ARTHUR LAND COMPANY LLC V COUNTY OF OTSEGO
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STATE OF MICHIGAN
COURT OF APPEALS
ARTHUR LAND COMPANY, LLC,
FOR PUBLICATION
February 8, 2002
9:00 a.m.
Plaintiff-Appellant,
v
No. 225459
Otsego Circuit Court
LC No. 98-007583-CH
OTSEGO COUNTY,
Defendant-Appellee.
Updated Copy
May 10, 2002
Before: Bandstra, C.J., and Fitzgerald and Gage, JJ.
BANDSTRA, C.J.
Plaintiff Arthur Land Company, L.L.C., appeals as of right from the trial court's order
granting defendant Otsego County summary disposition of plaintiff 's complaint for declaratory
and injunctive relief. We reverse and remand.
I. Basic Facts and Procedural History
In November 1997, plaintiff petitioned to rezone property located in Livingston
Township from its current designation of R-1 (residential district), to a zone that would
ultimately permit construction of a convenience store and gas station.1 Livingston Township,
which is located in Otsego County, does not have its own zoning ordinance and thus, pursuant to
the County Zoning Act (CZA),2 defers zoning decisions affecting the township to the Otsego
County Board of Commissioners. The Livingston Township Planning Commission and the
Livingston Township Board, however, act as advisory bodies to the Otsego County Planning and
Zoning Commission, which in turn advises the Otsego County Board of Commissioners on all
matters of rezoning.
1
Although there is a discrepancy in the record regarding the exact designation sought—R-3
(residential estates), B-1 (local business), B-2 (general business), or B-3 (local business light
manufacturing)—what is important here is simply that plaintiff sought to remove those
restrictions that prevented it from using the property in a business, as opposed to residential,
capacity.
2
MCL 125.201 et seq.
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On January 12, 1998, plaintiff appeared before the Livingston Township Planning
Commission to present its plans for the property that is the subject of this appeal. In speaking
before the commission, plaintiff 's representative asserted that there were already several
nonconforming businesses located along the corridor that housed the subject property, which
plaintiff argued had become "heavily traveled." When the matter was opened for public
comment, however, several neighbors of the proposed business voiced concerns over the
increased noise and traffic a convenience store and gas station would generate, and the effect this
would have on overall safety in the area, as well as residential property values. Following
discussion of the matter, the commission voted to recommend to the Livingston Township Board
that plaintiff 's request for rezoning be denied.
In conjunction with its decision, the commission drafted a report listing several reasons in
support of its recommendation. Within this report the commission noted that traffic in the
subject area was already "exceedingly heavy," especially during the school year, and that to
allow "anything" that might impede the flow of traffic would create both "a severe traffic
problem" as well as a situation of "greater danger" for those children crossing the road for
school. In addition, the commission indicated a concern that the requested rezoning would, in
effect, constitute "spot zoning," which both the county and the township sought to avoid. The
commission additionally reasoned that, with respect to the nonconforming businesses already in
place along the corridor, "the few things that weren't residences . . . had been there before the
county had zoning," and that, nonetheless, the area still "looked residential and should be left that
way." The commission further indicated that it shared in the concerns of area neighbors who felt
that residential property values would decrease and that the "lights and noise generated by a
filling station/convenience store would be inappropriate for the area." As a final consideration,
the commission took note of the aesthetics in the subject area, which it felt would be "adversely
affect[ed]" by the proposed rezoning:
This area of town has numerous old houses, it has a certain charm and
beauty that is unique. As an older section of the area it displays our history as a
community, our roots, so to speak. Areas such as this are one of the things that
draw people to our community. We should not allow rezoning and development
to destroy the areas of the county that our history is rooted in.
In pursuit of its rezoning request, plaintiff next appeared before the Livingston Township
Board on January 26, 1998. After plaintiff again presented its plans, the board, relying on the
report issued by the Livingston Township Planning Commission, unanimously voted to
recommend to the Otsego County Planning and Zoning Commission that the request to rezone be
denied. In doing so, the board, like the township planning commission, espoused its opinion that
the requested rezoning would constitute spot zoning, which it sought to avoid. In addition, the
board indicated its concern that "rezoning in this area would destroy the quiet and esthetic nature
of this residential area."
