PROPVEST LTD V CHARTER TWP OF ORION
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STATE OF MICHIGAN
COURT OF APPEALS
PROPVEST LTD., LEEWARD SCHOOLS, INC.,
and LOUIS J. THEUNICK,
UNPUBLISHED
April 29, 1997
Plaintiffs-Appellants,
v
No. 190380
Oakland Circuit Court
LC No. 93-467088
CHARTER TOWNSHIP OF ORION,
Defendant-Appellee.
Before: Sawyer, P.J., and Murphy and Cavanagh, JJ.
PER CURIAM.
Plaintiffs appeal the trial court’s order granting summary disposition and dismissing their claims
pursuant to MCR 2.116(C)(8) and (10). We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
Plaintiff Louis J. Theunick owns a parcel of land located in defendant township that is zoned SE (“suburban estates”), requiring a minimum lot size of 1.5 acres. Plaintiff Leeward Schools, Inc. is the
owner of a parcel of land adjacent to that owned by Theunick. Leeward’s property is zoned REC-2
(“recreation”), which is intended to promote the use of the land for recreational uses over residential
development. Together, the two parcels of land constitute a 104-acre lot wholly located in defendant
township. This lot is adjacent to Bald Mountain State Park. Plaintiff Propvest, LTD. is a developer of
manufactured housing communities that holds an option to purchase the 104-acre lot. The option is
contingent upon defendant township rezoning the property to permit development of a mobile home
park on the subject property.
Propvest submitted a rezoning application to defendant township, requesting the property be
rezoned from SE and REC-2 to MHP (“mobile home park”). After a public hearing, the application
was denied by defendant township. The espoused reasons for the denial were as follows:
1.
It would require the installation of utilities that are not planned.
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2.
It does not meet the requirements of the Township Zoning Ordinance in regards
to direct access to a major thoroughfare. The carrying capacity of Scripps
Road, which is a gravel road, would not be adequate.
3.
It would generate a phenomenal amount of additional traffic.
4.
It does not conform with the Master Plan.
5.
It would have a negative effect on the natural features of the Township and Bald
Mountain State Park.
6.
The petitioner has not shown that it cannot be used as presently zoned.
Plaintiffs then filed the present action, claiming that defendant’s denial of Propvest’s rezoning
request constituted exclusionary zoning, was arbitrary and capricious, lacked any substantial relationship
to the public health, safety, morals or general welfare, did not advance a reasonable governmental
interest and amounted to taking of land without just compensation.
The trial court granted defendant’s motion for summary disposition pursuant to MCR
2.116(C)(8) and (10), ruling that because there was not an absolute prohibition of the asserted land use,
plaintiffs’ exclusionary zoning claim must fail. The trial court further dismissed plaintiffs’ substantive due
process claims, holding that the justification put forth by defendant furthered legitimate governmental
interests. Finally, because plaintiffs had not demonstrated that the land could not be otherwise
developed as zoned, the trial court dismissed plaintiffs’ takings claim. Plaintiffs appeal the court’s ruling,
claiming summary disposition was inappropriate.
On appeal, a trial court’s grant or denial of summary disposition will be reviewed de novo.
Industrial Machinery & Equipment Co, Inc v Lapeer Co Bank & Trust, 213 Mich App 676, 678;
540 NW2d 781 (1995). The party moving for summary disposition pursuant to MCR 2.116(C)(10) is
entitled to judgment as a matter of law only if there is no genuine issue of any material fact. Bourne v
Farmers Ins Exchange, 449 Mich 193, 196-197; 534 NW2d 491 (1995). When reviewing a motion
for summary disposition, this Court may consider all the pleadings, affidavits and admissions, granting
the benefit of the doubt to the non-moving party. Id.
Plaintiffs first argue that the trial court erred in dismissing their exclusionary zoning claim pursuant
to MCR 2.116(C)(10). We disagree.
The Michigan Legislature addressed the problem of exclusionary zoning with the enactment of
MCL 125.297a; MSA 5.2963(27a), which provides:
A zoning ordinance or zoning decision shall not have the effect of totally
prohibiting the establishment of a land use within a township in the presence of a
demonstrated need for that land use within either the township or surrounding area
within the state, unless there is no location within the township where the use may be
appropriately located, or the use is unlawful.
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Thus, a zoning ordinance may not totally exclude a lawful land use where (1) there is a demonstrated
need for the land use in the township or surrounding area, and (2) the use is appropriate for the location.
English v Augusta Twp, 204 Mich App 33, 37; 514 NW2d 172 (1994); Eveline Twp v H & D
Trucking Co, 181 Mich App 25, 32; 448 NW2d 727 (1989). A zoning ordinance that totally
excludes an otherwise legitimate use carries with it a strong taint of unlawful discrimination and a denial
of equal protection of the law with regard to the excluded use. English, supra. The total-prohibition
requirement of this statute is not satisfied if the use sought by the landowner otherwise occurs within
township boundaries or within close geographical proximity. Guy v Brandon Twp, 181 Mich App
775, 785-786; 450 NW2d 279 (1989).
Upon review of the record, we find that defendant township’s ordinance does permit the
construction of mobile home parks in any residential district, provided that it adhere to lot size
restrictions that pertain to the particular residential zone. Additionally, it appears that there is a mobile
home park currently located within defendant township. Furthermore, there is substantial mobile
housing in the general proximity of defendant township. Accordingly, we cannot say that defendant
township’s ordinance totally prohibits mobile housing. Guy, supra at 785-786. Therefore, the trial
court did not err in dismissing plaintiffs’ claim.
