KENNETH MORRISON V CITY OF EAST LANSING
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STATE OF MICHIGAN
COURT OF APPEALS
KENNETH MORRISON, SUSAN BURKE,
NICOLE ELLEFSON, KENNETH FRANK,
JACQUELINE CAMPBELL, KENNETH
CARLISLE, CHARLES PEARL, STEPHEN
ELLISTON, ANGELA ELLISTON, PHILIP
WICKERSHAM, MARY WICKERSHAM,
DAVID STOWE, LINDA WHITE, MARK
KIELHORN, MARGOT KIELHORN,
ROCHELLE WHITEPIGEON, LINDA
FLETCHER, and CITIZENS TO KEEP HANNAH
GREEN, INC.,
FOR PUBLICATION
February 28, 2003
9:05 a.m.
Plaintiffs-Appellants/CrossAppellees,
v
CITY OF EAST LANSING and EAST LANSING
CITY COUNCIL,
Defendants-Appellees/CrossAppellants.
No. 234361
Ingham Circuit Court
LC No. 00-091641-AS
Updated Copy
April 25, 2003
Before: Neff, P.J., and Hoekstra and O'Connell, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the trial court's order granting plaintiffs costs and
attorney fees, but dismissing all other claims under MCR 2.116(A) (judgment on stipulated facts)
and MCR 2.116(C)(10) (no genuine issue of material fact). Defendants cross-appeal the grant of
costs and attorney fees, challenging the trial court's determination that they violated the Open
Meetings Act (OMA), MCL 15.261 et seq. We affirm.
I. Factual and Procedural Background
-1-
This case arises from circumstances surrounding the efforts to convert the former Hannah
school building and property in East Lansing to a community center.1 Defendant city purchased
the Hannah school building and property from the East Lansing School District. Defendant city
council appointed a committee to make recommendations concerning the development of the
community center. The individual plaintiffs, who live near the community center, and plaintiff
Citizens to Keep Hannah Green, Inc., a nonprofit corporation that the named plaintiffs and Jim
and Marion Anderson created, opposed the approved site plan for the community center because
of concerns of traffic on a neighborhood street. Specifically, plaintiffs objected to the inclusion
of parking at the northwest corner of the site with direct access to Forest Avenue.
In a November 6, 1998, memorandum, the city's director of planning and community
development asked the city manager to discuss with the city council the creation of an advisory
committee to assist in the selection of architects, designers, and professional service
organizations and to advise the council on programmatic needs and other issues to be decided in
the planning process for the community-center project. The city manager complied with this
request at the city council's November 10, 1998, work session,2 which was held in compliance
with the OMA. Thereafter, at its December 1, 1998, regular meeting, which was held in
compliance with the OMA, the city council, by resolution, appointed the Hannah Building
Committee (HBC) and approved the steering committee that the HBC selected.
According to the council's liaison to the HBC, who also chaired the HBC and its steering
committee, the HBC's implicit duties were to advise the council after conducting research and
interviews and obtaining public input on the project design. Specifically, the HBC was expected
to interview and recommend architects and construction managers; work with the community
and the architect to develop a site plan, including parking location, and recommend the plan to
the council; determine tenancy guidelines and criteria; and oversee design of the building's
interior.
Between December 1998 and January 2000, the HBC held at least nineteen meetings. Of
these nineteen meetings, minutes were taken only for some, including the December 9, 1998, and
January 6 and April 26, 1999, meetings,3 and three of the meetings were "noticed" to the public,4
including those held on September 29, October 20, and December 9, 1999. Approximately one
1
The parties stipulated the facts with respect to two counts of plaintiffs' complaint.
2
In addition to regular meetings, the city council holds "work sessions," which are more
informal meetings held in a smaller room and not televised but still noticed and open to the
public.
3
These meetings were not videotaped or audiotaped.
4
According to the city's parks and recreation director's sworn response to interrogatories, notices
of the meetings were posted on the city's bulletin board, invitations were sent to residents in a
three- to four-block radius surrounding the Hannah Community Center, press releases were sent,
and neighborhood association mailings were sent to all neighborhood association presidents and
chairpersons of the city's boards and commissions.
