HASTINGS PUBLIC LIBRARY V DIRECTOR DEPT OF TRANSPORTATION
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STATE OF MICHIGAN
COURT OF APPEALS
HASTINGS PUBLIC LIBRARY and CITY OF
HASTINGS,
UNPUBLISHED
March 2, 2004
Plaintiffs-Appellees,
v
DEPARTMENT OF TRANSPORTATION
DIRECTOR and DEPARTMENT OF NATURAL
RESOURCES DIRECTOR,
No. 243950
Barry Circuit Court
LC No. 01-001037-CZ
Defendants-Appellees,
and
SUPERETTE LODI, INC.
Defendant-Appellant.
Before: Murray, P.J., and Murphy and Markey, JJ.
PER CURIAM.
Defendant Superette Lodi, Inc. appeals from a September 5, 2002 order of the Barry
Circuit Court granting plaintiffs’ petition to vacate a portion of Mill Street in the city of
Hastings, pursuant to MCL 247.41 et seq. We affirm.
I.
Facts And Procedural History
On December 28, 2001, plaintiffs filed a petition with the Barry Circuit Court seeking to
vacate portions of Mill Street and Jefferson Street in the city of Hastings in order to construct a
new public library. Because Mill and Jefferson Streets are close to the Thornapple River,
plaintiffs were required by MCL 247.41 to obtain the authorization of the circuit court before the
streets could be vacated. Therefore, after plaintiffs joined all necessary defendants and gave
notice by publication pursuant to MCL 247.43. The circuit court, as required by MCL 247.44(1),
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held hearings to determine that there is no reasonable objection to the petition for vacation and
that the vacation is necessary for the best interest and welfare of the public.
At the commencement of the first hearing the court and defendants, attempted to clarify
the court’s role with respect to making the determination of whether there were any reasonable
objections under MCL 247.44. After considerable discussion, the court determined that the
purpose of MCL 247.41 et seq. is to protect citizens who may be affected by a loss of access to
the river and ruled that the only objections it would hear were those regarding the effects that
closing the streets would have on the public’s access to, or use of, the river. Thereafter, the court
allowed citizens of Hastings to present testimony as to why they believed the closing of the
streets would adversely affect them.
Doug Ward, a lifelong resident of Hastings who owns a store on Church Street, was
initially the only citizen to come forward. According to Ward, many of the people who came
into his store to sign a petition1 said that they spear fish in the river and were not sure how
closing Mill Street to construct the library would affect that activity. The bulk of Ward’s
testimony, however, focused on his belief that closing Mill Street would create traffic problems
by forcing too many people onto Apple, Main, and Court Streets. Moreover, Ward stated that
closing Mill Street would affect his business, would increase traffic on Apple Street, and would
force the closing of a 160-year old waterworks building.
After Ward testified, the court asked the audience if any other citizens would like to be
heard. After receiving no response from the gallery, the court allowed plaintiffs to present their
case.
Plaintiffs called a total of seven witnesses over the three days of hearing. Jeff Mansfield,
Hastings city manager, testified about the city’s ownership of the land proposed to be used for
the library, and that there was no public access to the river between Mill and Jefferson streets.2
According to Mansfield, the library site plan includes a provision for a previously planned river
walk, and that, according to a traffic engineering firm, the new library would not affect the
nearby fire department. Mansfield also testified that the old waterworks building was vacant and
had no historical designation.
Also testifying for plaintiffs was David Clark, a senior architect, who had developed over
the past three-and-a-half years a schematic design and site evaluation for the proposed library.
Clark opined that the site chosen was the most feasible based on a number of factors, including
zoning, utilities, visibility, and natural beauty, and that many other sites were rejected because of
prohibitive development costs, insufficient size, or lack of availability. The proposed library
would not inhibit, but would enhance, river access, because of additional “greenspace,” a two
1
Ward had a petition available in his store for people to sign who were opposed to plaintiff’s
project.
2
However, Mansfield did testify that nothing in the area prevented public access to the river,
other than natural stream bank impediments.
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story glass wall overlooking the river in the library, extension of a sidewalk, allowance of the
planned riverwalk, and clearance of the thick brush along the river.3
At the second day of hearings, plaintiffs called three business owners in the affected area,
each of whom testified that they believed of a new library in the area would have a positive
impact on their businesses because it would increase traffic flow into the area, which, in turn,
would improve their businesses.
