DANIEL J OAKS V MONTAGUE TWP
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STATE OF MICHIGAN
COURT OF APPEALS
DANIEL J. OAKS and DORIS J. OAKS,
UNPUBLISHED
November 27, 2001
Plaintiffs-Appellants,
v
No. 222401
Muskegon Circuit Court
LC No. 98-038680-NZ
MONTAGUE TOWNSHIP,
Defendant-Appellee.
Before: Hoekstra, P.J., and Whitbeck and Cooper, JJ.
PER CURIAM.
Plaintiffs Daniel and Doris Oaks appeal as of right an order granting defendant Montague
Township’s motion for summary disposition. We affirm.
I. Basic Facts And Procedural History
A. The Oaks’ Interest In The Property
This case involves the Oaks’ interest in real property located off Old Channel Trail,
consisting of approximately 17.73 acres (the property) in Montague Township. The Oaks made
the property their permanent residence in June of 1991 and also used it as collateral for the
restructuring of various loans they had with Old Kent Bank. The Oaks defaulted on these loans
and Old Kent purchased the property at a foreclosure sale. During the redemption period, the
Oaks allegedly entered into an agreement with LSL, a Michigan general partnership,1 whereby
LSL would either loan money to the Oaks to redeem the property or purchase the property on the
Oaks’ behalf. On July 29, 1994, after the redemption period expired, LSL purchased the property
from Old Kent.
Apparently, the Oaks remained in physical possession of the property but a dispute arose
between them and LSL regarding their agreement and LSL initiated eviction proceedings against
the Oaks in October of 1996. The Oaks filed a counterclaim against LSL based on breach of
contract, quiet title, and fraud and misrepresentation. The Muskegon County Circuit Court
1
The Oaks’ brief refers to LSL as a Michigan limited liability company while Daniel Oaks’
affidavit refers to it as a Michigan general partnership. While there is a definite legal distinction
between the two types of entities, it is not significant for purposes of this appeal.
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dismissed the Oaks’ counterclaims against LSL on a motion for summary disposition, except for
the fraud and misrepresentation counterclaim. The Oaks and LSL then entered into a settlement
agreement disposing of the case. Pursuant to the settlement agreement, the Oaks had the right to
acquire LSL’s interest in the property by paying $427,000 before August 31, 1998, with interest
accruing thereon at the rate of fifteen percent per annum from February 1, 1998.
B. Montague Township, The City Of Montague,
The Muskegon County Health Department And The Supply Of Potable Water
As with any proposed new construction, a reliable supply of potable water was essential
to any development of the Oaks’ property. Generally, there are two feasible sources for such
water: either connection to a municipal or private water supply system or, alternatively, a well
on the property. The City of Montague operates a water supply system; the Muskegon County
Health Department regulates the drilling of new wells. Here, however, the existence of
groundwater contamination identified by the Department of Natural Resources (DNR) in the area
in which the Oaks’ property is located, significantly complicated the situation. In 1978, the DNR
recommended that all building permits for construction in areas of known or suspected ground
water contamination that would require water to be supplied from on-site wells be denied. At
some point in time, and apparently in response to this recommendation, Montague Township
instituted a moratorium on the issuance of building permits in the area until either a well was
authorized by the Muskegon County Health Department or an acceptable alternate source of
potable water was made available.
According to Roger Simon, the Montague Township Supervisor, because of the effect of
the groundwater contamination, the City of Montague was “induced” to construct a water supply
line within Montague Township for the purpose of supplying water to Township residents. In
June of 1998, however, the Department of Environmental Quality, the successor agency to the
DNR, advised the City of Montague that “additional water main extensions in this area should
not be considered” until the results of a study to evaluate current and future demands in the
service area and to determinate appropriate improvements necessary to assure adequate service
became available. Apparently, this effectively eliminated the City of Montague’s water system
as a possible source of supply for the Oaks’ property.
Shortly thereafter, the Muskegon County Health Department weighed in on the question
of drilling new wells in the area. In a letter dated July 1, 1998, the Health Department stated that
it “would not want to issue a permit” for drilling new wells even if the owner installed a test well,
certified that it was “clean,” and submitted a lab report to the Health Department. In a clarifying
letter dated July 16, 1998, the Muskegon County Health Department stated that it would not want
to issue well permits under these conditions “due to future questions about the up-gradient
chemical contamination, periodic sample monitoring, etc.”2 According to Roger Simon, these
two letters “restate what has essentially been the County Health Department’s policy since
2
The letter did also state that, “The Health Department will issue well permits in this region of
Montague Township if, and only if, the Michigan Department of Environmental Quality clearly
delineates on maps those areas where well permits should or should not be issue [sic].”