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hundred people attended each noticed meeting, but no one from the public attended the meetings
that were not noticed.
Between January 1999 and April 2000, the steering committee held nineteen meetings,
twice at local businesses, but none of which was publicly noticed, recorded, or reported in
minutes. During its meetings, the steering committee created the request for proposals,
developed evaluation criteria for the architect and construction manager, and critiqued potential
site plans. Jim Anderson attended one of those meetings.5 However, Anderson was asked to
leave the December 21, 1999, meeting because the steering committee decided to exclude the
public because financial matters might be discussed.
The HBC collected proposals from architects, narrowed the pool of candidates,
interviewed several, and recommended one architect to the city council; the council then
decided, at a public meeting, to hire that architect. Likewise, the HBC utilized this same process
with regard to a construction manager, and the council accepted the HBC's recommendation at a
public meeting. A design firm recommended northwest parking to serve the auditorium. The
architect prepared a site plan "for purposes of discussion" by August 18, 1999.
At the September 29, 1999, HBC meeting, one or more preliminary site-plan drawings
were presented for public comment, but these plans differed in unspecified ways from the
August 18, 1999, plan. Plaintiffs were aware of the September meeting and most attended and
expressed their concerns about the presence of parking at the north end and traffic in the
neighborhood. The city council did not receive any official report or summary of the public
comments.
Sometime before the next noticed meeting, the HBC and its steering committee debated
and narrowed the potential site plans. At the October 20, 1999, meeting, the HBC presented four
alternative site plans, including two plans with northwest parking and access to Forest Avenue.
Again, many plaintiffs expressed their concerns regarding traffic and parking, and again there
was no report submitted to the city council.
Between the October and December 1999 noticed meetings, the HBC and the steering
committee each met three times. The HBC narrowed the potential site plans to one plan, which
included parking at the northwest corner of the site and access to Forest Avenue. The HBC
directed the architect to prepare a preliminary site plan using that design. At the December 9,
1999, publicly noticed meeting, the HBC presented that plan, the public discussed other concepts
including an alternative plan with no parking to the north and no access to Forest Avenue that
Citizens to Keep Hannah Green offered, and the HBC debated and then decided to recommend
the preliminary site plan to the city council. Plaintiffs again expressed their concerns at the
meeting, no official report was made to the city council, and the meetings were not videotaped or
audiotaped.
5
Jim Anderson made repeated efforts to discover the time and location of meetings—seeking
assistance from the city's offices—and eventually received some information from the city
council's secretary and the public library's scheduling calendar.
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On December 14, 1999, at a city council work session that was held in compliance with
the OMA, the HBC presented one site plan that it recommended. At that meeting, many
plaintiffs who attended expressed their concerns regarding parking and traffic in the
neighborhood, and those plaintiffs asked the council to consider a site-plan concept that they had
prepared. The council decided to forward the HBC's recommendation to the zoning board of
appeals for consideration of a requested variance and to the city's planning commission for
review and recommendation.
On February 9, 2000, and on March 8, 2000, the planning commission held public
hearings in compliance with the OMA, and plaintiffs raised the same concerns at both meetings.
The commission recommended the site plan, subject to certain conditions, by a vote of four to
three. During the later meeting, concerns were raised regarding whether the Forest Avenue
access complied with East Lansing Ordinance § 5.147A(4)(d)(iii), which prohibits vehicular
access to minor residential streets if adequate alternative access is available, including access for
emergency vehicles. The planning and zoning administrator explained that the ordinance was
one of several standards that the city must consider; he said the city also had to consider access
to the building, convenience, and traffic distribution.
On March 21, 2000, the city council held its own public hearing, in compliance with the
OMA. After hearing comments from the public, including plaintiffs, and discussing the
recommended plan extensively themselves, the council members voted three to two to adopt the
site plan with some modifications. The modifications included providing access to the northern
parking area from the main drive, with automatic gates to limit that access, and making the
Forest Avenue drive an exit only.
