Charter Township of White Lake v. Ciurlik Enterprises

STATE OF MICHIGAN

COURT OF APPEALS

CHARTER TOWNSHIP OF WHITE LAKE, UNPUBLISHED
May 12, 2016
Plaintiff/Counterdefendant-
Appellee,

v No. 326514
Oakland Circuit Court
CIURLIK ENTERPRISES and MARTIN LC No. 2014-141776-CZ
CIURLIK,

Defendants/Counterplaintiffs-
Appellants.

Before: MURPHY, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

In this action alleging violations of a local ordinance and the Natural Resources and
Environmental Protection Act (NREPA), MCL 324.101 et seq., defendants Ciurlik Enterprises
and Martin Ciurlik1 appeal as of right an order granting summary disposition in favor of plaintiff
Charter Township of White Lake pursuant to MCR 2.116(C)(10). We affirm.

Defendant has been using real property it purchased in plaintiff’s township as a large-
scale commercial composting facility since 2008. The property is located in a zoned agricultural
(AG) district. At the time the composting operation began, a permitted principal use of AG-
zoned property included: “Farms, excluding those operated wholly or in part for the disposal of
garbage, sewage, rubbish, offal and wastes from rendering plants.” Ordinance No. 58, § 7.02(B).
In 2011, plaintiff amended that provision, shortening it to: “Farms.” See § 3.1.1(B)(ii).

In May of 2014, Rizzo Environmental Services, Inc. began delivering decomposing yard
waste to defendant’s facility. Thereafter, plaintiff and the MDEQ began receiving complaints
from surrounding property owners regarding the noxious odor emanating from defendant’s
facility. In response to the complaints, the MDEQ visited defendant’s property and discovered
two violations of the NREPA. A 1.4 acre section of defendant’s facility had about 13,000 cubic
yards of compost material; thus, MCL 324.11521(4)(c)(ii) was violated because it prohibited

1
We refer to Ciurlik Enterprises and Martin Ciurlik collectively as “defendant.”

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more than 5,000 cubic yards of compost material on any acre of property. And defendant
violated MCL 324.11521(4)(d)(ii), which required composting operators to maintain particular
records.

Plaintiff’s Planning Director, Sean O’Neil, also visited defendant’s property in response
to the complaints and discovered defendant’s commercial composting facility. O’Neil believed
that the commercial composting facility violated § 3.1.1 because such a facility was not a
permitted use of AG-zoned land. Further, the noxious odors that emanated from defendant’s
property amounted to a nuisance and violated the performance standards set forth in § 5.18.
Defendant was notified to conform to the zoning ordinance by stopping the commercial
composting operation and removing the material causing the noxious odors.

On July 11, 2014, because defendant did not stop its commercial composting operation or
begin removal of the composting materials, this action was filed. Plaintiff’s complaint contained
three counts and sought to “enjoin a public health hazard.” Count I alleged a violation of
Ordinance No. 58, § 3.1.1, because defendant’s commercial composting facility was not a
permitted use of AG-zoned land. Count II alleged a violation of the performance standards set
forth in § 5.18 because defendant’s composting operation had produced noxious odors. And
Count III alleged that defendant violated the NREPA in the manner described by the MDEQ and,
thus, the NREPA permitted this enforcement action. Plaintiff sought an injunction, abatement of
the nuisance, and sanctions. Thereafter, an order was entered requiring defendant to show cause
why the court should not preliminarily enjoin its activity that was allegedly in violation of the
zoning ordinance.

In response, defendant argued that there was no zoning violation because its commercial
composting operation fit the definition of a “farm” under the AG zoning ordinance, as well as the
Right to Farm Act (RTFA), MCL 286.471, et seq. Defendant also argued that the composting
operation was entitled to immunity under the RTFA because, pursuant to MCL 286.473(1), a
farming operation cannot be considered a nuisance. Defendant claimed that it gained that
protection by fitting the definition of a “farm” under the RTFA and by operating its facility in
conformity with Generally Accepted Agricultural Management Practices (GAAMPs)
promulgated by the Michigan Department of Agriculture. But, defendant argued, even if the trial
court held that a commercial composting facility was not a permitted use of AG-zoned land, the
exclusionary zoning statute, MCL 125.3207, allowed its composting operation to continue
because there was a demonstrated need for it and plaintiff’s zoning ordinance totally prohibited
the use. Accordingly, defendant argued, plaintiff was not entitled to an injunction.

