JOSEPH FETTER V WINDSOR CHARTER TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH FETTER d/b/a WINDSOR ESTATES
MOBILE HOME PARK,
UNPUBLISHED
September 27, 2002
Plaintiff-Appellee/Cross-Appellant,
v
No. 228671
Eaton Circuit Court
LC No. 97-001512-CZ
WINDSOR CHARTER TOWNSHIP,
Defendant-Appellant/CrossAppellee.
Before: Hood, P.J., and Holbrook, Jr. and Owens, JJ.
PER CURIAM.
Following a bench trial, the trial court granted plaintiff’s request to enjoin defendant (“the
township”) from enforcing its zoning ordinance to prevent the expansion of plaintiff’s mobile
home park. Plaintiff had challenged the zoning ordinance by claiming that, as applied, it violated
his substantive due process rights. The township appeals as of right. Plaintiff cross-appeals as of
right, challenging the trial court’s denial of similar relief on two alternate statutory bases. We
affirm in part and reverse in part.
Defendant contends that the trial court erred in ruling that plaintiff successfully bore his
burden of demonstrating that the township’s zoning ordinance was arbitrary and capricious as
applied to plaintiff’s property. In support of this contention, defendant contends that the trial
court failed to presume that the ordinance was constitutional and erroneously placed the burden
on the township to prove the constitutionality of the ordinance. In addition, defendant contends
that sufficient evidence was introduced to present, at the very least, a legitimate difference of
opinion concerning the reasonableness of the zoning ordinance.
Here, the trial court opined that plaintiff met his burden of establishing that defendant had
“unreasonably, arbitrarily and capriciously restricted the plaintiff’s use of his property.” In
addition, the trial court concluded that “[n]o public interest is being served by the failure to
rezone.” The trial court did rule, however, that plaintiff was estopped from challenging the
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buffer condition.1 Ultimately, the trial court enjoined defendant from interfering with plaintiff’s
development and use of the non-buffer portions of the subject property as a mobile home park.
Generally, to prevail on a substantive due process claim based on a zoning ordinance, a
plaintiff must show either: “(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.” Frericks v Highland Twp, 228 Mich App 575, 594; 579 NW2d 441 (1998). We
further explained:
Three basic rules of judicial review are applicable:
(1) the ordinance is presumed valid; (2) the challenger has the burden of
proving that the ordinance is an arbitrary and unreasonable restriction upon the
owner’s use of the property; that the provision in question is an arbitrary fiat, a
whimsical ipse dixit; and that there is not room for a legitimate difference of
opinion concerning its reasonableness; and (3) the reviewing court gives
considerable weight to the findings of the trial judge. [Id., quoting A & B
Enterprises v Madison Twp, 197 Mich App 160, 162; 494 NW2d 761 (1992).]
We review de novo a substantive due process challenge to a zoning ordinance. Bell River
Associates v China Twp, 223 Mich App 124, 129; 565 NW2d 695 (1997).
Initially, we agree with defendant’s contention that the trial court failed to both presume
that the ordinance was constitutional and place the burden on plaintiff in proving otherwise.
Frericks, supra at 594. For example, the trial court’s finding that “no credible evidence has been
submitted to justify the reasons stated in denying rezoning” appeared to place the burden on
defendant to prove the ordinance’s constitutionality. Similarly, the trial court found: “The Court
received little credible evidence to advance this reason [high percentage of population in mobile
homes]. The best the Township has shown is an increase based upon supposition that may or
may not occur.” In regard to traffic, the trial court noted that the minutes of the proceedings
below indicated that residents were concerned about traffic and sewer odors, but that defendant
failed to introduce evidence to support those concerns. Finally, with respect to public
opposition, the trial court stated: “While certainly the minutes of the public meeting reflect some
public opposition, this does not make the proposed zoning unreasonable.” Again, the Frericks
panel opined that the challenger—plaintiff, in this case—has the burden of proving that the
zoning ordinance is unconstitutional. Frericks, supra at 594.
Regardless, our appellate review of this issue requires us to review de novo the merits of
plaintiff’s substantive due process challenge. Bell River, supra at 129. In denying plaintiff’s
rezoning requests, the township cited several reasons: (i) adjacent property zoned R-1-M; (ii)
high percentage of population in mobile homes; (iii) proposed rezoning not in compliance with
the master plan; (iv) traffic; (v) aquifer; (vi) sewer odors; (vii) not conforming to land use; and
(viii) public opposition.
1
Plaintiff does not challenge this ruling on appeal.