(Emphasis in original). This qualification apparently had no effect on the situation here.
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1978.” As we understand it, this policy effectively eliminated the drilling of new wells as a
possible source of supply for the Oaks’ property.
The upshot of this rather complex series of governmental actions is rather simple. As set
out in Montague Township’s brief, the Township’s building code requires a connection to some
potable water source. The City of Montague’s public water system was not a possible source
because it was at capacity and the DNR had effectively precluded it from constructing additional
water line extensions in the area. The drilling of private wells was not a possible source because
the Muskegon County Health Department’s policy had effectively precluded such drilling.
Montague Township’s moratorium on building permits in the area until either a well was
authorized by the Muskegon County Health Department or an acceptable alternate source of
potable water was made available effectively meant that the Township would not issue building
permits for the development of the Oaks’ property.
C. The Oaks’ Attempts To Develop The Property
In February of 1998, the Oaks retained a surveyor who sent a letter to the Montague
Township zoning administrator regarding the proposed development. In that letter, the surveyor
indicated that the property would be developed under the Michigan Condominium Act.3
According to the surveyor, the proposed development would have 14 single-family residential
parcels and a 30,000 square foot minimum area. The surveyor commented that, “There is no
approval process implemented at the Township level that I am aware of for this type of property.”
The surveyor sought a “memo” from the zoning administrator stating that “based on your review
of the proposed details that this proposed layout will comply with Township standards for this
property as currently zoned.”
In furtherance of their plans, the Oaks prepared a proposed survey, master deed, and
condominium bylaws for development of the property as a “site condominium.” According to
the Oaks, Montague Township took the position that the property could not be developed unless
it was in compliance with the Township’s zoning ordinance, Article XVIII, regarding “Planned
Unit or Multiple Use Development.” The Oaks alleged that this was improper because the
proposed development consisted of only one use of the property, that being residential use. In
any event, according to the Oaks, Montague Township refused to approve the Oaks’ proposed
development as a site condominium and required them to submit an application for a conditional
use permit before the Township would even consider the Oaks’ proposal.4 Ultimately, without
waiving their claims that no such application was necessary, the Oaks did submit an application
for a conditional use permit. At a hearing the Montague Township Zoning Board of Appeals
recommended to the Montague Township Board that the application be denied.
3
MCL 599.101, et. seq.
4
According to Daniel Oaks’ affidavit, “In mid March of 1998, I had a meeting with the
Township Supervisor, Roger Simon during which he told me that if I wanted to develop my
property as a site condominium, I would have to go through the approval process of a Planned
Unit Development (PUD).”
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D. The Oaks’ Complaint
In July of 1998, the Oaks filed a three-count complaint against Montague Township.
•= Count I sought declaratory relief requesting the trial court to find that the Oaks’
proposed development fully complied with Montague Township’s ordinances without
the need for action or approval by the Township before the project could proceed and
requested money damages sustained by the Oaks because of the Township’s actions.
•= Count II alleged a taking of the property, in violation of the United States and
Michigan Constitutions, because of Montague Township’s unreasonable, arbitrary,
and capricious actions in preventing the Oaks from developing the property as a site
condominium.
•= Count III alleged a violation of the Oaks’ substantive due process rights under the
United States Constitution because of Montague Township’s unreasonable, arbitrary,
and capricious actions in preventing the Oaks from developing the property as a site
condominium.
Pursuant to counts II and III, the Oaks sought money damages resulting from Montague
Township’s actions, including the value of the property as a fourteen-site condominium
development.
E. The Conditional Use Permit
In July of 1998, after the Oaks filed their complaint, the Montague Township Board
rejected the recommendation of the Zoning Board of Appeals and granted the Oaks a conditional
use permit. The permit required that future property purchasers be given a disclosure statement
containing the following provisions:
1. It has been confirmed by Occidental Chemical Corp. that property to the north
and east of the site has contaminated water under it.
2. The State of Michigan and the Muskegon County Health Department has [sic]
recommended that no private wells be permitted on this property.
3. The Township has issued a moratorium on building permits for the site until
either a well is authorized by the County or an acceptable alternate source of
potable water is made available.
4. The City of Montague at this time has not agreed to supply water to the site.
5. The Township has no alternate source of water available.
The portion of the property which the Oaks used as a residence did have a potable water supply.
