WOLTERS REALTY LTD V SAUGATUCK TWP
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STATE OF MICHIGAN
COURT OF APPEALS
WOLTERS REALTY, LTD.,
UNPUBLISHED
August 3, 2004
Plaintiff-Appellee,
v
SAUGATUCK TOWNSHIP, SAUGATUCK
PLANNING COMMISSION, and SAUGATUCK
ZONING BOARD OF APPEALS,
No. 247228
Allegan Circuit Court
LC No. 00-028157-CZ
Defendants-Appellants.
Before: Fort Hood, P.J., and Donofrio and Borrello, JJ.
PER CURIAM.
In this zoning case, defendants Saugatuck Township, Saugatuck Planning Commission,
and Saugatuck Zoning Board of Appeals appeal by right from the trial court’s ruling that the
township’s ordinance, as applied to plaintiff’s parcel, was unreasonable and the court’s order that
enjoining defendants from interfering with the development of a travel plaza1 that plaintiff
Wolters Realty planned to build on property it owned within the township. Because plaintiff has
failed to establish that a final decision was made regarding the rezoning of the particular parcel,
and as such, the issue is not ripe for adjudication, we reverse.
The twenty-acre parcel of land at issue is located in Saugatuck Township, just east of exit
34 near the northbound entrance ramp of I-196. At the time plaintiff filed its complaint, the
majority of the parcel was zoned “A-2,” or agricultural. However, there were also two
irregularly shaped portions of plaintiff’s parcel zoned “C-1,” or commercial. Plaintiff sought to
have a portion of its A-2-zoned parcel rezoned to C-1 to enable it to construct a travel plaza
because plaintiff believed the C-1 portion of its parcel was too small to accommodate the plaza.
Plaintiff initially filed an application for special use approval with the planning
commission to construct a “convenience/gas facility”2 on the southern seven acres of the parcel.
1
The travel plaza apparently would include a gas station, truck stop, fast food center, and
convenient store.
2
Plaintiff’s reference to its proposed use in the application for special use did not mention
(continued…)
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However, the defendant planning commission denied plaintiff’s application for special use
approval, and the township zoning board of appeals (ZBA) denied plaintiff’s appeal of that
decision. Plaintiff did not seek a variance from the township ZBA.
Plaintiff then filed a three-count complaint, appealing the ZBA’s denial of its appeal and
alleging that the 208' by 174' C-1 portion of the parcel was too small and too irregular for any
reasonable commercial use, so as a result, the zoning scheme was unreasonable as applied to
plaintiff’s parcel. After the trial court denied plaintiff’s appeal of the ZBA’s decision, it
conducted a bench trial on plaintiff’s remaining due process challenges to the allegedly
unreasonable ordinance. Ruling in plaintiff’s favor on its “as applied” challenge to defendant’s
zoning ordinance, the trial court first observed that “[t]he uses in the immediate vicinity of the
Parcel are predominately commercial and/or commercial/industrial uses.” The trial court also
stated that the key issue was whether the ordinance and the zoning were reasonable as applied to
plaintiff’s parcel. In determining whether the zoning was reasonable, the trial court
acknowledged that it would have to consider “the [area’s] character, its suitability for particular
uses, the conservation of property values and the general trend and character of buildings and
population development.” The trial court stated:
This Court is satisfied based on the testimony of all the witnesses that the
present application of the ordinance as to this parcel is unreasonable. The current
commercial frontage on M-89 is too narrow and limited in size to sell or use, the
size and character of the land doesn’t make it useful for agricultural purposes, the
commercial industry character of adjacent properties, location directly next to the
expressway with attended [sic] traffic noise all are factors directly affecting the
Court’s conclusion.
***
Having determined the ordinance unreasonable as to this parcel the Court
further determines that use of the property as a truck stop – fast food restaurant is
a reasonable use for the parcel and Saugatuck Township shall be enjoined from
interfering with such use and development.
On appeal, defendants first argue that the trial court did not have subject matter
jurisdiction to hear plaintiff’s “as applied” challenge to the township’s zoning ordinance.
Defendants argue that, in addition to appealing the denial of the special use application, plaintiff
(…continued)
“truck stop” or “commercial refueling station.” But defendant repeatedly refers to plaintiff’s
proposed use of its parcel as a “truck stop” in its appellate brief. The trial court referred to the
proposed use of the parcel as a truck stop/fast food restaurant, but we observe that the trial court
also referred to the proposed use as a gas station. Plaintiff’s vice president of operations for
Woltco Inc., the company that would have actually operated the gas station, testified that the
company’s plan for the parcel was to develop a 5,000 square-foot store that would contain some
type of brand-name fast food chain. Moreover, the vice president specifically denied that the
development would contain accommodations for semi-trucks to park overnight.
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was also required to seek a variance from the township ZBA to satisfy the requirements of
finality. We agree.
There is no preservation requirement for subject matter jurisdiction challenges, and the
issue may be raised for the first time on appeal. McFerren v B & B Investment Group, 233 Mich
App 505, 511-512; 592 NW2d 782 (1999). Whether the trial court had subject matter
jurisdiction over a claim is a question of law that we review de novo. Harris v Vernier, 242
Mich App 306, 309; 617 NW2d 764 (2000).