In April 2000, plaintiffs filed suit against defendants, alleging statutory nuisance,
violation of a city zoning ordinance, violation of the OMA, and unlawful delegation of authority,
and requesting the trial court to exercise superintending control. Plaintiffs and defendants moved
for summary disposition, which the trial court generally denied, but granted in favor of
defendants to the extent that it ordered that "the development and use of the Hannah Building
Center is a governmental function and, therefore, the City of East Lansing in the development of
the Hannah Building Center is immune from its Zoning Code, in particular the Plan of
Development Requirements contained in the City of East Lansing Code of Ordinances, Section
5.147A."6
The parties agreed to a stipulation of facts and submitted the claims regarding the OMA
and delegation of authority to the trial court for a decision pursuant to MCR 2.116(A). On April
16, 2001, the trial court held that defendants violated the OMA, but declined to invalidate the
city council's decision or to enjoin implementation of the plan, concluding that "the rights of the
public were not impaired because of the subsequent meetings held in compliance with the OMA
where the [p]laintiffs voiced their concerns." However, the trial court granted plaintiffs
6
Plaintiffs sought leave to appeal, which this Court denied.
-4-
reasonable court costs and attorney fees pursuant to MCL 15.271(4) because defendants violated
the OMA.7
On May 9, 2001, the trial court entered a final order dismissing plaintiffs' claims
regarding delegation of authority, statutory nuisance, violation of the zoning ordinance, and
superintending control. The court reiterated that it found a violation of the OMA but would not
invalidate the city council's decision or enjoin its implementation. The trial court ordered
defendants to pay plaintiffs $27,977 in costs and attorney fees, but denied plaintiffs' request for
deposition costs. On June 13, 2001, the trial court stayed execution of the final order pending
appeal.
II. Analysis
A. Immunity
On appeal, plaintiffs first argue that the city is not immune from its plan-of-development
ordinance, and thus the trial court erred in determining otherwise. More specifically, plaintiffs
argue that the trial court erred in determining that the city is not bound by East Lansing
Ordinance § 5.147A(4)(d)(iii), which prohibits vehicular access to minor residential streets if
adequate access is otherwise available, including adequate access for emergency vehicles. We
disagree. We review de novo issues of law. Kreiner v Fischer, 251 Mich App 513, 515; 651
NW2d 433 (2002).
According to plaintiffs, immunity from zoning ordinances is limited to land-use
regulations and it does not apply to plan-of-development ordinances. Plaintiffs assert that
immunity applies when a municipality is obligated to provide certain essential governmental
services, but encounters physical-boundary constraints in fulfilling its obligations. In other
words, appropriately zoned land does not always exist, and thus municipalities must develop the
necessary land use, such as a fire station, within an incompatible land-use district, such as a
residential area. Plaintiffs claim that immunity from zoning ordinances is restricted to those
provisions controlling land use or to situations where it is impossible for a municipality to
comply with its ordinance. In support of their argument, plaintiffs cite Mainster v West
Bloomfield Twp, 68 Mich App 319; 242 NW2d 570 (1976), which provides in relevant part:
It would appear that a reasonable basis exists for allowing governmental
uses, but not similar private uses, in residentially zoned areas. A governmental
use, be it a police station, fire house, school, or municipal office, serves the
residents of a distinct, limited area, and, in order to be effective, must be located
as close as possible to those persons. Such is not usually the case where a
business enterprise is involved. Further, a governmental use, by practical
necessity, must be located somewhere within the boundaries of the governmental
unit. As such, the governmental unit does not have the freedom to construct its
structures wherever expedient, as does a private business. Nor does the
7
Plaintiffs again sought leave to appeal, which this Court denied.
-5-
governmental unit have any real freedom not to build essential governmental
structures. [Id. at 327.]
Plaintiffs point to this language in Mainster, which references only land use, and deduce
that a city's immunity from its own zoning ordinances is limited to land use. However, plaintiffs
cite no law addressing the separate issue of land regulation, which was not at issue in Mainster,8
nor are we aware of any reported Michigan case that deals with land regulation in the context of
a city's immunity or lack of immunity from its own land-regulation ordinances. We discern no
basis from Mainster upon which to conclude that the intent of that case was to confine the
immunity to land use only. Consequently, we believe this to be an issue of first impression.
