LJS PARTNERSHIP V CHARTER TOWNSHIP OF FENTON
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STATE OF MICHIGAN
COURT OF APPEALS
LJS PARTNERSHIP,
UNPUBLISHED
December 28, 2004
Plaintiff-Appellant,
and
RONALD W. SABO, Trustee of the BERNARD C.
NORKO TRUST, and WILLIAM J. BISHOP,
Plaintiffs,
v
No. 248311
Genesee Circuit Court
LC No. 01-071444CZ
FENTON CHARTER TOWNSHIP,
Defendant-Appellee,
and
FENTON CHARTER TOWNSHIP CLERK and
GENESEE COUNTY CLERK,
Defendants,
and
FENTON TOWNSHIP RESIDENTS
ASSOCIATION,
Intervening Defendant-Appellee.
Before: Cooper, P.J., and Fitzgerald and Hoekstra, JJ.
PER CURIAM.
Plaintiff LJS Partnership (plaintiff) appeals by leave granted two lower court orders
granting intervening defendant Fenton Township Residents Association’s (FTRA) motion to
intervene in plaintiff’s motion to enforce its consent judgment with defendant Fenton Township
(defendant) and granting FTRA’s motion to set aside that consent judgment. We reverse.
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The facts of this case are essentially undisputed. In February 1998 plaintiff’s request that
defendant rezone property owned by plaintiff from AG (agricultural) to RMH (residential
manufactured housing) to permit a 598-unit manufactured housing development was denied, as
was the request for a use variance. After plaintiff’s engineer met with township officials to
create a less dense site plan containing nearly four hundred units, plaintiff submitted a new
request for rezoning. This request, as well as plaintiff’s subsequent request for a use variance,
was also denied.
Plaintiff filed suit, challenging the constitutionality of the AG zoning classification as
applied to its property. The parties ultimately entered into settlement negotiations and reached
an agreement as to terms of a consent judgment. After a public meeting regarding the
advantages and disadvantages of the terms of the consent judgment, the judgment was approved
by defendant’s board of trustees. The trial court entered the consent judgment on December 20,
2002. Thereafter, a group of township residents filed a petition for referendum pursuant to MCL
125.282, seeking a vote as to whether defendant should proceed with the consent judgment or
should continue with litigation. Defendant approved the petitions for referendum and set a date
for the referendum election.
Shortly thereafter, this Court issued its decision in Green Oak Twp v Munzel, 255 Mich
App 235; 661 NW2d 243 (2003). Plaintiff filed a motion to enforce the consent judgment and to
enjoin the referendum, asserting that Green Oak held that a consent judgment in a zoning dispute
is not subject to a referendum under MCL 125.282. The court denied plaintiff’s motion for a
declaration that the zoning referendum was invalid and scheduled an evidentiary hearing
regarding the intent of the consent judgment.
A referendum election was held and the township residents voted in favor of the
continuance of litigation and against approval of the consent judgment. The trial court granted
FTRA’s motion to intervene in the case, limited to FTRA’s participation in the evidentiary
hearing. At that hearing, both plaintiff and defendant agreed that the consent judgment was valid
and enforceable and not subject to referendum pursuant to this Court’s holding in Green Oak.
The trial court agreed with FTRA’s position that the consent judgment was subject to the
referendum.
Plaintiff argues that the trial court erred in finding that the consent judgment constituted a
rezoning of the parcel under the TRZA and thereby invoked the right of referendum. Thus,
plaintiff argues that the trial court erred by setting aside the consent judgment. We agree.
Whether a consent judgment is subject to a right of referendum under § 12 of the
township rural zoning act (TRZA), MCL 125.282, is a question of law subject to review de novo.
Green Oak, supra at 235. In Green Oak, supra, this Court held that consent judgments settling
zoning litigation do not constitute zoning ordinances and are therefore not subject to referendum.
The facts in Green Oak are similar to those in this case:
Defendant Kenneth B. Lipshutz petitioned the Green Oak Township Board
to rezone 233 acres of land from RF (residential farming) to RMH (residential
mobile home park), permitting the development of a 912-unit mobile home park.
According to the township ordinance set forth in the record, mobile home
communities are allowed only in districts zoned RMH. See, e.g., Green Oak
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Township Ordinances, § 4.7.3. The board denied Lipshutz's petition. After the
board's denial, defendants Lipshutz and Green Oak MHC (GOMHC), landowners
of the property at issue, sued the township in the Livingston Circuit Court and
reached a settlement with the township. The terms of the settlement were reduced
to a consent judgment, which was accepted by a four-to-three vote of the board
members, and the judgment was entered by the circuit court. The judgment
allowed the development of the mobile home park for which Lipshutz initially
petitioned, despite the zoning of the property.
Herbert Munzel, a property owner in Green Oak Township, filed a notice
of intent to file a petition with the township clerk for a referendum on the
adoption of the terms of the consent judgment pursuant to § 12 of the township
rural zoning act (TRZA), MCL 125.282. That provision allows a registered
elector residing in the township to submit a petition requesting that a zoning
ordinance be placed before the other electors residing in the township. Thereafter,
the township was presented with over one thousand signatures asking that the
issue be placed on the ballot in the upcoming November election. Next, the
township sued Munzel, Phil Berg (another petition circulator), Lipshutz, and
GOMHC, to seek a declaratory judgment regarding whether a referendum could
be properly invoked to overturn the consent judgment. GOMHC then filed a
motion to declare the referendum petition invalid and to enjoin certification of the
petition.
