STATE OF MICHIGAN
COURT OF APPEALS
CHARLES and CATHERINE BRAUN,
EDWARD and MURIEL PARDON, and COLT
May 20, 2004
Washtenaw Circuit Court
LC No. 02-000119-CZ
ANN ARBOR CHARTER TOWNSHIP,
Official Reported Version
Before: Murray, P.J., and Neff and Donofrio, JJ.
Plaintiffs appeal as of right the trial court's grant of summary disposition in favor of
defendant in this zoning case. Plaintiffs argue that the trial court erred when it dismissed the
action because it was not ripe for adjudication. Because we are not satisfied that plaintiffs have
established that a final decision was made regarding the permitted uses of the property, we find
that plaintiffs' four claims are not ripe for adjudication. We affirm.
I. Substantive Facts and Procedural History
Plaintiffs petitioned defendant to rezone approximately 363 acres of land from its current
designation of A-1 agricultural and R-2 single-family suburban to R-3 single-family urban and
R-6 mobile home park residential. Plaintiffs submitted a petition for rezoning together with
supporting documentation. Plaintiffs attended two public hearings where the township planning
commission considered the application.
The township planning commission later adopted a resolution to recommend denial of the
rezoning request. Thereafter, plaintiffs submitted the application to the Washtenaw County
Metropolitan Planning Commission (WCMPC) for its consideration. The WCMPC also
recommended denial of plaintiffs' petition to rezone. Following the recommendations, defendant
township's board of trustees adopted a resolution denying plaintiffs' petition for rezoning at a
regular meeting. Plaintiffs did not file a petition for review of the board's resolution or seek a
variance before the zoning board of appeals.1 Plaintiffs filed a complaint in circuit court
challenging the constitutionality of the zoning restrictions. Plaintiffs' complaint included four
separate counts: (1) violation of substantive due process, (2) exclusionary zoning—substantive
due process, (3) equal protection violation, and (4) inverse condemnation.
Applying MacDonald, Sommer & Frates v Yolo Co, 477 US 340; 106 S Ct 2561; 91 L Ed
2d 285 (1986), the trial court found that plaintiffs had not met the requirement of finality because
all permissible uses of the land were not known to a reasonable certainty and potential uses had
not been fully explored by the parties, and granted summary disposition in favor of defendant.
The trial court specifically found that "plaintiff [sic] has failed to demonstrate that the regulation
as applied bars all viable development on the property" and that "in the absence of an agency
decision on the permissible uses of the land as zoned, it is impossible to tell whether the land as
zoned has any reasonable beneficial use, or whether plaintiffs' expectation interests have been
destroyed. The mere fact that the regulation at issue deprives plaintiff of its most profitable use
of the land does not render plaintiffs' constitutional claims ripe for review." The trial court then
granted defendant's motion for summary disposition on all counts.
II. Standard of Review
The trial court granted defendants' motion for summary disposition pursuant to MCR
2.116(C)(4). Generally, we review de novo a trial court's grant or denial of a motion for
summary disposition. Sun Communities v Leroy Twp, 241 Mich App 665, 668; 617 NW2d 42
(2000). A summary disposition motion pursuant to MCR 2.116(C)(4) tests the trial court's
subject-matter jurisdiction. "Summary disposition for lack of jurisdiction under MCR
2.116(C)(4) is proper when a plaintiff has failed to exhaust its administrative remedies." Citizens
for Common Sense in Gov't v Attorney General, 243 Mich App 43, 50; 620 NW2d 546 (2000).
On appeal, plaintiffs continue to vehemently assert that there was no uncertainty
regarding the permitted uses of the property as zoned and that they had exhausted all available
administrative remedies. Thus, plaintiffs argue that the trial court erred when it dismissed this
zoning action for lack of ripeness and did not reach the merits of their constitutional challenges
to the existing zoning classifications of the property at issue. After reviewing the record and the
applicable law, we do not find that the trial court erred when it granted summary disposition in
favor of defendant pursuant to MCR 2.116(C)(4).
The Supreme Court has stated that "[u]ntil a property owner has 'obtained a final decision
regarding the application of the zoning ordinance and subdivision regulations to its property,' 'it
Plaintiffs sent correspondence to defendant's zoning administrator inquiring about the zoning
board of appeals. The zoning administrator referred the correspondence to a law firm
representing defendant. The firm responded with the opinion that the zoning board of appeals
lacked jurisdiction. Plaintiffs did not petition the zoning board of appeals.
is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing]
expectation interests ha[ve] been destroyed.'" MacDonald, supra at 349, citing Williamson
Planning Comm v Hamilton Bank, 473 US 172, 186, 190, n 11; 105 S Ct 3108; 87 L Ed 2d 126
(1985). Here, it is plaintiffs' position that because the township's board adopted a resolution
denying plaintiffs' petition for rezoning, and the township's zoning board of appeals did not have
jurisdiction to change a zoning district classification, plaintiffs properly filed a complaint in
circuit court inasmuch as they had exhausted all possible administrative remedies. Conversely,
defendant asserts that other alternative uses for the property may have been available and
summary disposition therefore was properly granted.
