GREEN OAK TWP V GREEN OAK MHC
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STATE OF MICHIGAN
COURT OF APPEALS
GREEN OAK TOWNSHIP,
FOR PUBLICATION
February 4, 2003
9:00 a.m.
Plaintiff-Appellee,
v
No. 231704
Livingston Circuit Court
LC No. 00-017990-CZ
GREEN OAK MHC and KENNETH B.
LIPSHUTZ,
Defendants-Appellees,
and
RUTH E. MUNZEL, Personal Representative
of the Estate of HERBERT MUNZEL, Deceased,
Updated Copy
April 11, 2003
Defendant-Appellant.
Before: O'Connell, P.J., and Griffin and Markey, JJ.
O'CONNELL, P.J.
Defendant Ruth E. Munzel1 appeals as of right the circuit court's entry of judgment
declaring Herbert Munzel's zoning referendum petition invalid and enjoining the requisite
certification of the petition. We affirm.
The facts in this case are essentially undisputed. Defendant Kenneth B. Lipshutz
petitioned the Green Oak Township Board to rezone 233 acres of land from RF (residential
farming) to RMH (residential mobile home park), permitting the development of a 912-unit
mobile home park. According to the township ordinance set forth in the record, mobile home
communities are allowed only in districts zoned RMH. See, e.g., Green Oak Township
Ordinances, § 4.7.3. The board denied Lipshutz's petition. After the board's denial, defendants
Lipshutz and Green Oak MHC (GOMHC), landowners of the property at issue, sued the
1
Herbert Munzel, an original defendant in the lower court proceedings, is now deceased. Ruth
E. Munzel is proceeding on his behalf as personal representative of his estate.
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township in the Livingston Circuit Court and reached a settlement with the township. The terms
of the settlement were reduced to a consent judgment, which was accepted by a four-to-three vote
of the board members, and the judgment was entered by the circuit court. The judgment allowed
the development of the mobile home park for which Lipshutz initially petitioned, despite the
zoning of the property.
Herbert Munzel, a property owner in Green Oak Township, filed a notice of intent to file
a petition with the township clerk for a referendum on the adoption of the terms of the consent
judgment pursuant to § 12 of the township rural zoning act (TRZA), MCL 125.282. That
provision allows a registered elector residing in the township to submit a petition requesting that
a zoning ordinance be placed before the other electors residing in the township. Thereafter, the
township was presented with over one thousand signatures asking that the issue be placed on the
ballot in the upcoming November election. Next, the township sued Munzel, Phil Berg (another
petition circulator), Lipshutz, and GOMHC, to seek a declaratory judgment regarding whether a
referendum could be properly invoked to overturn the consent judgment. GOMHC then filed a
motion to declare the referendum petition invalid and to enjoin certification of the petition.
Essentially, the township, GOMHC, and Lipshutz argued that the consent judgment was
valid because it did not in fact constitute a rezoning of the property, and, therefore, no right of
referendum existed. On the other hand, Munzel claimed that the consent judgment actually did
constitute rezoning while "disenfranchising the people[']s right to a referendum." Munzel
maintained that the ordinance only allows mobile home parks in established zones. Nonetheless,
the trial court ruled that the TRZA does not allow a referendum to be taken on a consent
judgment. This appeal followed, and we accepted briefing from amici curiae.2
Defendant Munzel argues on appeal that the township board did not comply with the
TRZA when it signed the consent judgment permitting GOMHC to build the mobile home park
and that township residents have the right of referendum on the zoning issue. Because the issues
raised in defendant Munzel's appeal are intertwined, we address them together.
This Court reviews de novo questions of law in declaratory judgment actions. Herald Co,
Inc v Ann Arbor Pub Schools, 224 Mich App 266, 271; 568 NW2d 411 (1997). Statutory
interpretation is a question of law that is also considered de novo on appeal. Dessart v Burak,
252 Mich App 490, 494; 652 NW2d 669 (2002). At the outset we note, as the court below did,
that Michigan case law does not address whether a consent judgment is subject to the right of
referendum created in MCL 125.282. Therefore, this is an issue of first impression.3
2
We note that we have reviewed the brief of amici curiae and the parties' submissions of
supplemental authority.
3
Amici curiae point out that a substantially similar issue is pending before our Supreme Court.
