Barkham Faces Fines, Possible Jail Time; Rochester Cider Mill Future Uncertain

Dr. Tom Barkham, 59, of Dryden, will appear before Judge Michael Warren for sentencing Wednesday afternoon after being found guilty of one count of criminal contempt last month.

Barkham faces possible fines and possible jail time for advertising and selling Christmas trees and firewood and adding two painted children’s slides, hay and a corn maze to draw in cider mill customers.

Barkham, a longtime township veterinarian, former Board of Trustees member and owner of the and , was found guilty of violating a 1987 court order limiting the amount of outdoor marketing and sales in which he can engage at the cider mill.

The order of the law

The 1987 legal nonconforming use order, which allows the cider mill to operate as a business despite it being zoned for residential use, also strictly limits the operation of the Rochester Cider Mill “to certain times, places and manners.”

In fact, the products the mill can sell are limited to what was sold at the cider mill in 1978: cider, donuts, 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."

"He started pushing the envelope," said Oakland Township Supervisor Joan Fogler. "This year he sold Christmas trees, he sold firewood. We kept telling him, 'You can't do that, Tom, you're stretching the limits here,' and he still kept doing it; he wouldn't listen to us."

The straw pyramid was, quite literally, the last straw for the township board; in November of last year, the board voted to file a motion in circuit court for enforcement of order, show cause hearing, and to hold defendants in contempt.

The 1987 order, the Barkhams argue, is outdated and wrong, and they contend that they fall under the Michigan Right to Farm Act, which they say protects their right to market and sell products at the cider mill that come from their 150-acre farm in Dryden.

"They're not a farm, and they're not under the Right to Farm Act," Fogler said. "They're under a consent judgment."

According to the law, however, whether the cider mill falls under the protection of the Right to Farm Act is irrelevant as long as the 1987 order still stands.

In fact, in Oakland Circuit Court Judge Michael Warren's Jan. 20 Opinion and Order, he writes that an order must be obeyed “even if the order is clearly incorrect,” or else the defendant risks being held in contempt.

"We've had a lot of issues since the 1987 consent judgment," said Oakland Township Board of Trustees Member Marc Edwards.

"In 2010, they decided to expand and do additional things on the property that were in violation of that order," said Oakland Township attorney Steven Joppich. "That's the judge's order; the judge told him not to do that, so he's in violation of the order."

Joppich said the township wanted to work with the Barkhams regarding the corn maze that had been planted on the property.

"We wanted to sit down with them, and they initially sat down with us to discuss the corn maze," said Joppich. After that meeting, Joppich said he tried to get back in touch with Barkham to talk again. Meanwhile, he says, the Barkhams "had expanded and done all sorts of things out there, including the Christmas trees, expanding it further."

"At that point, it became obvious to us that they didn't want to talk; they wanted to do what they wanted to do on the property. At that point, we got the court order."

Joppich says the Barkhams could've gone to court at any time and asked for an amendment to the 1987 order, but since they didn't, they have to comply with the current order.

"We're complying with the order," Joppich said, "and we're saying they should comply with the order, too."

"My feeling was, why are we bothering with this? We've got other things to do," said Edwards. "But on the other hand, if we don't enforce the consent judgment, then what good is law?"

Support from the community

Barkham says they are just trying to run a business that they feel is an important part of the community, and several community members expressed support Tuesday for the Barkhams and their business.

“I’ve read the letters that the township has sent them, and I’ve known them for a while," said Brent Moyer, 19, who lives within a stone's throw of the cider mill's barn. "It is a farm; they have animals, and the township will not call it a farm.”

Moyer and his sister, Shannon, 15, say they have many happy memories of the cider mill and don't want to see it go. “Ever since we were little," said Shannon, "we’ve always gone over there, running over in our pajamas Saturday morning to get blueberry donuts."

"Everyone in this neighborhood, all of our friends, love that place," Brent said. "They’re doing absolutely nothing wrong, and the township needs to back off.”

Kent Dolmyer, whose property butts up against the cider mill, says his subdivision, in general, likes the cider mill.

"I think the cider mill is a part of the community," he said, adding that he is aware of the ongoing conflict between Barkham and the township.

"I think Tom over here has been combative and created some enemies in the township; he may be somewhat cantankerous, but basically a good person," Dolmyer said. "He’s just pretty independent, I think.”

Another neighbor, retired communications worker Harry White, said, “We’re glad it’s there. My grandson, who is 15 now, lives in Troy, but he works there on Friday and Saturday for the last couple years.”

His wife, Nancy White, added, "I was very pleased with the way it was operated this past fall.

