CHICAGO AREA COUNCIL INC BOY SCOUTS OF AMERICA V BLUE LAKE TWP
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STATE OF MICHIGAN
COURT OF APPEALS
CHICAGO AREA COUNCIL, INC., BOY
SCOUTS OF AMERICA,
UNPUBLISHED
March 18, 2010
Plaintiff-Appellant,
v
No. 285691
Muskegon Circuit Court
LC No. 06-044536-AW
BLUE LAKE TOWNSHIP,
Defendant-Appellee,
and
BLUE LAKE TOWNSHIP PLANNING
COMMISSION, DONALD STUDAVEN, and
LYLE MONETTE,
Defendants.
Before: K. F. KELLY, P.J., and HOEKSTRA and WHITBECK, JJ.
PER CURIAM.
Plaintiff, Chicago Area Council, Inc., Boy Scouts Of America, appeals as of right the trial
court’s dismissal of the Boy Scouts’ claims against defendant Blue Lake Township. This case
involves the Boy Scouts’ challenge to a new zoning classification that the Township adopted.
According to the Boy Scouts, the Township’s new zoning classification only allows the Boy
Scouts to use their 4,748 acres located in Blue Lake Township for the single purpose of
operating a youth camp. The Boy Scouts contend that this limitation on their use of the land
improperly precludes them from using it in any economically viable way; specifically, they
object to the zoning’s exclusion of residential development. The Township responds that the
zoning classification is consistent with the historical use of the land and promotes important
community interests. For the reasons explained below, we conclude that the new zoning
classification did not violate the Boy Scouts’ constitutional rights and did not constitute inverse
condemnation. Accordingly, we affirm.
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I. BASIC FACTS AND PROCEDURAL HISTORY
A. BASIC FACTS
Since 1911, the Council has operated a private scouting camp, Camp Owasippe, in Blue
Lake Township. Camp Owasippe is the oldest Boy Scout camp in America and is located on a
4,748-acre property, making the Boy Scouts the largest private property owner in Blue Lake
Township.
In 1981, the Township adopted its Zoning Ordinance, which created seven zone
classifications, including “Forestry-Recreation” (FR). Under the 1981 ordinance, the Township
zoned Camp Owasippe as FR. In an FR district, permitted uses included agriculture, forestry,
golf courses, public parks, parkways, sanitary landfills, and uses permitted in a Conversancy
District. Permitted special uses included campgrounds, recreational trails, and use by hunting
and fishing organizations. The Zoning Ordinance prohibited single-family dwellings unless they
were used “in conjunction with allowed or special uses” and were on lots of at least 2 ½ acres.
However, the record reflects that some non-camp related residences were constructed in the FR
zone.
In 1996, the Township adopted its Comprehensive Development Plan (their “master
plan”), which precipitated a several-year-long planning commission study and amendment of the
township’s zoning ordinances. During this process, it was proposed that the FR classification be
divided into several sub-classifications to accommodate both camps and residences. On
November 17, 2002, the Township published notice that a special meeting of the planning
commission would be held on December 9, 2002, to receive comments regarding the proposed
amendments to the Zoning Ordinance. The notice did not disclose the details of the proposed
amendments, but did state that the complete text of the proposed amendments would be available
for review at the town hall during regular business hours.
On December 9, 2002, the planning commission meeting occurred as announced, and the
planning commission voted to recommend approval of the amendments, including a new
“Forestry-Recreation: Institutional” (FR-I) classification, to preserve the unique camp-like
characteristics of the Township. Two days later, on December 11, 2002, the township board
approved the amendments, which rezoned the entire Camp Owasippe property from FR to FR-I.
The township board explained that the zoning change was made to bring the zoning code into
compliance with the master plan. Specifically, the FR-I classification stated, “This zone change
includes camper housing, staff housing, dining facilities, instruction and classroom facilities,
performance and practice facilities, outdoor facilities such as playgrounds, archery ranges etc.;
and any other facilities normally related to the conduct of youth camps. . . .” The heading to the
FR-I classification indicated that it applied to “youth camps, music camps, [and] scout camps of
Blue Lake Township.” In total, the Zoning Ordinance rezoned over 9,000 acres (approximately
50 percent of the township) to FR-I.
The Boy Scouts did not learn of the zoning change until mid-2003. After several
unsuccessful attempts to discuss the rezoning with the Township, the Boy Scouts were able to
object publicly to the rezoning at a regularly scheduled township board meeting in February
2004. The Township directed the Boy Scouts to submit a rezoning plan if it desired a change in
the zoning classification. The Boy Scouts then retained a planning and design firm to assist in
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preparation of a plan for rezoning Camp Owasippe. The Boy Scouts’ plan, which they
completed in July 2004, allowed for less intensive development than the old FR classification,
and, consistent with the master plan, would have resulted in overall density in the range of one
home for every five acres. The plan also provided for large areas that would not be developed
and environmental buffer zones. If granted, the new rezoning would have permitted the
construction of approximately 1,278 residential houses on Camp Owasippe.
Despite the Boy Scouts’ requests, the Township failed to schedule a meeting to consider
the rezoning petition for a year. So, in late-September 2005, the Boy Scouts moved for a writ of
mandamus from the Muskegon Circuit Court, requesting an order that the Township comply with
its statutory duty to schedule a meeting to consider the Boy Scouts’ rezoning petition. On
October 2, 2005, the circuit court, pursuant to a stipulation, ordered the Township to hold a
meeting on the Boy Scouts’ petition no later than January 15, 2006.
On January 14, 2006, the Township held a public meeting at which it took public
comments. The Boy Scouts expressed their willingness to adjust their plan to respond to the
Township’s concerns. On March 15, 2006, the planning commission held a meeting for the
purpose of deliberating the rezoning petition. The planning commission read a pre-written
resolution and the commissioners voted 5-0 to recommend rejection of the plan. The resolution
explained that the planning commission had received several thousand letters and petitions
voicing disfavor for the Boy Scouts’ rezoning request. In April 2006, the Muskegon County
planning commission unanimously voted to agree with the Township’s planning commission’s
decision to reject the plan. And on May 8, 2006, the township board, without deliberations,
tabled the Boy Scouts’ rezoning petition to an unspecified date.
In June 2006, the township board unanimously accepted the planning commission’s
recommendation to deny the Boy Scouts’ rezoning plan. The township board members
commented that the current infrastructure could not support the rezoning plan.
