CITY OF ECORSE V ECORSE BROWNFIELD REDEVELOPMENT AUTHORITY
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF ECORSE,
UNPUBLISHED
January 12, 2010
Plaintiff-Appellee,
v
ECORSE BROWNFIELD REDEVELOPMENT
AUTHORITY and ECORSE COMMUNITY
DEVELOPMENT CORPORATION,
No. 286386
Wayne Circuit Court
LC No. 08-104027-CZ
Defendants-Appellants.
Before: Davis, P.J., and Fort Hood and Servitto, JJ.
PER CURIAM.
Defendant1 appeals by leave granted an order denying its motion for reconsideration or
rehearing. We reverse.
At issue is whether plaintiff’s city counsel had the power to dissolve defendant. The
order from which defendant appeals denied reconsideration or rehearing of an oral ruling on
defendant’s motion for a preliminary injunction. The trial court denied that motion, concluding
that defendant had failed to comply with the Brownfield Redevelopment Financing Act, MCL
125.2651 et seq, and the resolution authorizing defendant’s creation because it did not submit a
Brownfield Plan for approval, so the court reasoned the city council had a rational basis to
dissolve defendant.
Significantly, by the date of defendant’s motion for rehearing or reconsideration,
defendant had established that it had submitted a Brownfield Plan, and in fact the plan had been
approved by the Ecorse City Council on December 21, 2004, as evidenced by Resolution No.
499.04. The resolution stated, inter alia, that (1) in accordance with the Brownfield Act, a public
hearing had been held on November 23, 2004, at which “all persons, including any affected
taxing jurisdictions, were allowed an opportunity to comment on the plan,” and (2) the city
council determined that the plan constituted a public purpose and met the requirements of
1
Most of the allegations involve Ecorse Brownfield Redevelopment Authority, and therefore, it
will be referred to as “defendant.”
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Section 13 of the Brownfield Act. The trial court, however, refused, without comment, to revisit
its decision.
We review interpretation of statutes de novo as questions of law. Polkton Township v
Pellegrom, 265 Mich App 88, 98; 693 NW2d 170 (2005). We review a trial court’s decision on
a motion for reconsideration for an abuse of discretion. Woods v SLB Property Management,
LLC, 277 Mich App 622, 629; 750 NW2d 228 (2008). Generally, it is not an abuse of discretion
for the trial court to deny a motion for rehearing based upon facts that could have been
previously argued, id., and defendant mistakenly conceded at the original motion hearing that it
had not submitted a plan to plaintiff.
Defendant argued that plaintiff had confiscated its records, so it did not have access to
those records with which to prove its submission – and the subsequent approval – of its
Brownfield Plan. We note that counsel resolutions are matters of public record, so defendant
could have argued that a Brownfield Plan had been submitted to and approved by the city council
even without its own records. However, plaintiff not only had access to the public record, but its
own records, and it was complicit in the inaccuracy – in fact, it affirmatively argued in its
complaint for recission and at the first motion hearing that there was no plan, no hearing, and no
approval of the plan.2 In its response to defendant’s motion for rehearing, however, plaintiff
admitted that a plan had been submitted, though it criticized the content of the plan and asserted
that the city council retained the inherent right to dissolve defendant. Under these egregious
circumstances, it is clear that the trial court’s first decision was the product of a palpable error,
and its refusal to correct that error was outside the principled range of outcomes.
Plaintiff also contended that it nevertheless has the inherent power to dissolve defendant.
We disagree, and instead we agree with defendant’s argument that plaintiff is barred from
dissolving defendant until it “completes the purposes for which it was organized,” and because
defendant has a development agreement to remediate two or three of several brownfields in
Ecorse, it cannot be said to have completed its purpose.
In interpreting statutes, a court may not legislate. Janssen v Holland Township Zoning
Board of Appeals, 252 Mich App 197, 200; 651 NW2d 464 (2002). “The primary goal of
statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a
provision. Statutory language should be construed reasonably, keeping in mind the purpose of
the statute. The first criterion in determining intent is the specific language of the statute. If the
statutory language is clear and unambiguous, judicial construction is neither required nor
permitted, and courts must apply the statute as written. However, if reasonable minds can differ
regarding the meaning of a statute, judicial construction is appropriate.” White v HarrisonWhite, 280 Mich App 383, 387; 760 NW2d 691 (2008).