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In regard to “adjacent property zoned R-1-M,” the trial court found that the development
of the property to the north as a mobile home park was unlikely until the water problem is
resolved. Indeed, Arthur St. Clair testified that there was a water problem in the area
surrounding plaintiff’s property, and that this was at least part of the reason why the adjacent
land had not been developed. Nevertheless, it is noteworthy that defendant granted an adjacent
property a special use permit for development as a mobile home park. Thus, we agree with the
trial court’s finding that this reason “advances a slight public interest.”
In regard to the “high percentage of population in mobile homes,” the trial court found
that “little credible evidence” was introduced to advance this reason and that defendant had only
shown an increase “based upon supposition that may or may not occur.” However, the
township’s 1998 master plan indicated that nearly twenty percent of the housing stock in the
township was mobile homes located in mobile home parks. Moreover, although it is uncertain
whether the property to the north of the subject property will ever be developed as a mobile
home park, the township had granted that property owner a special use permit to construct a
mobile home park. On the other hand, no evidence was presented supporting a finding that
twenty percent is a “high” percentage of the population. To the contrary, plaintiff introduced
evidence suggesting that this was a typical percentage of population in mobile home parks.
Accordingly, we agree with the trial court’s finding that this rationale was unsupported by the
evidence.
The trial court combined discussion of “proposed rezoning not in compliance with the
master plan” and “not conforming to land use.” The trial court found:
Both defendant’s and plaintiff’s experts testified that a mobile home park would
be consistent with the current master plan. The defendant, however, argues that
the mobile home park was not in conformity with the master plan in effect at the
time the Township denied the rezoning. While this is true, it is a misguided
reason to deny the current rezoning request. If a rezoning request should be in
agreement with the master plan, what appears to be relevant is the present master
plan, not the discarded. The question is whether the ordinance is unreasonable,
not whether the Township Board was unreasonable at the time it took action. The
relevant factor is whether the present ordinance conforms to the present master
plan, and it does.2
On appeal, defendant contends that the trial court erred by referencing the 1998 master plan. We
agree.3
2
Although the trial court concluded that the ordinance conformed to the master plan, the trial
court’s discussion of this reason suggests that it intended to conclude that the rezoning requests
conformed to the present master plan.
3
Plaintiff correctly notes that the only authority cited by defendant in support of its position, Fox
& Associates, Inc v Hayes Twp, 162 Mich App 647; 413 NW2d 465 (1987), is not actually
relevant to this issue. Accordingly, defendant has presented no authority in support of its
contention that the trial court erred by referencing the rezoning request’s compliance with the
1998 plan. “A party may not leave it to this Court to search for authority to sustain or reject its
(continued…)
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“An ‘as applied’ claim challenges a present infringement or denial of a specific right or
of a particular injury in the process of execution of government action.” Frericks, supra at 595.
In contrast, a “facial” claim requires a demonstration that “the existence and threatened
enforcement of the ordinance materially and adversely affects values and curtails opportunities
of all property regulated in the market.” Id.
Here, plaintiff claimed that the zoning ordinance was unconstitutional “as applied.”
Thus, plaintiff’s challenge to the constitutionality of the ordinance was based on the township
board’s conduct in denying his rezoning requests, and not based on the mere wording of the
ordinance. Indeed, this is why plaintiff attempted to refute each of the reasons advanced by
defendant in denying his rezoning request and the trial court considered the evidence supporting
each reason. Accordingly, we believe that the relevant master plan was the master plan in effect
when the township board was considering plaintiff’s rezoning requests: the 1972 master plan.
To be sure, plaintiff introduced expert testimony opining that the rezoning requests complied
with the 1972 master plan; however, defendant introduced expert testimony opining that the
rezoning requests did not comply with the 1972 master plan. The trial court’s findings suggest
that it found defendant’s expert to be more credible on this issue.4 Having reviewed the expert
testimony, we agree with the trial court’s finding. Consequently, we believe that the evidence
supported the township’s findings with regard to these reasons.
In regard to traffic concerns, defendant’s trial exhibits 8, 9, 11, and 12 indicated that there
was public opposition from neighbors because of traffic concerns.5 Moreover, although Blair
Ballou testified that Canal Road could handle the additional traffic likely from the proposed
expansion, he also testified that it would be necessary to provide turn lanes or deceleration lanes.
Although Ballou described these measures as “pretty typical,” the fact that the measures would
be necessary supports the township board’s conclusion that the proposed expansion would create
traffic problems. Further, defendant’s expert opined that, in regard to traffic, the property to the
north of plaintiff’s property would be a preferable site for a mobile home park because there is
an alternative access point on Billwood Road; in contrast, all the traffic from plaintiff’s proposed
expansion would have to use Canal Road. Accordingly, we believe that the evidence supported
this reason.
