NATHIMA H ATCHOO V CHARTER TWP OF ORION
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STATE OF MICHIGAN
COURT OF APPEALS
NATHIMA H. ATCHOO, Trustee of the
NATHIMA H. ATCHOO and PETER D.
ATCHOO CHARITABLE REMAINDER TRUST,
UNPUBLISHED
June 23, 2009
Plaintiff-Appellant,
v
CHARTER TOWNSHIP OF ORION, GERALD
A. DYWASUK, JILL D. BASTIAN, ALICE P.
YOUNG, MICHAEL GINGELL, JOHN M.
STEIMEL, ROBERT POTE, DOUGLAS ZANDE,
BRAD LARE, MARK CRANE, SANDRA DYE,
DICK CHRISTIE and JOHN GARLICKI,
No. 283666
Oakland Circuit Court
LC No. 2007-081657-CZ
Defendants-Appellees.
Before: Murphy, P.J., and Sawyer and Murray, JJ.
PER CURIAM.
Plaintiff, Nathima H. Atchoo, as trustee of the Nathima H. Atchoo and Peter D. Atchoo
Charitable Remainder Trust (“Trust”), appeals as of right an order granting defendant, Charter
Township of Orion’s, motion for summary disposition.1 We affirm.
I.
Facts and Proceedings
Plaintiff brought suit in the trial court challenging numerous Township decisions
involving Trust property on Lapeer Road in the Township. Relevant to this appeal, plaintiff
alleged that the circumstances surrounding a ten-month moratorium imposed to defer
applications for development and rezoning in the Lapeer Road area and the Township’s postmoratorium denial of her request to rezone the Trust property from Office and Professional 1
(“OP-1”) to General Business 2 (“GB-2”) denied the Trust property’s substantive due process,
use, and equal protection rights under the United States and Michigan Constitutions.
1
Plaintiff’s claims against the other defendants in this matter were dismissed prior to this order
granting summary disposition and their dismissal is not challenged on appeal.
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Historically, when the Achoos purchased the property in 1973, the front portion
bordering Lapeer Road was zoned RB-3 (Restricted Business 3) and the remaining portion was
zoned RM-1 (Multiple Family Residential 1). Despite this classification, the Achoos used a
home on the property as an office for their health care practices. In 1984, the Township Board
changed the classification to OP-1 (Office and Professional 1), to which the Achoos objected,
noting their concern that rezoning to OP-1 would preclude future rezoning for commercial use.
The Township Planning Commission retained OP-1 zoning, but voted to change the Master Plan
to suggest it would consider rezoning when an appropriate commercial use was created for the
property.
On March 30, 1994, a quitclaim deed transferred their interest in the property to
themselves as co-trustees of the Nathima H. Atchoo and Peter D. Atchoo Charitable Remainder
Trust. In 1998, the Trust received an offer to purchase the Trust property to use as a Kohl’s
department store for $2,000,000, but the offer was not accepted. Later that year, a $2,000,000
purchase agreement was signed with Home Depot, but that agreement was conditioned upon the
completed purchase of the Clark property2 and commercial rezoning. The Township Board
subsequently denied Home Depot’s request to rezone the property from OP-1 to GB-2, and
consequently the sale failed. Some time after the Home Depot purchase agreement failed, Mr.
Achoo suffered a stroke and could no longer serve as a trustee of the Trust. Mrs. Achoo retired
in 2002, and the Trust property was vacant thereafter. The Trust property was then marketed for
sale for $4,000,000.
Throughout 2004 and 2005, the state of Michigan engaged in negotiations to transfer its
Bald Mountain property from its State Recreation Area in the Township to a private owner, Mike
Weger. The Township opposed the transfer, as it wanted the Bald Mountain property to remain
state land to reduce the chance of further development in the area that would require additional
Township services. Although Weger intended to build a golf course on the Bald Mountain
property within its existing Rec-2 (Recreational 2) zoning classification, the Township feared his
development would be non-conforming.
Following the Bald Mountain property transfer to Weger, the Township undertook a
study of the Lapeer Road area and resolved to update the Master Plan. The Township Board
concluded that it would be counterproductive to allow new development, expansion, or rezoning
during the study. Consequently, on June 20, 2005, it imposed a 120-day moratorium on
applications for new development, expansion, or rezoning in the Lapeer Road area. However, it
resolved to waive the moratorium for property owners who claimed the moratorium precluded all
economic use. The Township Board extended the moratorium for 180 days, beginning on
November 1, 2005.
