LANDON HOLDINGS INC V GRATTAN TWP
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STATE OF MICHIGAN
COURT OF APPEALS
LANDON HOLDINGS, INC. and DONALD
OSBORN,
FOR PUBLICATION
June 17, 2003
9:15 a.m.
Plaintiff-Appellants/CrossAppellees,
v
No. 232406
Kent Circuit Court
LC No. 99-0125211-CZ
GRATTAN TOWNSHIP,
Defendant-Appellee/CrossAppellant
and
MICHIGAN TOWNSHIPS ASSOCIATION and
CANNON TOWNSHIP,
Updated Copy
August 1, 2003
Amici Curiae.
.
Before: Schuette, P.J., and Sawyer and Wilder, JJ.
SCHUETTE, P.J.
Plaintiffs Landon Holdings, Inc., and Donald Osborn appeal as of right an order granting
defendant Grattan Township summary disposition under MCR 2.116(C)(10).1 Defendant crossappeals the trial court's order granting plaintiff partial summary disposition. We affirm the grant
of summary disposition and find moot the cross-appeal.
I. FACTS
1
The trial court ordered that this be the final order unless plaintiffs amended their complaint
within twenty-one days. The lower court record indicates that plaintiffs did not file an amended
complaint.
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This case arose when plaintiffs challenged a provision in defendant's zoning ordinance
requiring a special use permit for manufactured housing. Osborn owned property that Landon
wished to purchase and develop. After the trial court found the special use requirement invalid,
defendant amended its ordinance to create a manufactured housing district. The trial court
considered the amendment in its evaluation whether the ordinance violated statutory and
constitutional protections.
Plaintiffs filed a complaint against defendant on December 14, 1999, challenging the
defendant's zoning ordinance as a violation of the Township Zoning Act, specifically MCL
125.297a; the Mobile Home Commission Act (MHCA), MCL 125.2301 et seq.; and
constitutional guarantees of due process and equal protection. Osborn owned approximately two
hundred acres near M-44 that Landon wished to purchase and develop as a manufactured housing
community.2 The ordinance in effect at that time allowed manufactured housing pursuant to a
special use permit in areas zoned R-R residential. Osborn's property was zoned agricultural.
Thus, Landon's proposed development would have required both rezoning and a special use
permit.
The Mobile Home Commission approved defendant's zoning ordinance in 1990. The
documents in the lower court record are not complete and primarily address setback and sewage
requirements. However, they suggest that the commission was unconcerned with the special use
requirement.
According to Township Supervisor Richard Herwyer, in his twelve years as a township
official, defendant never received an application for a special use permit or rezoning to
accommodate manufactured housing. However, in March 2000, the planning commission
received a special use application from another company, Fundamental Equities, Inc., for
manufactured housing in a residential district. In 1999, defendant began updating its master plan.
The proposed plan stated that it would be appropriate for twenty percent of township dwelling
units to be moderate density housing, including either multi-family or manufactured housing, if
there were adequate land and interest.
Defendant did not file an answer to plaintiffs' complaint and instead moved for summary
disposition under MCR 2.116(C)(8) and (10), arguing that (1) MCL 125.2307 only prohibits
governments from imposing higher standards on individual mobile homes, not mobile home
parks and (2) the ordinance did not violate MCL 125.297a or the constitution because it did not
totally exclude manufactured housing. On May 30, 2000, after an April 28, 2000, hearing, the
trial court denied defendant's motion and instead granted plaintiffs summary disposition
regarding MCL 125.2307. The trial court held that the statute applied to mobile home parks and,
2
On appeal, defendant notes "'[m]anufactured housing community' is the term used by the
industry and state regulators. It is synonymous with 'mobile home park,' which is the term used
in the Mobile Home Commission Act". Plaintiffs do not dispute this aspect of the statute's
terminology. These two terms will be used interchangeably throughout this opinion and will be
accorded the same meaning as well.