Considering this issue on the merits, we hold that the same reasons for granting a city
immunity for land use apply with equal force to land regulation. In other words, we believe that
a reasonable basis exists for allowing a governmental unit to develop the land according to its
needs without binding it to its own land-regulation ordinances. Stated another way, a
governmental unit must have freedom to make its projects work in an environment confined
within its borders. To properly serve its residents, a city need not comply with land regulations
such as height, setback, parking, and road access. We note that plaintiffs have not advanced any
compelling arguments concerning why a different result should follow.
B. Governmental Function
Plaintiffs also argue that the use of the Hannah Building Center is not in furtherance of a
governmental function, but rather a proprietary function, and thus the city is bound by its zoning
ordinances. We disagree.
The Mainster Court, "based on the decision in Taber v Benton Harbor [280 Mich 522;
274 NW 324 (1937)] held that a governmental unit is immune from the effect of its zoning
ordinance if its use of the subject property is in the furtherance of a governmental, rather than a
proprietary, function or if the proposed governmental projects are expressly exempt by the terms
of the zoning ordinance." Keiswetter v Petoskey, 124 Mich App 590, 594; 335 NW2d 94 (1983).
The Mainster Court provided examples of a governmental function, including a police station,
fire house, school, or municipal office. Mainster, supra at 327; see also Keiswetter, supra at 595
(training of fire fighters involves a governmental function). In Taber, supra at 525-526, our
Supreme Court determined, under the circumstances in that case, that a waterworks system is a
proprietary function.
Here, the zoning ordinance contains no provision exempting the city from the terms
therein. Thus, the determining factor is whether the community center constitutes a
governmental function. The evidence provided to the trial court indicates that the planned uses
for the community center were to benefit the general public. The Hannah Building Center was
intended to include, among other things, a senior center, teen center, auditorium, gymnasiums,
8
In Mainster, this Court stated only that immunity existed for "zoning regulations" and did not
distinguish use regulations from other types of zoning regulations. Id. at 324-326.
-6-
cafeteria, swimming pool, locker rooms, cardiovascular/fitness area, dance and aerobic studio,
performing arts rehearsal and recital space, soccer and other sports fields, and an outdoor theater,
as well various meeting rooms and classrooms. Moreover, we note that plaintiffs offered no
evidence contradicting the evidence that the community center was never expected to earn a
profit, but rather to operate at a deficit and be supported in part by the city's general fund, and
thus it clearly is not a proprietary function.9 We hold that a community center developed and
provided by the city for the locality is a governmental function.
C. OMA Issues
We next address the issue advanced in defendants' cross-appeal. Defendants challenge
the trial court's determination that the HBC10 was a public body that met in violation of the
OMA, MCL 15.261 et seq. Defendants argue that the HBC was not a "public body" subject to
the OMA because it was not a governing body empowered to perform a governmental function;
instead, the committee was authorized to perform functions that the city staff would have
performed privately. We review de novo summary-disposition decisions under MCR 2.116(A),
Wills v State Farm Ins Co, 222 Mich App 110, 114; 564 NW2d 488 (1997), and questions of
statutory construction, Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).
The OMA defines "public body" as any state or local legislative or governing body,
including a committee, that is "empowered by state constitution, statute, charter, ordinance,
resolution, or rule to exercise governmental or proprietary authority or perform a governmental
or proprietary function . . . ." MCL 15.262(a). See, generally, Herald Co, supra at 129-133. In
support of their positions, the parties here rely mainly on two Supreme Court cases applying this
definition. Like the trial court, plaintiffs rely on Booth Newspapers, Inc v Univ of Michigan Bd
of Regents, 444 Mich 211; 507 NW2d 422 (1993), in asserting that the HBC is a public body,
whereas defendants rely on the more recent Herald Co in arguing that the HBC is not a public
body.
In Booth Newspapers, the University of Michigan Board of Regents appointed itself as
the presidential selection committee and undertook, through delegation of authority, to choose a
new university president by compiling a list of candidates and reducing the list from 250 to one.
