Author(s): John J. Gillooly, William Brickley

From the Editor
by John J. Gillooly
Legislative Round-Up Garan Lucow Miller is in the midst of developing a unique series of seminars designed to give local municipal leaders a better understanding of the workings of Michigan’s Judicial and Legislative branches of government. “Law School for Local Officials” will be presented at various locations across the state and will feature well-recognized speakers in topics concerning Michigan’s court system, the evolution of an ordinance or state statute and the workings of governmental immunity.

In the meantime, there have been some important bills recently passed by your legislative colleagues in Lansing:

  • Downtown Development Authorities, PA 115 Authorizes the expansion of qualifying development authorities into adjoining townships (MCL 125.1653);
  • Motorsports Stadiums B.Y.O.B., PA 166 Those who attend motorsports entertainment complexes with seating capacities over 1,500 may bring their own alcoholic beverages (MCL 436.1518);
  • Rural M.E.G.A. Credit, PA 185 Municipalities may use tax credits to retain businesses in rural areas (MCL 207.808);
  • Law Enforcement Recertification, PA 239 Some recertification requirements for law enforcement officers returning from military service are waived (1965 PA 203);
  • Lands in City’s Inventory, PA 198 Public employees may purchase land in city’s inventory (MCL 15.324).

If you would like any further information on a recently enacted law or something being considered by our state legislators, please call me directly at 313.446.5501.

Supreme Court Decision Affirms and Strengthens Authority on Zoning

by William Brickley

Government officials are often confronted with many issues to resolve in making decisions on zoning requests. These issues may include the following: What happens when the zoning decision is not in conformity with the Master Plan?

  • If an official has an oral agreement with the developer to approve a zoning request, can the oral agreement bind the government?
  • What powers do the voters have to change a board decision?
  • Will a court use a board decision to approve a zoning request as evidence to defeat the voters decision to oppose a zoning request?
  • What standards will a court use in reviewing the zoning decision?

The Michigan Supreme Court very recently affirmed the result in Newman Equities v Charter Township of Meridian, 264 Mich App 215 (2004), which addressed many of the above issues. 474 Mich 911 (2005).

The plaintiff, a developer and owner of several parcels of property in the area, wished to develop the parcels commercially; however, the parcels were zoned single and multi-family residential. A new roadway was recommended to help with the anticipated increased traffic. The developer donated land to be used for this purpose. A tacit agreement was made that, in exchange for the donation of the property, the developer would be given approval to develop the land commercially. Once the formal request for re-zoning was made, both the Planning Commission and the Board approved the request. However, the citizens petitioned for a referendum on the zoning decision and ultimately the decision to rezone was rejected. As a result, all the parcels in question reverted to single family residential.

The plaintiff/developer proceeded on two legal theories: First, that its property was taken without just compensation; and second, that its substantive due process rights were violated. The Court of Appeals succinctly defined these theories. For a “taking” theory to succeed, the developer would have to prove that it could not make any profit on the property. The argument that one development would produce more profit than another will not suffice.

To establish a violation of due process, the plaintiff/developer was required to prove that the decision was “unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question.” The developer has to prove that “there is no legitimate governmental interest being advanced” by the decision of the township.

When a zoning decision is challenged, one of the first things a court must decide is what power it has to review the decision and substitute its own judgment for that of the government officials. This case confirmed that the court’s role should be limited and adopted prior rulings of the Michigan Supreme Court and the Court of Appeals, which held that courts are not to sit as a “superzoning commission.” They ruled that the people, either through their elected officials or on their own, have the power to determine their “municipal destiny.” Further “the people of the community . . . and not the courts, govern its growth and its life.” The bottom line is that simply because a judge would come up with a different result is not a ground to overturn the government’s decision. The Court went so far as to say that the zoning decision is presumed to be valid unless the developer can prove that it violated either standard above.

The decision of the government is to be granted the same deference regardless of whether the decision is coming from the elected officials or the voters. Prior decisions have held that it is entirely permissible for the voters to reserve to themselves the final decision on zoning issues. The Court in Newman affirmed this principle.

It was argued in the case that there was a “tacit” agreement between certain township officials and the developer that the rezoning request would be approved because of the prior donation of property for the roadway. The Court affirmed the concept that oral representations by a governmental official cannot be relied upon. In order for a decision to be binding on the government, it must be made by the whole legislative body.

The Supreme Court agreed with the result, but noted that contrary to the Court of Appeals opinion, the court may not consider whether there is a “legitimate difference of opinion” regarding the reasonableness of two zoning schemes. Instead, the court must determine that the zoning approved by the referendum is unreasonable.

Conclusion
In this day and age when many are questioning the zealousness of judges and their respect for the will of the people, this decision is clearly a breath of fresh air. The decision does not provide governmental officials or voters a carte blanche to do as they wish on zoning decisions. It does, however, give deference to the officials and the voters to control and regulate the development occurring in their communities.

HEADS UP!!

Ordinarily government agencies and municipalities cannot be held liable for failure or refusal to enforce an ordinance. Scheurman v Dep’t of Transportation, 434 Mich 619 (1990). Additionally, the failure to enforce an ordinance is not an intentional tort. However, a government employee’s failure to perform a duty in the course of his or her employment may give rise to a finding of gross negligence.

These issues recently came up in the unpublished Court of Appeals opinion of Ford v Banaszak, Unpublished Court of Appeals No. 254108, decided July 14, 2005. In that case, a seven year old child drowned in a swimming pool on private property. Plaintiffs alleged that employees of Waterford Township were grossly negligent by failing to take action to remedy the condition of the private property and swimming pool before the child drowned. The plaintiffs alleged that the Township had received complaints about the hazardous condition of the property but did nothing about it.

The Court found that the Township employees were entitled to governmental immunity because their alleged conduct (or lack of action) was not “the proximate cause” of the child’s death. Rather, the one most immediate, efficient, and direct cause of the child’s death was the property owner’s failure to secure and maintain the property.

Best wishes to you and your families for a safe Holiday Season and a Happy New Year. We look forward to serving you in 2006.