STATE LAW PREEMPTION BY MICHIGAN RIGHT TO FARM ACT

239. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

240. Michigan’s Right to Farm Act (“RTFA”) was enacted to protect farmers

from nuisance lawsuits. Travis v Preston (On Rehearing), 249 Mich. App. 338, 342

(2002).

241. The Legislature “enacted the Right to Farm Act to protect farmers from

the threat of extinction caused by nuisance suits arising out of alleged violations of

local zoning ordinances and other local land uses regulations as well as from the

45
threat of private nuisance suits.” Northville Twp. v. Coyne, 170 Mich. App. 446, 448-

449 (1988).

242. “Local government may not enact or enforce an ordinance that conflicts

with the Right to Farm Act or the GAAMPs.” Brown v. Summerfield Twp., 2012 WL

3640330 (Mich. App. Aug 23, 2012); MCL 286.474(6).

243. “[A] farm or farm operation must not be found to be a public or private

nuisance if it conforms to ‘generally accepted agricultural and management

practices’ (‘GAAMPS’), according to policy determined by the state commission on

agriculture. Local government may not enact or enforce an ordinance that conflicts

with the Right to Farm Act or the GAAMPs.” Id. (quoting MCL 286.474(6)).

244. “Therefore, ‘any township ordinance, including a zoning ordinance, is

unenforceable to the extent that it would prohibit conduct protected by the RTFA.’”

Shelby Twp. v. Papesch, 267 Mich App 92, 107 (2005).

245. Under the 2023 Farm Market GAAMPS, a “farm market” is defined as:

“[A] year-round or seasonal location where transactions and

marketing activities between farm market operators and
customers take place. A farm market may be a physical structure
such as a building or a tent, or simply an area where a transaction
between a customer and a farmer is made…Fresh products as
well as processed products may be sold at the farm market. At
least 50 percent of the products offered must be produced on and
by the affiliated farm measured by retail floor space during peak
production season, or 50 percent of the average gross sales for
up to the previous five years or as outlined in a business plan.”

Exhibit 23.

46
 246. The 2023 GAAMPs further define a “farm product” as:

“[T]hose plants and animals useful to humans produced by

agriculture and includes…berries, herbs, fruits, vegetables,
flowers, seeds, grasses, nursery stock, trees and tree products.”
Id.

247. Additionally, the 2023 GAAMPs define “marketing” as:

“Promotional and educational activities at the farm market

incidental to farm products with the intention of selling more
farm products. These activities include, but are not limited to
farm tours (walking or motorized), demonstrations, cooking and
other classes utilizing farm products, and farm-to-table dinners.”
Id.

248. Plaintiffs’ farm and farm market has been determined to be GAAMP

compliant by the Michigan Department of Agriculture and Rural Development

(“MDARD”) with Plaintiffs having had fifty (50) percent of its square footage for

their farmers market comprised of agricultural products grown on their farm during

peak production (i.e., summer).

249. During their peak production season, the farm products sold by

Plaintiffs in their farm market from their farm include but are not limited to

jalapenos, lavender, butternut squash, pumpkins and an assortment of berries.

250. Defendants are prohibiting Plaintiffs from selling cut Christmas trees

during the Christmas season and conducting seasonal marketing for their farm by

having a Santa Claus on the premises.

47
 251. The prohibition on Plaintiffs selling of cut Christmas trees is preempted

by the RTFA that contemplates trees as being a farm product capable of being sold

at a farm market.

252. The prohibition on Plaintiffs having a Santa Claus to market sales of

their cut Christmas trees is preempted by the RTFA as this promotion is incidental

to the farm products and intended to assist Plaintiffs sell more trees.

253. Thus, the ordinance against Plaintiffs’ right to sell cut Christmas trees

and have a Santa Claus on the premises is preempted by the RTFA.

254. As such, Plaintiffs are entitled to declaratory and injunctive relief that

Defendant’s conditions and requirements of their ordinances are preempted by state

law.

COUNT VIII
TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP OR
EXPECTANCY UNDER STATE LAW

255. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

256. Plaintiffs are engaged in the business of both operating a farm and

winery/cidery operation.

257. On October 17, 2017, Comstock Township granted Plaintiffs approval

for a winery license issued by the MLCC determining that it was an accessory to the

48
existing use of the property and/or similar bond fide agricultural enterprise or use of

land and structures.