It is undisputed that plaintiff mounted an “as applied” challenge to the ordinance. In
Paragon Properties v Novi, 452 Mich 568, 576; 550 NW2d 900 (1996), our Supreme Court
clearly defined and explained the finality rule and its application to “as applied” challenges:
A claim for compensation may allege that an ordinance is confiscatory “as
applied” or “on its face.” 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. [Village of
Euclid, Ohio v Ambler Realty Co, 272 US 365, 395; 47 S Ct 114; 71 L Ed 303
(1926).] An “as applied” challenge alleges a present infringement or denial of a
specific right or of a particular injury in process of actual execution. Id.
A challenge to the validity of a zoning ordinance “as applied,” whether
analyzed under 42 USC 1983 as a denial of equal protection, as a deprivation of
due process under the Fourteenth Amendment, or as a taking under the Just
Compensation Clause of the Fifth Amendment, is subject to the rule of finality.
Lake Angelo Associates v White Lake Twp, 198 Mich App 65, 70; 498 NW2d 1
(1993), citing Williamson Co Regional Planning Comm v Hamilton Bank of
Johnson City, 473 US 172, 186; 105 S Ct 3108; 87 L Ed 2d 126 (1985).
[Paragon Properties, supra at 576-577 (footnote omitted).]
Our Supreme Court explained that “‘[t]he finality requirement is concerned with whether
the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual,
concrete injury . . . .’” Id. at 577, quoting Williamson, supra at 193.
The plaintiff in Paragon sought rezoning through the City of Novi. When the city denied
the request, the plaintiff brought suit alleging a violation of the takings and due process clauses
of the Michigan and federal constitutions. The City of Novi argued that the case should be
dismissed because the plaintiff did not seek a use variance, and as such, no final decision was
rendered to make the issue justiciable. Our Supreme Court agreed, holding that until the plaintiff
sought a variance, the “as-applied” claim against the city was not ripe for the trial court’s review.
Id. at 580. The Paragon Court reasoned:
The City of Novi’s denial of Paragon’s rezoning request is not a final
decision because, absent a request for a variance, there is no information
regarding the potential uses of the property that might have been permitted, nor,
therefore, is there information regarding the extent of the injury Paragon may
have suffered as a result of the ordinance. . . . [H]ad Paragon petitioned for a land
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use variance, Paragon might have been eligible for alternative relief from the
provisions of the ordinance. [Id. (footnote omitted).]
Recently, this Court, in Braun v Ann Arbor Charter Township, _____ Mich App ____;
____ NW2d ____ (Docket No. 247109, issued May 20, 2004), held that even when there is no
uncertainty regarding the result, a plaintiff must exhaust all administrative remedies before
seeking judicial redress of a zoning decision. In Braun, the plaintiffs petitioned the defendant to
rezone approximately 363 acres of land. Id. at slip op 1. Plaintiffs submitted a petition for
rezoning and supporting documentation.
Id.
The township’s planning commission
recommended denying the rezoning request, so the plaintiffs submitted the application to the
Washtenaw County Metropolitan Planning Commission.
Id.
The Commission also
recommended denying plaintiffs’ petition. Id. Following the recommendations, the defendant
township’s board adopted a resolution denying the plaintiffs’ petition. Id. The plaintiffs did not
file a petition for review of the resolution or seek a variance before the ZBA. Id. at slip op 1-2.
In concluding that the plaintiffs failed to exhaust all administrative remedies, this Court quoted
Palazzolo v Rhode Island, 533 US 606, 620-621; 121 S Ct 2248; 150 L Ed 2d 592 (2001),
stating:
“Under our ripeness rules a takings claim based on a law or regulation
which is alleged to go too far in burdening property depends upon the
landowner’s first having followed reasonable and necessary steps to allow
regulatory agencies to exercise their full discretion in considering development
plans for the property, including the opportunity to grant any variances or
waivers allowed by law. As a general rule, until these ordinary processes have
been followed the extent of the restriction on property is not known and a
regulatory taking has not yet been established. [Id. at slip op 3, quoting
Palazzolo, supra (emphasis added). See also MacDonald, Sommer & Frates v
Yolo County, 477 US 340; 106 S Ct 2561; 91 L Ed 2d 285 (1986).]
Similarly, this Court in Conlin v Scio Twp, ____ Mich App ____; ____ NW2d ____
(Docket No. 243886, issued April 22, 2004), held that summary disposition was appropriate
where the trial court found that the plaintiffs failed to exhaust their administrative remedies. In
Conlin, this Court held that the plaintiffs’ failure to apply for conditional land use approval or
rezoning of their property clearly demonstrated that plaintiffs failed to exhaust their
administrative remedies. Id. at slip op 2.
In the present case, it is undisputed that plaintiff never sought a variance from defendants.
Further, plaintiff’s appeal of the planning commission’s decision to the ZBA relates only to the
planning commission’s decision to deny the special use application regarding the gas
station/convenience store proposed use. Plaintiff argues it would be futile to seek redress
through the township because the township clearly indicated that it would not allow rezoning of
the area in question or a variance. However, this Court specifically held in Braun, supra, that a
plaintiff must seek all administrative remedies before commencing legal action. Because
plaintiff failed to do so, the trial court did not have jurisdiction to hear plaintiff’s legal challenge.
Because we find that plaintiff failed to exhaust all available administrative remedies, this
matter was not ripe for adjudication. Accordingly, we need not address any of the other issues
presented for our consideration.
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Reversed. We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Pat M. Donofrio
/s/ Stephen L. Borrello
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