The following letter, outlining the board's decision and
recommendation, was then sent to the Otsego County Planning and Zoning Commission, along
with a copy of the township planning commission's report:
At a regular meeting of the Livingston Township Board held on January
26, 1998 at 7:30 p.m. at the Township hall, Otsego county Case # PC-80019-Ln
was discussed.
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Motion by Rolinksi to recommend to Otsego County Planning and Zoning
Commission Denial of Rezoning request Case # PC-80019-Ln. Reasons[:]
Traffic safety[;] [a]rea between South Maple St. and Hayes Rd. is used by school
buses, and high school students and gets congested at times. It is our opinion that
this would be spot zoning. Rezoning in this area would destroy the quiet and
esthetic nature of this residential neighborhood. Second by Mench. Ays 5. Nays
0. Motion carried.
Plaintiff next appeared at the Otsego County Planning and Zoning Commission's regular
meeting held February 16, 1998, and again presented its case for rezoning. Plaintiff presented
the commission a map showing the zoning classifications presently in place within a 3 1/2-mile
area surrounding the subject property, which included land located both in Livingston and
Bagley Townships, as well as the city of Gaylord. Relying on this map, plaintiff argued that the
area immediately surrounding the subject property represented a mix of residential and
commercial uses, and that both the County Comprehensive Plan and the City of Gaylord Master
Plan envisioned the corridor as an area of growth.
After noting that both the township planning commission and the township board
recommended denial of the request to rezone, the county planning and zoning commission
opened the matter for public comment. At that time, several people spoke regarding the issue.
According to the minutes, each expressed concerns over the safety of small children living in the
area, as well as the increase in traffic. It was further noted that, although there were currently
seventeen businesses located in the subject area, these constituted mostly professional offices,
e.g., dentists, attorneys, and so forth, and that there was "not a lot of traffic going in and out" of
these businesses. A petition opposing the proposed rezoning, signed by 127 residents living in
the subject area, was received by the commission along with two letters similarly opposing the
proposed zoning.
In voting to recommend to the Otsego County Board of Commissioners that the request
to rezone be denied, the commission noted:
The Otsego County Ordinance embraces the concept of conserving the
character and social and economic stability of residential and other use areas.
Change of zone should be carefully considered since private arrangements,
property purchases and uses occur with reasonable anticipation of the stability of
existing zones. This Commission should not erode an Ordinance that protects
against unreasonable, needless or harmful rezoning. Change in zone should be
made only to subserve the public interest.
Traffic in and around the intersection of Hayes Road and M-32 East is
admittedly heavy, and will become increasingly complex with the addition of a
commercial development. Traffic concerns become more acute during the school
year as Hayes Road is a heavily used approach to Gaylord High School.
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The type of activity suggested will impact on the expected tranquility of
an R-1 zone. There will be increased noise and light pollution. There is a real
danger that existing property values will be eroded.
Rezoning does not represent an improvement in the use or character of the
surrounding area.
There is detrimental impact upon surrounding uses, particularly as related
to traffic and pedestrian uses in the area.
On March 10, 1998, the Otsego County Board of Commissioners voted to adopt a
resolution concurring in the recommendations of the Otsego County Planning and Zoning
Commission to reject plaintiff 's rezoning request.3 Plaintiff thereafter filed a two-count
complaint for injunctive and declaratory relief, alleging that the board's denial of its request to
rezone constituted both a violation of substantive due process and a confiscatory taking.
