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November 01, 2006
by John J. Gillooly
On July 1, 2006, the Michigan Legislature adopted the Michigan Zoning and Enabling Act which codifies the Zoning Enabling Acts for cities, townships and counties. The Michigan Legislature has gone out of its way to make sure that the zoning regulations under this Act are uniform for each class of land or buildings, dwellings, and structures within a district.
Many of the questions that I receive deal with the application of this revised statute. In the next two issues I will highlight some of the most important provisions of the Act.
A local governmental body may provide by ordinance for the manner in which the regulations and boundaries of districts or zones shall be determined, and enforced, amended, supplemented or changed.
Look for more information on the new zoning ordinances in next month’s issue of Gov Law. In the interim, please do not hesitate to call me directly at 313.446.5501 if you have any questions.
by Jami E. Leach
Loss of consortium is a bodily injury for purposes of the motor vehicle exception to governmental immunity according to a conflict panel of the Court of Appeals. Kik v Sbraccia, ___ Mich App ___ (2006).
Defendants were entitled to summary disposition where a plaintiff was a pedestrian struck by a vehicle while crossing in front of defendant’s school bus which had de-activated its warning flashers. Because there was no direct physical contact between the bus and the vehicle that hit plaintiff, nor was there direct contact between plaintiff and the bus, the motor vehicle exception did not apply. The bus driver’s actions, which arguably were grossly negligent, were not the proximate cause of the plaintiff’s injuries. Helfer v Center Line Public Schools, ___ Mich ___ (11/15/2006).
A police officer was injured by a government owned fire truck and sued under the motor vehicle exception to governmental immunity. However, the injury to the police officer occurred during the normal, inherent and foreseeable course of his job. Therefore, the police officer’s lawsuit against the township was barred by the firefighter’s rule (MCL 600.2966). The court also found that the statute was constitutional. Boulton v Fenton Township, ___ Mich App ___ (2006).
A discontinuity defect of less than 2 inches creates a rebuttable inference that the municipal corporation maintained the sidewalk in reasonable repair. That the city engineer knew about the height differential and opined that it should be repaired is insufficient to rebut the inference of reasonable repair. Ledbetter v City of Warren, Unpublished COA #269758, October 31, 2006.
Pictures showing the sidewalk in disrepair with defects and voids in the surface of the sidewalk, without any explanation of how these defects made the sidewalk not reasonably safe and convenient for public travel were insufficient to rebut the presumption under the “2-inch rule”. The court stated “the defects are open and obvious and do not present any readily apparent obstacle precluding any pedestrian passage over the sidewalk.” Griffin v City of Pontiac, Unpublished COA #269988, Oct 26, 2006.
Plaintiff was injured on a “gravel berm” that separated a private driveway from the road. The berm was the result of scraping, a road maintenance procedure, performed by defendant road commission. The Court held that the road commission was immune because the area where plaintiff was injured was part of the elevation which was structurally linked to the driveway and separated from the roadway. Therefore, the alleged defect was not part of the structure of the public roadbed surface designed for vehicular travel. Sheldon v Little, Unpublished COA #270399, November 7, 2006.
Plaintiffs homes were damaged as a result of flooding caused by an alleged defective sanitary sewer system. Pursuant to MCL 691.1417(2), “[a] governmental agency is immune from tort liability for the overflow or backup of a sewage disposal system unless the overflow or backup is a sewage disposal system event and the governmental agency is an appropriate governmental agency.” The primary issue in this case was whether the defect was a substantial proximate cause of the event and the damage. “Defect” is defined at MCL 691.1416(e) as a “construction, design, maintenance, operation, or repair defect.”
“Substantial proximate cause” means a proximate cause that was 50% or more of the cause of the event and the damage. Given the evidence suggesting a known lack of capacity in the existing sewer system and employees turning off the generator before power was restored, reasonable minds could differ as to whether a defect existed and, if so, whether it was 50% or more of the cause of the sewer event. Therefore, summary disposition was properly denied. Camarda v City of Eaton Rapids, Unpublished COA #269046, November 7, 2006.