On September 9, 2014, after conducting a three-day hearing where the parties presented
arguments and witnesses, and following two site visits, the trial court held that plaintiff would
likely succeed on the merits of the case and entered an order of preliminary injunction.
Subsequently, defendant stopped engaging in active composting but did not remove the
composting material already on site. Plaintiff then moved the trial court to find defendant in
contempt and defendant sought a clarification of the trial court’s order. The trial court entered an
order clarifying for defendant that all composting materials must be removed, and scheduled a
hearing to show cause why defendant should not be held in contempt.

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 Defendant then sought leave to file an interlocutory appeal of the decision requiring the
removal of all composting materials. In lieu of granting leave to appeal, this Court peremptorily
reversed the trial court’s order, remanded for an evidentiary hearing regarding available options
for abatement, and adjourned the show cause hearing scheduled by the trial court. White Lake
Charter Twp v Ciurlik Enterprises, unpublished order of the Court of Appeals, entered
December 16, 2014 (Docket No. 324976).

Shortly thereafter, plaintiff filed a motion for summary disposition pursuant to MCR
2.116(C)(10). In brief, plaintiff argued that there was no genuine issue of material fact that
defendant violated the AG zoning ordinance and the NREPA. Plaintiff also argued that
defendant’s operation was not protected under the RTFA because it was not a farm; no crops or
farm products were produced. Thus, plaintiff argued, a permanent injunction should issue.
Defendant responded and raised several arguments, including that discovery was not complete so
the motion was premature. The trial court denied plaintiff’s motion, finding that relevant
discovery still needed to occur, and that such discovery might reveal important facts.

Subsequently, plaintiff filed a renewed motion for summary disposition. Defendant
responded, urging the trial court to deny plaintiff’s motion and grant summary disposition in
defendant’s favor. On March 9, 2015, the trial court issued its opinion and order granting
summary disposition in plaintiff’s favor and ordering a permanent injunction. With regard to
Count I of plaintiff’s complaint, the trial court found no issue of material fact existed that
defendant violated § 3.1.1 because the operation of a commercial composting facility was not a
permitted use of AG-zoned land. With regard to Count II of plaintiff’s complaint, the trial court
found no issue of material fact existed that defendant violated § 5.18 because defendant’s
operation of the composting facility had produced noxious odors that impacted the use and
enjoyment of the neighboring properties. With regard to Count III of plaintiff’s complaint, the
trial court found no issue of material fact existed that defendant violated the NREPA by storing
more than 5,000 cubic yards of compost material on an acre of property and by failing to
maintain proper records. Accordingly, the trial court held, plaintiff was entitled to summary
disposition.

In reaching its holding, the trial court also considered defendant’s several defenses. First,
the trial court rejected defendant’s claim that its composting operation was a “farm” under the
RTFA. Second, the court rejected defendant’s claim that plaintiff engaged in exclusionary
zoning related to commercial composting facilities. Third, the court rejected defendant’s
equitable estoppel argument, holding that the statements defendant allegedly relied upon—that
composting may be a permitted use—were not incorrect considering that composting in
conjunction with a farm is permitted on AG-zoned property. And, fourth, the trial court rejected
all of defendant’s equitable claims on the ground that defendant’s act of opening a composting
facility on AG-zoned property, when such use was clearly not permitted, amounted to unclean
hands. Therefore, the trial court granted summary disposition in favor of plaintiff, denied
defendant’s motion for summary disposition, and ordered that the preliminary injunction and
order of abatement be made permanent. This appeal followed.

Defendant first argues that plaintiff’s motion for summary disposition should have been
denied because its commercial composting operation is a “farm” and, thus, is a permitted use of
its AG-zoned property. We disagree.

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 This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Lakeview Commons v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d 712 (2010).
A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim and
should be granted only if, after consideration of the evidence submitted by the parties in the light
most favorable to the nonmoving party, no genuine issue regarding any material fact exists. Id.;
see also Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).

