One Court of Justice

Can a local government ban medical marijuana as a violation of federal law?  According to the Court of Appeals, the answer is no.  In Beek v. City of Wyoming, the Court of Appeals held that Wyoming’s zoning ordinance was void to the extent that it penalized the manufacture and use of medical marijuana which is expressly permitted under the Michigan Medical Marijuana Act (“MMMA”).  Such use is still a violation of federal law under the Controlled Substances Act (“CSA”).  But because the MMMA’s immunities for medical marijuana users are not preempted by the CSA, the Court of Appeals held that federal law did not save the ordinance from state law preemption.

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In EDW C Levy Co v Marine City Board of Zoning Appeals, No. 296023, the Court of Appeals affirmed the order of the circuit court, upholding a zoning board of appeals decision.  The zoning board of appeals had upheld a city manager’s certification that a proposed use for property was allowed permissible under zoning laws.  This claim arose out of the proposed lease of a parcel owned by the St. Clair County Road Commission, which had used the parcel for storage.  In 1999 the property was rezoned, but the parcel retained its industrial classification as a prior nonconforming use.  In 2007, the Road Commission solicited proposals from several commercial operators that desired to lease the property.  The Road Commission rejected plaintiffs’ proposal, but accepted a proposal by Detroit Bulk Storage.  Under the lease, Detroit Bulk Storage was required to obtain certification from the city manager that the proposed use of the property was permitted under the zoning laws.  The city manager certified that the proposed use was allowed as a prior nonconforming use.

Plaintiffs appealed the city manager’s decision to the zoning board of appeals.  By a vote of 3-2, the five member panel approved the manager’s decision.  Plaintiffs appealed this decision to the circuit court, which vacated the decision and remanded the matter for a new vote because one of the members should have recused himself from voting.  On remand, of the four members eligible to vote, only three members of the zoning board were present to vote on the matter.  By a vote of 2-1, the present members voted to reverse the city manager’s decision.  Plaintiffs then amended their appeal in the circuit court in order to incorporate the new ruling of the zoning board of appeals.  The circuit court ruled that the city manager’s decision approving the proposed use of the parcel was still effective, because the plaintiffs were required to obtain a majority vote of the zoning board of appeals in order to reverse the city manager decision, and the plaintiffs only obtained 2 votes in favor of reversal.  The circuit court also ruled that the zoning board of appeals’ decision was supported by competent evidence.

Plaintiffs appealed this decision on two grounds.  First they argues that MCL 125.3603(2) required only a concurring vote of the majority of the zoning board of appeals members present at a vote, rather than a majority of the total members, in order to reverse a decision by a city manager.  The Court of Appeals rejected this argument, and held that MCL 125.3603(2) requires a concurring vote of the majority of the total board.  MCL 125/3603(2) states that the “concurring vote of a majority of the members of the zoning board of appeals is necessary . . . .”  The Court of Appeals found the statute was unambiguous, and if the legislature desired to allow for a majority vote of those present, it would have done so by adding such language to the statute.

Second, the plaintiffs appealed the circuit court’s finding that the zoning board of appeals’ decision to was supported by “substantial evidence.”  Under MCL 125.3606(1), the circuit court reviews whether a decision of the zoning board of appeals was supported by “substantial evidence on the record.”  The court of appeals affirmed the circuit court’s finding of substantial evidence to supporting the affirmation of the city manager’s decision.  The Court of Appeals noted there was no competent evidence in the record that the proposed use would expand the use of the property outside of the prior nonconforming use.

On July 15, 2010, the Michigan Supreme Court issued a landmark opinion in Kyser v. Kasson Township, No. 136680, with dramatic economic implications for Michigan’s mining and construction industries.  Justice Markman, joined by Justices Corrigan, Hathaway, and Young, delivered the opinion of the Court, overturning its 1982-decision in Silva v. Ada Township, 416 Mich 153; 330 NW2d 663 (1982).  In Silva, the Court had recognized a long-standing rule that zoning ordinances that prevent mining are unreasonable unless “very serious consequences” would otherwise result.  In Kyser, the majority holds that this rule was not a constitutional requirement and was, in fact, unconstitutional as it violated separation of powers.  Moreover, the Court holds that this rule had been superseded by the exclusionary zoning provision in MCL 125.297a of the Township Zoning Act of 1979, now the Zoning Enabling Act.  Chief Justice Kelly, joined by Justice Cavanagh, dissented.  Justice Weaver recused herself due to her longstanding relationship with Kasson Township’s supervisor.

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On July 15, 2010, the Michigan Supreme Court published its opinion in Hendee v. Putnam Township, Nos. 137446 and 137447.  The plaintiffs wished to develop a large parcel of land zoned for agricultural use into a manufactured-housing development.  The plaintiffs had previously requested the local government to rezone the parcel or to grant a variance to allow the plaintiffs to build a 95-unit subdivision.  The local government denied this request and while this request was pending had refused to consider a second request to permit the manufactured-housing development.  Following the denial of the 95-unit-subdivision request, the plaintiffs did not resubmit the manufactured-housing request.  Instead, the plaintiffs filed a complaint asserting that the local government’s zoning scheme was invalid because it would not allow the manufactured-housing development.  The complaint included equal-protection, substantive-due-process, and takings claims, as well a claim for exclusionary zoning in violation of MCL § 125.97a.  Without issuing a majority opinion, the Court unanimously held that the plaintiffs’ claims were not ripe because the plaintiffs had failed to seek permission to build the manufactured-housing development.