However, the remaining portion of the property, where condominiums would be located, did not
have access to potable water.
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F. The Sale Of The Property
The Oaks claim that they were forced to sell the property to a purchaser on August 31,
1998, for only $700,000, of which $464,201 was paid to LSL to obtain LSL’s interest in the
property pursuant to the settlement agreement. There were apparently two deeds to the eventual
purchaser of the property, one from the Oaks and one from LSL. The deeds contain two different
legal descriptions. However, the deed from Old Kent Bank to LSL contained the same legal
description as the deed from LSL to the eventual purchaser. The Oaks claim that if it were not
for the delays by Montague Township, they could have obtained bank financing for the property
or sold enough lots to pay LSL without having to sell the property for a reduced price by the
deadline of August 31, 1998.
G. The Motions For Summary Disposition
In August of 1998, Montague Township filed a motion for summary disposition (and
subsequently a supplemental motion for summary disposition) pursuant to MCR 2.116(C)(8) and
(10). After the hearing, the trial court in December of 1998 issued an opinion holding that
Montague Township’s ordinances did not require the Oaks to obtain a conditional use permit.
Therefore, the trial court did not dismiss count I of the complaint. However, the trial court
granted Montague Township’s motion for summary disposition regarding counts II and III, on the
basis that no taking had occurred. The trial court stated:
In the case at bar, the Township ordinance and actions do not amount to a taking.
First, the Plaintiffs are not precluded from using their land as a single family
residence, as zoned, and currently used. In fact, this dwelling has access to
potable water through the city waterlines. Second, Plaintiffs have not been
deprived of all economically beneficial or productive use of their land. They may
sell their land as a condominium site divided in 14 lots. A buyer may choose to
purchase the property and wait to develop the lots when the city or the county
provides for water access. Although there are no water hookups to the water main
available at this time, future connections may materialize. The Plaintiffs’ property
is zoned as residential and it is still suitable for use as such or marketable as
zoned.
In February of 1999, Montague Township filed a second motion for summary disposition as to
count I of the complaint pursuant to MCR 2.116(C)(8). Montague Township argued that the
Oaks did not have an ownership interest in the property during the period of time in which the
conditional use permit application was outstanding. The trial court granted Montague
Township’s second motion for summary disposition pursuant to MCR 2.116(C)(10). It ruled that
the Oaks merely held an option to purchase and, therefore, they had no interest in the property
and lacked standing. In its August 1999 opinion, the trial court stated:
In response to Defendant’s motion, Plaintiffs filed a brief and affidavit.
Paragraph 6 of the affidavit states that Plaintiffs “had the right to acquire L.S.L.’s
interest in the property by paying it the sum of [$427,000] prior to August 31,
1998 . . . .” In essence, Plaintiffs had an option to purchase this property from
L.S.L.
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No title of an equitable or legal nature is transferred to the holder of an
option. Plaintiffs had no interest in the subject property. Windiate v Leland, 246
Mich 659; 225 NW 620 (1929); Oshtemo Township v Kalamazoo, 77 Mich 33;
257 NW2d 260 (1977). The Court finds that, based upon the affidavit submitted,
the Plaintiffs did not have an ownership interest in the land as alleged in
paragraph 4 of the complaint.
The Oaks appealed, contending that the affidavit of Daniel Oaks and the documents attached to
Montague Township’s motion for summary disposition established that they had an ownership
interest in the property. The Oaks also argue that Montague Township’s actions constituted an
unlawful taking of the property.
II. Standard Of Review
This Court reviews rulings on motions for summary disposition de novo.5 MCR
2.116(C)(10) provides for summary disposition where there is no genuine issue as to any material
fact, and the moving party is entitled to judgment or partial judgment as a matter of law. The
Michigan Supreme Court has ruled that a trial court “may grant a motion for summary
disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that
there is no genuine issue in respect to any material fact, and the moving party is entitled to
judgment as a matter of law.”6 In addition, all affidavits, pleadings, depositions, admissions, and
other documentary evidence filed in the action or submitted by the parties is viewed “in the light
most favorable to the party opposing the motion.”7 The motion should be denied if a record
might be developed that would leave open an issue on which reasonable minds could differ.8
Review of a trial court’s ruling on constitutional issues is de novo.9
III. The Oaks’ Interest In The Property: An Option To Purchase
The Oaks do not specify the nature of their interest. The documentary evidence presented
to the trial court established:
•= Old Kent foreclosed on the property due to the Oaks’ default on various bank loans,
and the bank purchased the property at the foreclosure sale on March 26, 1993.