“Ordinances are treated as statutes for the purposes of interpretation and review.” Great
Lakes Society v Georgetown Charter Twp, 281 Mich App 396, 407; 761 NW2d 371 (2008).
Accordingly, we review de novo, as a question of law, the interpretation and application of a
municipal ordinance. Id. The rules of interpretation are well-established and are designed to
give effect to the legislative body’s intent. Ballman v Borges, 226 Mich App 166, 167; 572
NW2d 47 (1997). We first consider the language of the ordinance and, if the language is clear
and unambiguous, it must be applied as written. Brandon Charter Twp v Tippett, 241 Mich App
417, 422; 616 NW2d 243 (2000).

White Lake Township Zoning Ordinance No. 58, § 3.1.1(A) sets forth the intent of the
Agricultural District as follows:

The Agricultural District is established as a district in which the principal
use of land is for farming, dairying, forestry operations and other agricultural
activities. The intent of this article is to protect land needed for agricultural
pursuits from encroachment by untimely and unplanned residential, commercial
or industrial development.
Section 3.1.1(B) sets forth a list of permitted principal uses and “farms” are on that list, but
neither composting nor commercial composting are referenced. Defendant claims that its
composting operation qualifies as a “farm.” The word “farm” is defined within the ordinance:

FARM. All of the contiguous neighboring or associated land operated as a single
unit on which bona fide farming is carried on directly by the owner, operator,
manager or tenant farmer, by his own labor or with the assistance of members of
his household or hired employees; provided, however, that land to be considered a
farm hereunder shall include a continuous parcel of five (5) acres or more in area;
provided further, farms may be considered as including establishments operated
as bona fide greenhouses, nurseries, orchards, chicken hatcheries, poultry farms,
dairies, livestock raising and apiaries. [§ 2.2(63).]

Considering the plain language of the ordinance, a “farm” is land on which “bona fide farming”
occurs. See id. Defendant contends that its operation should be considered “bona fide farming”
under the zoning ordinance. See id. Both parties agree that “bona fide farming,” or more simply
“farming,” is a term not defined in the ordinance. “Terms not herein defined shall have the
meanings customarily assigned to them.” § 2.1. Generally, undefined terms are given their
“plain and ordinary meanings.” Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d
34 (2002). When presented with undefined terms, this Court is permitted to “consult dictionary
definitions.” Id. However, “a reviewing court is to give deference to a municipality’s
interpretation of its own ordinance.” Macenas v Village of Michiana, 433 Mich 380, 398; 446
NW2d 102 (1989).

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 Plaintiff and defendant disagree on the process this Court should use to define “farming”
for purposes of the zoning ordinance. Plaintiff contends this Court should refer to a dictionary,
while defendant contends that only consideration of plaintiff’s past application of the ordinance
is required. In either case, however, the same result is reached. See Koontz, 466 Mich at 312;
Macenas, 433 Mich at 398.

The ordinance defines a “farm” as land on which “farming” takes place. “Farming” is the
verb tense of the word “farm,” and dictionary definitions include: “to devote to agriculture,” “to
manage and cultivate as a farm,” “to grow or cultivate in quantity,” and “to engage in raising
crops or animals.” Merriam-Webster’s Collegiate Dictionary (2014). It is also of note that the
definition of “farm” in plaintiff’s ordinance lists examples of permissible activities, and includes
establishments operated as: “bona fide greenhouses, nurseries, orchards, chicken hatcheries,
poultry farms, dairies, livestock raising and apiaries.” § 2.2(63). All of the examples on that list
involve either the production of plants or animals. Id.

Here, defendant operates a commercial composting facility that does not produce plants
or animals. Rather, defendant accepts yard waste from offsite sources, completes the composting
procedure, and sells the finished product. It is clear that defendant does not “engage in raising
crops or animals.” See Merriam-Webster’s Collegiate Dictionary (2014). Defendant’s operation
does not even closely relate to any of the listed examples of permissible activities provided by
the ordinance. Finally, the operation of a commercial composting business is not within the
intent of the agricultural district: “to protect land needed for agricultural pursuits from
encroachment by untimely and unplanned . . . commercial . . . development.” § 3.1.1(A).
Defendant’s composting operation is commercial in nature.

