Business & Tech

Rochester Cider Mill Seeks Repeal of 1987 Order; Neighbors, Township Balk

A 1987 order allows the cider mill to operate as a business in a residential area while limiting its operation.

The owners of the will again face the in Oakland County Circuit Court Wednesday morning as the cider mill’s owners seek a repeal of that allows but limits the cider mill's operation as a business in an area zoned for single-family residences.

Dr. Tom Barkham of Dryden Township owns the Rochester Cider Mill on North Rochester Road and says he hopes to have the 1987 non-conforming use order, which also limits the cider mill’s operation, repealed so the cider mill can serve as an extension of his family’s farm in Dryden Township. Barkham argues the cider mill is entitled to such operations under the recently amended Michigan Right to Farm Act.

“It needs to be operated as a cider mill,” said Barkham, who also owns the , where he and two of his children . “The cider mill needs to be described as an agricultural business.”

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While supporters have spoken out for the Barkhams by the dozen, some neighbors of the cider mill and the township argue against any action that opens up the potential for expansion of the cider mill's operations.

“We don’t want the traffic,” said Jan Corteville, who lives directly across the street from the Barkham property. “Years and years ago … we had parking in the subdivision and people going through, and it was just alarming to have that much traffic in here."

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Oakland Township resident Miriam Galler said during an April 12 township board meeting: “The Barkham family have always been outstanding citizens of our community. It is my opinion that the township board should do all it can to encourage and help the Barkham family to stay in our township and keep their business in our township.”

No support from the township

The Oakland Township board disagrees.

Oakland Township opposed the Barkhams’ motion in an April 22 response to the Barkhams' March 24 motion to repeal the order, asserting that not only can a closed case not be reopened because of a change of law, but that even if it could, a cider mill is not protected under the Right to Farm Act and is instead subject to local ordinances.

The township argues in its recent response that the Rochester Cider Mill is not a farm market, but "is principally a cider mill at which certain farm produce are allowed to be sold as an accessory part of the principal activity. This is how the 1987 court order reads, and that is how the Rochester Cider Mill is named and marketed to the public."

According to the Michigan Right to Farm Act and the 2011 Generally Accepted Agricultural and management Practices (GAAMPs):

A farm market may be a physical structure such as a building or tent, or simply an area where a transaction between a customer and a farmer is made. The farm market must be located on property owned or controlled (e.g. leased) by the producer of the products offered for sale at the market. The property on which the farm market is located does not have to be the land on which the products offered for sale are produced. ... the market must be located on property where local land use zoning allows for agriculture and its related activities.

According to the act, "Farmers who plan to conduct these activities are responsible for obtaining and maintaining regulatory approval from appropriate government agencies." In this case, the township would regulate the activities of a cider mill.

“A cider mill is not considered a ‘farm market,’ but is instead something that may take place along with a farm market on a property as long as it complies with local ordinances,” asserts the township in its response, which was prepared by township attorney Steven Joppich. In the Barkhams’ case, “the township’s zoning ordinance does not define a cider mill as a ‘farm’ for purposes of zoning.”

Barkham disagrees, saying, “They could zone an area where they say gravity is not allowed; the rules of the world allow gravity, no matter what the zoning.”

The township also asserts that the Barkhams “have failed to bring the present motion within a reasonable time,” noting that the original order was put in place 24 years ago.

“The judge said we had to amend the judgment,” Barkham said in a recent interview with Patch. “I think he meant repeal it. That’s what we want.”

The township, in its 55-page response, said: “Keeping in mind that the cider mill property is surrounded on all sides by single-family residential homes and neighborhoods – some of which abut right up to the cider mill property – the consequences and ramifications of such a decision are potentially enormous to those families, their property values and the character of the entire area. No one knows what will happen, because the defendants refuse to reveal any details or information about their future plans."

"We might stay open a little longer," Barkham said during the interview. He added, "We're not expanding the building."

Oakland Township Supervisor Joan Fogler and township attorney Steven Joppich declined to comment for this story.