5
Van v Zahorik, 460 Mich 320, 326; 597 NW2d 15 (1999) citing to Spiek v Dep’t of
Transportation, 456 Mich 321, 337; 572 NW2d 201 (1998).
6
Smith v Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 (1999) quoting Quinto v
Cross & Peters Co¸451 Mich 358, 362-363; 547 NW2d 314 (1996).
7
Id.
8
Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994) quoting Farm Bureau Ins
Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991).
9
Frericks v Highland Twp, 228 Mich App 575, 599; 579 NW2d 441 (1998) citing to Scots
Ventures, Inc v Hayes Twp, 391 Mich 139, 158; 215 NW2d 179 (1974).
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•= Accepting the Oaks’ claims as true, they and LSL entered into an agreement whereby
LSL promised either to loan them the money required to redeem the property after
foreclosure or to purchase the property on their behalf.
•= LSL purchased the property after the redemption period from Old Kent Bank.
•= The Oaks and LSL reached a settlement agreement in January of 1998 in which the
Oaks had the right to acquire the property from LSL by paying $427,000 before
August 31, 1998.
•= Subsequently, the Oaks submitted the conditional use permit application and filed
suit.
We observe that whatever interest the Oaks had in the property at the time they submitted the
application for a conditional use permit and filed their complaint would have been dictated by the
settlement agreement between them and LSL because all of the evidence before the settlement
indicated that LSL owned the property. However, there is virtually no documentary evidence as
to the details of the settlement agreement. There is only Daniel Oaks’ affidavit, which contained
statements indicating that LSL owned the property until the Oaks were able to pay the $427,000
by August 31, 1998. We can only speculate that the lack of detail regarding the settlement
agreement is the result of a confidentiality provision in the agreement. However, that possibility
did not relieve the Oaks from the necessity of submitting sufficient documentary evidence to
create an issue of fact for purposes of summary disposition.
The two deeds to the eventual purchaser of the property, one from the Oaks and one from
LSL, contain two different legal descriptions. The deed from Old Kent Bank to LSL contained
the same legal description as the deed from LSL to the eventual purchaser. These discrepancies
are not explained by the Oaks. The Oaks had the burden of proof to establish standing. We
conclude that they failed to submit sufficient evidence pursuant to MCR 2.116(G)(4) to establish
an issue of fact as to whether they had an ownership interest in the property. In fact, we observe,
Daniel J. Oaks’ affidavit appears to confirm that the Oaks did not have an ownership interest in
the property.
We recognize the Oaks’ argument that the settlement may have impliedly extended their
redemption period to August 31, 1998, thereby giving them a sufficient interest to establish
standing. However, the Oaks offer no documentary evidence in support of this proposition.
Based on the documentary evidence, we hold that the Oaks simply had an option to purchase the
property.
IV. The Status Of An Option And The Oaks’ Standing
A. The Status Of An Option
In Oshtemo Twp v Kalamazoo,10 the issue was whether the defendant city could annex
land situated in the plaintiff township pursuant to MCL 117.9, which required a city to own land
10
Oshtemo Twp v Kalamazoo, 77 Mich App 33, 36-37; 257 NW2d 260 (1977).
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before the land could be annexed. The trial court determined that the defendant city was not the
“owner” of the property to be annexed, under the statutory language. The trial court reasoned
that, although the defendant city owned the property, it had given an option to repurchase the
property to some private citizens.11 This Court stated:
An option is a preliminary contract for the privilege of purchase and not itself a
contract of purchase. An option is basically an agreement by which the owner of
the property agrees with another that he shall have a right to buy the property at a
fixed price within a specified time. An option is, in effect, only an offer which
requires strict compliance with the terms of the option both as to the exact thing
offered and within the time specified. Failure to so comply results in loss of the
rights under the option.
The holder of an option to purchase land does not have any interest in the
premises prior to exercising the option. An offer to sell land does not create any
interest in that land. The interest attaches only when the condition is performed.
***
We hold on the basis of the foregoing authority that the holder of an option does
not have an “interest” as contemplated by the plaintiffs. No interest arises until
the option has been accepted and there are no legal or equitable rights in the
property given to the optionee.12
The Oshtemo Twp panel concluded that because the private citizens only held an option, the
defendant city was the owner under the statute until the option was exercised. Therefore, the
property could be annexed. Oshtemo Twp answers the question of whether an option holder has
any legal or equitable interest or title in an estate of land. Simply put, the option owner has no
such interest or title.