According to the parties, because neither the CZA nor the Otsego County Zoning
Ordinance4 provides a specific method of review where an application to rezone is denied by a
county board of commissioners, the trial court held a hearing to determine the proper method of
review to be employed in deciding the claims raised in plaintiff 's complaint. At that time,
defendant argued that plaintiff 's claims were in essence an appeal from a final decision of the
county board and that, therefore, the trial court was required to limit its review to the record
created during the proceedings below. In making this argument, defendant cited Carleton
Sportsman's Club v Exeter Twp5, which held that, pursuant to Const 1963, art 6, § 28, the
appropriate method of review of a municipal board's decision denying a special land-use permit,
where a zoning ordinance does not provide for an appeal to a zoning board of appeals, was an
appeal to the circuit court. Defendant further argued that, under the relevant constitutional
provision, the trial court's review was limited to a determination whether the county board's
decision was supported by competent, material, and substantial evidence on the record created
below.6 In response, plaintiff asserted that, given the legislative nature of the board's actions
3
As noted by plaintiff, the record of the county board of commissioners' decision in this regard
consists simply of two short paragraphs within the minutes of the board's March 10, 1998,
meeting indicating the results of the vote to adopt a resolution to concur in the recommendations
of the county planning and zoning commission.
4
We note that a copy of this ordinance was not made part of the record submitted to this Court
on appeal.
5
Carleton Sportsman's Club v Exeter Twp, 217 Mich App 195; 550 NW2d 867 (1996).
6
Const 1963, art 6, § 28 provides in relevant part:
All final decisions, findings, rulings and orders of any administrative officer or
agency existing under the constitution or by law, which are judicial or quasijudicial and affect private rights or licenses, shall be subject to direct review by
the courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
(continued…)
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when dealing with a request to rezone, and considering the constitutional nature of plaintiff 's
claims, the trial court was not sitting merely as an appellate body and was entitled to hear
additional evidence and make its own determination regarding the reasonableness of the board's
decision.
At the conclusion of the hearing, the trial court found that, as argued by defendant,
plaintiff 's claims were subject to appellate review by the circuit court, and that the standard
applicable to such review was whether the county board's decision was supported by competent,
material, and substantial evidence on the record created below. In accordance with this decision,
the trial court instructed the parties to stipulate to a record of the proceedings before the township
and county planning commissions and boards, to be submitted to the court for review and
decision following additional oral argument.
On May 7, 1999, plaintiff moved for reconsideration of the trial court's ruling regarding
the appropriate method and standard of review. At that time, plaintiff again asserted its
entitlement to a hearing de novo at which it could present proof outside that contained in the
record created before the lower tribunals.7 Noting the parties' off-the-record agreement that
"regardless of the ruling on the Motion for Reconsideration, . . . the matter ought to be set for
dispositive motions," the court held its decision on plaintiff 's motion in abeyance. In doing so,
the court reasoned that it may be "unnecessary" for the court to rule on the motion because it
could be argued on a motion for summary disposition that, given the extensive record from the
lower tribunals, plaintiff would not be able to establish that the zoning of its property was
"unconstitutional as applied."
Defendant thereafter moved for summary disposition of plaintiff 's claims under MCR
2.116(C)(8) and (10). At the hearing on defendant's motion, defendant argued that, with respect
to plaintiff 's claim of a violation of substantive due process, the record of the proceedings below
provided clear support for the county board's decision under the "competent, material, and
substantial" standard of review determined to be applicable by the trial court, and that plaintiff
had therefore failed to establish that a genuine issue of material fact existed with respect to the
constitutionality of the board's decision. Relying on this conclusion, defendant further argued
that plaintiff had similarly failed, under MCR 2.116(C)(8), to state a taking claim because, "if the
decision was made appropriately by the Board of Commissioners—there was no taking, there
was no confiscation." Nevertheless, defendant argued, given the subject property's current
(…continued)
are supported by competent, material and substantial evidence on the whole
record.