Plaintiffs then called Barbara Schondelmayer, administrator of Hastings Public Library
since 1984. Schondelmeyer’s testimony somewhat mirrored that of Clark, in that she testified
about the library board’s procurement of consultants to develop site plans and to conduct traffic
impact studies. She also detailed the reasons other sites were rejected.
After Clark, plaintiffs called Shirley Wollner, who is employed by a civil engineering
firm. Wollner testified that the east to west traffic currently traveling on Mill between Michigan
and Jefferson would have to be diverted to Apple Street, but that the Apple/Jefferson intersection
had plenty of reserve capacity to handle much more volume than would result from the shifting
traffic from Mill Street.4 Wollner testified that the largest impact of closing Mill Street would be
on citizens who come across the Thornapple River, but those citizens’ travel path would only
change by an additional one or two blocks.
The last witness called by plaintiffs was Roger Caris, chief of the Hastings fire
department, who testified that building the library would not affect fire truck ingress or egress, or
hinder fire truck access to the fire station. Caris further testified that installing the coordinated
signals would actually make the fire department’s ingress and egress much easier because it
would clear traffic.
Plaintiffs then rested. Defendants first called Mike Michalski, president of a multi
service economic development firm. Michalski testified that he had met with three business
owners in the area of the proposed library and stated that closing Mill Street could cost local
businesses several million dollars and affect at least nineteen direct jobs. According to
3
After Ward was briefly called as a witness by defendants, and an adjournment was granted by
the court, the trial court again stated that the statute required it to make its determination of a
reasonable objection based on whether use of or access to the river would be restricted, but
allowed the defense to present legislative history or case law indicating that it was allowed to
consider other factors. Defendants apparently did so, because the court issued a written opinion
on March 29, 2002, in which it stated that its February 27, 2002, ruling that a reasonable
objection must relate to whether the public’s use of the river as a waterway would be restricted,
was in error based on this Court’s holding in Abbey Homes of Michigan, Inc v Wilcox, 89 Mich
App 574, 583; 280 NW2d 868 (1979), that the term reasonable objection is a term of art that
“requires circuit judges to consider all of the circumstances of the case . . . .”
4
Wollner also testified that the intersection of Michigan and Apple Streets would warrant the
installation of a traffic signal before the traffic was diverted from Mill Street.
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Michalski, closing the streets could impact the businesses because downtown businesses need
direct visibility and immediate accessibility or else customers will take their business elsewhere.
After calling Michalski, defendants had no other witnesses, and the court allowed
additional citizen testimony. Thereafter, Jim Brown, who owns a commercial rental office on
Mill Street close to Ward’s, stated that he failed to see how closing off one block on the east end
of Mill Street would affect his or Ward’s business. Following Brown’s testimony, no other
citizens came forward to present testimony.
At the last hearing, defendants called Diane Cizauskas, owner of defendant Superette
Lodi, Inc., a grocery store located at the corner of Mill Street and Michigan Avenue.5 Cizauskas
is opposed to the closing of Mill Street. According to Cizauskas, she previously owned a second
grocery store in Middleville that was forced to close because of prolonged road construction.
Cizauskas stated that business never returned to normal after construction was completed, and
that she is concerned this will occur at the Superette if Mill Street is closed. Although Cizauskas
testified that she does not know how the street’s closing is going to affect the Superette, she
stated that she is reasonably concerned that sales will decline in sales because the store is located
on Michigan Avenue across from the Mill Street/Michigan Avenue intersection, and people who
stop at the corner of Mill Street and Michigan Avenue look straight at the Superette. Therefore,
Cizauskas believes closing Mill Street would affect how many people would be able to see and
access the Superette.6
Thereafter, both plaintiffs and defendants rested, and the court again opened the floor for
public comment. Four citizens testified. Two opined that the closing of streets would be
disruptive to the city, while two others testified that the site was a good one for the library.
II.
The Trial Court’s Ruling
After closing arguments, the trial court, after noting that this case presents a unique issue
that “kind of skates the line between political decisions and legal decisions,” held that there had
been no evidence presented showing that the streets’ closings would in any way adversely affect
the public’s use of the river. Indeed, the court noted that all of the evidence presented was to the
5
Defendants also recalled Ward to testify. According to Ward, his review of Hastings’ police
reports indicated that there had been five accidents at the Mill Street/Michigan Avenue
intersection over the past ten years, two of which were caused by cars sliding through the
intersection during icy conditions, whereas there had been thirty-one accidents at the Apple
Street/Michigan Avenue intersection.
