GARY STONEROCK V CHARTER TWP OF INDEPENDENCE
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STATE OF MICHIGAN
COURT OF APPEALS
GARY STONEROCK and ONALEE
STONEROCK,
UNPUBLISHED
May 28, 2002
Plaintiffs-Appellants,
v
CHARTER TOWNSHIP OF INDEPENDENCE,
No. 229354
Oakland Circuit Court
LC No. 99-016357-CH
Defendant-Appellee.
Before: Smolenski, P.J., and Neff and White, JJ.
PER CURIAM.
In this zoning case, plaintiffs challenge defendant’s decision to re-zone plaintiffs’ real
property from a C-3 (highway commercial) zone to an OS-2 (office service) zone. The trial
court granted summary disposition to defendant under MCR 2.116(C)(10). Plaintiffs appeal as
of right from that decision. We affirm.
I. Ripeness
Plaintiffs first argue that the trial court erroneously considered defendant’s motion under
MCR 2.116(C)(10) without first deciding whether plaintiffs’ claims were ripe for circuit court
review. Initially, we question whether plaintiffs are aggrieved parties on this issue. Plaintiffs
argued below that their claims were ripe. The trial court, in effect, accepted plaintiffs’ position
and went on to address the merits. In any event, because we conclude that plaintiffs’ claims
were ripe for review under Paragon Properties Co v Novi, 452 Mich 568; 550 NW2d 772
(1996), the trial court did not err in addressing the remainder of defendant’s motion.
In Paragon, supra at 576, our Supreme Court noted that a property owner can challenge a
land use ordinance either “as applied” or “on its face,” and explained the two types of challenges
as follows:
A facial challenge alleges that the mere existence and threatened enforcement of
the ordinance materially and adversely affects values and curtails opportunities of
all property regulated in the market. An “as applied” challenge alleges a present
infringement or denial of a specific right or of a particular injury in process of
actual execution. [Internal citations omitted.]
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The Court then explained that a challenge to the validity of a zoning ordinance “as applied” is
subject to the rule of finality. Id. However, “[f]inality is not required for facial challenges
because such challenges attack the very existence or enactment of an ordinance.” Id. at 577.
We conclude that plaintiffs’ challenge to defendant’s re-zoning decision qualifies as a
facial challenge, rather than a challenge to the ordinance “as applied.” Plaintiffs allege that the
OS-2 zoning adversely affects the value of all the properties along the M-15 corridor and curtails
opportunities to sell those properties on the open market. Further, before the trial court, plaintiffs
argued that it would have been futile for them to request a variance or special use permit from
defendant because plaintiffs had no specific development plan for their parcel. Plaintiffs also
argued that they did not desire a variance or a special use permit, but wanted the township to
allow their development of any uses previously permitted under the C-3 highway commercial
classification. We conclude that plaintiffs have challenged the township’s re-zoning decision
“on its face,” rather than “as applied.” Therefore, the Paragon finality requirement does not
apply to plaintiffs’ claims. Id. The trial court did not err in addressing the substance of
defendant’s motion for summary disposition under MCR 2.116(C)(10).
II. Substantive Due Process
Plaintiffs next argue that the trial court erroneously granted defendant summary
disposition on plaintiffs’ substantive due process claim. We disagree.
This Court reviews de novo a trial court’s grant or denial of a motion for summary
disposition under MCR 2.116(C)(10). Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572
NW2d 201 (1998). When reviewing a motion brought under that rule, courts must consider the
affidavits, pleadings, depositions, and other documentary evidence in the light most favorable to
the non-moving party. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).
The moving party bears the initial burden of supporting its position with affidavits, depositions,
admissions, or other documentary evidence. Id. at 455. The burden then shifts to the opposing
party to establish that a genuine issue of disputed fact exists. Id. In the present case, in order to
avoid summary disposition, plaintiffs were required to go beyond the contents of their pleadings
and set forth specific facts showing that a genuine issue of material fact existed on their
substantive due process claim. Id. Because they failed to present documentary evidence
establishing the existence of a material factual dispute, we conclude that the trial court properly
granted defendant’s motion. Id.
Both parties agree that the test for challenging the constitutionality of a zoning ordinance
is set forth in Kropf v Sterling Heights, 391 Mich 139, 157; 215 NW2d 179 (1974):
A plaintiff-citizen may be denied substantive due process by the city or
municipality by the enactment of legislation, in this case a zoning ordinance,
which has, in the final analysis, no reasonable basis for its very existence.
In determining whether a municipality had a reasonable basis for adopting a zoning
ordinance, this Court should apply the following principles:
In looking at this “reasonableness” requirement for a zoning ordinance,
this Court will bear in mind that a challenge on due process grounds contains a
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two-fold argument; first, that there is no reasonable governmental interest being
advanced by the present zoning classification itself . . . or secondly, that an
ordinance may be unreasonable because of the purely arbitrary, capricious and
unfounded exclusion of other types of legitimate land use from the area in
question. Though each of those arguments are founded upon due process, in
reality they are distinct arguments, each requiring different proofs. [Id. at 158.]