B. PROCEDURAL HISTORY
On May 17, 2006, the Boy Scouts filed a complaint, alleging that the Township made its
FR-I zoning change in response to the Boy Scouts’ October 2002 announcement that they were
exploring options to sell all or a portion of their property to raise money for operations and
improvements. The Boy Scouts claimed that the Township purposefully delayed making any
final decision on the rezoning petition. According to the Boy Scouts, the new FR-I classification
effectively prohibited use of Camp Owasippe for anything other than operation of a youth camp.
The Boy Scouts claimed that the FR-I zoning classification, which was unique in the State of
Michigan, was inconsistent with the master plan that called for residential use of Camp
Owasippe, and altered the historic zoning designations for the property. The Boy Scouts alleged
a facial Substantive Due Process violation, an “as applied” Due Process violation, a Procedural
Due Process violation, an inverse condemnation, and an Equal Protection violation.
The Township moved for summary disposition. After hearing oral arguments on the
motion, the trial court issued its written opinion granting the Township’s motion in part and
denying it in part. The trial court found that the Township was entitled to summary disposition
on the Boy Scouts’ facial Substantive Due Process claim, Equal Protection claim, Procedural
Due Process claim, and inverse condemnation categorical taking claim. However, the trial court
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denied the Township’s motion on the Boy Scouts’ as applied Substantive Due Process and on the
Boy Scouts’ inverse condemnation claim under the Penn Central1 balancing test. Accordingly,
the case proceeded to trial on the Boy Scouts’ two remaining claims.
After a 10-day bench trial, the trial court issued its written opinion. With respect to the
Boy Scouts’ as applied Substantive Due Process claim, the trial court found that there was
evidence that Camp Owasippe would be worth more if zoned to allow residential development.
However, the trial court noted, the Constitution does not require that the Township zone property
to allow for its most profitable use. And, according to the trial court, the record showed that the
Boy Scouts’ property did retain marketable value as a camp under the FR-I zone. Indeed, the
trial court pointed out, a conservancy organization had expressed an interest in purchasing the
property for over $12 million. The trial court acknowledged the Boy Scouts’ argument that the
court must also consider whether the ordinance is an unfounded exclusion of residential use;
however, the court found it significant that the previous FR zoning also did not allow for general
residential use. The trial court also acknowledged that despite the prohibition, some residences
were built in the old FR zone. However, the trial court pointed out that the new FR-I zoning
ordinance apparently drew the zone boundaries to exclude those areas of nonconformity. The
trial court found it significant that the camp areas in the FR-I zone did not have the proper
infrastructure to support similar residential development. The trial court stated, “That is a sound
rational and reasonable explanation for zoning to allow residential development in areas that had
sufficient infrastructure and not on the camp (FRI) [sic] properties.” Therefore, the trial court
concluded that the zoning was not an unfounded exclusion of residential development. The trial
court went on,
The bottom line is that, as applied to the [Boy Scouts’] property, the 2002 zoning
amendment which broke up the FR into FRI [sic] and several residential zones did
not change anything. As applied to the camps, there was no change from the
previous FR zoning scheme. While there were a limited number of houses
constructed in other areas of the former FR zone that are now zoned for
residential use, the camps in the former FR zone that are now designated FRI are
permitted the same uses as allowed under the FR ordinance. Non-camp related
residential uses were not allowed in the FR zone and, in fact, none were
constructed in the area that became FRI. The new zoning simply continued that
exclusion. Thus, is cannot be said that the FRI, as applied to the [Boy Scouts’]
property, arbitrarily excluded residential development.[2]
The trial court also rejected the Boy Scouts’ argument that several township board
members’ motives were relevant to the analysis. The trial court noted that motive could be
relevant in cases of fraud, personal interest, or corruption. However, the trial court found it
dispositive that two of the three named officials were no longer on the township board when the
Township adopted the zoning ordinance, and, although the third named member arguably should
1
See Penn Central Transportation Co v New York, 438 US 104, 124; 98 S Ct 2646; 57 L Ed 2d
631 (1978).
2
Emphasis in original.
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have recused himself, it was immaterial because the resolution was approved by the other four
township board members’ unanimous vote.
The trial court then acknowledged that there was a difference in opinion between the
parties’ “two highly qualified experts” regarding whether the FR-I zoning was an unfounded
exclusion of residential uses. However, the trial court found that the Boy Scouts had not met
their burden to show more than a fair difference of opinion. The trial court explained that there
was no significant disagreement with the Township’s expert testimony that the zoning was
reasonable due to the historical use of the property, the harmony with surrounding parcels, and
compatibility with the current infrastructure. The only point of cognizable dispute was the
zoning’s consistency with the master plan. The Boy Scouts emphasized that the master plan
declared that residential use should be allowed in the FR zone. But the trial court found that the
facts did not support that the FR-I zone was inconsistent with this declaration. Indeed, according
to the trial court, allowance of residential use was fulfilled when the FR zone was re-zoned into
the several sub-classifications, including the FR-I zone and four separate smaller residential
zones. The trial court added that this consistency with the master plan was further support for a
finding that the FR-I zoning was neither an arbitrary nor an unfounded exclusion of residential
use. The trial court added that the Boy Scouts had not shown more than a fair difference of
opinion regarding whether the zoning furthered the Township’s goals in protecting the
environment. The trial court acknowledged that camping facilities or a conference center would
impact the ecosystem, but also found that any such impact would not be as egregious as
residential development scattered throughout the property. And after reviewing the experts’
opinions on the property’s environmental issues, the trial court found that “[a]t the very least,
there is a difference of opinion and a debatable question” regarding the impact of residential
development on the property. The trial court concluded:
After analyzing all of the relevant factors, this Court is not satisfied by a
preponderance of the evidence that the FRI is an arbitrary, capricious and
unfounded exclusion of residential development. There are specific and well
founded reasons for this zoning scheme involving its consistency with the Master
Plan, the character of the Township, harmony with contiguous properties,
inadequacy and degradation of the infrastructure and impact on the environment.
At a minimum there are debatable questions and fair differences of opinion.
The trial court then turned to the Boy Scouts’ inverse condemnation claim under the Penn
Central balancing test. The trial court found that the first factor under the balancing test—the
character of the Township’s actions—weighed in favor of the Township. The trial court found
that there was “an abundance of evidence that the FRI ordinance serves the public good” and that
the Boy Scouts were not being singled out to bear the burden of the government interests. The
trial court pointed out, “The ordinance applies to all of the camps in the zone.”