Defendant argues, however, that plaintiff’s application of the zoning ordinance with
regard to AG-zoned property requires that defendant’s commercial composting facility be
allowed. As previously noted, “a reviewing court is to give deference to a municipality’s
interpretation of its own ordinance.” Macenas, 433 Mich at 398. But, here, there is no record
evidence of an official decision by any zoning board regarding application of the zoning
ordinance to AG-zoned land. But defendant contends that plaintiff’s interpretation of the zoning
ordinance can be gleaned from plaintiff’s actions. In so arguing, defendant relies primarily on
allegations that plaintiff contracted with a commercial composting facility that was situated on
AG-zoned property for the disposal of yard waste produced by its own citizens. The record
reveals that plaintiff did enter into a contract with Allied Waste to deliver yard waste to the
composting facility on Hitchcock Road, which was zoned AG. The record also reveals that the
contract to begin doing so began in 2011. Defendant also relies on the fact that around the same
time plaintiff entered the contract, it amended its zoning regulations to remove language that
would have specifically excepted composting from the permitted use of farming.

Defendant’s argument is not persuasive, partly because defendant has misconstrued the
record evidence. Indeed, plaintiff’s treatment of the Hitchcock Road facility reflects similarly to
plaintiff’s treatment of defendant. Specifically, the record reveals that plaintiff first considered
pursuing a zoning violation against the Hitchcock Road facility in 2006. After further
investigation, however, it was determined that the Hitchcock Road facility was protected under
the RTFA because it was also engaged in the production of trees, a farming activity. And there
is no evidence demonstrating that the Hitchcock Road facility was not entitled to immunity under

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the RTFA at the time plaintiff entered into the contract to send yard waste to it. Moreover, in
2014, when plaintiff initiated action against defendant, a similar letter alleging the same violation
of AG zoning was also issued to the Hitchcock Road facility. In response to the letter, the
owners of the Hitchcock Road facility began voluntarily moving their business. This factual
situation also belies the argument that plaintiff amended its zoning ordinance to benefit the
Hitchcock Road facility. In short, considering the actual evidence presented, the trial court
properly discredited this argument by defendant.

Defendant also suggests that this Court should deduce plaintiff’s “interpretation of its
own ordinance” from statements allegedly made by an ordinance enforcement officer, Craig
Kouba, and township supervisor, Greg Baroni. Macenas, 433 Mich at 398. Defendant claims
that both Kouba and Baroni told defendant that commercial composting was permitted on the
subject property. In support of its argument, defendant suggests that the weighmaster report
shows that Baroni told defendant that commercial composting was permitted under the zoning
ordinance. But the document merely shows that Baroni acknowledged that defendant had
obtained the proper MDEQ registration to operate as a composting facility. The document
makes no mention of zoning, a definition of “farm,” or the like. Indeed, the weighmaster’s visit
to the subject property was to discover the best means of repairing the road outside of
defendant’s property, not for any action related to zoning.

Next, defendant claims that when Kouba visited the subject property in 2008, he told
defendant that its operation was a permitted use. But the record does not support that statement.
Kouba’s testimony actually reveals that he told defendant he did not believe there was any
ordinance that could stop defendant’s operation. But defendant provides this Court with no law
that suggests a statement by a zoning enforcement officer while on an impromptu visit to a site
amounts to an interpretation of the zoning ordinance. Further, the evidence showed, and the
parties agreed, that AG-zoned land would permit composting activity if it was done on land that
was also used as a farm. Therefore, considering the record evidence, the trial court properly
found defendant’s arguments without merit because there was no evidence that plaintiff ever
interpreted the zoning ordinance to permit a business engaged solely in commercial composting
on AG-zoned property. See id.

In summary, because defendant’s commercial composting operation was not a “farm”
under the ordinance it was not a permitted use of AG-zoned land. See Section 3.1.1(B)(ii).
Accordingly, the trial court properly granted summary disposition in plaintiff’s favor on this
claim.

Defendant also argues that, because plaintiff engaged in exclusionary zoning by
excluding commercial composting from the entire township, plaintiff could not enforce the
ordinance. After de novo review of this issue involving statutory interpretation, we disagree.
See Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004).