B. The Oaks’ Standing
Oshtemo Twp does not, however, answer the question of whether an option holder has
standing, or a sufficient interest, to initiate a lawsuit challenging a zoning action. MCR 2.201(B)
provides that “[a]n action must be prosecuted in the name of the real party in interest[.]” In In re
Foster,13 this Court stated:
In order to have standing, a party must have a legally protected interest that is in
jeopardy of being adversely affected. Solomon v Lewis, 184 Mich App 819, 822;
459 NW2d 505 (1990). In Bowie v Arder, 441 Mich 23, 42-43; 490 NW2d 568
(1992), the Supreme Court, quoting 59 Am Jur 2d, Parties, § 30, p 414, noted that:
11
Id. at 36.
12
Id. at 37-38 (citations omitted).
13
In re Foster, 226 Mich App 348, 358; 573 NW2d 324 (1997).
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“[o]ne cannot rightfully invoke the jurisdiction of the court to enforce private
rights, or maintain a civil action for the enforcement of such rights, unless one has
in an individual or representative capacity some real interest in the cause of
action, or a legal or equitable right, title, or interest in the subject matter of the
controversy. This interest is generally spoken of as ‘standing.’”
We hold that, in the context of this challenge to a zoning action, the Oaks did not have standing
during the application process nor at the time the suit was initiated. Our conclusion is, moreover,
a practical one because of the potential conflict with the rights of the actual owner. For example,
an option holder might seek a modification of a zoning classification, with which the actual
owner did not agree, and a court might enforce the option holder’s request. If the option holder
subsequently failed to exercise the option, the actual owner would be left with land zoned in
manner not wished for by that owner and in contravention of that owner’s rights. We wish to be
clear that in making this observation we are not implying that an option holder who seeks a
zoning change with the express concurrence of the actual owner might not have standing to
initiate a lawsuit contesting a zoning action. We conclude that, based on lack of standing, and
pursuant to MCR 2.116(C)(10), the trial court properly dismissed count I of the Oaks’ complaint
seeking declaratory relief and money damages.
V. Takings
A. The Oaks’ Claims
The Oaks contend that an unconstitutional taking occurred. They assert that they could
not use their property as zoned, which was residential. According to the Oaks, Montague
Township prevented residential use through its moratorium on the granting of building permits in
the area. The Oaks claim that Montague Township was fully aware that neither the extension of
the waterline of the City of Montague nor the construction of new wells were available options,
and that Montague Township failed to provide a potable water source. The Oaks do not,
however, argue that the application process for the conditional use permit constituted a taking.
B. The Adams Analysis: Categorical Takings And The Balancing Test
The Michigan Supreme Court recently addressed the legal analysis involved in reviewing
a “taking” claim in Adams Outdoor Advertising v City of East Lansing (After Remand).14 The
Court stated:
US Const, Am V and Const 1963, art 10, § 2 prohibit the taking of private
property for public use without just compensation. Drawing on United States
Supreme Court precedent, this Court [Michigan Supreme Court] recently
reiterated the appropriate analyses for determining whether a taking has occurred
in K & K Construction, Inc v Dep’t of Natural Resources, 456 Mich 570; 575
NW2d 531 (1998). The K & K Court noted that land use regulations effect a
taking in two general situations: when they do not substantially advance a
14
Adams Outdoor Advertising v City of East Lansing (After Remand), 463 Mich 17, 23-24; 614
NW2d 634 (2000).
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legitimate state interest or when they deny an owner “economically viable use of
his land.” Id. at 576. It then differentiated the second type of taking further at
576-577:
“The second type of taking, where the regulation denies an owner of economically
viable use of land, is further subdivided into two situations: (a) a ‘categorical’
taking, where the owner is deprived of ‘all economically beneficial or productive
use of land,’ Lucas v South Carolina Coastal Council, 505 US 1003, 1015; 112 S
Ct 2886; 120 L Ed 2d 798 (1992); or (b) a taking recognized on the basis of the
application of the traditional ‘balancing test’ established in Penn Central
Transportation Co v New York City, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631
(1978).
The Court stated that K & K then defined categorical takings:15
In the former situation, the categorical taking, a reviewing court need not
apply a case-specific analysis, and the owner should automatically recover for a
taking of his property. Lucas, supra at 1015. A person may recover for this type
of taking in the case of a physical invasion of his property by the government (not
at issue in this case), or where a regulation forces an owner to “sacrifice all
economically beneficial uses [of his land] in the name of the common good . . . .”
Id. at 1019 (emphasis in original).
