MICHAEL H KANAKRY V CITY OF ST CLAIR SHORES
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL H. KANAKRY, MARY ANN
KANAKRY and MCDONALD’S
CORPORATION,
UNPUBLISHED
May 11, 2001
Plaintiffs-Appellees,
v
CITY OF ST. CLAIR SHORES, CITY OF ST.
CLAIR SHORES CITY COUNCIL and CITY OF
ST. CLAIR SHORES PLANNING
COMMISSION,
No. 216010
Macomb Circuit Court
LC No. 97-001494-CZ
Defendants-Appellants.
Before: Hood, P.J., and Doctoroff and K.F. Kelly
PER CURIAM.
Defendants appeal as of right from an order granting plaintiffs’ request for a writ of
mandamus compelling defendants to approve plaintiffs’ site plan for construction of a
McDonald’s restaurant. We reverse.
On appeal, defendants argue that the trial court abused its discretion by granting
plaintiffs’ writ of mandamus because defendants’ denial of plaintiffs’ second site plan was
supported by competent, material, and substantial evidence on the record. We agree. A trial
court’s decision to grant a writ of mandamus will not be disturbed absent an abuse of discretion.
In re MCI Telecommunications Complaint, 460 Mich 396, 443; 596 NW2d 164 (1999).
First we note that MCR 3.302(C) provides that “[a] superintending control order replaces
. . . the writ of mandamus when directed to a lower court or tribunal.” Accordingly, a municipal
zoning authority is subject to the circuit court’s superintending control, not its power of
mandamus. Choe v Flint Charter Twp, 240 Mich App 662, 666; 615 NW2d 739 (2000).
Therefore, the trial court erred by issuing a writ of mandamus requiring defendants to approve
plaintiffs’ site plan. See Id. at 666-667. However, to reverse at this level solely because the
court issued a writ of mandamus instead of an order for superintending control “[w]ould be to
elevate form over substance.” Id. at 667. We decline to do so. Notwithstanding, we hold that
reversal is warranted because mandamus was improper on other grounds.
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In Lee v Macomb Co Bd of Comm’rs, 235 Mich App 323, 331; 597 NW2d 545 (1999),
the court defined mandamus as “[a] writ issued by a court of superior jurisdiction to compel a
public body or public officer to perform a clear legal duty.” Indeed, mandamus is an
extraordinary remedy and properly lies where the plaintiff is otherwise without adequate legal
recourse and where the following obtain: (1) the plaintiff has a clear legal right to performance
of the specific duty sought to be compelled; (2) the defendant has a clear legal duty to perform
such act; and (3) the act must be ministerial, “[w]here the law prescribes and defines the duty to
be performed with such precision and certainty as to leave nothing to the exercise of discretion or
judgment.” Keaton v Village of Beverly Hills, 202 Mich App 681, 683; 509 NW2d 544
(1993)(citations omitted). Moreover mandamus:
[w]ill not lie for the purpose of reviewing, revising, or controlling the
exercise of discretion reposed in administrative bodies . . .[t]he writ will lie to
require a body or an office charged with a duty to take action in the matter,
notwithstanding the fact that the execution of that duty may involve some measure
of discretion. . . . Stated otherwise, mandamus will lie to compel the exercise of
discretion, but not to compel its exercise in a particular manner. Lee v Macomb
County Bd of Com’rs, 235 Mich App 323, 332-333; 597 NW2d 545
(1999)(quoting Teasel v Dep’t of Mental Health, 419 Mich 390, 409-411; 355
NW2d 75 (1984)[Emphasis added.]
Thus, a writ of mandamus may issue to compel the public body to make a discretionary
decision but cannot issue to direct the public body to make a specific discretionary decision. See
Dowerk v Charter Tp of Oxford, 233 Mich App 62, 74-75; 592 NW2d 724 (1998) (holding that
granting or denying a variance is a discretionary action and defendant was thus not entitled to the
requested relief where defendant sought a writ of mandamus to compel the township to grant
plaintiff’s request for a variance).
Respecting the aforementioned principles, the first inquiry is whether defendants have
discretionary authority when approving site plans and issuing building permits pursuant to
defendant city’s zoning ordinance. Hessee Realty v Ann Arbor, 61 Mich App 319, 323; 232
NW2d 695 (1975). Section 15.509(5) [35.82(5)] of defendant city’s zoning ordinance states:
STANDARDS FOR SITE PLAN APPROVAL.
The Planning
Commission shall recommend approval and the City Council shall approve a site
plan only if the site plan meets all applicable standards set forth in the
Ordinance, and only upon finding that the site design will not, on the basis of
facts known at the time of submission of the site plan, have an unduly harmful
impact on surrounding property owners or the City as a whole. The Planning
Commission or City Council may, as a basis for making such findings, require
whatever site plan modifications it deems necessary, including the provision of
additional site design amenities not specifically required by the Ordinance. In
addition the Planning Commission and City Council shall use [enumerated
criteria] in evaluating a site plan . . . .[Emphasis added].
According to the applicable zoning ordinance, defendants must approve a site plan if the
plan, (1) meets ordinance standards and (2) does not pose an unduly harmful impact on
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surrounding property owners or the city. Although the first prong is necessarily a ministerial act,
the second prong of the standard involves discretion on the part of the planning commission and
city council. Even if a site plan meets all applicable standards set forth in the ordinance, the
planning commission and city council still has the discretion to reject a site plan if they
determine that it will have an unduly harmful impact on surrounding property owners or the city
as a whole. This inquiry involves a subjective review by council members and interjects some
measure of discretion into the decision making process. See Dowerk, supra at 75 (granting or
denying a variance is a discretionary act); South Haven, supra at 52 (granting or denying consent
by the township for permission to extend water pipeline is discretionary); Hessee Realty, supra,
at 323 (approval of site plans and granting of building permits is discretionary).