"They had cleaned it up, and I didn't notice any noise or disturbances from the traffic, and I certainly did enjoy their cider and their apples. I don't have a complaint in the world."

Thirty years of conflict

According to court documents, the Rochester Cider Mill was established by the Sargant family as an orchard in the 1930s, and "a pressing mill was later established on the farm for the production of cider."

The Sargant family sold the 73-acre orchard to the Millers in 1963. Over the next eight years, the majority of the land was sold to developers and platted for single family subdivision use.

According to court documents, when the Barkham family bought the remaining five acres, including the cider mill, in 1981, the "mill operation was closed and the press removed for at least two years." The unsightly building was deteriorating; the windows were boarded up and the exterior was covered in graffiti.

"We took something that was an eyesore and we've made a nice business out of it," said Tom. "Most communities applaud that."

Fogler sees the mill as simply an eyesore. “I have to drive by and look at that junk every day," she said. "You wouldn’t have believed how junky that looked this summer and into the fall.”

In 1981, Barkham petitioned the Zoning Board of Appeals to reopen the mill. The board determined "there was an abandonment of the nonconforming use" and denied Barkham's application.

Barkham filed a lawsuit in the Oakland County Circuit Court, which ruled in his favor; the cider mill could "operate as it existed at the conclusion of the cider season in 1978."

"He really shouldn't have been able to sell anything in there because it is zoned residential, and because it had been closed," Fogler said. "It's no longer grandfathered, but (the township) let them go ahead and sell the cider and the doughnuts."

In 1983, "the instant matter was filed because of (Barkham's) expansion of the non-conforming use and alleged violations of the restrictions placed on the cider mill." Four years later, Judge Richard Kuhn issued the legal nonconforming use order that currently is in effect.

The 1987 order restricts the cider mill's season to 18 consecutive weeks starting in September and permits the Barkhams to market their products, though "such marketing devices shall not be expanded from the 1986 season."

The Barkhams say their business can't survive if they are not allowed to expand and improve the cider mill.

“Why should we continue?" asked Trevor. "If we can’t market our business, then how are we going to survive?"

Is it a business or a farm?

The Barkhams have contended since 1981 that the Rochester Cider Mill is part of the family's farm and is protected under Michigan's Right to Farm Act. The family said it should have never been under a nonconforming use order in the first place.

Indeed, the land is zoned as medium residential, and agricultural use is permitted in accordance with township ordinance 16-335. Being recognized as a farm could allow the Barkhams to market and sell their farm products with far fewer restrictions than the current legal nonconforming order requires.

Bob Tritten, district extension fruit educator for the Genessee County MSU Extension, said the Barkhams easily meet the standards to be called a farm according to the state's Generally Accepted Agricultural and Management Practices (GAAMPs).

In a recent support letter written for the Barkhams after a trip to the family's properties, Tritten wrote: "I would not hesitate to say that they are a legitimate farming operation. In other words, they are in the business of producing and marketing agricultural products and experiences."

Tritten helped develop the GAAMPs to protect farmers who sell their products directly to the public. He added, "In order to be considered a commercial farm, you have to generate $1,000 a year; in order to fall under the GAAMPs ... they want you to produce at least half of the products you sell.

"I know that what they're aiming to do this year, and what I've seen of their plans, it looks like they'll make that number. ... I think it'll be over 50 percent."

The Barkhams are also leasing an orchard in northern Oakland Township this year with the hopes of growing most of their own heirloom apples for cider. With the addition of this orchard, Tritten estimates the family's farm will be generating 80 percent to 90 percent of its own produce.

Still, the nonconforming order supersedes everything else, and until it is overturned, the Rochester Cider Mill will remain under the same operating restrictions it has been under since 1987.

What’s next for the cider mill?

"I told them a long time ago to go back to court and talk to the judge about adding things, about changing the consent judgment," said Fogler, "but you've got to do it."

Fogler added that she has asked the township attorney not to seek jail time for Barkham, but added, "If the judge won’t listen to me or listen to our attorney, I don’t know what will happen.

Trevor says his family wants the 1987 order repealed, but the process is exhausting his parents mentally and financially.

"We all get really emotional about this," said Trevor. “If you have someone restricting your business, then how can you stay in business?”

He says it's more than just wanting to stay in business, though; it's also about preserving a piece of the township's history and hanging onto a 30-year-old family business.

The Barkhams say they retained many of the antiques that came with building, which have since been tagged and recorded by the township's historical society. "Our press was built in 1898," Trevor said.

"I love doing this," said Trevor, a father of three young boys.

Choking back tears, he added, "I'd love for my children to grow up doing this."

Tom Barkham will be sentenced in Pontiac at 1 p.m. on Wednesday.