2
Also troubling is the fact that the city council’s resolution of March 11, 2008 (the resolution
that dissolved defendant), incorrectly stated that defendant (1) had not developed a plan in
compliance with the Brownfield Act, (2) had not submitted the plan to taxing entities, (3) failed
to request a public hearing and a determination regarding whether the plan constituted a public
purpose, and (4) failed to obtain approval.
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The provision of the Brownfield Act that addresses dissolution, MCL 125.2669, provides:
“(1) An authority that completes the purposes for which it was organized shall be dissolved by
resolution of the governing body. Except as provided in subsection (2), the property and assets
of the authority remaining after the satisfaction of the obligations of the authority shall belong to
the municipality or to an agency or instrumentality designated by resolution of the municipality.”
In making its argument that the city council had no authority to dissolve defendant for reasons
other than the completion of its purpose, defendant relies on Risk v Lincoln Charter Twp Bd of
Trs, 279 Mich App 389, 398; 760 NW2d 510 (2008),3 which in turn cited Cain v Brown, 111
Mich 657, 661; 70 NW 337 (1897), for the proposition that only the state legislature has the
power to dissolve a brownfield authority.
Risk involved the dissolution of a township park commission and cited an opinion of the
Attorney General, which addressed the same issue, finding: “Although not directly on point, the
Michigan Supreme Court in Cain [, supra at 661], quoted with approval the rule regarding
dissolution of municipal corporations: ‘As they can exist only by legislative sanction, so they
cannot be dissolved or cease to exist except by legislative consent or pursuant to legislative
provision.’ This rule, being applicable to other types of public entities, has been applied to
consolidated drain districts; to county hospitals; and to local transportation authorities.” Risk,
supra at 398, quoting OAG 1999-2000, No 7039, p 80 (December 9, 1999) (emphasis added).
This Court noted that attorney general opinions are not binding, but found the quoted material to
be persuasive. Id.
Observing that, “[t]he township parks act does not provide for the dissolution of a voterestablished township park commission,” and further, “certain other statutes explicitly provide for
both the establishment and dissolution of various commissions, boards, and programs by the
qualified electors of a local unit of government,” this Court then concluded that, “[i]n light of
these statutes – all of which provide for both establishment and dissolution by popular vote – we
must view as intentional the Legislature’s failure to provide for the dissolution of township park
commissions. There is simply no statutory mechanism for dissolving a voter-established
township park commission, and we may not read into the township parks act a provision that was
not included by the Legislature.” Id. at 400-404 (internal citations omitted).
Although Risk addresses a township park commission, as discussed above, the attorney
general opinion cited with approval in Risk noted that the reasoning in Cain had previously been
applied to a local transportation authority created pursuant to the Public Transportation Authority
Act, MCL 124.451 et seq. The PTAA provides for the creation of a public transportation
authorities by “[a] political subdivision or a combination of 2 or more political subdivisions,”
MCL 124.454(1), but contains no mention at all whatsoever of a method of dissolution. The
opinion thus concluded, “the dissolution of a transportation authority organized under the Public
Transportation Authority Act requires an act of the Legislature and may not be accomplished by
the unilateral action of the city in which it was established.” OAG, 1997-1998, No 7003, p 214,
216-218 (December 23, 1998). In the case at bar, the relevant statute gives a governing body the
3
This case was decided on June 26, 2008, after the motion for rehearing.
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power to create a brownfield authority and the power to dissolve the authority when it has
completed the purposes for which it was created; it provides no other grounds for dissolution.4
Because this Court has found Cain’s reasoning persuasive beyond application to a municipal
corporation, we conclude that, pursuant to the Brownfield Act, the city council did not have the
power to dissolve defendant for any “rational basis.”
Plaintiff seemingly concedes the point that a “rational basis” is not reason enough to
dissolve an authority and argues on appeal that because the plan submitted by defendant did not
conform to the Brownfield Act, defendant could not fulfill its purpose, and therefore, the city
council was obligated to effect defendant’s dissolution. Plaintiff further asserts that defendant
engaged in other wrongdoing, as evidenced by an independent auditor. The plain language of
the statute does not support plaintiff’s position.