Essentially, the township, GOMHC, and Lipshutz argued that the consent
judgment was valid because it did not in fact constitute a rezoning of the property,
and, therefore, no right of referendum existed. On the other hand, Munzel
claimed that the consent judgment actually did constitute rezoning while
"disenfranchising the people[']s right to a referendum." Munzel maintained that
the ordinance only allows mobile home parks in established zones. Nonetheless,
the trial court ruled that the TRZA does not allow a referendum to be taken on a
consent judgment. [Id. at 236-237.]
The Court looked to the language of MCL 125.282 to determine whether a referendum is
permitted on a consent judgment. The statute specifically states:
Within 7 days after publication of a zoning ordinance under section 11a, a
registered elector residing in the portion of the township outside the limits of
cities and villages may file with the township clerk a notice of intent to file a
petition under this section. If a notice of intent is filed, then within 30 days
following the publication of the zoning ordinance, a petition signed by a number
of registered electors residing in the portion of the township outside the limits of
cities and villages equal to not less than 15% of the total vote cast for all
candidates for governor, at the last preceding general election at which a governor
was elected, in the township may be filed with the township clerk requesting the
submission of an ordinance or part of an ordinance to the electors residing in the
portion of the township outside the limits of cities and villages for their approval.
Upon the filing of a notice of intent, the ordinance or part of the ordinance
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adopted by the township board shall not take effect until 1 of the following
occurs:
(a) The expiration of 30 days after publication of the ordinance, if a
petition is not filed within that time.
(b) If a petition is filed within 30 days after publication of the ordinance,
the township clerk determines that the petition is inadequate.
(c) If a petition is filed within 30 days after publication of the ordinance,
the township clerk determines that the petition is adequate and the ordinance or
part of the ordinance is approved by a majority of the registered electors residing
in the portion of the township outside the limits of cities and villages voting
thereon at the next regular election which supplies reasonable time for proper
notices and printing of ballots, or at any special election called for that purpose.
The township board shall provide the manner of submitting an ordinance or part
of an ordinance to the electors for their approval or rejection, and determining the
result of the election. [MCL 125.282.]
This Court noted that the language of the statute provided for the right of referendum
only with regard to zoning ordinances. Green Oak, supra at 235. The statute does not refer to
variances, exceptions, special use permits or other types of zoning actions. This Court
interpreted the term “ordinance” as having a particularized meaning when used in the Township
Rural Zoning Act (TRZA) and noted that “the enactment of a zoning ordinance is considered a
‘distinct legislative act.’” Id.
The Court concluded that the consent judgment in that case did not meet the
“particularized requirements of a zoning ordinance or amendment” and that it therefore did not
constitute the promulgation or amendment of a zoning ordinance under MCL 125.282. Id. at
241. It found that applying the statute to a consent judgment would be contrary to the plain
language of the statute. Id.
Green Oak is dispositive of the penultimate legal issue presented. The holding in Green
Oak was not premised on the presence or absence of any particular language in the consent
judgment, but rather on the fact that a consent judgment does not meet the particularized
definition of, and requirements for, a zoning ordinance as provided by the Legislature in the
TRZA. Id. at 241. Because the consent judgment settling the zoning litigation did not trigger a
right of referendum,1 the trial court erred by setting aside the consent judgment.
1
This case is distinguishable from Inverness Mobile Home Community, Ltd v Bedford Township,
263 Mich App 241; ___ NW2d ___ (2004). In that case, a consent judgment was entered that
resolved a lawsuit concerning a zoning dispute. Paragraph ten of the consent judgment provided
that “Defendant and its agents, employees, representatives, and officials hereby agree to amend
the Bedford Township Master Plan, adopted in July 1993, to master plan another parcel of land
in Bedford Township (hereinafter “the Future Property”) for a new manufactured home
(continued…)
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Reversed.2
/s/ Jessica R. Cooper
/s/ E. Thomas Fitzgerald
/s/ Joel P. Hoekstra
(…continued)
community development.” This Court concluded that the consent judgment, directing that the
master plan would be amended by a future township board to permit a manufactured housing
development, constituted an act that impermissibly contracted away the legislative powers of a
future governing body. The Court stated that “the precise terms of the disputed consent
judgment make it clear that the intent of the agreement is legislative in nature.” The Court
expressly distinguished Green Oak, supra, noting that Green Oak involved a use variance that
neither resulted in a change in the zoning ordinance nor contemplated a future change in zoning.
Although the consent judgment in the present case states that the zoning classification of the
parcel shall be changed from its current zoning classification of AG to RMH, the consent
judgment provides for a particular and constrained use of the property that is an exception to its
AZ zoning classification, but does not afford plaintiff the ability to use the property to the full
extent of an RMH classification. Despite the language, the consent judgment remains akin to a
variance, not to a zoning ordinance.
2
In light of our resolution of this case, we need not address plaintiff’s argument that the trial
court erred by allowing the FTRA to intervene in the post-judgment proceedings regarding
plaintiff’s motion to enforce the consent judgment.
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