The Supreme Court has also observed in the same context that its "cases uniformly reflect
an insistence on knowing the nature and extent of permitted development before adjudicating the
constitutionality of the regulations that purport to limit it." MacDonald, supra at 351. More
recently, in Palazzolo v Rhode Island, 533 US 606, 620-621; 121 S Ct 2448; 150 L Ed 2d 592
(2001), the Supreme Court spoke again on the issue, stating:
Under our ripeness rules a takings claim based on a law or regulation
which is alleged to go too far in burdening property depends upon the landowner's
first having followed reasonable and necessary steps to allow regulatory agencies
to exercise their full discretion in considering development plans for the property,
including the opportunity to grant any variances or waivers allowed by law. As a
general rule, until these ordinary processes have been followed the extent of the
restriction on property is not known and a regulatory taking has not yet been
Both Palazzolo and MacDonald counsel that a determination of alternative uses of property as
zoned is a condition precedent to a valid takings claim. In other words, the landowner must
show that he sought alternative uses of the property as zoned and was denied, thus leaving the
property owner with land having no economically productive or reasonably beneficial use.
Carefully applying Palazzolo and MacDonald to the case at bar, we find that the nature
and extent of all permissible uses of the land at issue as currently zoned are not known to a
reasonable certainty. Plaintiffs did not petition the zoning board of appeals to seek review of the
decision by the township's board or seek a variance to the current zoning scheme. In this
context, the process of seeking a variance functions as a test illustrating the extent of the
economic use of the property as it is currently zoned. Whether the variance is allowed or
disallowed by the zoning board of appeals allows a determination regarding the scope of the
utility of the property as presently zoned. Without an agency decision on the permissible uses of
the land as zoned, there is no way to discern whether the land as zoned has any reasonable
beneficial use, or whether plaintiffs' expectation interests have been destroyed. Palazzolo, supra
at 620-621; MacDonald, supra at 349.
For these reasons, we are not satisfied that plaintiffs established that a final decision was
made regarding the permitted uses of the property in accordance with Palazzolo and MacDonald.
We therefore find that summary disposition pursuant to MCR 2.116(C)(4) was proper regarding
plaintiffs' inverse condemnation claim because the mere fact that the regulation at issue deprives
plaintiffs of their presumed ideal use of the property does not render plaintiffs' takings claim ripe
for review. MacDonald, supra at 353 n 9.
We stress that resorting to the zoning board of appeals should not be an unending
circulation of petitions, constituting numerous proposals and requests before finality is ultimately
established. Rather, the minimum variance that is necessary to place the land in productive
economic use within the zoning classification, if disallowed by the zoning board of appeals,
meets the finality requirement and allows the maintenance of a takings cause of action, or any
other alleged deprivation. Similarly, if the zoning board of appeals dismisses the petition for
want of jurisdiction, then finality is also achieved.
The Supreme Court decision in MacDonald dealt with claims arising under the takings
clause of the Fifth Amendment. Unlike the case at bar, MacDonald did not involve any other
constitutional claims. In Paragon Properties Co v Novi, 452 Mich 568, 576-577; 550 NW2d 772
(1996), our Supreme Court held that a judicial challenge to the constitutionality of a zoning
ordinance, as applied to a particular parcel of land, is not ripe for judicial review until the
plaintiff has obtained a final, nonjudicial determination regarding the permitted use of the land.
The Court stated specifically that, "[a] challenge to the validity of a zoning ordinance 'as
applied,' whether analyzed under 42 USC 1983 as a denial of equal protection, as a deprivation
of due process under the Fourteenth Amendment, or as a taking under the Just Compensation
Clause of the Fifth Amendment, is subject to the rule of finality." Id. at 576. The purpose of this
requirement is to ensure that the plaintiff has suffered an "actual, concrete injury." Id. at 577.
As we stated above, we are not satisfied plaintiffs established that a final decision was
made regarding the permitted uses of the property. For this reason, in accordance with Paragon,
we find that plaintiffs' remaining constitutional claims are likewise not ripe for judicial review.
Paragon, supra at 576-577. Summary disposition of plaintiffs' remaining constitutional claims
pursuant to MCR 2.116(C)(4) was appropriate.
Because we are not satisfied plaintiffs established that a final decision was made
regarding the permitted uses of the property, we find plaintiffs' four claims not ripe for
/s/ Pat M. Donofrio
/s/ Janet T. Neff
/s/ Christopher M. Murray