The trial court also found that the second factor—economic impact of the regulation—
weighed in favor of the Township. The trial court found that, despite the FR-I zoning
restrictions, the Boys Scouts still had several options for putting the property to an economically
viable use, including selling portions of the property to other camp operators. The trial court
further found that the ordinance did not severely affect the marketable value of the Boy Scouts’
property. The trial court acknowledged that the parties’ experts disagreed about the value of the
property under the FR-I zone: the Boy Scouts’ expert valued the land at $2.8 million while the
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Township’s expert valued the land at $12.3 million. However, the trial court accepted the
Township’s valuation over the Boy Scouts’ because (1) the comparable sales employed by the
Township’s expert involved actual camp properties, (2) the Township’s expert had more
experience valuing similar properties, (3) the Boy Scouts’ expert erroneously assumed that the
FR-I zone only permitted non-profit camp organizations, and (4) the Boy Scouts’ expert
erroneously limited his research to Boy Scout organizations. In sum, the trial court concluded
that the Township’s expert’s opinion was “more thoroughly researched, was supported by more
accurate assumptions and employed more analogous comparables[.]” The trial court then noted
that, based on evidence of a pending offer, without the FR-I zone the value of the property was
$19.3 million. This was 36 percent more than the $12.3 million value with the FR-I zoning.
Although recognizing that this was a significant difference in value, the trial court nonetheless
explained that “there are numerous cases that fail to find a taking in the context of considerably
greater diminishments in value.”
Last, the trial court found that the third and final factor—interference with reasonable
investment-backed expectations—also weighed in favor of the Township. The trial court first
noted that it was “interesting . . . that [the Boy Scouts] presented no evidence of objections to the
FR for the 20 years it was in place notwithstanding the fact that the FR zone was limited to youth
camps and housing associated therewith.” The trial court also noted that the Boy Scouts voiced
no objection at the public hearing preceding adoption of the FR-I zone. The trial court then
explained that the lack of objection was “not surprising” because the Boy Scouts had always
used the land for camping operations and had invested millions of dollars into those operations.
The trial court further found,
There was no evidence that [the Boy Scouts] had any expectations for
residential development when it acquired the property or when the ordinance was
passed. On the contrary, it is quite apparent that the [Boy Scouts] had
expectations of using Owasippe in a manner that it permitted in the FRI zone both
when the property was purchased and when the ordinance was adopted. It was
long after the FRI zone was in place that the most recent offer to purchase
surfaced and generated expectations for residential development. Furthermore,
the Township presented testimony that it would be willing to consider a Planned
Unit Development (PUD) proposal if one were submitted by [the Boy Scouts].
The evidence does not support a finding that any reasonable investment-backed
expectations have been defeated by adoption of FRI zoning.
In sum, the trial court found that the Boy Scouts had failed to prove their taking claim. And the
trial court added, “[T]his Court declines the invitation to thwart the will of the public as
expressed through the Township board.”
In May 2008, the trial court entered its final order of judgment in favor of the Township.
The Boy Scouts now appeal.
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II. MOTION FOR SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Under MCR 2.116(C)(10), a party may move for dismissal of a claim on the ground that
there is no genuine issue with respect to any material fact and the moving party is entitled to
judgment as a matter of law. The moving party must specifically identify the undisputed factual
issues and support its position with documentary evidence.3 The trial court must consider all the
documentary evidence in the light most favorable to the nonmoving party.4 We review de novo
the trial court’s ruling on a motion for summary disposition.5 We also review de novo
constitutional issues.6
B. CATEGORICAL TAKING
The Boy Scouts argue that they were entitled to judgment as a matter of law on their
inverse condemnation claim because the Township effected a categorical taking when it changed
its zoning scheme to FR-I. According to the Boy Scouts, this change meant that they could only
use their land for a youth camp, thereby depriving them of any economical beneficial or
productive use of their property. According to the Boy Scouts, in ruling that the Township had
not effected a categorical taking, the trial court erroneously analyzed whether the Boy Scouts’
property retained some economic “value” as rezoned. The Boy Scouts explain that value is a
consideration under the balancing test; when analyzing a categorical taking, the focus is on the
remaining economically beneficial use. The Boy Scouts contend that they cannot operate a camp
in an economically viable way and that there is no market for the property without allowing
further development.
Article 10, § 2, of the Michigan Constitution prohibits the state or a local unit of
government from taking a private property owner’s land without just compensation.7 “[A]
‘taking’ for purposes of inverse condemnation means that governmental action has permanently
deprived the property owner of any possession or use of the property.”8 An “inverse
condemnation may occur . . . where the effect of a governmental regulation is ‘to prevent the use
of much of [the] plaintiffs’ property . . . for any profitable purpose.’”9 “[T]he government may
effectively ‘take’ a person’s property by overburdening that property with regulations.”10
3
MCR 2.116(G)(3)(b) and (4); Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
4
MCR 2.116(G)(5); Maiden, 461 Mich at 120.
5
Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47, 48; 742 NW2d 622 (2007).
6
Tolksdorf v Griffith, 464 Mich 1, 5; 626 NW2d 163 (2001).
7
Const 1963, Art X, § 2.
8
Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 88-89; 445 NW2d 61 (1989).
9
Peterman v Dep’t of Natural Resources, 446 Mich 177, 190; 521 NW2d 499 (1994), quoting
Grand Trunk W R Co v Detroit, 326 Mich 387, 392-393; 40 NW2d 195 (1949).
10
K & K Construction v Dep’t of Natural Resources, 456 Mich 570, 576; 575 NW2d 531 (1998).
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Whether the government’s regulation of the use of property is tantamount to a taking depends on
the facts of an individual case.11
There are two avenues to establish a regulatory taking: (1) showing that the regulation
does not substantially advance a legitimate state interest, or (2) showing that the regulation
denies an owner economically viable use of the land.12 Because the Boy Scouts have conceded
that the Township has several legitimate governmental interests in zoning the land, the first
avenue to establish a regulatory taking is not at issue. Thus, we limit our analysis to the second
avenue, under which a taking can be established by: (1) showing a categorical taking that
involves a physical invasion or deprives the owner of all economically beneficial or productive
use of the land, or (2) applying a balancing test.13 We will discuss categorical taking directly
below. And we will discuss the balancing test infra in § III.B.
Applying the categorical taking test, we first note that there is no dispute that this case
does not involve a physical invasion of the Boy Scouts’ property. Thus, the issue is whether the
Township’s regulation forced the Boy Scouts to “‘sacrifice all economically beneficial uses [of
their land] in the name of the common good . . ..’”14
Here, the trial court found that there was no categorical taking. The trial court
acknowledged that there was a factual dispute regarding whether the property could generate a
profit as a camp. Nevertheless, the trial court found that there was no dispute that, even under
the FR-I zoning, the land retained substantial economic value. The Boy Scouts correctly contend
that the trial court erroneously analyzed whether the Boy Scouts’ property retained some
economic “value” as rezoned. When analyzing a categorical taking, the proper focus is on the
remaining “economically beneficial use.” Nevertheless, even applying the proper “economically
beneficial use” test, we conclude the Boy Scouts are still not entitled to relief.