Id. at 215-216. In doing so, "[t]he board effectively sought to delegate its authority as a body
subject to the OMA to various bodies of its own creation that it believed were not subject to the
OMA, for the express purpose of avoiding the requirements of the OMA." Herald Co, supra at
134. Our Supreme Court noted that the selection of a president was one of the board's most
important exercises of governmental authority and held that a subcommittee empowered by the
9
The fact that fees and charges will exist with respect to some uses does not in itself cause the
community center to be a proprietary function. In fact, defendants provided evidence that
although fees and rents would be charged, the Hannah Building Center is expected to require an
additional infusion of over $300,000 a year to be supplied by the city.
10
For purposes of analysis, we do not distinguish between the HBC and its steering committee
because they exist to accomplish the same purpose and are functionally equivalent.
-7-
board to exercise that authority was a public body under MCL 15.262(a). Booth Newspapers,
supra at 224-226.
More recently, in Herald Co, supra at 114, 132-136, the Supreme Court addressed the
OMA in the context of the municipal hiring process and held that a committee formed by a city
manager to evaluate and recommend a fire chief was not a public body under MCL 15.262(a).
The Court emphasized that the committee was created by the city manager, who was not a
legislative or governing body and who was authorized by the charter to recommend a fire chief
to the city commission. Id. at 132 n 15, 135-136. The Court concluded that, as the creation of
the city manager, the committee was not "'empowered by state constitution, statute, charter,
ordinance, resolution, or rule'" and was therefore not a public body under MCL 15.262(a).
Herald Co, supra at 135, quoting MCL 15.262(a).
In the present case, there are aspects of the HBC that are similar to factors that the
Supreme Court found significant in Booth and in Herald Co, which makes the determination of
whether the HBC was a public body a close call. Defendants argue that the holding in Herald
Co applies here because the only duties that the HBC performed were duties of the city manager
and staff that would otherwise have occurred in private because under the city's charter, § 7.3(b),
the city manager's duties include supervising construction and repair of all city-owned property.
However, in a November 6, 1998, memorandum to the city manager, the planning director said
the committee would advise the council. Under East Lansing Ordinance § 5.147A(6), the city
council, not the city manager or staff, had the authority to approve, modify, or reject site plans,
and the council exercised that authority itself; it did not delegate it to the HBC. Rather, the HBC
was assigned the duties a site-plan applicant would perform: working with an architect to design
a plan and presenting that plan to the city council. Moreover, the committee in this case differs
significantly from that in Herald Co, supra at 132-136, because here the city council, rather than
the city manager, appointed the committee. In Herald Co, supra at 135-136, the Supreme Court
did not specifically state that the committee was free from OMA requirements because it
performed duties usually performed by or assigned to the city manager. Rather, the Court
focused on the source of the committee's power, which was its formation by the city manager.
Id. The Court noted that "the committee, as the creation of the city manager, did not derive its
power from 'state constitution, statute, charter, ordinance, resolution, or rule . . . .'" Id. at 136 n
19, quoting MCL 15.262(a).
We conclude that the situation here is more akin to Booth, because the city council, not
the city manager, by resolution created the HBC and appointed HBC members. The city council
effectively authorized the HBC to perform a governmental function. Further, the HBC engaged
in more than just plan development and architect and construction-manager selection. In fact, it
held public meetings and solicited public input, which is more akin to a governmental body than
staff. Although a close call, we agree with the trial court that the HBC was a public body subject
to the OMA, MCL 15.261 et seq., and therefore we find no error.
Plaintiffs also argue that the evidence establishes that the continued and repeated
violations of the OMA impaired the rights of plaintiffs, as well as the public, requiring the
invalidation of the approval of the plan of development and the enjoining of its implementation,
and thus the trial court erred in failing to do so. We review for an abuse of discretion a trial
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court's decisions whether to invalidate a decision made in violation of the OMA and whether to
grant or deny injunctive relief. Nicholas v Meridian Charter Twp Bd, 239 Mich App 525, 533,
534; 609 NW2d 574 (2000).