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In Shepherd Montessori Center Milan v. Ann Arbor Charter Township, the Michigan Supreme Court rejected a religious entity’s equal-protection challenge to the denial of a zoning variance because the religious entity failed to demonstrate disparate treatment of similarly situated entities based on religion.  Accordingly, the Court reversed the decision of the Court of Appeals and reinstated summary disposition in favor of the defendants.  Justice Hathaway wrote the unanimous decision for the Court. Read more »

Municipalities have no inherent power to regulate land through zoning, but the state legislature has, in the Michigan Zoning Enabling Act, delegated some zoning authority to local governments.  This delegation, however, is limited, including with respect to special-use permits.  In particular, MCL § 125.3502(1) provides that a zoning ordinance “shall specify . . . [t]he special land uses and activities eligible for approval.”  In Whitman v. Galien Township, No. 287991, the Court of Appeals vacated a special-use permit because the ordinance at issue lacked the requisite specificity.

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Yesterday, the Michigan Supreme Court heard oral argument in Kyser v. Kasson Twp., No. 136680.  The issue before the Court was whether to reaffirm its decision in Silva v. Ada Township, 416 Mich. 153 (1982), which applies a heightened standard of reasonableness to decisions of local municipalities that prevent mining of valuable mineral resources.  Under Silva, a municipality’s decision will be deemed unreasonable if the plaintiff can show no very serious consequences would result from allowing the extraction of minerals.  The Michigan Supreme Court has not revisited Silva, or the line of cases on which it was based, since Silva was decided in 1982.

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On Wednesday, October 28, 2009, the Michigan Supreme Court denied 17 applications for leave to appeal and ordered the Saginaw County Prosecuting Attorney to respond to the application for leave to appeal in People v. Mushatt, Case No. 137846.  Mushatt had been held in abeyance pending the Court’s decision in People v. Idziak.  Our post on Idziak is here.  The Court directed the prosecutor to respond to the application for leave to appeal within 28 days.  The prosecutor was asked to address: 1) whether, in light of the Court’s holding in Idziak, the defendant is entitled to jail credit under MCL §769.11b, and 2) whether because he is being held subject to an Alabama detainer, the defendant has received or will receive credit on his Alabama sentences for the time he spent in jail awaiting the disposition of this case.  The Court also remanded one criminal case for resentencing and peremptorily reversed and remanded three cases, which are discussed after the jump. Read more »

On June 16, 2009, the Court of Appeals published an authored opinion in Risko v. Grand Haven Charter Township Zoning Board of Appeals, No. 282701, holding that the appellants were not entitled to a variance because their desire to build according to their preferred design was not a “substantial property right.”  The variance provisions in the township’s ordinance only permitted a variance from the building setback requirements if necessary to preserve a substantial property right.  After substantial discussion of Michigan Supreme Court precedent and cases from other jurisdictions, the Court of Appeals defined “substantial property right” as “the right to possess, use and enjoy the valuable and important aspects of ones land, but subject to land use regulations that advance legitimate government interests.”  Reversing the trial court, the Court of Appeals concluded that the township had properly denied the variance because an alternative design was available to the appellants that would permit them to build the two-stall garage without violating the building setback requirements.  The court also reversed the trial court’s holding that the ZBA had violated the appellants’ constitutional right to equal protection, finding no evidence in the record that appellants were treated irrationally differently from other similarly situated residents who had been granted a variance.

On May 26, 2009, the Court of Appeals published a unanimous, per curiam opinion in Hughes v. Township of Almena, No. 279085, addressing a number of procedural issues under the Township Zoning Act (“TZA”), which was repealed in 2006 by a statute that retained much of the same language, the Michigan Zoning Enabling Act.   Most significantly, the court held that, under the TZA, the zoning board of appeals (“ZBA”) is not limited to the record on appeal from a township board’s decision and has statutory authority to obtain evidence not previously presented.  Secondly, though not expressly provided for in the TZA, it is proper for a township ordinance to designate PUD application review and recommendation responsibilities to the planning commission as an aid to the township board, so long as the township board retains responsibility for its own review and final approval.  Third, the township’s ordinance was not invalid for failing to reference the township board’s statutory obligation to hold a hearing on the PUD application because the ordinance is read in conjunction with the statute, as they are in pari materia.  Fourth, the court held that lack of a specific opportunity to rebut evidence presented at the hearings does not violate the PUD applicant’s right to due process where the applicant had prior notice of the issue of concern and was given an opportunity to present evidence in support of its application on that issue at the hearings.  Finally, the township board member’s appearances and comments at the planning commission and ZBA hearings as to “why he did not believe the proposed PUD complied with the requriements of the zoning ordinance” did not constitute improper procedure or duress or inject bias into the proceedings.  The court also rejected the applicant’s argument that the planning commission’s conclusion that the PUD met the ordinance’s definition of a PUD estopped the township board from concluding otherwise.  Counsel now have an interesting task in determining to what extent these holdings apply to proceedings under the MZEA, which has adopted much of the same language as the TZA, though it also differs in many respects.