Similarly, the township residents expressed a concern about sewer odors. Plaintiff
presented testimony from a few adjacent property owners indicating that the mobile home park’s
sewer system did not produce odors. Arthur St. Clair, the township supervisor, testified that he
had received “a lot of complaints” about the sewer odors, but that he had not received recent
complaints, noting that “[t]he impression I got from the constituency that lives to the north and
(…continued)
position.” Staff v Marder, 242 Mich App 521, 529; 619 NW2d 57 (2000). However, our de
novo review of this issue requires us to make a finding.
4
As noted above, the trial court opined that it was “true” that “the mobile home park was not in
conformity with the master plan in effect at the time the Township denied the rezoning request.”
5
We have opined that the “purpose of the Township Rural Zoning Act would be defeated if a
township board could not consider public opposition to a proposed rezoning classification.” A &
B Enterprises, supra at 164.
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east of the park said [sic] that they just got tired and decided to live with it.” Logically, granting
the expansion and increasing the size of the sewer system would cause a detrimental or adverse
impact on those members of the public who were having problems with the odors. As such, we
believe that the evidence also supported this reason advanced by the township.6
In regard to the aquifer, during the October 4, 1995, hearing, one of the planning
commission board members expressed concern about the impact that enlarging the mobile home
park’s water system would have on the surrounding areas and the township. As noted above, St.
Clair testified that there was a water problem in the area surrounding the subject property. In
fact, St. Clair testified that he was working on bringing public water to the area. Although the
trial court properly noted that there had been difficulty obtaining water in that area, the trial court
found that there was no evidence supporting the township’s refusal to rezone based on the water
system. In light of the evidence submitted in regard to this issue, we believe that the trial court’s
conclusion is both internally inconsistent and erroneous. Accordingly, we believe that there was
evidence supporting this factor.
In regard to public opposition, the trial court noted that the minutes reflected public
opposition, but noted that “this does not make the proposed zoning unreasonable.” Again, it is
permissible for a township to consider public opposition. A & B Enterprises, supra at 164.
Here, defendant introduced the minutes from several hearings below that indicated that there was
some public opposition to the expansion. Accordingly, we believe that the evidence supported
this reason.
In light of the above discussion, we believe that there was evidentiary support for several
of defendant’s reasons for denying plaintiff’s rezoning requests. In fact, the only reason that was
not supported by the evidence was the “high percentage of population in mobile homes.” At the
very least, the evidence was sufficient for reasonable minds to legitimately differ in weighing
whether the reasons advanced by defendant were sufficient to advance a reasonable
governmental interest. Frericks, supra at 594. Similarly, plaintiff failed to introduce sufficient
evidence to overcome the presumption that the ordinance was not a “purely arbitrary, capricious,
and unfounded exclusion of other types of legitimate land use from the area in question.” Id.
Thus, we believe that plaintiff failed to present sufficient evidence to overcome the ordinance’s
presumption of validity. Id. Accordingly, the trial court erred by concluding that there was
merit to plaintiff’s as applied challenge to the constitutionality of the zoning ordinance.
Plaintiff’s cross-appeal challenges the trial court’s dismissal of counts II and III. In count
II, plaintiff contended that the zoning ordinance violated MCL 125.2307(6) because mobile
home parks were only permitted if a special use permit was granted. MCL 125.2307(6) provides
as follows:
6
In addition, it is undisputed that plaintiff declined to participate in the public sewer system.
Defendant’s expert noted that the “common sentiment among municipal planners is that there are
concerns about private [sewer] systems.” Defendant’s expert explained that the concern arises
from residents being forced to rely on private individuals to maintain the sewer system, rather
than a municipality-maintained system.
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A local government ordinance shall not contain roof configuration standards
or special use zoning requirements that apply only to, or excludes [sic],
mobile homes. A local government ordinance shall not contain a manufacturing
or construction standard that is incompatible with, or is more stringent than, a
standard promulgated by the federal department of housing and urban
development pursuant to the national manufactured housing construction and
safety standards act of 1974, 42 USC 5401 to 5426. A local government
ordinance may include reasonable standards relating to mobile homes located
outside of mobile home parks or seasonal mobile home parks which ensure that
mobile homes compare aesthetically to site-built housing located or allowed in the
same residential zone. [Emphasis added.]
The trial court dismissed this count, opining that the statutory provision concerned mobile
homes, rather than mobile home parks.
Generally, we review de novo conclusions of law. Walters v Snyder, 239 Mich App 453,
456; 608 NW2d 97 (2000). Issues of statutory construction are also reviewed de novo. Hinkle v
Wayne Co Clerk, 245 Mich App 405, 413-414; 631 NW2d 27 (2001).