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further, that a special use permit requirement constituted an improper higher standard, relying on
Bell River Assoc v China Charter Twp, 223 Mich App 124; 565 NW2d 695 (1997).
On June 16, 2000, defendant sought leave to appeal the order in the Court of Appeals and
moved for immediate consideration. This Court denied leave to appeal on July 7, 2000. On
September 26, 2000, the Supreme Court denied defendant's request for leave to appeal and for
peremptory reversal.
On October 16, 2000, defendant again moved for summary disposition under MCR
2.116(C)(10). Defendant argued that plaintiffs' claims were moot because the township had
amended its ordinance to create a zoning district in which manufactured housing was permitted
without a special use permit. Defendant argued further that even if the issues were not moot, the
trial court should apply the amended ordinance, which defendant asserted complied with MCL
125.297a, and also satisfied the requirements of due process and equal protection.
According to defendant's motion, the amendment was first discussed in May 2000,
sometime between the April hearing and the trial court's order granting summary disposition.
The proposed amendment was presented at a June 7, 2000, meeting of the township planning
commission. The township board adopted it on June 12, 2000, and it became effective seven
days after its June 14, 2000, publication in the local newspaper.
The new ordinance did not alter the special use sections, but added "'MHC' Manufactured
Housing Community" to the list of zoning districts under Section 5.01 and created a new chapter,
9-A, which sets forth the conditions for establishing an MHC district and the procedures for
review of site plans. At the trial court hearing, however, defendant did not challenge the
assertion by plaintiffs' attorney that no land had actually been designated MHC. Rather, property
owners must apply for rezoning to MHC.
On August 16, 2000, plaintiffs applied for rezoning, expressly declaring that they were
not waiving their claim that the ordinance was invalid. The lower court record contains no
further evidence regarding the status of the rezoning application.
On December 4, 2000, the trial court heard defendant's second motion for summary
disposition. The court first determined that it could consider the amended ordinance. The court
then held that, unlike the special use requirement, the new ordinance did not violate MCL
125.2307. The court further held that the new ordinance did not violate MCL 125.297a or
constitutional guarantees because it did not totally exclude manufactured housing. In a January
12, 2001, order, the trial court granted defendant summary disposition regarding all claims. The
trial court also gave plaintiffs twenty-one days to amend their complaint, in light of the amended
ordinance, but plaintiffs declined to do so.
Plaintiffs now appeal the January 2001 order granting summary disposition and defendant
cross-appeals the May 2000 order granting plaintiffs' motion for summary disposition regarding
the old ordinance.
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II. ADMISSION OF AMENDED ZONING ORDINANCE
Plaintiffs first argue that the trial court erred in admitting the amended ordinance into
evidence because the amendment was made in bad faith. We disagree.
A. Standard of Review
This Court reviews for an abuse of discretion a trial court's decision to admit or exclude
evidence of ordinance amendments during litigation. Keating Int'l Corp v Orion Twp, 395 Mich
539, 548; 236 NW2d 409 (1975).
B. Analysis
In determining which version of a zoning ordinance a court should apply, "'the general
rule is that the law to be applied is that which was in effect at the time of decision.'" MacDonald
Advertising Co v MacIntyre, sub nom MacDonald Advertising Co v City of Pontiac, 211 Mich
App 406, 410; 536 NW2d 249 (1995), quoting Klyman v City of Troy, 40 Mich App 273, 277;
198 NW2d 822 (1972); Lockwood v Southfield, 93 Mich App 206, 211; 286 NW2d 87 (1979).
There are two exceptions to the general rule: (1) "A court will not apply an amendment to
a zoning ordinance where . . . the amendment would destroy a vested property interest acquired
before its enactment . . . ; and (2) a court will not apply the amendment where "the amendment
was enacted in bad faith and with unjustified delay." Lockwood, supra at 211, citing City of
Lansing v Dawley, 247 Mich 394, 396; 225 NW 500 (1929), and Keating, supra at 549. Here,
plaintiffs do not claim a vested property right in this case and our analysis must focus on the
second exception. "[T]he test to determine bad faith is whether the amendment was enacted for
the purpose of manufacturing a defense to plaintiff 's suit." Id.