258. Plaintiffs spent and committed considerable time, effort, and financial

resources to building a successful hard cider business.

259. Through Plaintiffs’ efforts and their winery/cidery license, Soil Friends

hard cider was sold not only on the farm but was distributed across the state of

Michigan.

260. Plaintiffs’ hard cider was distributed through their business relationship

with I.H.S. Distributing Company that provided Plaintiffs’ products to bars,

restaurants, and stores in the area and across the State of Michigan.

261. Moreover, Plaintiffs had secured a lucrative business relationship with

retail grocer Meijer’s wherein Plaintiffs hard cider would be sold in twenty (20)

stores across the State of Michigan.

262. Plaintiffs’ distribution requires providing their distributors and sellers

with a set number of stock-keeping units (“SKUs”) with future re-orders premised

upon sales of their products and SKUs.

263. A failure by Plaintiffs to maintain their production and SKUs with their

distributors and sellers will result in decreased demand for their product.

49
 264. At all relevant times, Defendants were aware that Plaintiffs were

producing hard cider and were distributing their product to restaurants, bars, and

stores in the area and across the State of Michigan.

265. Defendants’ actions in closing Plaintiffs’ hard cider business in

November 2022 through February 2023, without any authority under the law to do

so, has caused and will continue to cause a disruption in the contracts/business

relationships/expectancies of Plaintiffs.

266. Due to Defendants’ unlawful closure of Plaintiffs’ hard cider business,

Plaintiffs lost in excess of $60,000.00 of product in spoilation alone.

267. Furthermore, Defendant Scott Hess’ false complaint to MLCC after

Plaintiffs were granted special exception use by Comstock Township, allowing them

to continue manufacturing their hard cider, was designed to prevent Plaintiffs from

engaging in their lawful business practices.

268. Defendants’ wrongful actions in closing Plaintiffs’ hard cider business

has caused irreparable harm to their business reputation, their future business

expectancies, and the overall financial viability of their business.

269. Plaintiffs have been and will continue to be damaged by the unlawful

actions of Comstock Township and their officials acting under color of state law.

50
 270. Plaintiffs are entitled to recover damages for Defendants knowingly,

intentional, and improper interference with Plaintiffs’ contracts/business

relationships/expectancies.

271. Plaintiffs’ damages are a direct and proximate cause of Defendants’

tortious interference with the contracts/business relationships/expectancies of

Plaintiffs and are therefore liable to Plaintiffs jointly and severally.

272. As such Plaintiffs are entitled to damages to be determined by a jury,

and any other relief this Court deems reasonable and just.

COUNT IX
DEFAMATION UNDER STATE LAW

273. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

274. On December 2, 2022, Defendant Matthew Miller, on behalf of

Defendant Comstock Township, published and posted a Statement to Comstock

Township’s website titled “FOR IMMEDIATE RELEASE: Comstock Charter

Township’s statement on Soil Friends Hard Cider Company.”

275. The Statement includes numerous false and defamatory statements,

claiming: (1) Soil Friends did not give notice or have permission for a MLCC license

for its current use; (2) that Soil Friends was required to give notice and to obtain

permission from Comstock Township for permits under their MLCC license; (3) that

the addition of a tasting room and on-site sales requires a special use permit from
51
Comstock Township; (4) that Soil Friends did not have approval for food and

beverage service; (5) that Soil Friends did not have approval for outdoor service of

food and/or alcohol; (6) that Soil Friends could not manufacture hard cider/beer; (7)

that Soil Friends could not conduct distribution of hard cider/beer; (8) that Soil

Friends farm market was in violation of the farm market GAAMP requiring that 50%

of the product be grown on their farm; (9) that Soil Friends hard cider forms part of

their farm market; (10) that Soil Friends was required to produce cider only from

produce on its farm.

276. At the time of the allegations, Plaintiffs had been approved by both

Defendant Comstock Township and the MLCC for a small winemaker’s license.

277. Defendant Comstock Township knew or should have known that the

MLCC license granted Plaintiffs the right to have an on-premises tasting room,

outdoor tasting room, the ability to sell their product, the ability to serve food, the

ability to manufacture hard cider, the ability to distribute hard cider, and that

Plaintiffs did not need to personally source all ingredients for their hard cider – only

the namesake ingredients.