In Petoskey Investment Group LLC v Bear Creek Twp, unpublished order of the Court of
Appeals, entered October 31, 2002 (Docket No. 244243), this Court denied a delayed application
for leave to appeal a court-ordered zoning referendum following a consent judgment. An
application for leave to appeal that decision was filed in our Supreme Court on November 21,
(continued…)
-2-
MCL 125.282, on which defendant Munzel relies, is the part of the TRZA that authorizes
the initiation of a referendum election. It states:
Within 7 days after publication of a zoning ordinance under section 11a, a
registered elector residing in the portion of the township outside the limits of
cities and villages may file with the township clerk a notice of intent to file a
petition under this section. If a notice of intent is filed, then within 30 days
following the publication of the zoning ordinance, a petition signed by a number
of registered electors residing in the portion of the township outside the limits of
cities and villages equal to not less than 10%[4] of the total vote cast for all
candidates for governor, at the last preceding general election at which a governor
was elected, in the township may be filed with the township clerk requesting the
submission of an ordinance or part of an ordinance to the electors residing in the
portion of the township outside the limits of cities and villages for their approval.
Upon the filing of a notice of intent, the ordinance or part of the ordinance
adopted by the township board shall not take effect until 1 of the following
occurs:
(a) The expiration of 30 days after publication of the ordinance, if a
petition is not filed within that time.
(b) If a petition is filed within 30 days after publication of the ordinance,
the township clerk determines that the petition is inadequate.
(c) If a petition is filed within 30 days after publication of the ordinance,
the township clerk determines that the petition is adequate and the ordinance or
part of the ordinance is approved by a majority of the registered electors residing
in the portion of the township outside the limits of cities and villages voting
thereon at the next regular election which supplies reasonable time for proper
notices and printing of ballots, or at any special election called for that purpose.
The township board shall provide the manner of submitting an ordinance or part
of an ordinance to the electors for their approval or rejection, and determining the
result of the election. [MCL 125.282.]
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the
intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515;
573 NW2d 611 (1998). "The rules of statutory construction merely serve as guides to assist the
judiciary in determining intent with a greater degree of certainty." Title Office, Inc v Van Buren
Co Treasurer, 249 Mich App 322, 326; 643 NW2d 244 (2002). Statutory language should be
construed reasonably, keeping in mind the purpose of the act. Draprop Corp v Ann Arbor, 247
(…continued)
2002, in Docket No. 122779.
4
The "10%" figure was changed to "15%" in 2001 PA 177 on December 15, 2001, after the
present case was heard below.
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Mich App 410, 415; 636 NW2d 787 (2001). "[O]nce the intention of the Legislature is
discovered, it must prevail regardless of any conflicting rule of statutory construction." Traffic
Jam & Snug, Inc v Liquor Control Comm, 194 Mich App 640, 645; 487 NW2d 768 (1992).
Courts may not speculate about the probable intent of the Legislature beyond the language
expressed in the statute. Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219
(2002). "If the plain and ordinary meaning of the language is clear, judicial construction is
normally neither necessary nor permitted." Guardian Photo, Inc v Dep't of Treasury, 243 Mich
App 270, 277; 621 NW2d 233 (2000).
In this case, the plain and ordinary language of MCL 125.282 indicates that the right of
referendum is applicable to zoning ordinances only. We emphasize that the Legislature
expressly refers to the word "ordinance" to the exclusion of other types of zoning actions
including variances, exceptions, and special use permits. In our view, the term "ordinance" has a
particularized meaning when used with reference to the TRZA. Specifically, the enactment of a
zoning ordinance is considered a "distinct legislative act." 8 McQuillin, Municipal Corporations
(3d ed), § 25.52, p 163; see also Sun Communities v Leroy Twp, 241 Mich App 665, 669; 617
NW2d 42 (2000), citing Schwartz v Flint, 426 Mich 295, 307-308; 395 NW2d 678 (1986).
Notably, the TRZA sets forth formal provisions for the enactment of an ordinance by the
appropriate boards and governing bodies. MCL 125.281.
The consent judgment at issue did not comport with the aforementioned particularized
requirements of a zoning ordinance or amendment. Accordingly, the consent judgment was
neither the promulgation of a zoning ordinance nor an amendment of a zoning ordinance as
contemplated by MCL 125.282. Therefore, a determination that MCL 125.282 is applicable to a
consent judgment would be contrary to the plain language of the statute. See Guardian Photo,
supra.
Adopting defendant Munzel's argument would not only be in conflict with the plain
language of the statute, but would also lead to an unreasonable result whereby any zoning board
decision could potentially be subject to a right of referendum.5 That result would be untenable
because even the most routine zoning decisions could be subject to a costly and time consuming
referendum. Moreover, if that were the Legislature's intent, it would have expressed as much.
Instead, the Legislature chose to specify that MCL 125.282 applies to zoning ordinances, as
opposed to a variety of other zoning actions and decisions.
While the consent judgment may have been an attempt to bypass the zoning regulations,
that claim is not properly before us.6 The only question properly presented to this Court is
5
We also note that for this Court to rule that a referendum may be taken on a matter settled by a
court judgment would violate the separation of powers among the legislative and judicial
branches of government and the rights reserved to the people. See, generally, Const 1963, art 1,
§ 23, art 3, § 2; Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 585; 640 NW2d 321
(2001).