During the moratorium period, Regency Centers offered to purchase the Trust property
for $2,450,000 to use as a Target store. However, this offer was conditioned upon (1)
commercial rezoning for that property to GB-2, and (2) Regency Centers’ purchase of the Clark
2
The Clark property is a 6.6 acre parcel located on the west side of Lapeer Road and south of
Scripps Road.
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properties and three and four-tenths acres owned by Don Nelson. On February 6, 2006, the
Township Board denied Regency Centers’ application for a waiver to apply for rezoning of the
Trust property. One month later, the Township Board denied the Atchoo’s application for a
waiver to apply for similar rezoning.
On April 19, 2006, the Township Planning Commission adopted a Master Plan Update.
It noted concerns regarding the development of the area surrounding the Bald Mountain
property, such as increased traffic, necessary sanitary improvements, and the preservation of
wetlands and woodlands. To provide a buffer or transition to residential developments
establishing on the Bald Mountain property’s east and west borders, the Township Planning
Commission resolved that the Bald Mountain property was ideal for residential and private
recreational use, such as golf, tennis, soccer, and nature trails. The Township Planning
Commission further resolved that the four corners area of Scripps Road and Lapeer Road should
remain free of commercial intrusion based on its proximity to schools, churches, parks, and
infrastructure limitations. Finally, the Township Planning Commission noted that a commercial
market analysis showed that there was “more than enough commercially zoned land” in the
Township. Thus, it resolved to minimize potential “commercial development outside of the
existing commercial nodes.”
Following the end of the moratorium, several relevant applications for rezoning were
filed. On April 21, 2006, the Township filed an application to rezone the Bald Mountain
property from Rec-2 to SE (Suburban Estates) and to rezone the Clark properties from GB-2 to
OP-1. Orion Land Holdings, L.L.C. (“OLH”), filed an opposing application to rezone the Bald
Mountain property from Rec-2 to GB-2 and RM-2. On May 1, 2006, an application was filed to
rezone the Trust property from OP-1 to GB-2 on the basis that the OP-1 classification precluded
all viable use and marketability and the need for the Regency Centers sale proceeds to support
the Atchoo’s retirement and medical expenses.
At a meeting on August 2, 2006, the Township Planning Commission recommended that
the Township Board deny OLH’s application for rezoning and grant the Township’s application
for rezoning, providing the following reasons for doing so:
1) The land use surrounding the site is a mix of residential, office, and
commercial uses. However, with the exception of the Home Depot, the
commercial uses in the area are of a comparatively small scale and fall under the
more restrictive and less intense RB-2, GB-1 [General Business 1], and OP-1; 2)
In a GB-2 district, the uses are generally larger in scale and have a greater impact
on the environment. Such development would create a substantial burden on the
local roads and available infrastructure. Based on the current zoning map, there is
adequate land zoned GB-2 within the Township. The Commercial Market
Analysis in the Master Plan indicates that the Township has more than an
adequate supply of commercially zoned land to meet the needs of its residents in
the future; 3) The most recent surrounding development trends support
development of office and residential uses in this area. This trend evidences a
market for office and residential uses. The proposed zoning would not be
consistent with the existing development pattern; 4) the site is located within an
area predominantly occupied by residential and recreational uses, with limited
office and commercial uses. The existing zoning designation is compatible with
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the existing development pattern and zoning designations within that portion of
the Township. An expansion of GB-2 would be incompatible with the existing
development pattern or master planned character of this part of the Township; 5)
The goal of office developments in the Master Plan is to “provide exclusive areas
for office uses that will have limited impact beyond the sites and which are
intended to serve nearby residences or businesses.” Both the 2003 Master Plan
and the 2006 Lapeer Road Master Plan Update designate this site for General
Office uses. The proposed zoning is inconsistent with the Master Plan
designation; 6) the parcel is substantially wooded and preservation of the natural
areas is important. The slopes and woodlands in the area provide appropriate
buffers between the GB-2 area to the south and the zoned office use of the parcel;
and 7) changing to GB-2 would have a substantial impact on the traffic and our
infrastructure capacities as far as the sanitary sewer and water capacities in the
area.
The Township Board followed the Township Planning Commission’s recommendations and
reasoning on September 18, 2006. The Bald Mountain property was rezoned from Rec-2 to SE
and the Clark properties were rezoned from GB-2 to OP-1. The adjacent Trust property
remained OP-1.