Neighbors speak out against repeal of 1987 order

“We are all very much against the repeal of the 1987 ‘non-conforming use order,’ which limits the use of the Rochester Cider Mill,” reads a May 6 letter to Oakland Township from five residents of the Coach Lamp Hills subdivision who all live on property adjacent to the cider mill.

“All of us purchased our property with the knowledge that the 1987 ‘non-conforming use order’ had been placed on the property and based our purchase decision to buy our property on that restriction.”  

Barkham says the residents would be “unaffected” if the order were repealed. “If you look at the building, it’s 15 feet lower than their back yards," he said.

Bill and Sue Gammicchia, whose property abuts the cider mill property, said the cider mill has already affected them negatively, and they do not want the court to repeal the 1987 nonconforming use order because they are afraid of what the Barkhams will do on their property.

The Gammicchias, who have lived behind the cider mill since 1976, said the cider mill was abandoned when they moved into their home and remained vacant until the Barkhams purchased it in the early 1980s.

“Instead of buying it knowing it was an abandoned cider mill that wasn’t supposed to operate, he bought it and then pushed his way into being able to operate it and has been pushing ever since," Bill Gammicchia said in a recent interview with Patch.

The Gammicchias complained to the township in 2006, alleging the Barkhams were violating local ordinances. “Cars, trailers and boats are often on his property with ‘for sale’ signs on them, and he has not cut the weeds on his property this year,” read the letter to the township. Additionally, the Gammicchias say the Barkhams had left a large, unsightly pile of logs directly behind the Gammicchia’s property for almost two years.

Sue said cider mill supporters can’t understand because “they’re not here,” and “they haven’t been living behind this thing for over 30 years."

Corteville, who doesn't want added traffic, added: “We moved out here from Grosse Pointe Woods because it’s very quiet, it’s very rural, and we were assured that because we are a planned township, it would stay that way.”

One neighbor said he does not have a problem with the way the cider mill is being run now, but he does not want to see the order repealed. “We would like it the way it is,” said Carl Seme, who also owns property adjacent to the cider mill.

Kent Dolmyer, whose property abuts the cider mill property, said he is also opposed to having the 1987 order repealed.

“It’s just something that’s been an eyesore. I put a fence up to block out their debris in the back,” said Dolmyer. “They’ve had cars, they’ve had junk, they’ve had a dumpster that gets filled up. He seems to collect old farm equipment. He doesn’t pay any attention to it. They bought the property with those restrictions on it, and they’re trying to make it something that it isn’t.”

30 years of conflict

The current conflict between the Rochester Cider Mill and Oakland Township began 30 years ago when the Barkhams purchased the cider mill, which had been abandoned for “at least two years” prior to its purchase, according to court documents. By the time the Barkhams purchased the property, the cider mill, which was established by the Sargant family as a 73-acre orchard in the 1930s, had been reduced to five acres.

The Barkham family purchased the property in 1981 with the intention of reopening the mill, but since the mill had been closed and abandoned, it took a court order from Judge Richard Kuhn to allow the Barkhams to reopen the cider mill as a business operating on residentially-zoned property, effectively “grandfathering” in the business while strictly limiting its operation, according to court documents.

The Barkhams have applied to have the cider mill property re-zoned from medium residential to business use three times, most recently in 2005, and were denied each time by the township. In a 1985 document from the Oakland Township Planning Commission, the commission denied the Barkhams’ application for rezoning because “the request is not consistent with the overall development trends in the area,” and because “there has been substantial investment by existing homeowners based on past and current township planning and zoning efforts.”

In 2010 the Barkhams began selling Christmas trees and firewood and using marketing devices that fell outside the protection of the 1987 order.

“After attempting to resolve the issues with (the Barkhams), and receiving no cooperation from (the Barkhams), the township was forced to file a motion to enforce the 1987 Order and seeking to hold defendants in contempt,” reads the township’s response to the Barkhams’ motion for relief from the order.

Barkham was found in criminal contempt of court for violating the 1987 order and was in Oakland County Circuit Court in February.

Currently, the 1987 nonconforming use order strictly limits the operation of the Rochester Cider Mill to “certain times, places and manners.” The order allows the cider mill to sell cider, doughnuts, caramel apples, popcorn, honey, meats, cheeses, apples and pumpkins. Marketing devices are limited to a petting farm and popcorn wagon “and could not be expanded beyond those used during the 1986 season.”

