FRANCES VALLELY V BOIS BLANC TWP
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STATE OF MICHIGAN
COURT OF APPEALS
FRANCES VALLELY,
UNPUBLISHED
September 25, 2008
Plaintiffs-Appellant,
v
BOIS BLANC TOWNSHIP, LOREN GIBBONS,
SHELBY NEWHOUSE and JOAN E.
SCHROKA,
No. 278985
Mackinac Circuit Court
LC No. 07-006303-CZ
Defendants-Appellees.
Before: Saad, C.J., and Sawyer and Beckering, JJ.
PER CURIAM.
Plaintiff appeals the trial court’s denial of his motion for summary disposition and its
order granting summary disposition to defendants. For the reasons set forth below, we affirm.
I. Facts and Procedural History
In 1976, the Bois Blanc Township Board resolved to establish a planning commission
under the Township Planning Act, MCL 125.321 et seq.1 Plaintiff, Frances Vallely, was
appointed to the Bois Blanc Township Planning Commission by the township supervisor, with
the township board’s approval. At an unspecified time, the township board transferred to the
planning commission certain zoning powers. This transfer is permitted by MCL 125.331 of the
Township Planning Act, which states that the planning commission may be given any powers
and duties of zoning boards as set forth under the former Township Rural Zoning Act (TRZA),
125.271 et seq. The TRZA was repealed by 2006 PA 110, which enacted the Michigan Zoning
Enabling Act (MZEA), MCL 125.3101 et seq.2
1
The Township Planning Act was repealed effective September 1, 2008, pursuant to 2008
PA 33, § 85; MCL 125.3885. The Township Planning Act, along with the Municipal
Planning Act and the County Planning Act, has been replaced by the Michigan Planning
Enabling Act. MCL 125.3801 et seq.
2
The MZEA had an effective date of July 1, 2006.
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Plaintiff asserts that he was removed from the planning commission in a manner that
violated his due process and constitutional rights, after he and two other planning commission
members filed a lawsuit against the township and board to place a referendum on a rezoning
issue on the November 2006 ballot. Plaintiff maintains that, under the MZEA, MCL
125.3301(9), in order to remove a member of a zoning commission, the MZEA requires the
board to establish that the member committed misfeasance, malfeasance, or nonfeasance in
office upon written charges and after a public hearing. Plaintiff complains that defendants did
not follow the MZEA removal provision and, instead, removed him at the direction of the
township supervisor, after a hearing and a vote by the township board. Defendants maintain that
this is the correct procedure for removing a member of a planning commission under the
Township Planning Act, MCL 125.324(2). The trial court agreed with defendants, denied
plaintiff’s motion for summary disposition, and granted summary disposition to defendants.
II. Analysis3
The parties disagree about whether the removal provisions of the Township Planning Act
or the MZEA applied when plaintiff was removed from the Bois Blanc Township planning
commission.4 Under the Township Planning Act, MCL 125.324(2), “members [of the planning
commission] may be removed by the township supervisor, after a hearing, with the approval of
the township board.” This is the statutory section the Bois Blanc Township Board applied when
it removed plaintiff from the planning commission. Plaintiff argues that the MZEA should
3
This Court reviews the grant or denial of a motion for summary disposition de novo. Allison v
AEW Capital Management, LLP, 481 Mich 419, 424; 751 NW2d 8 (2008). Under MCR
2.116(I)(2), “[i]f it appears to the court that the opposing party, rather than the moving party, is
entitled to judgment, the court may render judgment in favor of the opposing party.” This appeal
also involves the interpretation of a statute. This Court also reviews questions of statutory
interpretation de novo. Manuel v Gill, 481 Mich 637, 643; 753 NW2d 48 (2008). As this court
explained in Kimmelman v Heather Downs Management Ltd, 753 NW2d 265, 267; 753 NW2d
265 (2008):
The goal of statutory interpretation is to determine and give effect to the
intent of the Legislature, with the presumption that unambiguous language should
be enforced as written. Gladych v New Family Homes, Inc, 468 Mich 594, 597;
664 NW2d 705 (2003). If the language is unambiguous, “the proper role of a
court is simply to apply the terms of the statute to the circumstances in a
particular case.” Veenstra v Washtenaw Country Club, 466 Mich 155, 160; 645
NW2d 643 (2002), citing Turner v Auto Club Ins Ass’n, 448 Mich 22; 528 NW2d
681 (1995).