The Boy Scouts contend that, by precluding residential development and limiting the land
to use as a campground, the Township has rendered the Boy Scouts’ property “economically
idle.” To support their argument, the Boy Scouts point to the United States Court of Appeals for
the Ninth Circuit’s decision in Del Monte Dunes at Monterey, Ltd v City of Monterey,15 in which
the court pointed out that “several courts have found a taking even where the ‘taken’ property
retained significant value.”16 According the Ninth Circuit, a court should look to “‘whether the
property use allowed by the regulation is sufficiently desirable to permit property owners to sell
11
Id.
12
Id.
13
Id. at 576-577; see Lucas v South Carolina Coastal Council, 505 US 1003, 1015-1016; 112 S
Ct 2886; 120 L Ed 2d 798 (1992); Penn Central, 438 US at 124.
14
K & K, 456 Mich at 577, quoting Lucas, 505 US at 1019 (emphasis in Lucas).
15
Del Monte Dunes at Monterey, Ltd v City of Monterey, 95 F3d 1422 (CA 9, 1996).
16
Id. at 1432-1433.
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the property to someone for that use.’”17 For example, “where . . . government action relegates
permissible uses of property to those consistent with leaving the property in its natural state (e.g.,
nature preserve or public space), and no competitive market exists for the property without the
possibility of development, a taking may have occurred.”18 Similarly, as stated by the United
States Supreme Court, “requiring land to be left substantially in its natural state” invokes a
“heightened risk that private property is being pressed into some form of public service under the
guise of mitigating serious public harm.”19 “[A] ‘State, by ipse dixit, may not transform private
property into public property without compensation . . ..’”20
The record does not support the Boy Scouts’ argument that the Township has rendered
their land economically idle by pressing their property into public service.21 Contrary to the Boy
Scouts’ contentions, the Township is not requiring that the Boy Scouts keep their land
substantially in a natural state.22 The zoning ordinance allows them to pursue campground
development on the land, although not necessarily the type of residential development that the
Boy Scouts would prefer to pursue.
The categorical taking test also does not guarantee property owners a certain minimum
economic profit from the use of their land.23 “[I]t is well established that a municipality is not
required to zone property for its most profitable use, and that ‘mere diminution in value does not
amount to [a] taking.’”24 A “[p]laintiff cannot establish a confiscation by simply showing a
disparity in value between uses.”25 “A plaintiff who asserts that he was ‘denied economically
viable use of his land’ must show something more—‘“that the property was either unsuitable for
use as zoned or unmarketable as zoned.”’”26 To establish a categorical, regulatory taking, “the
property owner must be completely deprived of economically beneficial use of his property[.]”27
17
Id. at 1433, quoting Park Ave Tower Assoc v City of New York, 746 F2d 135, 139 (CA 2,
1984) (internal quotations omitted).
18
Del Monte Dunes, 95 F3d at 1433.
19
Lucas, 505 US at 1018.
20
Id. at 1031, quoting Webb’s Fabulous Pharmacies, Inc v Beckwith, 449 US 155, 164; 66 L Ed
2d 358; 101 S Ct 446 (1980).
21
See id. at 1018.
22
See Del Monte Dunes, 95 F3d at 1433.
23
Paragon Properties Co v Novi, 452 Mich 568, 579 n 13; 550 NW2d 772 (1996); Sun Oil Co v
City of Madison Heights, 41 Mich App 47, 56; 199 NW2d 525 (1972) (“The test of a zoning
ordinance’s constitutionality is not profitability.”).
24
Dorman v Twp of Clinton, 269 Mich App 638, 647; 714 NW2d 350 (2006), quoting Bell River
Assocs v China Twp, 223 Mich App 124, 133; 565 NW2d 695 (1997).
25
Gackler Land Co v Yankee Springs Twp, 427 Mich 562, 572; 398 NW2d 393 (1986).
26
Dorman, 269 Mich App at 647, quoting Bell River, 223 Mich App at 133, quoting Bevan v
Brandon Twp, 438 Mich 385, 403; 475 NW2d 37, amended 439 Mich 1202 (1991).
27
K & K, 456 Mich at 586 (emphasis added).
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For example, applying this test, one court has held that a campground was not denied “all use” of
its property when, although it was prohibited from constructing any new buildings or
reconstructing damaged buildings, the campground operators could still use the property for
camping activities: “Meals could be cooked, games played, lessons given, tents pitched.”28
Nothing in the record suggests that the Boy Scouts’ property is unsuitable for continued
camp use. Indeed, camp use is the historical established use of this land. And the evidence
shows that the land is suitable for continued camp use.29 The Boy Scouts are not prohibited from
selling the land to another camp organization, including by breaking the land into smaller parcels
for sale. While the restrictions that FR-I places on the land may have reduced its value, the
restrictions have not rendered the land worthless or economically idle.
Additionally, the Boy Scouts contend that “the Township’s own appraiser discovered that
the property use allowed by the new zoning ordinance—operation of a youth camp—has no
competitive market in the State of Michigan and leaves the Scouts with no opportunity to sell the
property to someone else for that same use.”30 However, contrary to the Boy Scouts’ contention,
the FR-I zone does not limit use to youth camps. It also allows use for music camps and scout
camps.
Accordingly, we affirm the trial court’s grant of summary disposition to the Township
because the Boy Scouts failed to create a factual dispute that the Township’s FR-I zoning
ordinance amounted to a regulatory taking of their property under the categorical taking test.
C. FACIAL SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION
The Boy Scouts argue that they were entitled to judgment as a matter of law on their
facial Substantive Due Process and Equal Protection claims.
A plaintiff who alleges an unconstitutional taking of his or her property may challenge
the validity of the zoning ordinance as a violation of his or her substantive due process or equal
protection rights.31 The FR-I zoning classification is presumed to be constitutional, and the
28
First English Evangelical Lutheran Church v County of Los Angeles, 210 Cal App 3d 1353,
1367 (Cal App 2d Dist, 1989). The Boys Scouts argue that First English was overruled by
Lucas, 505 US 1003. However, this contention is without merit. Lucas merely stated that land
could not be relegated in such a way as to essentially transform it into public land, which is not
the case here.
29
See Del Monte Dunes, 95 F3d at 1433.
30
Emphasis added.
31
Muskegon Area Rental Ass’n v City of Muskegon, 465 Mich 456, 460; 636 NW2d 751 (2001);
Dorman, 269 Mich App at 650.