We first address plaintiffs’ contention that there was “no reasonable governmental
interest being advanced” by defendant’s decision to re-zone plaintiffs’ property from C-3 to OS2. Plaintiffs argue that commercial uses have long existed along the M-15 corridor, and that the
area is particularly well-suited to intense commercial uses because it is located at an I-75
interchange. In support of their argument, plaintiffs cite the general purpose and intent of the C3 district, as described in the township code:
The intent of this district is to provide areas in the township where the
principal use of land is for establishments offering accommodations, supplies, or
services to motorists and for certain specialized uses which, because of their use,
and because of the need for quick highway and neighborhood access, must serve
the township by being located along the various highways within the township.
The Highway Commercial District is intended to be located along numbered State
of Federal highways. [Independence Township Ordinance § 18.01.]
Plaintiffs argue that this exactly describes the I-75 interchange at M-15, and argue that the M-15
corridor is particularly well-suited to the development of intense commercial uses, including fast
food restaurants with drive-through service. Such uses are permitted as of right in a C-3 district,
but are not permitted in an OS-2 district.
In contrast, defendant argues that it possessed numerous legitimate reasons for re-zoning
the M-15 corridor from a C-3 district to an OS-2 district. First, defendant argues that it wanted
to accommodate the increasing trend of residential use surrounding the M-15 corridor, and that it
judged office use as more compatible with neighboring residential uses than intense commercial
uses would be. Second, defendant argues that it wanted to lessen the intensity of uses along the
M-15 corridor, due to traffic safety considerations. Third, defendant argues that it wanted to
accommodate the growing demand for office use in the area of the M-15 corridor. Finally,
defendant argues that other areas within and immediately outside the township had recently
experienced significant commercial development, reducing the need for intense commercial
development on the M-15 corridor.
The trial court found that defendant had articulated legitimate reasons for the re-zoning,
and that plaintiffs had failed to present any evidence that the re-zoning “constitutes an arbitrary
fiat, a whimsical ipse dixit or that there is no room for a legitimate difference of opinion
concerning its reasonableness.” Therefore, the trial court granted summary disposition to
defendant on plaintiffs’ substantive due process claim.
We conclude that the trial court properly granted defendant’s motion for summary
disposition. Plaintiffs may have raised an issue regarding the reasonableness of commercial use
along the M-15 corridor. However, they have not introduced sufficient facts to show that “no
reasonable governmental interest” was advanced by the OS-2 zoning. While plaintiffs’ property
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is located near an I-75 interchange, that is not the sole factor to be considered in determining
how the property should be zoned. The township demonstrated that it considered numerous
other factors, such as current use of surrounding properties, traffic patterns, and development
trends both within and outside the township. While both commercial and office use might be
construed as reasonable uses for the property, plaintiffs have not shown that office use was
unreasonable. Further, although plaintiffs argue that intense commercial use would constitute
the highest and most valuable use of their property, such an argument does not rebut the showing
of reasonableness on the part of the city. Kropf, supra at 160.
Next, we address plaintiffs’ contention that defendant’s re-zoning of the subject property
was arbitrary and capricious. Plaintiffs rely on Raabe v City of Walker, 383 Mich 165; 174
NW2d 789 (1970), for the proposition that zoning ordinances cannot be amended absent a
change of conditions or circumstances. Plaintiffs contend that no change of conditions has
occurred in the M-15 corridor sufficient to support the re-zoning to an OS-2 district, and
therefore defendant’s re-zoning decision was arbitrary and capricious.
In Raabe, the City of Walker re-zoned 180 acres of agricultural land for heavy industrial
use. Id. at 168. Surrounding residential property owners challenged the re-zoning. Id. at 169.
The circuit court found that the re-zoning was invalid, and our Supreme Court affirmed that
decision. Id. at 167, 179. In so ruling, the Raabe Court quoted the following passages from 8
McQuillin, Municipal Corporations (1965 Rev), §§ 25.06 and 25.68:
Amendment or repeal of zoning laws should be just as carefully
considered and prepared, perhaps more so, since private arrangements, property
purchases and uses, the location of business in commercial or industrial zones,
and the making of homes in residential districts, occur with reasonable
anticipation of the stability of existing zones.
***
Since the purpose of zoning is stabilization of existing conditions subject
to an orderly development and improvement of a zoned area and since property
may be purchased and uses undertaken in reliance on an existing zoning
ordinance, an amendatory, subsequent or repealing zoning ordinance must clearly
be related to the accomplishment of a proper purpose within the police power.
Amendments should be made with utmost caution and only when required by
changing conditions; otherwise, the very purpose of zoning will be destroyed. In
short, a zoning ordinance can be amended only to subserve the public interest.
[Raabe, supra at 177 (emphasis added).]
In the present case, defendant contends that it did identify a sufficient change of
circumstances to justify re-zoning the M-15 corridor from C-3 to OS-2. In particular, defendant
points to a report prepared for the township in November 1998, entitled “M-15 Analysis: Land
Use, Zoning, Master Plans, and Traffic Conditions.” That report documents a significant
increase in residential development in the area surrounding plaintiffs’ property, between 1973
and 1995. According to that report, only 27% of the properties surrounding the M-15 corridor
were developed as residential in 1973, whereas 74% of the properties had been developed to that
use in 1995. The report concludes that the “evolution of the predominant residential patterns
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required the Township to review land use patterns and arrive at non-residential uses along the M15 frontage that are compatible with residential areas.”