4
As noted in footnote 1, the Township Planning Act was replaced by the Michigan Planning
Enabling Act (MPEA) on September 1, 2008. Under the MPEA, a township board member
“may remove a member of the planning commission for misfeasance, malfeasance, or
nonfeasance in office upon written charges and after a public hearing.” MCL 125.3815. Thus,
the Legislature redrafted the statute to resemble the MZEA’s requirements for the removal of
zoning commission members.
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apply. Under the MZEA, MCL 125.3301(9), the township board “shall provide for the removal
of a member of a zoning commission for misfeasance, malfeasance, or nonfeasance in office
upon written charges and after public hearing.” Though the township supervisor, Loren
Gibbons, cited examples of alleged nonfeasance and malfeasance by plaintiff as reasons for his
removal, defendants have apparently abandoned any argument that malfeasance or nonfeasance
in office justified plaintiff’s removal.
Plaintiff argues that the removal provisions of the MZEA apply because the planning
commission became a zoning commission under the plain language of the MZEA. It is
undisputed that plaintiff was appointed to the planning commission under the Township Planning
Act. However, it is also undisputed that, on an unspecified date, the township board bestowed on
the planning commission some zoning powers that would allow the planning commission to,
among other things, review rezoning requests and make recommendations to the township board
regarding whether to approve or deny such requests.
The Township Planning Act authorizes townships to give a planning commission any and
all powers and duties of zoning boards contemplated in the TRZA, which was repealed and
replaced by the MZEA in 2006. Specifically, the Township Planning Act provides:
The township board, by resolution, may transfer to the planning
commission all powers and duties provided by the township rural zoning act, Act
No. 184 of the Public Acts of 1943, as amended, being sections 125.271 to
125.301 of the Michigan Compiled Laws, for zoning boards created under that
act. If the existing zoning board is nearing the completion of its zoning plan, the
township board shall postpone the transfer of the zoning board’s powers and
duties until the completion of the zoning plan, but the postponement shall not
exceed 1 year. In a county in which the county planning commission is
established, the township planning commission shall file with the county planning
commission a copy of the township zoning ordinances and any amendments to the
ordinances. [MCL 125.331.]
The record does not reveal what specific zoning powers were transferred to the planning
commission, but plaintiff maintains that the transfer triggered the application of the provisions of
the MZEA. At the time of the events in this case, the MZEA, MCL 125.3301 read, in pertinent
part, as follows:
(1) Each local unit of government in which the legislative body exercises
authority under this act shall create a zoning commission. A zoning board in
existence on the effective date of this act may continue as a zoning commission
subject to a transfer of power under subsection (2) or until 5 years from the
effective date of this act, whichever is earlier. A planning commission exercising
the authority of a zoning board before the effective date of this act may continue
to exercise that authority subject to this act.
(2) Except as otherwise provided under this subsection, if the legislative
body has transferred the powers of the zoning commission to the planning
commission as provided by law, the zoning commission shall be the planning
commission of the local unit of government. The legislative body shall have 5
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years from the effective date of this act to transfer the powers of the zoning
commission to the planning commission. Except as provided under this
subsection, 5 years after the effective date of this act, the zoning commission shall
not have any authority under this act or an ordinance adopted under this act.
MCL 125.3301(1) states that a township must create a zoning commission. It further
states that, if the township has an existing zoning board, it may continue to exercise zoning
powers as a zoning commission until a zoning commission has been established. The section
also provides that, if a planning commission had been exercising the powers and duties of a
zoning board before the MZEA became effective, the planning commission may continue to do
so. MCL 125.3301(2) states that, if a township board has transferred zoning powers to its
planning commission, “the zoning commission shall be the planning commission of the
[township].”5 It is this language on which plaintiff relies to argue that the Legislature intended
5
Pursuant to 2008 PA 12, the Legislature reworded MCL 125.3301. Pertinent portions of the
current statute provide as follows:
(1) Each local unit of government in which the legislative body exercises
authority under this act shall create a zoning commission unless 1 of the following
applies:
(a) A county zoning commission created under former 1943 PA 183, a
township zoning board created under former 1943 PA 184, or a city or village
zoning commission created under former 1921 PA 207 was in existence in the
local unit of government as of June 30, 2006. Unless abolished by the legislative
body, that existing board or commission shall continue as and exercise the powers
and perform the duties of a zoning commission under this act, subject to a transfer
of power under subsection (2).