On October 30, 2006, Mrs. Atchoo appealed the Township Board’s denial to the
Township’s Zoning Board of Appeals. In addition to noting the lack of a market for OP-1
zoning, she noted that the commercial developments south of the Clark properties suggested a
commercial trend justifying a GB-2 classification for the Trust property. In the alternative to
rezoning, a variance was requested to use the property as would be permitted under the GB-2
classification. On January 8, 2007, the Township’s Zoning Board of Appeals denied the appeal
and refused to grant a variance because it lacked jurisdiction to do so. This lawsuit followed.
Defendants filed a motion for summary disposition, seeking dismissal of each of
plaintiff’s claims, pursuant to MCR 2.116(C)(8) and (10). Plaintiff responded, seeking dismissal
in her favor pursuant to MCR 2.116(I)(2). The trial court, in a thorough and well-reasoned
opinion, rejected all of the arguments put forth by plaintiff, and entered an order dismissing her
case. Plaintiff appeals as of right from that final order of dismissal.
II.
Analysis
Preliminarily, we must first address defendants’ argument that plaintiff’s challenges to
the moratorium, ordinance and zoning decision are not ripe for review. “An ‘as applied’
challenge alleges a present infringement or denial of a specific right or of a particular injury in
process of actual execution.” Paragon Props Co v Novi, 452 Mich 568, 576; 550 NW2d 772
(1996). “[A] judicial challenge to the constitutionality of a zoning ordinance, as applied to a
particular parcel of land, is not ripe for judicial review until the plaintiff has obtained a final,
nonjudicial determination regarding the permitted use of the land.” Braun v Ann Arbor Charter
Twp, 262 Mich App 154, 160; 683 NW2d 755 (2004). Where the possibility exists that the
municipality may have granted a zoning variance, or some other remedy from the challenged
provisions, the challenge is not ripe for judicial review. Conlin v Scio Twp, 262 Mich App 379,
382-383; 686 NW2d 16 (2004).
-4-
Plaintiff’s “as applied” challenges are precluded by the rule of finality, as she only
requested a variance from the Township Zoning Board of Appeals, which refused it because it
lacked jurisdiction.3 The possibility still exists that the Township Board would have granted a
variance during the moratorium or afterward, in the alternative to her application to apply for
rezoning and her subsequent rezoning request. Conlin, supra at 382-383. Therefore, we
conclude that plaintiff’s “as applied” substantive due process, takings, and equal protection
challenges regarding the Moratorium and rezoning request are not ripe for review. Because
plaintiff’s underlying federal claims are not ripe for review, her corresponding federal claims for
relief under 42 USC 1983 must also fail. Paragon, supra at 576. In any event, even if the issues
were ripe for review, we would affirm the trial court’s order for the reasons expressed in its
written opinion.
Next, plaintiff challenged provisions in the Township’s ordinance, specifically Tree and
Woodlands Protection, art XXVII, § 27.12. Section 27.12(C)(1) provides:
A personal shall not remove, transplant, or destroy . . . on any undeveloped land
in the Township, any protected tree . . . without first obtaining a Tree Removal
Permit . . . .
Owners of parcels less than five acres in size are excepted from the permit requirement. §
27.12(D)(1). Section 27.12(H)(1) further provides,
For each protected tree required to be preserved under the terms and standards set
forth above, and which is permitted to be removed by permit granted under this
Section, the applicant shall replace or relocate trees . . . .
Replacement or relocation shall be made on the property owner’s parcel, but if such replacement
or relocation is not feasible and desirable, it may be made elsewhere in the Township. §
27.12(H)(3). In the alternative to replacement or relocation, property owners may propose to
contribute to the Tree Fund, which shall be administered “to purchase and install trees within a
reasonable proximity of the development in connection with which funds have been paid to the
Tree Fund.” § 27.12(H)(2)(f) and (M)(2).
In her complaint, plaintiff made “as applied” challenges to § 27.12, alleging that it
violated the Trust’s rights to equal protection. However, plaintiff’s “as applied” challenges were
not ripe for review by the trial court because § 27.12 was not enforced against the Trust property
and plaintiff did not seek relief from them. Frericks v Highland Twp, 228 Mich App 575, 595596; 579 NW2d 441 (1998). The trial court’s ruling to that effect was correct.
3
We recognize that the Braun Court stated, “if the zoning board of appeal dismisses the petition
for want of jurisdiction, then finality is also achieved.” Braun, supra at 160. However, the
plaintiff in Braun never appealed to the zoning board of appeals, id. at 156, so any discussion or
statements to that effect would be dicta. Additionally, Braun involved both a takings claim and
other constitutional claims, and this case does not involve a takings claim.