6
On cross-examination, Cizauskas clarified that the Superette is located on Michigan Avenue
about one-quarter of a block from the corner of Mill Street, and on the opposite side of Michigan
Avenue from Mill Street. When asked if the fact that her business is located on Michigan
Avenue would prevent any adverse impact on her store since the construction would take place
on Mill Street and not prevent access, Cizauskas stated that she doesn’t know that Mill Street’s
closing would not affect her business, and that is what concerns her.
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contrary, and tended to show that access to the river, and the public’s best interests in the river,
would be enhanced if the streets were closed.
The court then ruled that it must next determine whether the street closings were
necessary for the best interests and welfare of the public. The court stated that it did not believe
that this issue had been in dispute, as there had been no dispute that there is a need for the library
and that the library would have a positive impact on the community. The court also concluded
that the potential disruption to some businesses did not translate into a reasonable objection to
the project.
Accordingly, on September 5, 2002, the trial court issued a written order allowing for the
vacation of the designated portion of Mill Street and requiring plaintiffs to amend their complaint
or file a new action under MCL 560.221 et seq., with respect to the designated portion of
Jefferson Street.
III.
Analysis
This case requires consideration of the term “reasonable objection” as stated in MCL
247.44, and statutory interpretation presents a question of law that is reviewed de novo. People v
Davis, 468 Mich 77, 79; 658 NW2d 800 (2003). Moreover, this Court reviews a circuit court’s
findings of fact under MCL 247.44 for clear error. Abbey Homes, supra, at 580. “A finding is
clearly erroneous when, although there is evidence to support it, the reviewing court on the entire
record is left with the definite and firm conviction that a mistake has been committed.” Gumma
v D & T Constr Co, 235 Mich App 210, 221; 597 NW2d 207 (1999).7
Because the portion of Mill Street proposed to be vacated is adjacent to the Thornapple
River, the present case is subject to MCL 247.41 et seq. MCL 247.41 states:
A public highway or a portion of a public highway that borders upon, crosses, is
adjacent to, or ends at a lake, or the general course of a stream, shall not be
abandoned, discontinued, vacated, or have its course altered resulting in a loss of
public access by the order or action of an official or officials of a city or village in
this state, until an order authorizing the abandonment, discontinuation, alteration,
or vacation is made by the circuit court for the county in which the highway is
situated in the manner provided in this act.
Under MCL 247.42, before a city may vacate streets that are within 5 rods [82½ feet] of the
shore of a lake or stream, MCL 247.46(a), it must present an application to the circuit court that
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We reject plaintiffs’ assertion that this Court lacks jurisdiction because defendant failed to
comply with the notice requirements of MCL 247.45. Plaintiffs have developed no argument as
to why this notice provision trumps the time period under the court rule for filing a claim of
appeal, nor have plaintiffs explained why failure to comply with part of the statute, but not all,
requires a finding of lack of jurisdiction. We will not search for authority or arguments to
support a party’s position. Peterson Novelties, Inc v Berkley, 259 Mich App 1, 14; 672 NW2d
351 (2003).
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is signed by at least 21 landowners and substantiated by the oath of five or more of the
signatories, which states the circumstances of the case, describes the street proposed to be
vacated, and sets forth the reasons for the proposed vacation. Moreover, under MCL 247.43, the
plaintiffs must comply with extensive service and notice requirements and, once the application
is filed, the circuit court is required to schedule a hearing on the application. In the present case,
Superette does not dispute that the city complied with these requirements.
The manner in which a circuit court is to review an application filed under MCL 247.42
is set forth in MCL 247.44(1), which states:
Upon the day of hearing the application or any adjournment of the hearing,
testimony may be taken from any person or persons interested in the application,
and if it satisfactorily appears to the court that there is no reasonable objection to
the application, and that it is necessary for the best interest and welfare of the
public that the highway be abandoned, discontinued, vacated, or altered as to its
course, as prayed for in the application, or if it appears to the court that the
highway or any part of the highway should remain as then established, an order
shall be entered in the record of the court in accordance with the determination.
[Emphasis added.]
This Court has determined that a circuit court’s role under MCL 247.44(1) is not to
review the actions of local city officials in determining whether to vacate the street, but rather to
“make an independent determination of the matter based on the guidelines of MCL 247.44.”
Abbey Homes, supra at 580. Thus, the circuit court proceedings are an original action, and the
circuit court’s review is to be conducted de novo. Id.