Further, the report indicated that existing uses developed along the M-15 frontage were
predominantly office uses, not commercial uses. In the area surrounding the M-15 corridor,
approximately 55% of the land was zoned for residential use, 41% was zoned for highway
commercial use, and 3% was zoned for office use. While most of the properties were vacant and
awaiting development, only a single parcel was developed for commercial use (a gas station) and
15% of the area was actually devoted to office use. The report also concluded that the high
percentage rate of vacant land among those parcels zoned for commercial development indicated
that “there has been a lack of demand to develop properties in the study area in a commercial
manner.”
Based on the detailed documentation provided by defendant, we conclude that defendant
did identify a sufficient change of circumstances to justify re-zoning the M-15 corridor from C-3
to OS-2. Plaintiffs have failed to show that the township’s re-zoning of the M-15 Corridor was
arbitrary and capricious.
In addition, plaintiffs argue that the township’s re-zoning decision is invalid because it
excludes intensive commercial uses from most of the township, with the exception of a small
area along the Dixie Highway where such uses are permitted. Plaintiffs contend that the rezoning decision therefore violates MCL 125.297a. However, defendant correctly points out that
plaintiffs’ argument lacks merit because where a use is permitted somewhere within the
community, it may not be deemed “excluded.” Fremont Twp v Greenfield, 132 Mich App 199,
204-205; 347 NW2d 204 (1984).
We conclude that the trial court properly granted defendant’s motion for summary
disposition on plaintiffs’ substantive due process claim, under MCR 2.116(C)(10).
III. Inverse Condemnation
Finally, plaintiffs argue that the trial court erroneously granted defendant summary
disposition of plaintiffs’ inverse condemnation claim. We disagree.
Our Supreme Court’s holding in K & K Construction, Inc v DNR, 456 Mich 570; 575
NW2d 531 (1998), sets forth the test that a trial court must apply when considering a party’s
claim that a taking has occurred. The Court noted that land use regulations effect a taking in two
general situations: (1) when they do not substantially advance a legitimate state interest or (2)
when they deny an owner “economically viable use of his land.” Id. at 576. On appeal,
plaintiffs argue that the present case falls into the second of the above categories because the
township’s decision to re-zone plaintiffs’ property denied them the “economically viable use” of
their land.
When reviewing this type of claim, courts again apply a two-prong test:
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
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or productive use of land,” or (b) a taking recognized on the basis of the
application of the traditional “balancing test” . . . [Id. at 576-577 (internal
citations omitted).]
The present case clearly does not involve a “categorical” taking, which involves a “physical
invasion of the property by the government . . . 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 577 (emphasis in original). Therefore, in order to state a valid claim, plaintiffs needed to
demonstrate the existence of a genuine issue of material fact under the traditional “balancing
test” approach, explained by the K & K Court as follows:
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. [Id. at 577.]
Plaintiffs argue that the trial court’s grant of summary disposition must be reversed
because the trial court failed to analyze the factors involved in the above balancing test. We
conclude that plaintiffs are not entitled to relief because they did not allege sufficient facts to
support a finding that the township denied plaintiffs the “economically viable use” of their land
and did not establish a genuine issue of fact under the above balancing test.
At his deposition, plaintiff Gary Stonerock testified that he received an offer to purchase
the property, after it was re-zoned to an OS-2 district, for $300,000. The prospective buyer
wished to build a medical clinic on the property, a use that would have been consistent with the
OS-2 zoning. However, Stonerock considered the offer so low that he “didn’t even want to talk
about it” with the prospective buyer. Stonerock also admitted that he received a subsequent offer
to purchase the property for $400,000. However, Stonerock testified that he had listed the
property for $535,000, and that he refused to even speak to anyone who came in with an offer
less than $500,000. Plaintiffs did not show that they were denied the “economically viable use”
of their property.
Nor did plaintiffs establish a genuine issue of fact under the balancing test. Defendant
presented evidence that the property tax assessment of plaintiffs’ property actually increased
after the re-zoning to an OS-2 district, from $216,000 in 1999 to $221,800 in 2000. Plaintiffs
offered no concrete evidence to rebut this apparent increase in value. As defendant points out,
plaintiff offered no expert testimony or appraisal evidence indicating that the value of their real
property suffered in any way, as a result of the re-zoning. Rather, plaintiffs relied on the bare
assertion that the property is worth less when marketed for office purposes than it would be
worth if marketed for commercial purposes.
Given the complete lack of evidence that the re-zoning from C-3 to OS-2 had any
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negative economic impact on plaintiffs’ property, we conclude that plaintiffs failed to raise
sufficient facts to avoid summary disposition.
Affirmed.
/s/ Michael R. Smolenski
/s/ Janet T. Neff
/s/ Helene N. White
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