-5-
On appeal, plaintiff now frames the issue as a facial challenge to § 27.12. Finality is not
required for “facial” challenges because they allege “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.” Paragon, supra at 576. Because plaintiff did not make
these “facial” challenges in the trial court, they are not preserved for appeal, Attorney Gen v Pub
Service Comm, 243 Mich App 487, 494; 625 NW2d 16 (2000), and so we decline to consider
them. Nevertheless, were these issues properly before us, we would again affirm the trial court
for the reasons stated in its opinion.
Finally, Const 1963, art 9, § 31 of the Headlee Amendment prohibits local governments
“from levying any tax not authorized by law or charter when this section is
ratified or from increasing the rate of an existing tax above that rate authorized by
law or charter when this section is ratified, without the approval of a majority of
the qualified electors of that unit of Local Government voting thereon.” [Saginaw
Co v John Sexton Corp of Michigan, 232 Mich App 202, 209; 591 NW2d 52
(1998), quoting Const 1963, art 9, § 31.]
Plaintiff maintains that § 27.12 imposes a tax, which is illegal and unenforceable because it was
not submitted to the electorate under the Headlee Amendment. The Township counters that §
27.12 imposes a fee, not a tax, so it does not violate the Headlee Amendment. We agree with the
Township.4
The three criteria used to determine if a fee exists are: “(1) a user fee serves a regulatory
purpose, (2) a user fee is proportionate to the necessary costs of that service, and (3) a user fee is
voluntary.” Wheeler v Shelby Charter Twp, 265 Mich App 657, 665; 697 NW2d 180 (2005). A
fee is “usually in exchange for a service rendered or a benefit conferred.” Westlake
Transportation, Inc v Pub Service Comm, 255 Mich App 589, 612; 662 NW2d 784 (2003). A
tax, on the other hand, is designed to raise revenue. Id., quoting Bolt v Lansing, 459 Mich 152,
161; 587 NW2d 264 (1998).
According to the first criterion, requiring property owners to replace their removed trees
or pay the Township a replacement fee ensures one of the stated purposes of the section, namely
4
The trial court concluded that there was no “case or controversy” because § 27.12 was not
enforced against the Trust property. Generally, in order to establish standing, the United States
and Michigan Constitutions require an ‘“injury in fact”’ that is both concrete and particularized,
as well as actual or imminent. Rohde v Ann Arbor Pub Schools, 479 Mich 336, 349; 737 NW2d
158 (2007), quoting Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 624629; 684 NW2d 800 (2004). The Legislature may not confer jurisdiction upon the court
‘“unmoored from any genuine case or controversy . . . .”’ Rohde, supra at 348, quoting
Cleveland Cliffs, supra at 622. Some enumerated exceptions apply to this general rule, however.
Applicable to this claim, Const 1963, art 9, § 32, confers upon “[a]ny taxpayer of the state”
standing to bring suit to enforce the provisions of the Headlee Amendment. Rohde, supra at 349
n 11. Given this exception, plaintiff had standing to file the Trust’s claim to enforce § 31 of the
Headlee Amendment.
-6-
to preserve important physical, aesthetic, recreational, and economic tree resources for present
and future generations. Westlake, supra at 612. Contrary to plaintiff’s claim, there is no
evidence that the purpose of the replacement or Tree Fund requirements is to raise revenue for
the Township. Wheeler, supra at 665.
According to the second criterion, § 27.12(H)(1) permits property owners to remove
trees. In exchange for this permission, the Township established the replacement requirement to
plant one tree for every one tree removed. § 27.12(H)(2). This one to one ratio is proportionate.
Even if property owners choose not to replace removed trees, plaintiff fails to offer evidence that
the Township imposes a Tree Fund fee that is disproportionate to the costs it incurs to replace the
removed trees. Wheeler, supra at 665-666.
Addressing the third criterion, the replacement or Tree Fund requirements are not
voluntary, as they are mandated conditions to receive a permit. Bolt, supra at 167-168; Wheeler,
supra at 666-668. Nevertheless, the lack of volition does not render these charges taxes where
the other criteria indicate they are fees. Wheeler, supra at 666-668. Consequently, we conclude
that the tree replacement and Tree Fund contribution requirements do not impose a tax or
implicate the Headlee Amendment. The trial court properly dismissed this claim, as well as all
others alleged by plaintiff.
Affirmed.
s/ William B. Murphy
/s/ David H. Sawyer
/s/ Christopher M. Murray
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