D&T CONSTRUCTION CO V CHARTER TWP OF HARRISON
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STATE OF MICHIGAN
COURT OF APPEALS
D & T CONSTRUCTION COMPANY,
UNPUBLISHED
July 26, 2002
Plaintiff-Appellant,
V
CHARTER TOWNSHIP OF HARRISON,
BOARD OF TRUSTEES OF THE CHARTER
TOWNSHIP OF HARRISON, PAMELA A.
WEEKS, RONALD J. NOWAK, SHERRI M.
MURPHY, KATHLEEN M. LYON, PATRICIA
D. SWITZER, BARBARA C. URBAN and
JAMES T. SENSTOCK,
No. 229494
Macomb Circuit Court
LC No. 96-005052-CZ
Defendants-Appellees.
Before: Holbrook, Jr., P.J., and Gage and Meter, JJ.
PER CURIAM.
In this case involving an alleged regulatory taking of private property, plaintiff appeals as
of right from a judgment entered following a bench trial that dismissed its claims for damages.
We affirm.
I
Plaintiff contends that defendant Harrison Township’s decision to rezone its property
from multiple family residential to single family residential constituted an illegal taking and
violated its right to substantive due process. We review de novo a trial court’s ruling on a
constitutional challenge to a zoning ordinance. We give considerable weight, however, to the
trial court’s factual findings. Bell River Assoc’s v China Charter Twp, 223 Mich App 124, 129;
565 NW2d 695 (1997). Assessing credibility and weighing testimony are the prerogatives of the
trier of fact. Kelly v Builders Square, Inc, 465 Mich 29, 40; 632 NW2d 912 (2001).
II
Both the state and federal constitutions prohibit the taking of private property for public
use without just compensation. US Const, Am V; Const 1963, art 10, § 2; Adams Outdoor
Advertising v East Lansing (After Remand), 463 Mich 17, 23; 614 NW2d 634 (2000). Land use
regulations may effectuate a taking when (1) the regulation does not substantially advance a
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legitimate state interest or (2) it denies an owner economically viable use of his land. K & K
Construction, Inc v Dep’t of Natural Resources, 456 Mich 570, 576; 575 NW2d 531 (1998).
To establish that a regulation does not substantially advance a legitimate state interest,
and thus violates a landowner’s substantive due process rights, the landowner must prove that the
present zoning classification advances no reasonable governmental interest, or that the regulation
is unreasonable because it comprises an arbitrary, capricious and unfounded exclusion of other
types of valid land use from the subject area. Frericks v Highland Twp, 228 Mich App 575, 594;
579 NW2d 441 (1998); Bell River Assoc’s, supra at 133. Three basic rules of judicial review
govern a court’s analysis of a substantive due process claim: (1) the ordinance is presumed
valid, (2) the challenger bears the burden of proving that the ordinance is an arbitrary and
unreasonable restriction on the landowner’s use of the property; that the provision in question is
an arbitrary fiat, and (3) a reviewing court gives considerable weight to the findings of the trial
judge. Frericks, supra, quoting A & B Enterprises v Madison Twp, 197 Mich App 160, 162; 494
NW2d 761 (1992).
A regulation that denies an owner economically viable use of his land occasions a taking
in violation of the Just Compensation Clause of the Fifth Amendment or the Due Process Clause
of the Fourteenth Amendment. Bevan v Brandon Twp, 438 Mich 385, 391; 475 NW2d 37,
amended 439 Mich 1202 (1991).
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).
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 . . . ,
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). 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, 438 US 124. [K & K Constr, supra at 576577.]
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. . . . While there is no set formula for determining when a taking has
occurred under this test, it is at least “clear that the question whether a regulation
denies the owner economically viable use of his land requires at least a
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comparison of the value removed with the value that remains.” [K & K Constr,
supra at 588, quoting Bevan, supra at 391.]
“Mere diminution in value does not amount to taking. Rather, a plaintiff who alleges that he was
denied economically viable use of his land ‘must show that the property is either unsuitable for
use as zoned or unmarketable as zoned.’” Bell River Assoc’s, supra at 133, quoting Bevan, supra
at 402-403.
III
We first address plaintiff’s claim that Harrison Township’s enactment of its current single
family residential zoning ordinance deprived plaintiff of its substantive due process rights. We
initially note plaintiff’s concession that it does not intend to challenge that the present zoning
classification advances a reasonable governmental interest. Plaintiff instead argues that the
single family residential zoning ordinance arbitrarily and unreasonably restricted its use of its
property.