(b) A planning commission was, as of June 30, 2006, in existence in the
local unit of government and pursuant to the applicable planning enabling act
exercising the powers and performing the duties of a county zoning commission
created under former 1943 PA 185, of a township zoning board created under
former 1943 PA 184, or of a city or village zoning commission created under
former 1921 PA 207. Unless abolished by the legislative body, that existing
planning commission shall continue and exercise the powers and perform the
duties of a zoning commission under this act.
(c) The local unit of government has created a planning commission on or
after July 1, 2006 and transferred the powers and duties of a zoning commission
to the planning commission pursuant to the applicable planning enabling act.
(2) Except as otherwise provided under this subsection, if the powers and
duties of the zoning commission have been transferred to the planning
commission as provided by law, the planning commission shall function as the
zoning commission of the local unit of government. By July 1, 2011, the
legislative body shall transfer the powers and duties of the zoning commission to
the planning commission. Except as provided under this subsection, beginning
(continued…)
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for a planning commission exercising zoning powers to become a “zoning commission,” subject
to all rules and requirements of the MZEA. To that end, plaintiff maintains that subsection 9
applies, MCL 125.3301(9), which provides that a showing of misfeasance, malfeasance or
nonfeasance is required for removal.
We disagree with plaintiff’s reading of the statute. While the Legislature contemplated
that a planning commission shall perform the functions of a zoning commission for purposes of
performing zoning duties and responsibilities, the statute in no way transforms a planning
commission into a zoning commission. Rather, the statute permits a township to transfer zoning
responsibilities to an existing planning commission. The statute does not suggest that, for
example, a planning commission shall be restructured or renamed “zoning commission,” that a
planning commission shall discontinue its former functions and only perform functions set forth
in the MZEA, or that statutes pertaining to the makeup or duties of a planning commission no
longer control. Accordingly, subsection 9, which specifically applies to members of a “zoning
commission,” does not take precedence over the Township Planning Act, under which the Bois
Blanc Township planning commission was created.
As noted, the township board created the planning commission in 1976, pursuant to the
Township Planning Act, MCL 125.321 et seq. Under the act, the planning commission has
various duties and responsibilities other than the zoning duties that were transferred to it by the
township board. Specifically, a planning commission has the “power to make, adopt, extend,
add to or otherwise amend, and to carry out plans for the unincorporated portions of the township
. . . .” MCL 125.323(1). In essence, a planning commission is responsible for the
comprehensive development plan for the township, with continuing duties to extend, add, revise
and amend the plan. See, e.g., MCL 125.331. Further, the Township Planning Act has its own
provisions for the qualifications, appointment, terms and compensation for members that
remained in effect after passage of the MZEA. See MCL 125.324. The act also provides its own
comprehensive scheme covering planning commission rules, meetings and reports. See MCL
125.325. Other than the removal procedure, plaintiff does not contend that the statutory sections
for planning commissions and their members have been replaced by those of the MZEA that
apply to “zoning commissions” or their members. Indeed, there is no indication in the MZEA
that it was intended to replace any laws relating to planning commissions; the MZEA simply
states that planning commissions may decide zoning matters in the same manner a zoning
commission would.
We further observe that MCL 125.333 of the Township Planning Act states that,
“[i]nsofar as the provisions of this act are inconsistent with the provisions of any other law, the
provisions of this act shall be controlling . . . .” This subsection lends further support to
defendants’ argument that, even if the MZEA could be read to require a planning commission to
abide by its removal rules under MCL 125.3301(9), its inconsistency with the removal rule in the
(…continued)
July 1, 2011, a zoning commission's powers or duties under this act or an
ordinance adopted under this act shall only be exercised or performed by a
planning commission.
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Township Planning Act, MCL 125.324(2), would compel the conclusion that the Township
Planning Act removal provision is controlling.
For the above reasons, the MZEA did not change the manner in which a planning
commission member may be removed from the commission under the Township Planning Act.
Here, plaintiff was removed pursuant to the procedure set forth in MCL 125.324(2), and
defendants did not have to show that plaintiff committed an act of misfeasance, malfeasance or
nonfeasance in office. Because plaintiff was properly removed by a vote of the township board,
plaintiff’s due process and “fair and just treatment” claims are without merit and they are not
entitled to reappointment to the planning commission. The trial court correctly granted summary
disposition to defendants.
Affirmed.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Jane M. Beckering
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