6
Amici curiae argue that our holding today will encourage townships to routinely use consent
judgments to effect zoning changes by circumventing the enactment procedure and the citizen's
(continued…)
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simply whether the consent judgment was subject to a right of referendum pursuant to MCL
125.282. Furthermore, we are not suggesting that Munzel had no avenue by which to contest the
action of the township, we simply believe that Munzel could not effectively do so by a
referendum.7
We suggest that the effect of the consent judgment is more akin to a use variance, which
our Supreme Court has determined is allowable. Mitchell v Grewal, 338 Mich 81, 87; 61 NW2d
3 (1953). Specifically, a zoning board has the authority to allow a use in a zoning district that
would not otherwise be allowed under an ordinance. Paragon Properties Co v Novi, 452 Mich
568, 575; 550 NW2d 772 (1996); 25 Mich Civ Jur, zoning § 36, pp 669-670 (2001). Essentially,
when a variance is granted, the ordinance—and zoning pursuant to the ordinance—is left
unchanged. However, a particularized exception to the provision of the ordinance is permitted.
Mich Civ Jur, zoning § 37, pp 670-673 (2001); Mitchell, supra at 88. Accordingly, a variance is
distinct from an ordinance or an amendment of an ordinance as contemplated by the TRZA.
Defendant Munzel also argues that the publication of "a synopsis of the minutes" in this
case was in compliance with the TRZA requirement that a notice of an adoption of an ordinance
be published, and, therefore, the publication somehow gave rise to a right of referendum. See
MCL 125.281a. However, the simple act of publishing a notice of adoption of a consent
judgment fails to transform the judgment into a "zoning ordinance" as contemplated by the
TRZA. See MCL 125.281 et seq. Specifically, we hold that the publication requirements set
forth in MCL 125.282a contemplate something more than the mere mention of township action.
The statute requires that notice of adoption of an ordinance be published, and shall include the
(…continued)
right to referendum. We do not agree. A consent judgment by its nature is a settlement reached
by two opposing parties to a court proceeding. To reach a consent judgment allowing a zoning
change, the township would have to file suit against or be sued by a developer. That is, the
township's position would necessarily be opposing that of the developer. Putting aside the fact
that the citizens could intervene at this point in the proceedings, it strikes us as uncertain and
illogical that a township would engage in the fiction of advocating against a zoning change
initially only to successfully procure a settlement with the opposing party allowing the zoning
change.
7
The proper remedies in this case were: (1) citizen intervention in the trial court proceedings
below, which was done too late here and therefore denied, see Vestevich v West Bloomfield Twp,
245 Mich App 759, 762; 630 NW2d 646 (2001) (property owners could intervene to challenge a
township's continued enforcement of a zoning ordinance where the township had entered into a
consent judgment allowing development, suggesting that township's representation of property
owners was inadequate), citing MCR 2.209; and (2) recalling the offending township officials,
see MCL 168.960(1). Further, the township could have reserved the right to appeal the consent
judgment, but chose not to. See Travelers Ins v U-Haul of Michigan, Inc, 235 Mich App 273,
278, n 4; 597 NW2d 235 (1999) (appeal of right is available from a consent judgment where
reserved); 7 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 7.203, p 139 (an
appeal by right is generally lost on agreeing to a consent judgment; leave to appeal may be
requested). We believe that it is within the township's discretionary authority to settle a legal
matter or appeal an adverse judicial decision.
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statement: "A zoning ordinance regulating the development and use of land has been adopted by
the township board . . . ." MCL 125.281a(a). Further, the statute mandates the inclusion "[i]n the
case of an amendment to an existing zoning ordinance, either a summary of the regulatory effect
of the amendment, including the geographic area affected, or the text of the amendment." MCL
125.281a(b). The synopsis of the minutes included none of the above. Accordingly, defendant
Munzel's argument on this issue fails.
Finally, defendant Munzel argues, "the lower court has no inherent power to rule that the
Consent Judgment barred the right of referendum without first finding the zoning ordinance to be
unconstitutional, and in the absence of such a ruling, the electors are entitled to their right of
referendum." However, defendant Munzel merely asserts this proposition without logical
development. An appellant may not merely announce his position and leave it to this Court to
discover and rationalize the basis for his claims. Wilson v Taylor, 457 Mich 232, 243; 577
NW2d 100 (1998). An appellant's failure to properly address the merits of his assertion of error
constitutes an abandonment of the issue. Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App
379, 406; 651 NW2d 756 (2002). In any event, we find no authority for defendant Munzel's
proposition that an equitable right of referendum exists for any township action or circuit court
judgment.
Therefore, we affirm the trial court's entry of judgment declaring the referendum petition
invalid with regard to the consent judgment.
Affirmed.
/s/ Peter D. O'Connell
/s/ Richard Allen Griffin
/s/ Jane E. Markey
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