The Court then stated that K & K Construction next explained the balancing test analysis:
In the latter situation, the balancing test, a reviewing court must engage in an “ad
hoc, factual inquir[y],” centering on three factors: (1) the character of the
government’s action, (2) the economic effect of the regulation on the property,
and (3) the extent by which the regulation has interfered with distinct, investmentbacked expectations. Penn Central, supra 438 US 124.16
B. The Oaks’ Standing Redux
We held above that the Oaks did not have any ownership interest in the property at the
time the suit was filed, or at a minimum, they failed to submit sufficient documentary evidence to
create an issue of fact over whether they had an ownership interest. The Oaks were required to
establish an interest which they alleged was being taken.17 This they failed to do. Therefore, we
conclude that the Oaks lacked standing to assert a takings claim because they were not real
parties in interest pursuant to MCR 2.201 at the time they filed the suit in July of 1998. The
record appears to indicate that the Oaks acquired an ownership interest on August 31, 1998,
when they apparently exercised their option to purchase, and immediately transferred the
property to the ultimate purchaser. The Oaks’ ownership interest in the property, therefore, only
15
Id. at 23-24 .
16
Id. at 24, omissions, alterations, and emphasis in the original.
17
Adams, supra at 24.
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existed for one day at most. At the time the trial court rendered its decision granting summary
disposition as to the taking claim, the Oaks no longer had any interest in the property. We hold
that the Oaks lacked standing to obtain damages for a taking because they held no ownership
interest at the time they were seeking redress for the taking.
In addition, because the Oaks obtained an ownership interest in the property only on
August 31, 1998, they obtained that interest when they were fully aware of Montague
Township’s building permit moratorium and the lack of feasible source of supply for potable
water. In Adams, the Court stated:
Further, Adams acquired the rooftop signs and leases at issue in 1983 and
renewed the leases as recently as 1993 and 1996. In 1983, 1993, and 1996,
Adams was aware of the 1975 sign code and could have no reasonable expectation
that it could maintain the signs at the rooftop locations after the date designated in
the code.18
Therefore, the Oaks cannot claim a taking when they exercised their option to purchase the
property knowing that there was a moratorium on the issuance of building permits in the area and
that there was no feasible source of supply for potable water.
C. Legitimate State Interests
(1) Montague Township’s Actions Concerning The Water Supply
The Oaks’ taking claim is based on Montague Township’s alleged failure to provide a
source of potable water to residentially zoned property so that property owners could obtain a
building permit. Under the Adams analysis, we turn to the question of whether Montague
Township’s actions substantially advanced a legitimate state interest. The first inquiry is whether
it was the Township’s actions which prevented a water supply to residentially zoned property.
The documentary evidence indicates that the City of Montague was refusing any new
connections to the city water lines and that the Muskegon County Health Department would not
authorize the construction of groundwater wells. A government’s actions must be a substantial
cause of the decline of a property’s value and it does not appear that Montague Township’s
actions are at issue in this case as to the water supply.19
(2) The Moratorium On Building Permits; The Obligation To Create A Water Source
The moratorium on building permits, however, certainly did involve an action by
Montague Township. We conclude that the moratorium clearly advanced a legitimate state
interest. Requiring a water supply to a residential structure before a building permit is issued is a
matter of health, safety, and necessity. Prohibiting persons from accessing potentially
contaminated water is also a matter of health and safety. The Oaks appear to argue that
Montague Township was obligated to solve the water problem by creating a water source (that is,
18
Adams, supra at 27, footnotes omitted.
19
Attorney General v Ankersen, 148 Mich App 524, 561; 385 NW2d 658 (1986).
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by paying the City of Montague to connect their waterlines, by cleaning-up the contamination, or
by discovering a new source of water) or be guilty of a taking. The Oaks cite no authority to
support this proposition. Issues insufficiently briefed are deemed abandoned on appeal.20 “It is
not enough for an appellant in his brief simply to announce a position or assert an error and then
leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.”21
The case law does not support the Oaks’ implicit argument that Montague Township was
obligated to supply water to property in the Township. In In re Urban Renewal, Elmwood Park
Project,22 the Michigan Supreme Court stated:
[A] city may not by deliberate acts reduce the value of private property and
thereby deprive the owner of just compensation. Some of the acts charged against
the city of Detroit, such as lax police protection, reduction in refuse collections,
street cleaning and street repair, go merely to the performance of city services of a
general nature.