MCL 125.2307(6) prohibits local ordinances from containing special use zoning
requirements that apply to or exclude mobile homes, but does not extend that prohibition to
mobile home parks. The Mobile Home Commission Act (“MHCA”) separately defines “mobile
home” and “mobile home park.” MCL 125.2302(g) and (i). In fact, the phrase “mobile home
parks” is included in several other subsections of MCL 125.2307, including separate sentences
within MCL 125.2307(6). Further, in People v Ramsdell, 230 Mich App 386, 392; 585 NW2d 1
(1998), we noted that “the Legislature is presumed to be aware of the consequences of the use, or
omission, of language when it enacts the laws that govern our behavior.” Thus, we believe that
the Legislature knowingly omitted “mobile home parks” from the first sentence of MCL
125.2307(6). Therefore, we conclude that MCL 125.2307(6) does not prohibit ordinances from
containing special use zoning requirements that apply only to mobile home parks.7
Consequently, the trial court did not err as a matter of law by dismissing Count II.
7
Plaintiff contends that we have previously ruled to the contrary. We have opined that MCL
125.2307(6) prohibits a zoning ordinance from containing special use zoning requirements that
apply to mobile home parks. Bell River, supra at 128-129. Defendant contends, however, that
the Bell River decision is not binding as dictum. Indeed, in Bell River, we noted that the issue of
whether the zoning ordinance violated MCL 125.2307(6) was “immaterial to the outcome of the
appeal.” Id. at 127 n 4. We recently defined dictum as “[a] judicial comment made during the
course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and
therefore not precedential (though it may be considered persuasive).” People v Higuera, 244
Mich App 429, 437; 625 NW2d 444 (2001), quoting Black’s Law Dictionary (7th ed). In light of
the definition of dictum, we agree with defendant (and the trial court) that the Bell River
decision’s construction of MCL 125.2307(6) is dictum, and, therefore, not binding.
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In count III, plaintiff contended that the zoning ordinance violated MCL 125.297a
because it had the effect of totally excluding mobile home parks despite a demonstrated need
within the township. MCL 125.297a provides as follows:
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.
Again, we review this issue de novo. Walters, supra at 456; Hinkle, supra at 413-414.
In Burt Twp v Dep’t of Natural Resources, 227 Mich App 252, 261; 576 NW2d 170
(1997), aff’d 459 Mich 659 (1999) we noted that, pursuant to MCL 125.297a, “[a]n ordinance
that has the effect of totally prohibiting a particular land use within a township is impermissible
in the absence of special circumstances.” “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.” Id.
In the instant matter, the trial court found:
The plaintiff himself owns a mobile home park containing a significant
percentage of dwelling units within the Township. Mobile home dwellings now
compose 20% of the total housing in the Township and mobile homes are
increasing at a rate higher than the growth of other types of housing. The plaintiff
has failed to demonstrate an unlawful exclusion of mobile homes within the
Township.
In other words, the trial court essentially found that the zoning ordinance did not have the effect
of totally prohibiting mobile homes. Thus, the trial court dismissed plaintiff’s claim based on
MCL 125.297a.
Indeed, the 1998 master plan indicated that there were approximately 2,500 dwelling
units in the township in 1996. Testimony indicated that plaintiff’s mobile home park contained
approximately 470 units. Thus, approximately 18.8 percent of the dwelling units in Windsor
Township were mobile homes specifically located in plaintiff’s mobile home park. In addition,
the 1998 master plan recognized that, between 1980 and 1996, mobile homes:
increased by 86 percent, a much faster rate than other housing types. This is a
reflection of the increased cost of housing, putting a larger number of people out
of the home buying market. It is also a result of an aging population and the
changing composition of households from traditional families to single parent or
single person households.
As noted above, defendant has also approved a special-use permit for the property to the north of
plaintiff’s property so that it can be developed as a mobile home park. Thus, whether looking at
mobile homes or mobile home parks, defendant’s zoning ordinance certainly did not have “the
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effect of totally prohibiting” mobile home parks within the township. Burt, supra at 261.
Accordingly, we do not believe that the trial court erred by dismissing plaintiff’s Count III.
In summary, we affirm the trial court’s dismissal of plaintiff’s claims alleging violations
of MCL 125.2307(6) and MCL 125.297a. We reverse the trial court’s conclusion that
defendant’s zoning ordinance, as applied, violated plaintiff’s substantive due process rights.
Affirmed in part and reversed in part. We do not retain jurisdiction.
/s/ Harold Hood
/s/ Donald E. Holbrook, Jr.
/s/ Donald S. Owens
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