278. Moreover, Defendant Comstock Township’s claims that Soil Friends

farm market had violated GAAMPs and did not qualify as such in the State of

Michigan was based purely on speculation without any verification from MDARD.

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 279. The allegations against Plaintiffs in the Statement not only were false

when published but showed a complete disregard by both Defendant Matthew Miller

and Defendant Comstock Township for verifying the accurateness of these claims.

280. Defendant Matthew Miller had a duty to conduct his own investigation

as to the veracity of the claims asserted, including researching whether the

statements were true before publishing.

281. Defendant Matthew Miller failed to conduct any independent research

or investigation and wrongfully relied upon information supplied by Defendant

Comstock Township

282. The Statement falsely accused Plaintiffs of unethical and unlawful

behavior in an attempt by Defendant Comstock Township to place itself in a positive

light within the community for its actions while causing significant damage to

Plaintiffs’ business reputation.

283. The Statement was utilized and cited by other local and state media,

including News Channel 3, NBC News Channel 8, MLive, and MSN News, to

perpetuate the false claims against Plaintiffs.

284. Defendants Comstock Township and Matthew Miller negligently or

with actual malice published false and defamatory statements regarding Plaintiffs.

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 285. The defamatory statements have a tendency to, and did, prejudice

Plaintiffs in the conducting of their business and deter others from associating or

dealing with Plaintiffs and their products.

286. The Statement was not privileged when made.

287. Despite Defendants having material knowledge since the Statement

was published that many of the claims were untrue when made, no retraction has

been made or issued and the Statement continues to exist on its website.

288. As a direct and proximate result of Defendants Comstock Township and

Matthew Miller’s wrongful conduct, Plaintiffs have suffered substantial economic

injury, loss of goodwill, harm to its business reputation, loss of esteem and standing

in the community, and loss of business opportunities and Comstock Township and

Matthew Miller are therefore liable jointly and severally.

289. As such, Plaintiffs are entitled to actual damages.

COUNT X
VIOLATION OF MICHIGAN’S OPEN MEETINGS ACT (MCL 15.261 ET
SEQ.)

290. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

291. Michigan’s Open Meetings Act, MCL 15.261 et seq., imposes specific

requirements for meetings of local public bodies to be open to the public.

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 292. The Open Meetings Act obligates, “public bodies [to] conduct their

meetings, make all their decisions, and conduct their deliberations (when a quorum

is present) at meetings open to the public.” Speicher v. Columbia Twp. Bd. Of

Trustees, 497 Mich. 125, 134-135 (2014).

293. “All decisions of a public body must be made at a meeting open to the

public.” MCL 15.263(2).

294. “If a public body is not complying with this act…a person may

commence a civil action to compel compliance or to enjoin further noncompliance

with this act.” MCL 15.271(1).

295. “If a public body is not complying with this act, and a person

commences a civil action against the public body for injunctive to compel

compliance or to enjoin further noncompliance, the person shall recover court costs

and actual attorney fees for the action.” MCL 15.271(4).

296. “A public official who intentionally violates this act shall be personally

liable in a civil action for actual and exemplary damages of not more than $500.00

total, plus court costs and actual attorney fees to a person or group of persons

bringing this action.” MCL 15.273(1)

297. Defendants has violated the terms of the Open Meetings Act through its

clear actions to pre-determine its decisions affecting Plaintiffs that require these

issues to be addressed in a forum open to the public.

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 298. Upon information, knowledge, and belief, Defendants, including

Defendants Jodi Stefforia, Randy Thompson, and Scott Hess, have conferred and

instructed other Defendants serving as members of Comstock Township’s Planning

Commission, Township Board, and KABA to deny Plaintiffs their special exception

use approval, site plan approval, and building permit approvals outside the required

public forum.

299. Upon information, knowledge, and belief, these conversations included

a quorum of Defendant-members of the Comstock Township Planning Commission

and/or Township Board requiring such conversations to be open to the public.

300. Upon information, knowledge, and belief, Defendants’ actions

including Defendant Jodi Stefforia advising the Planning Commission to table

Plaintiff’s special exception use approval and Defendant members of Comstock

Township Planning Commission striking of Plaintiffs’ special exception use

approval from a public meeting were all efforts designed to continue deliberations

and make decisions outside the public process.