First, regarding what constitutes defendant’s purpose, on August 17, 2004, the city
council passed resolution 361.04, which established defendant, after “having determined that [it]
is in the best interest of the public to facilitate the implementation of Brownfield Plans relating to
the identification and treatment of environmentally distressed (including functionally obsolete
and/or blighted) areas so as to promote revitalization within the municipal limits of Ecorse . . . .”
The resolution further provided that defendant “shall exercise its power within the city of
Ecorse” and “shall have the powers and duties to the full extent as provided by and in accordance
with the [Brownfield] Act. Among other matters, [in] the exercise of its powers, the Board [of
defendant] shall prepare a Brownfield Plan for eligible property, pursuant to Section 13 of the
Act [MCL 125.2663], and submit the plan to Council for consideration pursuant to Section 14
[MCL 125.2664] of the Act.” Thus, defendant’s purpose is to implement brownfield plans for
eligible property in the city.
Second, regarding a brownfield plan and what it must contain, the Brownfield Act, in
Section 13 (MCL 125.2663) states that an authority “may implement a brownfield plan” after
which “[e]ach plan or an amendment to a plan shall be approved by the governing body of the
municipality” and “shall” meet several requirements, including an estimate of captured taxable
value and tax increment revenue, MCL 125.2663(1)(c)5. Further, even if there were no plan,
Section 7 of the Brownfield Act, which addresses the powers of a brownfield authority, states
that “[t]he authority shall determine the captured taxable value of each parcel of eligible
property. The captured taxable value of a parcel shall not be less than zero.” MCL 125.2657(2).
4
Similar provisions, requiring dissolution by the governing body upon completion of purpose
but silent regarding dissolution in other circumstances, are found in Downtown Development
Authority Act, MCL 125.1680, and the Tax Increment Finance Authority Act, MCL 125.1827.
5
MCL 125.2663(1)(c) provides, in relevant part, that a brownfield plan shall contain “[a]n
estimate of the captured taxable value and tax increment revenues for each year of the plan from
the eligible property. The plan may provide for the use of part or all of the captured taxable
value, including deposits in the local site remediation revolving fund, but the portion intended to
be used shall be clearly stated in the plan . . . .”
-4-
In the case at bar, it is true that defendant did not entirely comply with these provisions,
as evidenced by the relevant section of defendant’s plan:
Tax Increment Financing will be utilized as part of the project described in this
plan. Estimates of captured taxable value and tax increment revenue will be
added to this plan as a subsequent amendment. It is anticipated that the Authority
will capture all tax increment revenue available after the date of the amendment to
this plan and will use it to reimburse the costs listed in the Table contained in
section 3.1(C) of this Plan. The base value of the property shall be the taxable
value listed on the tax roll for which equalization is completed on the date the city
council adopts the initial resolution approving this plan.
Thus, defendant intended to amend its plan to include the required information, and MCL
125.2664(2) allows for amendment: “Except as provided in this subsection, amendments to an
approved brownfield plan must be submitted by the authority to the governing body for approval
or rejection following the same notice necessary for approval or rejection of the original plan.
Notice is not required for revisions in the estimates of captured taxable value or tax increment
revenues.”
Finally, should members of defendant be engaged in wrongdoing or otherwise not fulfill
their duties, MCL 125.2655(6) provides that “[a]fter notice and an opportunity to be heard, a
member of the board appointed under subsection (1)(e) may be removed before the expiration of
his or her term for cause by the governing body. Removal of a member is subject to review by
the circuit court.” Additionally, pursuant to MCL 125.2670, “[t]he state tax commission may
institute proceedings to compel enforcement of the requirements of this act.” Thus, nowhere
does the Brownfield Act say that a governing body can dissolve a brownfield authority based on
a faulty plan, failure to amend a plan, or wrongdoing by a member of the authority.
“[P]rovisions not included by the Legislature should not be included by the courts.” Polkton,
supra at 103. As noted, the statute provides only one reason for dissolution – the completion of
the authority’s purpose, and therefore, pursuant to Risk, the city council did not have the power
to dissolve defendant.
Reversed.
/s/ Alton T. Davis
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto
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