Plaintiffs next allege that genuine issues of material fact exist as to whether defendant township’s
actions were arbitrary and capricious, and thus violated plaintiffs’ constitutional guarantee of substantive
due process. We agree.
Plaintiffs challenge both the constitutionality of defendant’s zoning ordinance as well as
defendant’s denial of their rezoning request under the auspices of a substantive due process violation.
Deliberate and arbitrary abuse of government power violates an individual’s right to substantive due
process. Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 96; 445 NW2d 61 (J Brickley,
dissenting). In order for a claim based upon substantive due process to proceed, the government action
that is attacked must be, “an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a
legitimate difference of opinion concerning its reasonableness.” Brae Burn v Bloomfield Hills, 350
Mich 425, 432; 86 NW2d 166 (1957); see also Bevan v Brandon Twp, 438 Mich 385, 391, n 6;
475 NW2d 37, amended 439 Mich 1202 (1991). Furthermore, the burden remains with the
challenging party to present evidence that the contested actions were unrelated to land use planning.
Cryderman v City of Birmingham, 171 Mich App 15, 22-23; 429 NW2d 625 (1988). In applying
these principles, four rules are utilized:
1.
Zoning ordinances are clothed in the presumption of validity.
2.
In order to sustain a constitutional attack on a zoning ordinance, the burden of
proof is on the property owner to show that it has no real or substantial relation to
public health, morals, safety, or general welfare.
3.
If the claim is based upon denial of substantive due process, it is the burden of
the attacking party to prove affirmatively that the ordinance is an arbitrary and
unreasonable restriction upon the owner’s use of his property.
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4.
This Court, however, is i clined to give considerable weight to the findings of
n
the trial judge in equity cases. [Hecht v Twp of Niles, 173 Mich App 453, 458-459;
434 NW2d 156 (1988).]
Plaintiffs first challenge the constitutionality of the defendant township’s ordinance. However,
the only justification asserted for finding defendant township’s ordinance unconstitutional is that it
maintains an “unfounded exclusion” of manufactured home communities. Because we find that
defendant’s ordinance does not impermissibly exclude said land use, we find that plaintiffs have failed to
demonstrate the invalidity of defendant’s ordinance based upon constitutional or substantive due
process grounds.
Plaintiffs also claim that the six reasons put forth by defendant township for denying Propvest’s
rezoning request were arbitrary and capricious, and violated their constitutional right to substantive due
process. Irrational governmental action may violate due process guarantees. Bevan, supra at 391. An
individual’s rights to substantive due p
rocess have been violated when government officials, in their
capacity as officers of the municipality, act for partisan, political, or personal reasons unrelated to the
merits of the issue or request presented. Electro-Tech, supra at 96.
Plaintiffs have presented extensive expert testimony refuting the six reasons put forth by
defendant township. Likewise, defendant presented extensive rebuttal evidence supporting their
justifications for denying the rezoning application. The trial court found that the reasons stated by
defendant were legitimate governmental interests. However, determination of whether the reasons
stated by defendant are arbitrary or capricious requires a factual determination, weighing the evidence
as presented. See Scots Ventures, Inc v Hayes Twp, 212 Mich App 530, 533-534; 537 NW2d 610
(1995). Thus, because genuine issues of material fact exist as to plaintiffs’ substantive due process
claim, the trial court’s grant of summary disposition was inappropriate.
Plaintiffs’ final argument is that the trial court erred in granting summary disposition as to their
takings claim. We agree.
Both the Fifth Amendment of the United States Constitution and article 10 section 2 of the
Michigan Constitution prohibit governmental taking of private property without just compensation.
Bevan, supra at 389-390. A taking can occur where a governmental entity exercises its police power
through regulation that restricts the use of property. Id. However, the Supreme Court has declared that
municipal and use regulations do not constitute a taking if they substantially advance legitimate state
l
interests and do not deny an owner economically viable use of his land. Nollan v California Coastal
Comm, 483 US 825, 834-835, 107 S Ct 3141; 97 L Ed 2d 677 (1987).1
Plaintiffs argue that a genuine issue of material facts exists as to whether the six reasons denying
the rezoning request substantially advance a legitimate governmental interest. In order to substantially
advance a legitimate government interest, these reasons must demonstrate a close nexus between the
denial of the rezoning request and the justification for said denial. Nollan, supra at 837. While the six
reasons presented by defendant township facially appear to present legitimate governmental concerns,
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we find that plaintiffs have presented sufficient expert testimony refuting the propriety of these reasons as
to present a genuine issue of material fact.
In addition to being substantially related to a legitimate government interest, the government
action must also deny an owner all economically beneficial use of his land. Lucas v South Carolina
Coastal Council, 505 US 1003, 1029; 112 S Ct 2886; 120 L Ed 2d 798 (1992). Plaintiffs presented
expert testimony demonstrating that the land cannot be economically developed as presently zoned. In
rebuttal, defendant township claims that the land at issue could be developed as a Planned Urban
Development. We find that this conflicting testimony constitutes a genuine issue of material fact.
Consequently, the trial court’s grant of summary disposition as to plaintiffs’ takings claim was
inappropriate.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not retain
jurisdiction. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.
/s/ David H. Sawyer
/s/ William B. Murphy
/s/ Mark J. Cavanagh
1
The Supreme Court has made clear that the property at issue must be made “valueless” as a result of
the government action. In Lucas, supra, the Supreme Court stated, “It is true that in at least some
cases the landowner with 95% loss will get nothing, while the landowner with total loss will recover in
full. . . . Takings law is full of these “all-or-nothing” situations.” Lucas, supra at 1019 n 8.
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