301. The actions and noncompliance of Defendants and its officials acting

under color of state law, including Jodi Stefforia, Randy Thompson, and Scott Hess,

with the Open Meetings Act have damaged Plaintiffs by denying them a meaningful

opportunity to participate in the public process and have resulted in damage to their

business and personal reputations.

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 COUNT XI
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS UNDER
STATE LAW

302. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

restated herein.

303. Defendants’ conduct, as outlined above was intentional.

304. Defendants’ conduct, as outlined above, was/is extreme, outrageous,

and of a character not to be tolerated by a civilized society.

305. Defendants’ conduct is/was motivated by Plaintiffs’ exercise of their

constitutional rights utilizing the zoning regulations, ordinances, and their false

public statements to intentionally damage the business reputation of Plaintiffs and to

publicly shame Plaintiffs for their false violations of Comstock Township’s

ordinances despite Plaintiffs being legally authorized and permitted to do so by state

law.

306. Defendants’ actions, including their public statements, have caused

significant emotional distress to Plaintiffs’ lowering their esteem and reputation

among the community, other businesses, and across the state of Michigan.

307. Due to Defendants’ defamatory and slanderous publications, cited by

other media and available via the internet, the damage to Plaintiffs’ personal and

business reputation is far greater than a simple slight.

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 308. Many customers and vendors continue to question whether Plaintiffs

operations are lawful, imposing significant stress and threatening the financial

viability of Plaintiffs’ business.

309. Defendants’ actions have forced Plaintiff to take additional steps to

inform their customers, distributors, and vendors, that their products are lawful and

that their operations are in conformance with all applicable laws.

310. All of Defendants’ wrongful actions have caused Plaintiffs damage to

their mental health and their overall financial well-being.

311. Moreover, Plaintiffs no longer have any certainty that their goals of

operating a successful farm and winery/cidery can continue.

312. As such, Plaintiffs are entitled to damages for Defendants’ actions to be

determined by a jury.

COUNT XII
CIVIL CONSPIRACY

313. Plaintiffs incorporate and reallege the preceding paragraphs as if fully

stated herein.

314. Defendants illegally, maliciously, and wrongfully conspired between

and among one another and with others with the intent to and for the illegal purpose

of interfering with Plaintiff’s business, business relationships, business

expectancies, and to lower their reputation in the community.

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 315. Defendants, in combination, conspired to utilize their positions as

governmental units or within government to ensure that Plaintiffs’ business would

be unable to operate preventing Plaintiffs from continuing their lawful enterprise

permitted by state law. As a result of the conspiracy and Defendants’ illegal,

wrongful, or tortious acts, Plaintiffs sustained damages including loss of revenue

from their business, loss of product, loss of business relationships and/or

expectancies, and a loss of personal and business reputation within the community

and across the state of Michigan.

316. Plaintiffs have been damaged by Defendants actions in an amount to be

determined at trial and are therefore jointly and severally liable to Plaintiffs for all

of their injuries and damages.

PRAYER FOR RELIEF

Plaintiffs respectfully request that this Honorable Court enter judgment

against Defendants and in their favor, and provide Plaintiffs with the following

relief:

(A) That this Court award nominal damages and compensatory

damages, for the violation of Plaintiff’s constitutional and statutory rights;

(B) That this Court award Plaintiffs’ compensatory damages in an

amount to be determined by a jury sufficient to compensate Plaintiffs for their actual,

consequential, and incidental losses, including lost profits, as a result of Defendant’s

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wrongful actions arising under state law, as well as the interest, costs, and actual

and/or reasonable attorneys’ fees as the law provides;

(C) That this Court enjoin Defendants from any further action that

will deprive Plaintiffs of their constitutional rights, and those provided under state

law.

Respectfully Submitted,

By: Steven J. Kustra (P79002)

KUSTRA & BLOOM PLC
Steven J. Kustra (P79002)
Jeffrey M. Bloom (72343)
Attorneys for Plaintiffs
21002 Mack Avenue
Grosse Pointe Woods, MI 48236
(313) 586-4444
[email protected]
Dated 12-01-2023 [email protected]

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