7
When pressed by the trial court regarding exactly what additional evidence it sought to present,
plaintiff indicated that it should be permitted to call the county commissioners to testify
concerning the reasons for their decision to deny the requested rezoning. In doing so, plaintiff
noted that the county board's decision was indicated solely by its resolution "rubber stamping"
the county planning commission's recommendation. Plaintiff argued that, although the basis for
the commission's recommendation may be sufficiently set forth in the record, the same could not
be said with respect to the county board and that, because the county board was the deciding
body, an evidentiary hearing to develop the reasons underlying the board's decision was required.
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residential use, plaintiff would be unable to establish a compensatory taking because that would
require a showing that the board's decision denied plaintiff not just the most profitable use of its
land, but all economically viable use.
In response, plaintiff first reiterated its disagreement with the trial court's decision "as to
the proper [method of] review and analysis" to be employed in deciding this matter.
Nonetheless, plaintiff argued, substantive due process requires that the exercise of police power
legislation, such as the ordinance at issue here, not be unreasonable arbitrary, or capricious.
Plaintiff then asserted that, given the change of conditions in the area surrounding the subject
parcel, the county board's decision not to rezone was unreasonable and thus unconstitutional as
applied. In doing so, plaintiff cited precedent holding that, given the trend of commercial
development along the avenue faced by a rezoning applicant's property, as well as the property's
greater value for commercial rather than residential use, a zoning board's refusal to rezone
property for commercial use amounted to impermissible arbitrary spot zoning.8 Although
acknowledging the weakness of its taking claim in light of the residential use of the subject
property, plaintiff further argued that "confiscation should be considered together with the
substantive due process decision," presumably on the ground that the unreasonableness of the
board's decision negated any legitimate governmental interest in keeping the current zoning
classification.
In granting defendant summary disposition, the trial court reiterated its belief that
plaintiff 's claims were in essence "an appeal of a decision to deny rezoning made by the Otsego
County Board of Commissioners." The court further indicated its belief that the constitutional
standard of review in such cases, which is "set out in [Const 1963, art 6, § 28] . . . is similar to
the statutes which control review in zoning appeal cases,"9 and that "the Otsego County Board of
Commissioners fits within that definition when it acts as a zoning authority under the ordinance."
The trial court then went on to find that plaintiff had been given a full and fair opportunity to
present its case below and that, given the record generated in that process, plaintiff had failed to
establish a genuine issue of material fact because the board's decision was aptly supported by
8
See Hudson v Buena Vista Twp Zoning Bd, 6 Mich App 625, 631-633; 150 NW2d 167 (1967).
9
Subsection 23(2) of the CZA provides in relevant part:
The decision of the county board of zoning appeals shall be final. However, a
person having an interest affected by the zoning ordinance has the right to appeal
to the circuit court. Upon appeal the circuit court shall review the record and
decision of the county board of zoning appeals to insure that the decision meets
the following requirements:
(a) Complies with the state constitution of 1963 and the laws of this state.
(b) Is based upon proper procedure.
(c) Is supported by competent, material, and substantial evidence on the
record.
(d) Represents the reasonable exercise of discretion granted by law to the
county board of zoning appeals. [MCL 125.223(2).]
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competent, material, and substantial evidence and was neither arbitrary nor capricious. Plaintiff
appeals from the trial court's decision in this regard.
II. Standard of Review
This Court reviews de novo a trial court's decision regarding a motion for summary
disposition.10 Questions of law, such as the appropriate method and standard of review to be
employed in a given situation, are likewise reviewed de novo.11
III. The Appropriate Method and Standard of Review
Plaintiff argues that the trial court, by treating plaintiff 's complaint as an administrative
appeal and thus applying the method and standard of review reserved for administrative
decisions, erred in granting defendant summary disposition. We agree.
"[I]t is settled law in Michigan that the zoning and rezoning of property are legislative
functions."12 Pursuant to the CZA, which establishes the procedures for the enactment,
amendment, and administration of county zoning ordinances, these functions fall within the
exclusive purview of the county board of commissioners.13 In contrast, questions arising "in the
administration of the zoning ordinance" are to be decided by the county board of zoning
appeals.14
Pursuant to MCL 125.223(2)(c), a decision of the county board of zoning appeals, which
is an administrative act, is final, subject to circuit court review to ensure that the decision is
"supported by competent, material, and substantial evidence on the record."15 The CZA,
however, is silent regarding the appropriate method and standard of review where, as here, a
10
Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
11
See, e.g., Palo Group Foster Care, Inc v Dep't of Social Services, 228 Mich App 140, 144145; 577 NW2d 200 (1998).