In re Urban Renewal indicates that a failure to provide services of a general nature, such as
supplying water, does not constitute a taking. In addition, Montague Township’s alleged failure
to provide a water supply is not an affirmative act on its part directly aimed at the Oaks’
property.23
The Oaks cite Jones v East Lansing-Meridian Water & Sewer Authority,24 in support of
their position. In Jones, the plaintiffs alleged that the defendants interfered with their water
supply by drilling wells into the Saginaw Formation aquifer, which was the single largest source
of potable water in the area.25 The plaintiffs alleged a taking of their subterranean water rights.26
This Court found that a taking had occurred and held that “[d]efendants did impress plaintiffs’
private property into serving a public use by unreasonably interfering with plaintiffs’
subterranean water rights.”27
20
Dresden v Detroit Macomb Hosp, 218 Mich App 292, 300; 553 NW2d 387 (1996) citing to
Impullitti v Impullitti, 163 Mich App 507, 509; 415 NW2d 261 (1987) and Guardiola v Oakland
Hosp, 200 Mich App 524, 526; 504 NW2d 701 (1993).
21
Palo Group Foster Care, Inc v Dep’t of Social Services, 228 Mich App 140, 152; 577 NW2d
200 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
22
In re Urban Renewal, Elmwood Park Project, 376 Mich 311, 317; 136 NW2d 896 (1965).
23
Attorney General, supra at 561.
24
Jones v East Lansing-Meridian Water & Sewer Authority, 98 Mich App 104; 296 NW2d 202
(1980).
25
Id. at 105-106.
26
Id. at 107.
27
Id. at 110.
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We conclude that the case here is distinguishable from Jones for three reasons. First, if
there was any interference with the Oaks’ water rights, the interference was by the City of
Montague and the Muskegon County Health Department and not by Montague Township.
Second, any interference advanced a substantial government interest. Third, the Oaks essentially
accuse Montague Township of not supplying a water source rather than with interfering with a
viable water source.
D. Economically Viable Use Of Property
(1) Types Of Takings
Continuing the Adams analysis, the next question is whether Montague Township denied
the Oaks the economically viable use of their property. Once again, we do not believe that the
Township denied the Oaks the use of their land. It was the actions of the City of Montague and
Muskegon County Health Department, not Montague Township, that eliminated the possible
sources of supply of potable water to the Oaks’ property. Adams differentiates two types of
takings with respect to deprivation of economically viable use of property. The first is a
categorical taking, which requires a sacrifice of all economically beneficial or productive use of
the land.28 The second type of taking is based on the traditional balancing test which weighs the
character of the government’s actions, the economic effect of the regulation on the property, and
the extent by which the regulation has interfered with distinct, investment-backed expectations.29
(2) Categorical Takings
We conclude that there was no evidence that the Oaks were required to sacrifice all
economically beneficial or productive use of the property. The Oaks used a portion of the
property as a residence for a number of years and that portion had access to potable water. The
fact that the entire property sold for $700,000 certainly demonstrates that the Oaks did not
sacrifice all economically beneficial or productive use of the property.
(3) The Balancing Test
We have already addressed the character of Montague Township’s actions and concluded
that they advanced a legitimate state interest. With respect to the economic effect of those
actions the Oaks argue that, because of the delay caused by Montague Township, they were
unable to obtain financing or to sell enough parcels to pay off LSL prior August 31, 1998. This
is mere speculation by the Oaks. They submitted no documentary evidence regarding their failed
financing attempts or prospective purchasers. Similarly, the lack of documentary evidence did
not establish an issue of fact regarding the extent of any interference with their investment. (We
also note that the complaint, as it relates to the taking issue, focused on Montague Township’s
failure to properly apply its zoning ordinances with regard to the conditional use permit and not
on its failure to supply water to the property. However, the broad, general language in the
28
Adams, supra at 23.
29
Adams, supra at 23-24.
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complaint, along with the Oaks’ argument at summary disposition, arguably encompasses the
water supply issue.)
In K & K Construction, Inc v Dep’t of Natural Resources,30 the Michigan Supreme Court
stated:
One of the fundamental principles of taking jurisdiction is the “nonsegmentation”
principle. This principle holds that when evaluating the effect of a regulation on a
parcel of property, the effect of the regulation must be viewed with respect to the
parcel as a whole. Courts should not “divide a single parcel into discrete
segments and attempt to determine whether rights in a particular segment have
been entirely abrogated.”