After reviewing the record, we conclude that ample evidence supported the trial court’s
finding that the township had demonstrated a rational basis for its rezoning decision in light of
the land uses surrounding plaintiff’s property, the physical characteristics of the property, and the
township’s master plan. The trial court referred to the testimony of Dennis Meagher, a
professional community planner employed by Harrison Township. Meagher testified that the
township’s 1981 and 1992 master plans reflected the projected development of the land
including plaintiff’s parcel and the surrounding parcels as single family residential. Meagher
further testified that the properties surrounding plaintiff’s property all had been developed as
single family residential and all were currently zoned single family residential.
In light of this testimony that the current zoning of plaintiff’s parcel was consistent with
the existing uses and zoning of nearby properties, and the testimony of licensed professional
engineer James Rabine regarding the feasibility of a single family unit development on plaintiff’s
property, we cannot characterize as clearly erroneous the trial court’s finding that “the Township
has demonstrated a rational basis for the classification in light of the surrounding land use, the
physical characteristics of the property, and the Township Master Plan.” Schwartz v City of
Flint, 426 Mich 295, 328; 395 NW2d 678 (1986); Kropf v City of Sterling Heights, 391 Mich
139, 163; 215 NW2d 179 (1974). That plaintiff may have raised a “debatable question” or
demonstrated a “difference of opinion” regarding the wisdom of the township’s zoning scheme is
insufficient to establish that the rezoning created an arbitrary and unreasonable restriction of the
property. Kropf, supra at 162. To the extent that the trial court’s conclusion rested on a
determination that Meagher and Rabine were credible, we will not revisit this determination.
Kelly, supra.1
1
We note that we decline to address plaintiff’s suggestion that the township enacted its rezoning
ordinance “to prevent people of color from moving into the proposed high-rise project after its
completion,” because plaintiff gives this issue cursory treatment with no citation to relevant
authority supporting its argument. Silver Creek Twp v Corso, 246 Mich App 94, 99; 631 NW2d
346 (2001).
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IV
We next address plaintiff’s argument that the township’s rezoning of plaintiff’s property
from multifamily to single family residential deprived plaintiff of economically viable use of its
land. The trial court concluded to the contrary that the evidence failed to establish that the
current zoning regulation denied plaintiff economically viable use of its land. The court found
that the township’s expert witnesses provided credible testimony and documentation concerning
the economic viability of developing a single family subdivision on plaintiff’s property in
satisfaction of all existing township ordinance requirements. The court found unpersuasive the
testimony of plaintiff’s experts concerning development costs for infrastructure and the related
cost of wetlands mitigation. The court also found that the township’s recommendation for on
site mitigation for the 19- and 15-lot developments appeared consistent with similar plans
approved by the Department of Environmental Quality (DEQ) on neighboring subdivisions. The
record shows that plaintiff failed to substantiate its speculations that the wetlands on its parcel
precluded economically viable development of single family residential units because plaintiff
never conducted sufficient studies or sought a wetlands evaluation of its property by the DEQ.
Consequently, plaintiff could not show that mitigation would have been impossible on site and
could not show the extent or cost of mitigation that the DEQ would require.
Because plaintiff’s estimates of mitigation costs lacked support and were insufficient to
show that the zoning change precluded any development of its property, we cannot conclude that
the trial court’s findings regarding the viability of the township’s proffered single family housing
unit plan were clearly erroneous. To the extent that the trial court’s findings rested on its
determination of credibility with respect to the expert witnesses proffered by the township, we
reiterate that we will not revisit the trial court’s credibility determinations. Kelly, supra. We
conclude that plaintiff failed to establish that its property was either unsuitable for use as zoned
or unmarketable as zoned. Bell River Assoc’s, supra.2
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Hilda R. Gage
/s/ Patrick M. Meter
2
Although plaintiff apparently concedes in its reply brief on appeal that it did not acquire “a
vested right in the prior . . . zoning classification,” we nonetheless note briefly the propriety of
the trial court’s finding that no vested right in the prior zoning classification existed. The record
reflects that plaintiff presented no evidence of actual construction or excavation on its property,
and the testimony of plaintiff’s owner established that the property had remained vacant and
undeveloped since plaintiff had purchased it. Meagher testified that plaintiff had not submitted
to the township any site plans or engineering drawings for any proposed development. In light
of this evidence, the trial court correctly determined that plaintiff had made no tangible change in
the land in reliance on the prior multifamily zoning classification. Gackler Land Co, Inc v
Yankee Springs Twp, 427 Mich 562, 574-575; 398 NW2d 393 (1986).
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