12
Sun Communities v Leroy Twp, 241 Mich App 665, 669; 617 NW2d 42 (2000).
13
MCL 125.210.
14
MCL 125.220(1). We note, however, that although the CZA requires the establishment of a
county board of zoning appeals in those counties exercising zoning power under the act, see
MCL 125.218, the record is unclear regarding exactly what that body's duties are under the
Otsego County Zoning Ordinance. The record is similarly devoid of any authoritative basis for
discerning the duties and obligations of the Otsego County Board of Commissioners under that
ordinance.
15
MCL 125.223(2)(c). As correctly noted by the trial court here, this standard of review is
consistent with that set forth in Const 1963, art 6, § 28, which provides the process and standard
of review for judicial review of decisions by an administrative agency. See note 6.
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party seeks to challenge a county board of commissioners' denial of a request to rezone, which is
a legislative act.16
Given the absence of any controlling provision, the trial court analogized the
circumstances presented in the instant matter to an appeal from a decision of a zoning board of
appeals, and thus applied the standard of review reserved for administrative decisions:
[I]n essence, what we do have here is an appeal of a decision to deny
rezoning made by the Otsego County Board of Commissioners with advice and
input from the Livingston Township Board, the Otsego County Planning
Commission, and the Livingston Township Planning Commission. And I think
[counsel for defendant] correctly states the standard here.
And it is a constitutional standard, I think, set out in [Const 1963, art 6, §
28], which is similar to the statutes which control review in zoning appeal cases.
And that section provides that the Court is to review the decision of the agency.
And I think the Otsego County Board of Commissioners fits within that definition
when it acts as a zoning authority under the ordinance. And the review is to
include whether the decision and findings are, number one, authorized by law and
whether the record contains competent, material and substantial evidence on the
whole record to support the decision.
Because in denying plaintiff 's request to rezone, the county board of commissioners
acted as a legislative, as opposed to administrative, body, the trial court's decision in this regard
was error.17 Were this an appeal from an administrative body, the trial court would have been
limited to a determination whether the decision was authorized by law and supported by
competent, material, and substantial evidence on the record.18 However, "'[b]ecause rezoning is
a legislative act, its validity and the validity of a refusal to rezone are governed by the tests
which we ordinarily apply to legislation.'"19
Moreover, plaintiff 's complaint was filed as an original action in the circuit court,
wherein plaintiff challenged the constitutionality of the zoning ordinance as applied to plaintiff 's
property and requested declaratory and injunctive relief.20 These were matters within the trial
16
According to defendant, the Otsego County Zoning Ordinance is similarly silent with respect
to this issue. However, as noted above, a copy of that ordinance has not been provided to this
Court on appeal.
17
See, e.g., Paragon Properties Co v Novi, 452 Mich 568, 580; 550 NW2d 772 (1996); Sun
Communities, supra.
18
Const 1963, art 6, § 28; MCL 125.223.
19
Sun Communities, supra at 699, quoting Crawford, Michigan Zoning and Planning (3d ed), §
1.11, p 53.
20
We note, however, that although there is no requirement that a plaintiff exhaust administrative
remedies before bringing a taking or substantive due process claim, Electro-Tech, Inc v H F
Campbell Co, 433 Mich 57, 79; 445 NW2d 61 (1989), a judicial challenge to the
constitutionality of a zoning ordinance, as applied to a particular parcel of land, is not ripe for
(continued…)
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court's original, rather than appellate, jurisdiction.21 Accordingly, plaintiff was entitled to a
hearing de novo on the issues raised and the trial court therefore erred in limiting plaintiff 's
proofs to those presented before the township and county commissions and boards.