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burden is on the Boy Scouts to prove the contrary.32 We review this case while remaining
mindful that this Court is not a “‘superzoning commission.’”33
Facial Substantive Due Process and Equal Protection claims are both subject to rational
basis review.34 That is, a zoning ordinance is facially invalid as a matter of substantive due
process “if it fails to advance a legitimate governmental interest or if it is an unreasonable means
of advancing a legitimate governmental interest.”35 Similarly, absent a suspect classification, the
plaintiff in an equal protection challenge has the burden of establishing that a zoning ordinance is
arbitrary and not rationally related to a legitimate governmental interest.36 In general, to show
that a zoning ordinance is not rationally related to a legitimate governmental interest, the plaintiff
must negate “‘every conceivable basis’ supporting the ordinance, or show that it ‘is based “solely
on reasons totally unrelated to the pursuit of the State’s goals[.]”’”37
“Rational basis review does not test the wisdom, need, or appropriateness of the
legislation, or whether the classification is made with ‘mathematical nicety,’ or
even whether it results in some inequity when put into practice.” Rather, it tests
only whether the legislation is reasonably related to a legitimate governmental
purpose. The legislation will pass “constitutional muster if the legislative
judgment is supported by any set of facts, either known or which could reasonably
be assumed, even if such facts may be debatable.”[38]
Here, there is no question that that the rezoning of the property did advance legitimate
and reasonable governmental interests. Preserving the character of a township has been held to
be a legitimate governmental interest.39 Similarly, protection of infrastructure is a recognized
concern for local government.40 And the protection and preservation of natural resources is a
32
Dorman, 269 Mich App at 650; Frericks v Highland Twp, 228 Mich App 575, 594; 579 NW2d
441 (1998).
33
Brae Burn v Bloomfield Hills, 350 Mich 425, 430; 86 NW2d 166 (1957).
34
See Conlin v Scio Twp, 262 Mich App 379, 391 n 2; 686 NW2d 16 (2004) (noting that “where
there are no suspect classifications or fundamental rights involved, and the ordinance does not
completely exclude a particular use, the substantive due process and equal protection tests are
essentially the same.”).
35
Hecht v Nile Twp, 173 Mich App 453, 461; 434 NW2d 156 (1988).
36
Landon Holdings, Inc v Grattan Twp, 257 Mich App 154, 173; 667 NW2d 93 (2003).
37
Conlin, 262 Mich App at 391, quoting Muskegon, 465 Mich at 464 (internal citations omitted).
38
Muskegon, 465 Mich at 464 (internal citations and emphasis omitted).
39
See New Orleans v Dukes, 427 US 297; 96 S Ct 2513; 49 L Ed 2d 511 (1976).
40
Johnson v Lyon Twp, 45 Mich App 491, 494; 206 NW2d 961 (1973).
-11-
legitimate concern for a township.41 Further, neighbors’ opposition to proposed zoning is
relevant to whether a proposed project is harmonious with existing land use.42
Further, the Boy Scouts cannot show that the FR-I zoning restriction was based solely on
reasons totally unrelated to the pursuit of the Township’s interests.43 Nor can the Boys Scouts
negate every conceivable basis that might support the restrictions.44 Here, the evidence showed
that the land at issue has been historically used by camping and outdoor recreational enterprises.
And the FR-I ordinance advances the several legitimate purposes cited by the Township,
including protecting the township’s unique, camp character and habitat.
To the extent that the Boy Scouts argue that, in practice, the ordinance will not protect the
Township’s environmental interests because the FR-I zone allows for large developments like
convention centers and hotels, as long as used for camp purposes, this argument is without merit.
The Township had several goals in implementing the zoning, including promoting the
educational, recreational, and historical character of the property, none of which would be
furthered by allowing private, residential development. The Township had the discretion to
allow development that was in harmony with all of its public interest goals, while limiting
development that was not.
Accordingly, we affirm the trial court’s grant of summary disposition to the Township
because the Boy Scouts failed to create a factual dispute that the Township’s FR-I zoning
ordinance was not rationally related to a legitimate governmental interest.
D. PROCEDURAL DUE PROCESS
The Boy Scouts argue that they were entitled to judgment as a matter of law on their
Procedural Due Process claim because the Boy Scouts proved unequivocally that the Township’s
bad faith conduct violated their Procedural Due Process rights. The Boy Scouts contend that the
Township changed its zoning ordinance specifically to prevent the Boy Scouts from selling any
of their land for residential development. And, according to the Boy Scouts, in making that
change, the Township (1) failed to give the them actual notice of the planning commission’s
hearing where the change was discussed, (2) failed to give notice of what change the planning
commission was considering, (3) rushed to hold a township board meeting to enact the change,
(4) ignored the Boy Scouts’ written request to be heard before adopting the change, and (5)
refused to give the Boy Scouts a copy of the new zoning ordinance.
41
Frericks, 228 Mich App at 592-593.
42
Davenport v City of Grosse Point Farms ZBA, 210 Mich App 400, 407-408; 534 NW2d 143
(1995).
43
See Conlin, 262 Mich App at 391.
44
Id.
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No person may be deprived of life, liberty, or property without due process of law.45 In
its most fundamental sense, this guarantee limits arbitrary power, and due process provisions are
to be liberally construed in favor of citizens.46 Due process generally requires notice, an
opportunity to be heard, and a written statement of findings.47 The determination whether a
party has been afforded due process is a question of law subject to de novo review on appeal.48
The trial court dismissed the Boy Scouts’ procedural due process claim on the ground
that public policy does not allow for a procedural due process challenge after a four-year delay.49
However, even giving the Boy Scouts the benefit of the doubt and accepting their argument that
any delay in their bringing a claim was caused by the Township’s “charade of ‘considering’”
their application for rezoning, we nevertheless conclude that the Township was entitled to
summary disposition on this claim.
To claim a procedural due process violation, a plaintiff must allege more than an abstract
need, desire, or unilateral expectation of the claimed interest. There must be a legitimate claim
of entitlement to it.50 Due process clauses protect vested property interests.51 And a protected
property interest is present when an individual has a reasonable expectation of entitlement to the
perpetuation of a prior zoning ordinance.52 A landowner does not possess a vested property
interest in a particular zoning classification unless the landowner holds a valid building permit
and has completed substantial construction.53 The Boy Scouts neither held a building permit for
residential construction nor had begun any residential construction. Thus, they did not possess a
protected property interest under Michigan law. Further, because the Township’s action in
adopting the new zoning ordinance was part of the legislative process, rather than an
administrative function, the Boy Scouts had no constitutional right to procedural due process.54
45
US Const, Am V; Const 1963, art 1, § 17; Sidun v Wayne Co Treasury, 481 Mich 503, 508509; 751 NW2d 453 (2008); Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 209; 761
NW2d 293 (2008).