Michigan courts have reviewed the bad faith exception several times. In Willingham v
Dearborn, 359 Mich 7; 101 NW2d 294 (1960), the city denied the plaintiff a building permit on
grounds not supported by the zoning ordinance. Id. at 9. The plaintiff sought a writ of
mandamus on January 31, 1958, to compel issuance of the permit. Id. On July 24, 1958, the
morning of the hearing on the issues, the defendant tried to introduce an ordinance that had been
amended on June 3, 1958. Id. at 8-9. The trial court denied the defendant's motion and granted
the plaintiff his writ. Id. at 9. Our Supreme Court, affirming the decision of the trial court,
stated, "Indeed, the whole record considered, injustice to plaintiff might have resulted from any
such last-minute order providing a defense which did not exist when the petition was filed." Id.
at 10.
In Klyman, supra, this Court compared Willingham, supra, to Franchise Realty Interstate
Corp v Detroit, 368 Mich 276; 118 NW2d 258 (1962), noting the similar facts but opposite
results. This Court then listed several factors to consider when exercising discretion to admit
evidence of an amended ordinance: (a) whether the plaintiff had an unquestionable right to
issuance of a permit, (b) whether the municipality had not forbidden this type of proposed
construction, (c) whether the ordinance was amended to manufacture a defense to the lawsuit,
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and (d) whether the city waited until the last possible minute to assert the defense—long after the
pretrial conference. Id. at 279.
This Court then contrasted the facts of Klyman, supra, with the facts of Willingham,
supra. This Court noted that the amended ordinance had wide applicability as opposed to merely
affecting the plaintiff 's property, that the city had never permitted the plaintiff 's requested use in
the particular zoning district, that the city had previously attempted to amend the ordinance to
prohibit the plaintiff 's proposed use, that the plaintiff filed a motion for summary judgment on
July 22, 1970, and the ordinance was amended on September 11, 1970, that the motion to amend
the pleadings came before the pretrial conference, and that, while the motion to amend the
pleadings came after summary judgment had been granted, this was by court order. Klyman,
supra. This Court went on to state, "When a city acts promptly and in apparent good faith,
amendment of the pleadings is in the interest of justice and should be allowed." Id. at 281.
In Keating, supra, the plaintiffs applied for site plan reviews of multiple housing
developments on June 2, 1971. Id. at 543. The planning commission tabled the plans at five
separate meetings. Id. at 543-544. The fifth time, the planning commission tabled the plans until
after the township board met on May 2, 1972, to discuss rezoning plaintiffs' parcels to singlefamily residential. Id. at 544. Further, on April 28, 1972, plaintiffs sought a writ of mandamus
to compel approval of the now consolidated site plan. Id. at 544. The plaintiffs' property was
rezoned on June 20, 1972. Id. at 545. The plaintiffs amended their complaint to request that the
trial court enjoin the township from rezoning the property. Id. at 545. The trial court declined to
enjoin rezoning, but ruled that the evidence of rezoning would be inadmissible at trial. Id. at
545. At the end of the trial, the court granted mandamus. Id. at 545. In its appeal, the township
argued that the apparently discordant decisions of Willingham, supra, and Franchise Realty,
supra, could be reconciled on the basis of whether the amendment was in effect at the time of
trial. Id. at 546-547. Our Supreme Court rejected this argument, reiterating that, "the decision to
admit or exclude ordinance amendments during litigation is one which rests entirely within the
sound discretion of the trial court." Id. at 548.
Each case cited by plaintiffs and defendant regarding this issue involves a hearing on a
writ of mandamus. This case does not involve a writ of mandamus—it involves allegations that
the original ordinance was unconstitutional on its face. However, the discrete issue whether the
trial court abused its discretion by considering the amended ordinance in its decision appears to
be the same. The first two factors of Klyman, supra, involve a writ of mandamus analysis.