MCL 125.3207 states:

A zoning ordinance or zoning decision shall not have the effect of totally
prohibiting the establishment of a land use within a local unit of government in
the presence of a demonstrated need for that land use within either that local unit

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 of government or the surrounding area within the state, unless a location within
the local unit of government does not exist where the use may be appropriately
located or the use is unlawful.

This Court has considered this statute before amendment to its current form, which is almost
identical, and held “a township may not totally exclude a use if the exclusion is township-wide in
scope, there is a demonstrated need for the use, the use is appropriate in some location in the
township, and the use is lawful.” Landon Holdings, Inc v Grattan Twp, 257 Mich App 154, 167;
667 NW2d 93 (2003). With regard to the first requirement, “[t]he statute’s language clearly
precludes only total exclusion.” Id. In other words, in order for plaintiff’s zoning ordinance to
be considered exclusionary, it must include a township-wide ban on the use. See id.

Defendant alleges here that plaintiff’s zoning ordinance does not permit a use of
commercial composting in any zoning district. However, O’Neil testified in his deposition that a
commercial composting site would be permitted on land designated for light industrial use.
Therefore, it is plain that commercial composting is not completely excluded pursuant to the
zoning ordinance, and defendant does not challenge that evidence. See id. However, this Court
has held that exclusionary zoning might occur where a township “merely make[s] the use a
practical impossibility.” Id. at 168. This argument, however, was not proposed by defendant nor
supported by any evidence in the record. Rather, we are left only with O’Neil’s assertion that
plaintiff did permit commercial composting in a given district. If plaintiff had not assigned any
land zoned as light industrial or there was evidence of practical impossibility, then defendant’s
argument may have had merit but defendant has presented no such evidence. Therefore, the first
prong of analysis regarding the effect of MCL 125.3207 fails, and defendant’s exclusionary
zoning argument is without merit. Accordingly, the trial court properly determined that
plaintiff’s zoning ordinance was not in violation of the exclusionary zoning statute, MCL
125.3207.

Finally, defendant argues that its commercial composting operation was a “farm
operation” under the RTFA and, thus, was immune from plaintiff’s odor-related nuisance claim.
After de novo review of this issue of statutory interpretation, we disagree. See Neal, 470 Mich at
664.

The RTFA, MCL 286.471 et seq., “was intended 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 use regulations as well as from the threat of private nuisance suits.’” Lima
Twp v Bateson, 302 Mich App 483, 495; 838 NW2d 898 (2013), quoting Northville Twp v
Coyne, 170 Mich App 446, 449; 429 NW2d 185 (1988). This Court previously held that “a party
relying on the RTFA as a defense to a nuisance action has the burden to prove that the
challenged conduct is protected under the RTFA.” Lima Twp, 302 Mich App at 496.

The RTFA states, in pertinent part:

A farm or farm operation shall not be found to be a public or private
nuisance if the farm or farm operation alleged to be a nuisance conforms to
generally accepted agricultural and management practices according to policy
determined by the Michigan commission of agriculture. [MCL 286.473(1).]

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This Court has held that “the rights afforded a farmer under the RTFA preempt local ordinances
such that activities falling within the purview of the act cannot be barred by ordinance.” Lima
Twp, 302 Mich App at 493, citing Travis v Preston (On Rehearing), 249 Mich App 338, 343-
346; 643 NW2d 235 (2002). Therefore, this Court must consider if defendant’s commercial
composting facility is entitled to such protection. If not, “a violation of a zoning ordinance
constitutes a nuisance per se, and a court must order it abated.” Lima Twp, 302 Mich App at
493. If the protection does apply, then plaintiff’s zoning ordinance “could not operate to bar
appellants from engaging in the activity and [plaintiff] was not entitled to injunctive relief.” Id.

As this Court held in Lima Twp, for activity to be protected under MCL 286.473(1) of the
RTFA, the defendant must prove that the challenged activity constitutes a “farm” or “farm
operation,” and that the farm or farm operation conforms to the applicable GAAMPs. Lima Twp,
302 Mich App at 494. Thus, we first consider whether defendant’s commercial composting
facility qualifies as a “farm” or “farm operation” under the RTFA.