46
Lockwood v Comm’r of Revenue, 357 Mich 517, 557; 98 NW2d 753 (1959).
47
Dusenbery v United States, 534 US 161, 167; 122 S Ct 694; 151 L Ed 2d 597 (2002); Republic
Bank v Genesee Co Treas, 471 Mich 732, 742; 690 NW2d 917 (2005).
48
Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005).
49
Richmond Twp v Erbes, 195 Mich App 210, 217; 489 NW2d 504 (1992); Northville Area NonProfit Housing Corp v Walled Lake, 43 Mich App 434; 204 NW2d 274 (1972).
50
Williams v Hofley Mfg Co, 430 Mich 603, 610; 424 NW2d 278 (1988); York v Civil Service
Comm, 263 Mich App 694, 702-703; 689 NW2d 533 (2004).
51
Sherwin v State Hwy Comm’r, 364 Mich 188, 200; 111 NW2d 56 (1961).
52
Mettler, 281 Mich App at 209.
53
City of Lansing v Dawley, 247 Mich 394, 396-397; 225 NW 500 (1929); Schubiner v West
Bloomfield Twp, 133 Mich App 490, 497; 351 NW2d 214 (1984).
54
Sun Communities v Leroy Twp, 241 Mich App 665, 669; 617 NW2d 42 (2000).
-13-
Moreover, we reject the Boy Scouts claims that they were denied notice of the zoning
change. On November 17, 2002, the Township published notice that a special meeting of the
planning commission would be held on December 9, 2002, to receive comments regarding the
proposed amendments to the Zoning Ordinance. And while the notice did not disclose the details
of the proposed amendments, it did state that the complete text of the proposed amendments
would be available for review at the town hall during regular business hours. Having given
proper public notice, we cannot fault the Township for the Boy Scouts’ failure to actually learn
of the zoning change until mid-2003.
We will not reverse the lower court when the court reaches the correct result albeit for the
wrong reason.55 Accordingly, we affirm the trial court’s grant of summary disposition to the
Township because the Boy Scouts failed to demonstrate a factual dispute that they were denied
procedural due process.
III. JUDGMENT AFTER TRIAL
A. STANDARD OF REVIEW
A trial court’s findings of fact may not be set aside unless clearly erroneous.56 A trial
court’s findings of fact are clearly erroneous only if “on review of the entire record, the [Court]
is left with the definite and firm conviction that a mistake has been made.”57 We also review de
novo constitutional issues.58
B. PENN CENTRAL BALANCING TEST
The Boy Scouts argue that they were entitled to judgment on their inverse condemnation
claim because the Township effected a taking under the Penn Central balance test. According to
the Boy Scouts, the trial evidence showed that the Township’s zoning change was intentionally
designed to stop development on the Boy Scouts’ property, deprived the Boy Scouts of any
economically viable use of their land, and adversely interfered with the Boy Scouts’ investmentbacked expectations.
As stated, there are two avenues to establish an inverse condemnation regulatory taking
claim: (1) a categorical taking, as discussed above in § II.B., or (2) application of a balancing
test, which we now discuss.
Application of the balancing test involves “essentially ad hoc, factual inquiries.”59 The
balancing test requires a court to consider (1) the character of the government’s actions; (2) the
55
Tipton v William Beaumont Hosp, 266 Mich App 27, 37-38; 697 NW2d 552 (2005).
56
MCR 2.613(C).
57
Peters v Gunnell, Inc, 253 Mich App 211, 221; 655 NW2d 582 (2002).
58
Tolksdorf, 464 Mich at 5.
59
Penn Central, 438 US at 124; see K & K, 456 Mich at 577.
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economic effect of the regulation on the property; and (3) the extent of any interference with the
property owner’s distinct, investment-backed expectations.60
After trial, the court found that the Boy Scouts’ failed to prove their inverse
condemnation claim under the balancing test. The trial court found that all three factors weighed
in favor of the Township. The trial court found that the FR-I zoning served a public good, while
not singling out the Boy Scouts. The trial court also found that the property was marketable as a
campground and that the ordinance did not severely diminish the marketable value of the Boy
Scouts’ property. And the trial court found that the Boy Scouts had not shown any reasonable
investment-backed expectations that were been defeated by adoption of the FR-I zone.
1. THE CHARACTER OF THE GOVERNMENT’S ACTIONS
With respect the first factor under the balancing test, “A ‘taking’ may more readily be
found when the interference with property can be characterized as a physical invasion by
government, than when interference arises from some public program adjusting the benefits and
burdens of economic life to promote the common good.”61 Here, the Township’s zoning clearly
does not amount to a physical taking. Thus, “[t]he relevant inquiries are whether the
governmental regulation singles plaintiff[] out to bear the burden for the public good and
whether the regulatory act being challenged here is a comprehensive, broadly based regulatory
scheme that burdens and benefits all citizens relatively equally.”62 Here, the Boy Scouts concede
that in implementing this zoning, the Township has multiple interests in promoting the common
good, but they essentially argue that the burden on them is too severe. This argument is without
merit.
This Court has recognized that zoning regulations are generally “comprehensive,
universal, and ubiquitous, and provide an ‘average reciprocity of advantage’ for all property
owners[.]”63 And the FR-I zoning is no exception: the FR-I zone includes properties owned by
several different camp organizations, and the zoning applies equally to all of the property owners
in the zoned area. As the trial court held, all of those owners are equally burdened by the land
use restrictions, but they all also equally benefit from preserving the unique camp character of
the land. And contrary to the Boys Scouts’ argument, there is no evidence that the Boy Scouts
were specifically singled out to bear the burden. The Boy Scouts point out that township
commissioner Lyle Monette admitted that the goal of implementing the FR-I zoning was to
prevent the Boy Scouts from selling their land for residential development. However, Monette
testified that the planning commission had been working on drafting the FR-I zoning well before
the Boy Scouts announced their plans to sell their land and that the announcement merely sped
up the implementation process to ensure protection of the Township’s goals. The fact that the
60
Penn Central, 438 US at 124; K & K, 456 Mich at 587-588.
61
Penn Central, 438 US at 124 (internal citation omitted).
62
K & K Construction, Inc v Dep’t of Environmental Quality, 267 Mich App 523; 705 NW2d
365 (2005).
63
Id. at 531.
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Boy Scouts’ intentions influenced the Township’s actions does not negate the fact that the Boy
Scouts were not singled out in implementation of the zoning. All property owners within the
zone bear the burden of the restriction.