However, the remaining factors outlined in Klyman, supra, can be applied to the facts of this
case.
In 1990, the Mobile Home Commission approved defendant's zoning ordinance.
Defendant appeared to be operating under the presumption that its ordinance was valid. Nobody
applied for a special use permit for manufactured housing from 1988 to 2000. Therefore, the
validity of defendant's ordinance had not been questioned. About March 1999, defendant began
updating its master plan. The updates to the master plan before plaintiffs' lawsuit indicated
defendant was not merely trying to manufacture a defense when it amended its ordinance. The
proposed plan allowed twenty percent of the township to be moderate density housing, including
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manufactured housing. Both the original ordinance and the amended ordinance applied to
property throughout the township as opposed to merely the plaintiffs' property.
Plaintiffs filed a complaint on December 14, 1999, challenging the validity of defendant's
zoning ordinance. Defendant moved for summary disposition. This indicated defendant's belief
that its ordinance was valid. On May 30, 2000, after an April 28, 2000 hearing, the trial court
denied defendant summary disposition. Defendant first discussed amending its ordinance in May
2000. Defendant acted immediately after the court's decision to remedy the perceived defects of
the ordinance. Defendant adopted the ordinance amendment on June 12, 2000. The new
ordinance added an "'MHC' Manufactured Housing Community" zoning district. The fact that
the amended ordinance created a new district neither helped nor hindered plaintiffs' situation.
Plaintiffs still needed to have their property rezoned before they could develop a manufactured
housing community.
Plaintiffs claim defendant acted in bad faith and with unjustifiable delay because it did
not amend its ordinance until after the trial court granted summary disposition to plaintiffs.
However, defendant did not violate the ordinance and then attempt to change the ordinance to
justify its past behavior. Our review of the record indicates that the trial court did not abuse its
discretion when it found that plaintiff failed to establish bad faith or unjustifiable delay.
Accordingly, the trial court properly considered the amended ordinance.
III. EXCLUSION OF MANUFACTURED HOUSING COMMUNITIES
Plaintiff next argues that defendant's rezoning is illusory because the ordinance does not
rezone any property and defendant's land use plan does not identify any property suitable for a
manufactured housing district. We disagree.
A. Standard of Review
This court reviews de novo a trial court's grant of summary disposition pursuant to MCR
2.116(C)(10). West Bloomfield Charter Twp v Karchon, 209 Mich App 43, 48; 530 NW2d 99
(1995). We review the record to determine whether the defendant was entitled to judgment as a
matter of law. Borman v State Farm Fire & Cas Co, 198 Mich App 675, 678; 499 NW2d 419
(1993).
B. Analysis
Plaintiffs claim defendant's zoning ordinance (1) excludes manufactured housing
communities in violation of the Township Zoning Act, MCL 125.297a, and in violation of
substantive due process, (2) violates substantive due process because it is arbitrary, capricious,
and unreasonable, and (3) violates equal protection guarantees by failing to reasonably advance a
legitimate government interest.
On January 12, 2001, the trial court granted defendant's second motion for summary
disposition under MCR 2.116(C)(10), after ruling at a December 4, 200, hearing that the
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ordinance—as amended—is not totally exclusionary and, therefore, does not violate MCL
125.297a or the constitution. Plaintiffs argue on appeal that the ordinance is totally exclusionary
and, further, that total exclusion is not required to prevail on a due process or equal protection
challenge.
MCL 125.297a states:
A zoning ordinance or zoning decision shall not have the effect of totally
prohibiting the establishment of a land use within a township in the presence of a
demonstrated need for that land use within either the township or surrounding area
within the state, unless there is no location within the township where the use may
be appropriately located, or the use is unlawful.
Under MCL 125.297a, a township may not totally exclude a use if the exclusion is
township-wide in scope, there is a demonstrated need for the use, the use is appropriate in some
location in the township, and the use is lawful. See Adams Outdoor Advertising, Inc v Holland,
463 Mich 675, 684; 625 NW2d 377 (2001) (interpreting a nearly identical prohibition applicable
to cities, MCL 125.592); Eveline Twp v H&D Trucking Co, 181 Mich App 25, 32; 448 NW2d
727 (1989).
