One Court of Justice

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  Moreover, the Court holds that this rule had been superseded by the exclusionary zoning provision in MCL 125.297a of the Township Zoning Act of 1979, now the Zoning Enabling Act.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.

On April 29, 2009, the Michigan Supreme Court denied leave to appeal in six cases and denied reconsideration in one case.  In Orchard Estates v. Dawood, Case No. 137974, in lieu of granting appeal, the Court affirmed the Court of Appeals’ conclusion that because the bylaws and the restrictive covenants were unrecorded, neither were binding on defendants.  However, the Court vacated the Court of Appeals majority’s analysis of the Michigan Condominium Act because the Court concluded the analysis was unnecessary to reach a decision in this case.  A copy of the order can be found here.  The Court also granted leave to appeal in Kyser v. Kasson Township, which is discussed after the jump. Read more »

On April 17, 2009, the Court of Appeals released a published opinion in Capital Properties Group, LLC  v. Center Street, LLC, affirming the circuit court’s decision granting the defendant’s motion for summary disposition on Plaintiff’s noise ordinance and nuisance claims.  Defendant owns a Lansing nightclub in an area of the city zoned for business.  Plaintiff owns a building next to the nightclub that contains both residential and commercial units.  The court concluded that Lansing’s noise ordinance, by its plain language, only applies to areas zoned residential; that noise from a nightclub does not harm the public and so does not create a public nuisance; and that nightclub noise does not unreasonably inerfere with the plaintiff’s rights and so is not a private nuisance.  Judge Kelly dissented from the decision on the private nuisance.  Read more »

Yesterday, in Laketon Township v. Advanse, Inc., Case No. 276986, the Michigan Court of Appeals reaffirmed that the time for determining whether a nonconforming use vests in a property owner is the date the relevant zoning ordinance was enacted or amended.  Defendant purchased a property known as Sunset Beach Cottages in Laketon Township and began short-term rentals of a house that the previous owners had used as their permanent residence.  At the time of purchase, the Township zoning ordinance did not prohibit the new use.  In response to complaints about short-term rentals at other properties, the Township amended its ordinance to bar that use.  The trial court enjoined Defendant, ruling that Defendant could not expand the use made by the prior owner.  The Court reversed, stating that “Michigan case law and MCL 125.3208 both emphasize that the enactment date of the ordinance ‘is the critical point in determining when a nonconforming use vests.’”  Disclaimer:  WNJ represented the prevailing appellant in this matter.