The Boy Scouts emphasize that the Township’s FR-I zone is unique. However, as the
Township points out, the uniqueness of the FR-I zone was a reasonable response to the unique
nature of the land in question. The Boy Scouts further argue that, in practice, the new zoning
scheme will do nothing to promote the Township’s post hoc governmental interest of protecting
the environmental interests of the property because the FR-I zone allows large developments like
convention centers and hotels, as long as used for camp purposes. However, as stated, protecting
the natural habitat is not the only governmental interest at issue. The Township had several
goals in implementing the zoning, including promoting the educational, recreational, and
historical character of the property. And the Township had the discretion to allow development
that was in harmony with all of its public interest goals.
The Boy Scouts cannot establish that the Township’s FR-I zoning has the effect of
singling out the Boys Scouts to bear the burden of a public benefit. Thus, we conclude that the
trial court correctly found that this factor weighed in the Township’s favor.
2. THE ECONOMIC EFFECT OF THE REGULATION ON THE PROPERTY
With respect the second factor, the Boy Scouts argue that the economic effect of the
zoning on their property has been severe. They point out that, before the zoning change, they
had been offered $19.3 million for their property. But, according to their expert, their land was
only worth $2.8 million after the zoning change. And on this latter point, the Boy Scouts
contend that the trial court erred in relying on the Township’s expert’s $12 million appraisal.
The Boy Scouts argue the Township’s appraisal was not supported when the Township’s expert
admitted that no camp in Michigan had been sold as a camp for at least seven years. The Boy
Scouts also discount the trial court’s finding that the land was worth $12 million. They contend
that that figure was based on an offer from a prospective buyer with insufficient assets to
complete the purchase.
“While there is no set formula for determining when a taking has occurred under this test,
it is at least ‘clear that the question whether a regulation denies the owner economically viable
use of his land requires at least a comparison of the value removed with the value that
remains.’”64 “A comparison of values before and after a regulation becomes effective is relevant
in determining whether the regulation is so onerous as to constitute a ‘taking,’ but is by no means
conclusive.”65 “[A] property owner must prove that the value of his land has been destroyed by
64
K & K, 456 Mich at 588, quoting Bevan, 438 Mich at 391.
65
Bevan, 438 Mich at 403 n 18.
-16-
the regulation or that he is precluded from using the land as zoned.”66 “[A] mere diminution in
property value which results from regulation does not amount to a taking”67
Although the Boy Scouts argue that the trial court erred in relying on the Township’s
appraisal, we must give deference to the trial court’s superior ability to judge the credibility of
the witnesses who appeared before it.68 The trial court thoroughly explained its reasons and
rationale for preferring the Township’s appraisal testimony. And we cannot say that the trial
court’s conclusions were clearly erroneous.
Moreover, as the trial court held, the decrease in marketable value is not prejudicially
severe. In Penn Central, the United States Supreme Court recognized that “in instances in which
a state tribunal reasonably concluded that ‘the health, safety, morals, or general welfare’ would
be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use
regulations that destroyed or adversely affected recognized real property interests.”69 Moreover,
“[t]he Taking Clause does not guarantee property owners an economic profit from the use of
their land.”70 Here, the trial court found that the zoning change effected a 36 percent diminution
in value in the Boy Scouts’ property. And as the trial court stated, “This is, to be sure, a
significant decline.” However, “[d]ecisions sustaining other land-use regulations, which, . . . are
reasonably related to the promotion of the general welfare, uniformly reject the proposition that
diminution in property value, standing alone, can establish a ‘taking,’ see Euclid v Ambler Realty
Co, 272 US 365 (1926) (75% diminution in value caused by zoning law); Hadacheck v
Sebastian, 239 US 394 (1915) (87 1/2% diminution in value)[.]”71
The Boy Scouts cannot establish that the Township’s FR-I zoning caused such an
excessive diminution in value as to amount to a showing that the value of their land has been
destroyed by the regulation or that they are precluded from using the land as zoned.72 Thus, we
conclude that the trial court correctly found that this factor weighed in the Township’s favor.
3. INTERFERENCE WITH INVESTMENT-BACKED EXPECTATIONS
With respect the third and final factor, the Boy Scouts argue that the zoning change
interfered with their distinct investment-backed expectations. They contend that, at the time that
the zoning change was adopted, the Boy Scouts were negotiating a $19 million sale of the
property, which was based on the expectation of residential development. However, as the
66
Id. at 403.
67
Id. at 402-403.
68
Brooks v Rose, 191 Mich App 565, 570; 478 NW2d 731 (1991).
69
Penn Central, 438 US at 125.
70
Paragon Properties, 452 Mich at 579 n 13.
71
Penn Central, 438 US at 131. See also Cryderman v City of Birmingham, 171 Mich App 15;
429 NW2d 625 (1988).
72
See Bevan, 438 Mich at 403.
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Township points out, mere negotiation for a potential sale does not equate to evidence of actual
investments. This Court has declined to find a taking where the property owner is not actively
investing in a particular use of the property. “To claim a vested interest in a zoning
classification, the property owner must ‘hold[] a valid building permit and [have] completed
substantial construction.’”73 Indeed, this Court has declined to find a valid investment-backed
expectation where a municipality rezoned property while the property owner’s application for a
building permit was pending.74 In order to protect one’s property rights, a property owner must
demonstrate that he or she has taken substantial action to begin construction on the property.75
“[P]reliminary operations such as ordering plans, surveying the land, and the removal of old
buildings are insufficient . . . .’”76
Here, the Boy Scouts have no investment-backed expectations in residential
development. They have not invested anything in the construction of residential housing on their
land. To the contrary, all the of the Boy Scouts’ investments to date have been directed to
camping and recreational development. We note that the Penn Central Court found it significant
that the Penn Central station had been historically used as a railroad terminal and that the new
law did not interfere with that continued use:
[T]he New York City law does not interfere in any way with the present uses of
the Terminal. Its designation as a landmark not only permits but contemplates
that appellants may continue to use the property precisely as it has been used for
the past 65 years: as a railroad terminal containing office space and concessions.
So the law does not interfere with what must be regarded as Penn Central’s
primary expectation concerning the use of the parcel.[77]
Here, the Boys Scouts have solely been using their land for camping operations for nearly 100
years. Therefore, the Boy Scouts cannot establish that the Township’s FR-I zoning interfered
with any distinct investment-backed expectations in residential development. Thus, we conclude
that the trial court correctly found that this factor weighed in the Township’s favor.
Accordingly, we conclude that the trial court properly weighed all of the Penn Central
factors in favor of the Township, and we affirm the trial court’s judgment in favor of the
Township on this claim.