Additionally, the order limits the cider mill’s season to 18 consecutive weeks starting in September and restricts its marketing devices to only those used during the 1986 cider mill season, according to court documents.

No strangers to the courtroom

“(Barkham) violated ordinances, regulations and rules in Dryden Township,” said Bill Gammicchia in a recent phone interview with Patch. He added that the Dryden litigation was about “the same thing as here: failing to follow township ordinances."

In 1992, Tom and Ruth Barkham were found to have violated a Dryden Township zoning ordinance by keeping sheep on their residential property, which allowed only “customary household or domestic pets.” The Barkhams filed a complaint alleging the ordinance was “arbitrary, capricious and unreasonable.”

"If you had an acre, you could have one horse. If you had 10 acres, you had 10 horses, but it didn’t say anything about sheep,” said Trevor Barkham – Tom Barkham's son – in a recent interview with Patch.

“We hadn’t fenced it in, and we led them up there to eat the corn from the previous year that was knocked down," said Barkham. "A few of them wandered onto the neighbor’s yard and walked on their grass and pooped in their yard."

In 1995, a judgment issued by Judge Martin Clements in Lapeer County Circuit Court ordered the Barkhams to remove the livestock from their property immediately, remove all signs advertising livestock for sale from their property and “pay Dryden Township $7,920.90 to reimburse the township for the cost of pursuing this enforcement action.”

In 1996, the Barkhams were found in contempt of court for violating Judge Clements’ 1995 order when they did not remove the sheep from their property.

In a court transcription of Judge Clements’ 1996 contempt ruling, he said: “I think Mr. Barkham lied under oath and committed perjury in this court. I think he’s sophisticated. I think he’s had litigation frequently in Oakland County … and he has a cottage industry of filing against township zoning boards for things that he feels are offensive.”

Judge Clements went on to award an additional $5,000 in damages to Dryden Township, adding, “I want it cash, paid in seven days.”

“Our neighbor was zoned the same; he has 300 acres. He runs cattle all over, and we bought the property butting up to his property," said Trevor Barkham. "We were the only people (the township) went after."

Trevor's brother Tom Barkham Jr., added: “Our first lawyer we went to court with, he didn’t show up. He was an alcoholic."

“We’ve had a bad, bad streak with poor lawyers," Trevor Barkham said.

Support for the cider mill

Patrons of the Rochester Cider Mill have shown their support for the Barkhams  by writing letters to and calling the township offices. Some have made public comments during Oakland Township Board of Trustees meetings.

“It would be great to have the Rochester Cider Mill have a right to farm be accepted for everyone in the area, that they can go ahead and be able to purchase fruits and vegetables – things that are grown locally,” said Shelby Township resident Adelle Galler-Blust at the same meeting.

Patch readers wrote support for the Barkhams and the Rochester Cider Mill .

“I think the Cider Mill is a wonderful piece of history, and a testament to the roots of the Rochester area,” Susan Heholt commented on a recent Patch article. “The cider mill has been there a long time, and perhaps it would be able to flourish, if allowed to market its products and grow its business.

“This is a tough economy, and I'm personally in favor of letting a good, clean, morally sound business at least have a chance of surviving, maybe even thriving. We could use more good influences, reminders of better times. Not to mention the opportunity it allows for youth employment.”

“I enjoy having the cider mill where it is, and I love its rustic appeal,” commented Bill Dittmer. “In fact, I would like to see the operation expanded somewhat to offer a little competition to the Fogler operation down the road. And, we do live in the community behind the cider mill."

“I do not live by the cider mill, and I really don't know all the legalities of this except what I have read above,” commented Janice Rex-Weaver. “All I know is that I drive by the (cider mill) every day, and it is very pleasing to me to know that it is there.

“It warmed my heart to see the painting improvements and my girls love the slides. It always feels very welcoming, and I have stopped more this year for cider and donuts more than any year in the past.

It is a wonderful piece of history and every effort should be made to help it remain.”


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