In its appeal to this Court, Superette challenges the trial court’s determination that there
was no reasonable objection to the application for the streets’ vacation. Specifically, it appears
that Superette is asserting, as it did below, that a reasonable objection under MCL 247.44(1)
need not be based on whether the public’s access to the river would be impeded, but that the
court should have considered other factors, such as safety factors of the proposed alternative, the
scenic value of the road, the testimony as to whether the rerouting would potentially impact local
businesses, and the fact that the waterworks building would have to be torn down in order to
construct the new library.
In support of its assertion, Superette relies primarily on this Court’s decision in Abbey
Homes, supra. In Abbey Homes, plaintiffs sought to move an intersection 410 feet away from
the border of Orchard Lake in Oakland County in order to subdivide some property on Orchard
Lake Road. Id. at 576, 578. In its ruling, the circuit court stated that defendants had presented
objections relating to the loss of a historic route and public scenic view of the lake, but stated
that the issue presented to it was whether the proposed alternative route was in the best interests
and welfare of the public. Thereafter, the circuit court stated extensive findings that the existing
road was inadequate, that the proposed road would be a safer and more adequate route, that the
proposed alternative road would not require a public expense, and that only a minimal amount of
the existing road would be moved away from the lake. Thus, the trial court reasoned that the
objections to the proposed alteration, although real, were not reasonable because the acquired
aesthetic beauty of the proposed road would balance the loss of scenic beauty caused by vacating
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the existing portion of the road next to the lake. Id. at 578-580. On appeal, this Court set forth
the following definition of the term “reasonable objection,” as contained in MCL 247.44:
The term "reasonable objection", as used in the act, is a term of art. It requires
circuit judges to consider all the circumstances of the case to determine if there is
a reasonable objection. The phrase "all the circumstances of the case" includes,
but is not limited to, a comparison of the scenic, historic and public access values
of the existing road and the proposed alternative; consideration of the safety
features of the existing road and the proposed alternative; recognition of any
relevant cost factors; and an evaluation of the best interest and welfare of the
public. [Id. at 583.]
In setting forth this definition of “reasonable objection,” this Court was addressing the
defendants’ assertion that a circuit court must first determine that there has been no reasonable
objection posed before even considering the best interest and welfare of the public, and that a
reasonable objection could be founded solely on the defendants’ assertion that the proposed
alteration would result in a loss of the scenic beauty presented by the existing road’s proximity to
the lake. Abbey Homes, supra at 582. This Court rejected the defendants’ argument, reasoning
that it would render the statute useless because every road in close proximity to a lake
presumably “has some scenic, historic or public access value.” Therefore, this Court held that if
the act were construed as the defendants asserted, the alteration of any road near a lake would be
virtually impossible, even if it were in the best interests and welfare of the public, because a
single isolated objection based on the assertion of scenic, historic, or public access values could
prevent any proposed alteration; a result which this Court stated it did not believe to be the
intention of the Legislature. Id. at 582-583.
Thus, this Court’s definition of the term “reasonable objection” in Abbey Homes, supra,
when viewed in context, stands for the proposition that not every mere assertion that some
scenic, historic, or public access values may be affected equates to a reasonable objection.
Moreover, this Court’s holding in Abbey Homes does not stand for the proposition that a
“reasonable objection” may be founded solely on factors unrelated to scenic, historic, or public
access values of the existing road’s proximity to the body of water. Indeed, this Court held that a
determination of whether a reasonable objection has been presented requires consideration of all
the circumstances of the case, which “includes, but is not limited to, a comparison of the scenic,
historic, and public access values of the existing road and the proposed alternative . . . .” Id. at
583 (emphasis added).
Further support for the conclusion that a “reasonable objection” under MCL 247.44(1)
must be, at least in some way, related to the scenic, historic, and public access values of the
existing road’s proximity to the Thornapple River comes from the purposes of the statute. Ross v
Dep’t of Treasury, 255 Mich App 51, 55; 662 NW2d 36 (2003). MCL 247.41 and MCL 247.42
only require a petition signed by landowners and an order of the circuit court authorizing the
abandonment, vacation, discontinuation of use, or alteration of the course of highways within 5
rods of a lake or stream when such would result in a loss of public access to the lake or stream.
Therefore, it is clear that in enacting MCL 247.44(1), the Legislature intended that a circuit
court’s determination of whether a “reasonable objection” has been posited must, at a minimum,
involve the public’s access to the lake or stream.