A court has discretion to invalidate a decision made in violation of the OMA if it finds
that violation impaired the rights of the public under the OMA. MCL 15.270(2); In re Jude, 228
Mich App 667, 672; 578 NW2d 704 (1998). Further, the plaintiff cannot simply allege an
impairment of the public's rights, Nicholas, supra at 533, but must instead make specific factual
allegations demonstrating that the public's rights were impaired, Knauff v Oscoda Co Drain
Comm'r, 240 Mich App 485, 495; 618 NW2d 1 (2000); In re Jude, supra.
Here, although the HBC failed to provide notice of the vast majority of its meetings and
although the steering committee failed to provide notice of all its meetings, the public was not
completely excluded from the process. The public was invited to speak at three HBC meetings,
two planning-commission hearings, a work-session meeting of the city council, and the March
21, 2000, public hearing held by the city council. Plaintiffs and other members of the public
expressed their concerns regarding the site plan on all those occasions, and each decision-making
body heard their concerns. At the March 21, 2000, city-council meeting, which continued into
the early morning hours, members of the public, including many of the plaintiffs, and council
members discussed the proposed plan, including parking issues, at length before the council
approved the plan. Under these circumstances, plaintiffs had a reasonable opportunity to learn
about the community-center site plans and to voice their concerns and opposition. Therefore, we
cannot say that the trial court abused its discretion in refusing to invalidate the plan of
development and in failing to grant injunctive relief.
Additionally, plaintiffs argue that pursuant to the OMA, they are entitled to an award of
the costs that they incurred for deposition transcripts.11 We disagree. We review de novo
questions of statutory interpretation. Herald Co, supra at 117.
Although MCL 15.271(4) provides that if relief is obtained in an action against a public
body for not complying with the OMA, that relief shall include "court costs and actual attorney
fees," we conclude, as did the trial court, that the deposition costs in the instant case are not
included in that relief. Pursuant to MCL 600.2401, "[w]hen costs are allowed in any action or
proceeding in . . . the circuit court . . . the items and amount thereof shall be governed by this
chapter except as otherwise provided in this act" (emphasis added). MCL 600.2549 provides in
relevant part that costs may not be awarded for depositions not filed with the clerk. Rickwalt v
Richfield Lakes Corp, 246 Mich App 450, 465; 633 NW2d 418 (2001); Elia v Hazen, 242 Mich
App 374, 380-382; 619 NW2d 1 (2000). Because the depositions in question were not filed with
the clerk, plaintiffs were not entitled to deposition costs.
11
We note that the trial court properly granted plaintiffs attorney fees and other costs. Where a
trial court declares that the defendants violated the OMA, but finds it unnecessary to grant
injunctive relief, the plaintiffs are entitled to actual attorney fees and costs. Nicholas, supra at
535.
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D. Delegation of Authority
Finally, we address plaintiffs' challenge to the trial court's dismissal of their claim of
unlawful delegation of authority. Because the parties submitted this claim to the trial court on
stipulated facts, MCR 2.116(A), our review is de novo. Wills, supra at 114.
Where the delegating entity retains the ultimate decision-making authority, the delegation
is lawful. Federated Publications, Inc v Michigan State Univ Bd of Trustees, 221 Mich App 103,
120; 561 NW2d 433 (1997), rev'd on other grounds 460 Mich 75; 594 NW2d 491 (1999); see
also Attorney Gen v Guy, 334 Mich 694, 705; 55 NW2d 210 (1952) (a city council did not
unlawfully delegate its authority when it sought a recommendation, but retained the authority to
decide whether to act on the recommendation); cf. Herald, supra at 132 & n 15.
Here, plaintiffs do not dispute that the city council retained the final decision-making
authority, but continue to challenge the HBC's conduct, including its acts and omissions in
arriving at its recommendation. Because the city council did not delegate the final decisionmaking authority, the delegation was proper.12 Federated Publications, supra; Attorney Gen,
supra.
Affirmed.
/s/ Janet T. Neff
/s/ Joel P. Hoekstra
/s/ Peter D. O'Connell
12
To the extent that plaintiffs argue that the trial court improperly concluded that it had no
authority to invalidate and enjoin the city's unlawful delegation of authority, we find it
unnecessary to reach that issue because there was no improper delegation of authority.
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