73
Dorman, 269 Mich App at 649, quoting Seguin v Sterling Hgts, 968 F2d 584, 590-591 (CA 6,
1992). See also Dawley, 247 Mich at 396-397 (finding no vested right to construct the proposed
building where the property owner had only ordered the construction plans and conducted a
survey of the land).
74
Schubiner, 133 Mich App at 497.
75
Dorman, 269 Mich App at 649.
76
Id., quoting Gackler, 452 Mich at 574-575.
77
Penn Central, 438 US at 136.
-18-
C. “AS APPLIED” SUBSTANTIVE DUE PROCESS
The Boy Scouts argue that they were entitled to judgment on their “as applied”
Substantive Due Process challenge. According to the Boy Scouts, the evidence showed that the
Township’s zoning change arbitrarily prevented the Boy Scouts from using their property in an
economically productive way.
As stated previously, “[a] plaintiff who alleges an unconstitutional taking of his or her
property may also challenge the validity of the zoning ordinance as a violation of his or her right
to substantive due process.”78 The FR-I zoning classification is presumed to be constitutional,
and the burden is on the Boy Scouts to prove the contrary.79 And we remain mindful that we do
not sit as a “‘superzoning commission.’”80 Therefore, we give considerable weight to the trial
court’s findings.81
A plaintiff may establish that a land use regulation is unconstitutional “as applied”’ by
showing “‘(1) that there is no reasonable governmental interest being advanced by the present
zoning classification or (2) that an ordinance is unreasonable because of the purely arbitrary,
capricious, and unfounded exclusion of other types of legitimate land use from the area in
question.’”82 “An ‘as applied’ challenge alleges a present infringement or denial of a specific
right or of a particular injury in process of actual execution.”83 “‘[I]t is the burden of the party
attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction
upon the owners use of this property.”84 A determination of the validity of an ordinance,
requires consideration of “the character of the district, its peculiar suitability for particular uses,
the conservation of property values and the general trend and character of building and
population development; unsuitability for residential purposes; lack of market for such purpose,
and whether the land will become ‘dead land’ or nonincome-producing land without residential
value.”85 The question is “[a]s to this property, in this city, under this particular plan (wise or
unwise though it may be), can it fairly be said there is not even a debatable question? If there is,
we will not disturb.”86 The Court requires “more than a fair difference of opinion.”87
78
Dorman, 269 Mich App at 650.
79
Id.; Frericks, 228 Mich App at 594.
80
Brae Burn, 350 Mich at 430.
81
Conlin, 262 Mich App at 390.
82
Dorman, 269 Mich App at 650-651, quoting Frericks, 228 Mich App at 594.
83
Paragon Properties, 452 Mich at 576.
84
Brae Burn, 350 Mich at 432; see also Kirk v Tyrone Twp, 398 Mich 429; 247 NW2d 848
(1976).
85
Alderton v Saginaw, 367 Mich 28, 34; 116 NW2d 53 (1962) (internal citations omitted).
86
Brae Burn, 350 Mich at 433.
87
Id. at 432.
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As we have explained previously, there was no question of fact that the Township’s FR-I
zoning ordinance was rationally related to a legitimate governmental interest. Nevertheless, the
Boy Scouts argue that the Township’s alleged legitimate governmental interests were merely a
pretext. They contend that the rezoning decision was based solely on a desire specifically to
prevent the Boys Scouts from selling their land for residential development. However, a plaintiff
cannot challenge the constitutionality of a law simply by attacking the motives of the legislators
who authored it.88 Further, although the Boy Scouts argue that the rezoning of their property was
prompted by the Township’s ulterior motives, we do not agree that the township board’s ultimate
decision was arbitrary and capricious. The land had a historical camp use and the Boy Scouts’
proposed residential development was clearly a nonconforming use. Precluding such
nonconforming residential use to retain the land’s conformity with its historical use was not an
arbitrary or capricious act.
The Boys Scouts argue that the FR-I zoning unreasonably denied them of all
economically productive use of their property. But, as we explained in § II.B., the FR-I zoning
has not denied the Boy Scouts of all economically productive use of their property. The Boy
Scouts might not be able to sell their land for private residential development. But they still have
alternative, economically viable campground uses. And while they may not be able to realize the
highest economic profit from such camp use, the Constitution does not require the Township to
zone the Boys Scouts’ property to allow its most profitable use.89
The Boy Scouts also argue that the FR-I exclusion of residential development was
inconsistent with the master plan and, therefore, was an arbitrary, capricious, and unfounded
exclusion of residential development. However, as the trial court recognized, this residential
exclusion was consistent with the historical use of the property: the prior FR zone never allowed
for private residential development either. Consistency with a master plan in and of itself is
evidence of reasonableness in the evaluation of an as applied due process challenge.90
The trial court made extensive findings in support of its conclusion that the FR-I zoning
classification was reasonable and not an arbitrary, capricious, or unfounded exclusion of
residential development. The trial court found that the land was marketable for sale to other
camp organizations and that the current infrastructure did not support residential development.
And the trial court acknowledged that the expert’s disagreed regarding whether the zoning
ordinance was an unfounded exclusion of residential development. But the trial court then
concluded that their disagreements were nothing more than fair differences of opinion, which are
insufficient to show a constitutional violation.91 The trial court’s findings are entitled to
88
See People v Gardner, 143 Mich 104, 106; 106 NW2d 541 (1906); Pythagorean, Inc v Grand
Rapids Twp, 253 Mich App 525, 527-528; 656 NW2d 212 (2002).
89
Equitable Bldg Co v Royal Oak, 67 Mich App 223, 227; 240 NW2d 489 (1976).
90
Parkdale Homes v Clinton Twp, 23 Mich App 682, 686-687; 179 NW2d 232 (1970).
91
See Brae Burn, 350 Mich at 432.
-20-
substantial deference.92 Accordingly, we affirm the trial court’s judgment in favor of the
Township on this claim.
IV. CONCLUSION
We conclude that the trial court properly granted summary disposition to the Township.
The Boy Scouts failed to demonstrate a factual dispute that the Township’s FR-I zoning
ordinance amounted to a regulatory taking of their property under the categorical taking test.
They failed to show that the Township’s FR-I zoning ordinance was not rationally related to a
legitimate governmental interest. They also failed to show that they were denied procedural due
process.
We further conclude that the trial court properly entered judgment in favor of the
Township after trial when it properly weighed all of the Penn Central factors in favor of the
Township, and when the Boy Scouts failed to show that the FR-I zoning was an arbitrary,
capricious, and unfounded exclusion of residential development.
We affirm.
/s/ Kirsten Frank Kelly
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
92
Conlin, 262 Mich App at 390.
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