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In the present case, the only witness who offered testimony regarding a potential loss of
access to the river was Ward, who briefly stated that he and others who had fished in the river
were concerned about whether it would impact the fishing. However, Ward was admittedly not
sure that closing the streets to construct the library would affect this activity. There was also
testimony that there is no designated public access to the river along the portions of the streets
proposed to be closed, and that the library plans indicated that the river walk would be
incorporated into the library’s construction. Moreover, Clark testified that the proposed library
site plan would not inhibit access to the river, but would most likely enhance it because of
increased parking, additional sidewalks, and the construction of the river walk. Clark further
testified that the river bank is currently very steep and covered with brush and trees, making it
inaccessible, and that the river bank would be cleaned up during the library’s construction.
Moreover, the only mention of any historic value that the current streets’ proximity to the
river might hold also came from Ward, who testified that closing Mill Street and constructing the
library would require the destruction of the 140-year-old waterworks building located near the
river. However, other than the building’s age, defendants offered no testimony tending to show
that the building had any historical significance. Moreover, Mansfield testified that the building
is currently vacant and is not really conducive to conversion for reuse because of its size and age.
Mansfield further stated that the building currently has no historical designation, and that he is
not aware of its having any historical significance.
Therefore, taking into consideration the testimony presented regarding the scenic,
historic, and public access values regarding the streets’ proximity to the river, the trial court’s
ruling that defendant had not presented a reasonable objection was not clearly erroneous.
Finally, even though no reasonable objection was presented, the circuit court was still
required to determine whether altering the course of the streets “is necessary for the best interest
and welfare of the public before approving the change.” Abbey Homes, supra at 583; MCL
247.44(1).
Superette initially argues that, with regard to traffic flow, the circuit court failed to
consider the safety features of the existing road and the proposed alternative. Defendant’s
argument on this issue, however, fails to take into consideration the testimony of Wollner, who
testified that the Apple Street/Michigan Avenue intersection was currently in need of a traffic
signal, had plenty of reserve capacity to handle the traffic that would be diverted to it, and that
there would only be additional congestion to the intersection if no improvements were made.
However, Wollner testified that she would be recommending that the intersection be improved
by the addition of a traffic signal which, in addition to controlling congestion, would contain a
traffic signal preempt to clear the intersection during fire department responses and increase
safety in the community.
The bulk of Superette’s argument, however, focuses on its assertion that the circuit court
failed to give adequate weight to the testimony of local business owners who fear a resulting
adverse economic impact and, especially, failed to consider the testimony of defendant’s expert,
Michalski, and Dianne Cizauskas, who testified that she had been forced to close her grocery
store in Middleville because of a similar road closing. Again, the trial court’s findings were not
clearly erroneous. Initially, we note that Michalski met with only three business owners, was
only basing his opinion on the potential economic impact to those businesses on information
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provided to him concerning gross revenues, and that he had not conducted any specific analysis
on the actual adverse impact of the street closings. Moreover, with respect to Cizauskas, she
testified that her store is not located on the portion of Mill Street that is proposed to be closed,
but is actually located on the opposite side of Michigan Avenue from where the construction
would take place. Thus, Cizauskas was unable to say with any reasonable certainty that her store
would be adversely affected.
We also reject defendant’s assertion that subjective fears are sufficient to comprise a
reasonable objection. First, Superette’s reliance on Westveer v Ainsworth, 279 Mich 580, 585;
273 NW 275 (1937), is misplaced. Westveer involved former 1929 CL 1929. In Abbey Homes,
supra, at 584, n 3, this Court expressly avoided drawing an analogy between such statutes and
MCL 247.44 because they differ significantly in both language and intent.
Second, defendant’s argument is analogous to the one posed in Abbey Homes, supra at
582-583, which when “taken to its logical conclusion, reduces the statute to a useless
enactment.” Quite simply, if defendant’s assertion were adopted, a few isolated objections based
on unsubstantiated subjective beliefs that the alteration may have adverse effects, would prevent
a circuit court from finding that the proposed alteration is in the best interests and welfare of the
public. As in Abbey Homes, we do not believe the Legislature intended such a result. Id. at 583.
Therefore, we conclude that the circuit court’s determination that closing the streets to
build the proposed library is in the best interests and welfare of the public was not clearly
erroneous.
Affirmed.
/s/ Christopher M. Murray
/s/ William B. Murphy
/s/ Jane E. Markey
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