In addition, in Adams, the Court stated:
Under the constitution, we do not believe that a property owner, confronted with
an imminent property regulation, can nullify such a legitimate exercise of the
police power by leasing narrow parcels or interests in his property so that the
regulation could be characterized as a taking only because of its disproportionate
effect on the narrow parcel or interest leased.31
K & K Construction and Adams require this Court to look at the property here as a whole and not
as fourteen individual parcels as proposed by the development plan. As a whole, the property
was a 17.73-acre parcel. The Oaks resided on a portion of the property and they had a potable
water source for their residence. The Oaks’ claimed, accurately, that there would be no potable
water for the fourteen parcels after division of the property. When we consider the property as a
whole, however, we conclude that the Oaks’ taking argument lacks merit.
E. Conclusion
We hold that the trial court properly granted Montague Township’s motion for summary
disposition regarding the taking claim because (1) the Oaks lacked standing; (2) Montague
Township’s actions did not result in the lack of potable water; (3) the Oaks challenged no
affirmative act by the Township; (4) the Township’s actions advanced a legitimate state interest;
(5) the Oaks were not required to sacrifice all economically beneficial or productive use of their
property; (6) the Oaks did not present any documentary evidence to establish that they were
unable to obtain financing or to sell the property; and (7) viewing the property as a whole, there
was no taking because there was a supply of potable water to a portion of the property. In
essence, the Oaks seek to utilize the takings doctrine to hold Montague Township responsible for
the actions of other governmental entities and for the Township’s own inaction in failing to make
available a supply of potable water. As sympathetic as we might be to the plight of property
30
K & K Construction, Inc v Dep’t of Natural Resources, 456 Mich 570, 578; 575 NW2d 531
(1998).
31
Adams, supra at 25.
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owners when faced with the interlocking actions of a number of governmental entities, we simply
see no way in which the takings doctrine can be stretched so as to accommodate such claims.
VI. Substantive Due Process
A. The Oaks’ Claims
The Oaks contend that the trial court erred in dismissing their substantive due process
claim. They argue that Montague Township required them to obtain approval for the proposed
site condominium project despite the fact that the project did not require approval under the
Township’s zoning ordinances. This, they claim, was a denial of their substantive due process
rights. The Oaks also claim that Montague Township violated their substantive due process
rights by adopting a building code that required them to hook up to a water supply and by then
refusing or failing to supply water to their property. Once again, we review a trial court’s ruling
on constitutional issues de novo.32
B. The Elements Of A Substantive Due Process Claim
In Frericks,33 this Court stated:
[A] substantive due process claim requires the following proof: (1) that there is
no reasonable governmental interest being advanced by the present zoning
classification or (2) that an ordinance is unreasonable because of the purely
arbitrary, capricious, and unfounded exclusion of other types of legitimate land
use from the area in question.
We begin our discussion of this issue by reiterating our holding that the Oaks lacked standing to
sue because they had no ownership interest in the property, or at a minimum, they failed to
present sufficient documentary evidence to establish an issue of fact regarding ownership. In any
event, we conclude that the Oaks’ substantive due process claim fails as a matter of law.
C. Accessibility To Potable Water
With respect to the Oaks’ due process claim on accessibility to potable water, we once
again note that it was the actions of the City of Montague and the Muskegon County Health
Department, and not of Montague Township, that prevented access to potable water.34 In
addition, the Oaks challenged no affirmative act on the part of the Township.35
32
Frericks, supra at 594.
33
Id. at 594, citations omitted
34
Attorney General, supra at 561.
35
Id.
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D. Adoption Of The Building Code: Application Of The Zoning Code
We conclude that there clearly was a reasonable governmental interest involved in
requiring, through the provisions of the building code, that residential homes have potable water,
simply based on health and safety concerns. For that same reason, the Township’s zoning code is
not arbitrary nor capricious. As to the water supply issue itself, there has been no deprivation of
the Oaks’ property interest for the reasons discussed above regarding the alleged taking.
E. The Conditional Use Permit
The Oaks claim that Montague Township’s requirement of a conditional use permit also
had the effect of re-zoning their property. We conclude that this claim has no merit, for several
reasons. First, the Township Board did in fact grant the permit in July of 1998. Second, whether
or not the conditional use permit was required, or was unreasonable, arbitrary, or capricious, the
Oaks did not present any documentary evidence to establish that the delay between their
application for the permit and the Township Board’s granting of it damaged their ability to obtain
financing or to sell the property.
F. Conclusion
We therefore conclude that the trial court properly granted Montague Township’s motion
for summary disposition regarding the Oaks’ substantive due process claim.
Affirmed.
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
/s/ Jessica R. Cooper
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