In the present case, the trial court did not reach the issues regarding whether there was a
demonstrated need and appropriate location for the use, ruling instead that there was no total
exclusion. The statute's language clearly precludes only total exclusion. See also Adams, supra,
Bell River, supra. However, it is less clear what constitutes total exclusion.
The challenged ordinance allows for manufactured housing zoning districts. Therefore, it
does not completely prohibit this type of use on its face. On the other hand, defendant did not
designate any areas for manufactured housing. Accordingly, it is currently permitted only in
conjunction with an approved application for rezoning or special use permit.
In Fremont Twp v Greenfield, 132 Mich App 199, 204; 347 NW2d 204 (1984), this
Court, in analyzing whether a local ordinance violated MCL 125.297a, stated:
Assuming, arguendo, that the local units of government owning the land
where junkyards could be established would refuse to give permission for such
usage and, thus, that for practical purposes automobile junkyards are totally
excludable in Fremont Township, such prohibition is still not invalid under § 27a
unless [the additional factors are shown].
Although the trial court resolved the issue on other grounds, this statement at least suggests that
the ordinance need not completely prohibit the use on its face if the practical effect is complete
exclusion.
Further in Guy v Brandon Twp, 181 Mich App 775, 788; 450 NW2d 279 (1989), and
Eveline, supra, this Court described the challenged ordinances with respect to whether they
resulted in effective exclusion. In Adams, supra, our Supreme Court echoed that language.
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Indeed, the statutory language of MCL 125.297a precludes ordinances that "have the effect of
totally prohibiting" a given land use. (Emphasis added.) Thus, an ordinance need not completely
exclude a use on its face to violate MCL 125.297a. It may merely make the use a practical
impossibility.
Cases interpreting the statutory total prohibition requirement have generally involved uses
that already existed in the township and the courts have found no total prohibition. Adams,
supra, (the ordinance expressly allowed existing billboards to remain); Bell River, supra (other
property in the defendant township was already zoned for manufactured housing); Guy, supra,
(nearly one thousand mobile home sites already existed in the township). Defendant in the
present case, however, does not argue that any manufactured housing communities already exist
within the township. On the other hand, a use is not necessarily excluded simply because it does
not yet exist, particularly when the defendant asserts that it has received no requests for that use.
This Court did find a total prohibition in Eveline, supra. However, in that case there was
no zoning classification that would allow the desired use and the evidence demonstrated that a
variance was highly unlikely. This Court stated:
Nor does the fact that defendant could have continued its use under a
variance or special permit cure the defect in the township's zoning ordinance. See
Kropf [v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974)]; Paradise Twp
v Mt Airy Lodge, Inc, 68 Pa Commw Ct 548; 449 A2d 849 (1982); Dublin
Properties v Upper Dublin Twp Bd of Comm'rs, 21 Pa Commw Ct 54; 342 A2d
821 (1975). Merely because the township is required to tolerate a nonconforming
use or could possibly permit the use by grant of a variance does not cure the defect
in the township's exclusionary zoning ordinance. [Eveline, supra at 34.]
While this passage implies that a use must be permitted by right—rather than by special use or
variance—to avoid being exclusionary, Eveline does not necessarily require so strict a standard.
In Eveline, supra, this Court specifically noted that testimony indicated that the township
was unlikely to grant a variance. Thus, in that case, evidence established that the variance option
was illusory and the use was in effect excluded. The language quoted above from Eveline could
be interpreted to mean only that under the specific circumstances of that case, the possibility of a
variance or special permit could not cure the defect. In the present case, there was no evidence
that defendant was unlikely to grant a special use permit or to rezone property. Rather, defendant
never had the opportunity to do so and had, in fact, suggested in its revised master plan that some
manufactured housing was appropriate. It is appropriate for this Court to consider a master plan
as a general guide for future development. See Bell River, supra.