Defendant's reliance on Carleton, supra, in support of a contrary result, is unavailing. As
noted above, Carleton involved the proper means of challenging a final decision to grant or deny
a special or conditional use permit where neither the zoning enabling statutes nor the zoning
ordinance provides a procedure for review. Because, whether made by the board of zoning
appeals or another local body, the decision to grant or deny such a permit is an administrative
act,22 the panel's holding that in such situations "appellate review is available to an aggrieved
party in the circuit court" under the standard set forth in Const 1963, art 6, § 28 is inapplicable to
the instant matter.23 As discussed above, the decision at issue here was a legislative, not
administrative, act.
IV. Propriety of the Trial Court's Grant of Summary Disposition
In addition to its challenge of the trial court's decision regarding the appropriate method
and standard of review to be employed in this matter, plaintiff argues that the trial court erred in
ruling that plaintiff had failed to establish a genuine issue of material fact concerning the
constitutionality of the county board of commissioners' decision. We again agree, although not
for the substantive reasons argued by plaintiff.
Although the trial court's order granting summary disposition does not state on which
subsection it relied, the trial court's ruling during oral argument makes it apparent that summary
disposition of plaintiff 's claims was granted under MCR 2.116(C)(10). A motion for summary
disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim.24 When
reviewing a decision on a motion under MCR 2.116(C)(10), this Court must examine all relevant
documentary evidence in the light most favorable to the nonmoving party to determine whether a
genuine issue of material fact exists on which reasonable minds could differ.25 Where the
(…continued)
judicial review until the plaintiff has obtained a final, nonjudicial determination regarding the
permitted use of the land (e.g., denial of a special-use permit or variance). See Paragon, supra at
576. The purpose of this requirement is to ensure that the plaintiff has suffered an "'actual,
concrete injury.'" Id. at 577, quoting Williamson Co Regional Planning Comm v Hamilton Bank
of Johnson City, 473 US 172, 193; 105 S Ct 3108; 87 L Ed 2d 126 (1985). Because the record
fails to adequately set forth the alternative remedies, if any, available to plaintiff under the
Otsego County Zoning Ordinance, it is unclear whether plaintiff has yet obtained such a final,
reviewable decision. Accordingly, we do not address the ripeness issue, but urge the trial court
to develop that matter on remand.
21
See MCL 600.605.
22
See Sun Communities, supra at 669.
23
Carleton, supra at 203.
24
Holland v Liedel, 197 Mich App 60, 64; 494 NW2d 772 (1992).
25
Shirilla v Detroit, 208 Mich App 434, 437; 528 NW2d 763 (1995).
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moving party has produced evidence in support of the motion, the opposing party bears the
burden of producing evidence to establish that a genuine question of material fact exists for
trial.26 Here, because the trial court failed to employ the appropriate method and standard of
review, it improperly limited the proofs available to plaintiff in order to meet this burden. We
conclude that the matter should be remanded to the trial court for further proceedings, wherein
plaintiff is permitted to produce additional evidence in support of its claims.27
V. Conclusion
The trial court erred in treating plaintiff 's complaint as an administrative appeal and, as a
result, similarly erred in applying an incorrect standard of review and granting summary
disposition on a record limited to the proofs presented by plaintiff at the lower tribunals.
Accordingly, we reverse and remand this matter for further proceeding consistent with this
opinion.
We reverse and remand. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ E. Thomas Fitzgerald
/s/ Hilda R. Gage
26
MCR 2.116(G)(4).
27
In reaching this conclusion, we acknowledge the persuasive nature of the record created before
the township and county boards and commissions with respect to the propriety of the county
board of commissioners' decision to deny rezoning. However, although our review here is de
novo, it is nonetheless limited to the record developed by the trial court. MCR 7.210(A).
Because this Court has not been afforded a record fully developed in accordance with the
appropriate procedures, we decline to undertake any substantive review of the trial court's
decision to grant summary disposition.
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