Pursuant to MCL 286.472, the RTFA defines a farm and farm operation as follows:
(a) “Farm” means the land, plants, animals, buildings, structures, including
ponds used for agricultural or aquacultural activities, machinery, equipment, and
other appurtenances used in the commercial production of farm products.

(b) “Farm operation” means the operation and management of a farm or a
condition or activity that occurs at any time as necessary on a farm in connection
with the commercial production, harvesting, and storage of farm products[.]

It is clear that the property must be a “farm” to be a “farm operation.” Thus, we turn to the issue
whether defendant’s commercial composting operation qualified as a “farm” under the RTFA.
See MCL 286.472(a). To be a “farm,” defendant’s land must be “used in the commercial
production of farm products.” MCL 286.472(a). “Commercial production” in relation to the
RTFA has been held to mean “the act of producing or manufacturing an item intended to be
marketed and sold at a profit.” Shelby Twp v Papesh, 267 Mich App 92, 100-101; 704 NW2d 92
(2005). It is undisputed that defendant is in the composting business to produce a product that
will be sold for profit. Therefore, defendant’s composting operation was “commercial in
nature.” See id. at 101.

Next, we consider whether the compost humus produced by defendant is a “farm
product” under the RTFA. MCL 286.472(a). A “farm product” is defined within the RTFA,
codified at MCL 286.472(c):

“Farm product” means those plants and animals useful to human beings
produced by agriculture and includes, but is not limited to, forages and sod crops,
grains and feed crops, field crops, dairy and dairy products, poultry and poultry
products, cervidae, livestock, including breeding and grazing, equine, fish, and
other aquacultural products, bees and bee products, berries, herbs, fruits,
vegetables, flowers, seeds, grasses, nursery stock, trees and tree products,
mushrooms, and other similar products, or any other product which incorporates
the use of food, feed, fiber, or fur, as determined by the Michigan commission of
agriculture.

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Thus, a “farm product” is very specifically limited to “those plants and animals useful to human
beings[.]” MCL 286.472(c) (emphasis added).

If a statute is unambiguous, this Court is not permitted to go beyond the language of the
statute. See Brandon Charter Twp, 241 Mich App at 422. It is hard to imagine a more
unambiguous definition of a “farm product,” at least for the purposes of this case, than “plants
and animals.” MCL 286.472(c). It is important to recall that “courts must give effect to every
word, phrase, and clause in a statute and avoid an interpretation that would render any part of the
statute surplusage or nugatory.” Johnson v Recca, 492 Mich 169, 177; 821 NW2d 520 (2012)
(internal citations and quotations omitted). Defendant does not allege that the compost humus
produced on the property is a plant or an animal; rather, defendant focuses on the fact that the
compost humus is a product that is useful to human beings. Applying such an interpretation to
MCL 286.472(c) would render the language “plants and animals” nugatory, which is
impermissible. Therefore, because compost humus produced by defendant is, by definition, not
a “farm product,” the subject property cannot be deemed a “farm” or “farm operation.” See
MCL 286.472(a)-(c).

Defendant argues that this Court, in an unpublished opinion, has already held that
composting is a “farming operation” under the RTFA. Specifically, defendant relies on an
unpublished opinion per curiam of the Court of Appeals, “An unpublished opinion is not
precedentially binding under the rule of stare decisis,” MCR 7.215(C)(1), although it may be
instructive, Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d
133 (2010). But regardless of the non-binding nature of the relied upon opinion the case is
distinguishable. The land at issue in the unpublished opinion was undisputedly a farm that was
going to begin composting activity to fertilize its own land. See MCL 286.472(b). That is not
the case here.

In summary, because defendant’s commercial composting facility is not a “farm” under
the RTFA, defendant was not entitled to the protection of the RTFA. See MCL 286.472(a)-(c).
Thus, defendant’s zoning violation amounted to a nuisance per se, and the trial court properly
ordered that the nuisance be abated, by requiring defendant to cease the business. See MCL
125.3407; Lima Twp, 302 Mich App at 493. Accordingly, the trial court properly granted
summary disposition in plaintiff’s favor on this claim.

Affirmed.

/s/ William B. Murphy
/s/ Mark J. Cavanagh
/s/ Amy Ronayne Krause

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