In the case at bar, we find that mandamus was inappropriate because defendants’ decision
to deny plaintiffs’ site plan was a decision involving discretionary authority vested in an
administrative agency. See Tuscola Co Abstract Co supra at 512. Because defendants’ decision
to deny approval of plaintiffs’ site plan was partially an exercise of discretionary authority and
not a purely ministerial act, the trial court improperly granted the extraordinary writ. See
Dowerk, at 75.
However, even though defendants’ decision to deny plaintiffs’ site plan was an exercise
of its discretionary authority, defendant’s decision, is nevertheless subject to review for an abuse
of discretion. Choe supra at 665. If defendant’s decision is supported by competent, material,
and substantial evidence on the whole record, that decision will survive judicial review and must
be upheld Dowerk supra at 72; see also, MCL 125.585(11)(c); MSA 5.2935(11)(c).
“‘Substantial evidence’ is evidence that a reasonable person would accept as sufficient to support
a conclusion.” Id.
After a thorough review of the whole record, we find that defendant’s decision to deny
plaintiffs’ second site plan was indeed supported by competent, material, and substantial
evidence. Because the trial court ordered the writ of mandamus compelling defendants to
approve the October 10, 1996, site plan, this court will review that portion of the record
pertaining to that specific plan.1
In the instant case, the record is replete with competent and substantial evidence to
support defendants’ decision to deny plaintiffs’ second site plan. Pursuant to trial court’s order
of August 15, 1997, defendant planning commission reviewed plaintiffs’ revised or second site
plan on August 26, 1997. During that meeting, defendants raised a number of concerns and
objections to plaintiffs’ site plan leading to defendants’ ultimate decision to reject the plan.
First, pursuant to Zoning Ordinance section 35.73(12)(3)(h), fourteen stacking spaces
were required for the plaintiffs to have two drive-thru windows. Plaintiffs’ site plan only
provided for nine stacking spaces. This non-conformance alone was sufficient for defendants to
1
The trial court stated that the October 10, 1996, site plan was improperly denied, and as a result,
subsequent site plans need not have been considered. Thus, defendants’ objections to any of
those site plans were irrelevant.
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deny the site plan because it failed to meet the standards required by the applicable ordinance.
Furthermore, defendants found that the deficient number of stacking spaces would create a
hazardous condition by causing the extra cars to back-up onto Little Mack Avenue. Additionally,
defendants studied and determined that the lack of a sufficient number of stacking spaces would
have a negative effect on the entry of cars into the site, pose a risk to pedestrians, compel patrons
to pass through the line of stacked cars to gain access to the restaurant, pose a problem for those
attempting to pull their cars in and out of parking spaces, make it virtually impossible for the
handicapped patrons to access the handicapped parking spaces, and finally make it difficult, at
best, for delivery trucks to access the loading zone. Additionally, defendants also raised concerns
about the size of the loading zone itself. It appeared that a forty-foot delivery truck would be
unable to make the turn necessary to pull into the loading zone. Further, to even maneuver into
the loading zone, the delivery trucks would have to not only cut through the stacking lane, but
also, either pull out into one-way traffic, or back out onto Little Mack Ave thereby creating a
significant traffic hazard. Finally, defendants voiced concern regarding the small size of the
property for the intense use requested. It appeared that the space deficiencies affected delivery
trucks, their drivers, and pedestrians in the area.2 And the site plan exhibited conflicting traffic
patterns. Thus, defendants determined that the cumulative affect of the deficiencies inherent in
plaintiffs’ proposed site plan would cause an unduly harmful impact on the city as a whole.
The record reveals that defendants’ concerns, objections, and ultimate decision to deny
plaintiffs’ second site plan were based on facts and information provided by experts in the form
of a traffic study relative to the site plan, a report from defendant city’s planning consultant3, and
a traffic report compiled by the Traffic Improvement Association for defendant city. A review of
the entire record reveals that the decision to deny approval was not an arbitrary or capricious
decision, but rather, was an informed decision based on competent, material, and substantial
evidence on the whole record. Accordingly, the trial court improvidently granted plaintiffs’
request for a writ of mandamus.
Moreover, a writ of mandamus properly issues where the party seeking the extraordinary
relief establishes a “[c]lear legal right to performance.” In the case sub judice, plaintiffs cannot
satisfy that requirement. In light of the deficiencies inherent in plaintiffs’ site plan relative to the
applicable ordinance, plaintiffs did not have the requisite “clear legal right” to have the city
approve their site plan. The site plan did not provide for enough stacking spaces and the city
determined that this deficiency would necessarily have an “unduly harmful impact” on the
surrounding community. Because plaintiffs did not have a clear legal right to the performance
sought, and defendants did not have the concomitant clear legal duty to perform, and because the
act sought involved discretionary authority, the trial court abused its discretion by granting the
writ of mandamus compelling defendants to accept plaintiffs second site plan. We cannot uphold
this order.
2
In addition, defendants also recognized that because of the schools in the area, the deficiencies
in plaintiffs’ site plan also raised safety concerns for the children attending those schools.
3
The city’s planning consultant also recommended that plaintiffs’ site plan be denied because of
the plan’s physical deficiencies.
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Reversed and remanded for entry of an order consistent with this opinion. We do not
retain jurisdiction.
/s/ Harold Hood
/s/ Martin M. Doctoroff
/s/ Kirsten Frank Kelly
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