Although Eveline was decided in 1989, and, therefore, this Court is not bound by the
decision, MCR 7.215(I), this Court repeated the statement in Countrywalk Condominiums, Inc v
Orchard Lake Village, 221 Mich App 19, 23; 561 NW2d 405 (1997), when discussing whether
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total prohibition existed in the context of a due process claim.3 However, the Countrywalk Court
did not clarify its reference to a "special permit" and the facts indicated the desired use was
permitted in the township only as a nonconforming use, not as a use requiring a special use
permit. Id. at 20-21.
The possibility of a variance alone would likely be insufficient to prevent an ordinance
from being exclusionary. However, the special permit procedure in defendant's ordinance is not
an authorization to engage in prohibited uses, like variances,4 rather it creates conditions to
ensure that the particular use and location are appropriate. Landowners must meet much lower
standards than for variances. Further, the amended ordinance allows manufactured housing not
only by special use permit but also by rezoning to a manufactured housing district, which is
clearly distinguishable from a variance. The use is permitted as of right in that district; the
township has just not yet decided where it is appropriate.
In Kirk v Tyrone Twp, 398 Mich 429, 442; 247 NW2d 848 (1976), our Supreme Court
held that the challenged zoning ordinance was not totally exclusionary. In that case, the
township's master plan earmarked two areas for future mobile home development. Even though
one of the parcels had been rezoned by court order, no mobile home parks existed in the
township and no landowner besides the plaintiffs had applied for rezoning or a permit. Id. at
434-435.
The facts of the case at hand are analogous to the facts in Kirk, supra. Defendant's
amended ordinance included a district allowing manufactured housing communities as a
permitted use. This indicates that defendant did not intend to exclude manufactured housing
communities. The master plan also suggested the use was appropriate for the township.
However, unlike in Kirk, supra, defendant's master plan in the instant case did not
designate specific parcels as suitable for manufactured housing communities. Id. at 435. This
supports plaintiffs' contention that the ordinance was exclusionary. On the other hand, plaintiffs
in the instant case, unlike the plaintiffs in Kirk, supra, did not apply for rezoning or a special use
permit before filing their lawsuit. Furthermore, according to defendant's township supervisor,
nobody had applied for a special use permit under the original ordinance during the twelve years
he had been a township official.5 Our Supreme Court stated in Kirk, supra, "At the present time
there is no evidence, in view of the apparent dearth of requests, that the township precludes the
possibility of rezoning other suitable land for this purpose if needed." Id. at 443.
3
Although, as explained later in the discussion of this issue, total prohibition is not required for a
due process claim, the interpretation of total prohibition in that context at least sheds light on the
proper interpretation of the statutory requirement.
4
Paragon Properties Co v Novi, 452 Mich 568; 550 NW2d 772 (1996).
In March 2000, while this lawsuit was pending, the planning commission received an
application for a special use permit from another company, Fundamental Equities, Inc., for
manufactured housing in a residential district; there is no further evidence in the record regarding
the application or its disposition.
5
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The failure to designate specific property as zoned for manufactured housing does not
indicate that the ordinance amendment is illusory and that defendant has no intention of allowing
manufactured housing. Rather, it was logical for defendant to wait for rezoning requests rather
than rezone property to manufactured housing absent the owners' request. Plaintiffs offer no
evidence that defendant never intended to designate any property for manufactured housing. In
fact, the master plan suggests otherwise.
Plaintiffs also cite Dequindre Dev Co v Warren Charter Twp, 359 Mich 634; 103 NW2d
600 (1960), and Nickola v Grand Blanc Twp, 394 Mich 589; 232 NW2d 604 (1975). Plaintiffs
state that in Dequindre Dev Co, supra, zoning was declared exclusionary even though a
manufactured housing district existed next door. However, the Court in Dequindre Dev Co,
supra, did not state that the zoning was exclusionary, but instead emphasized the owner's
inability to make any use of his property and suggested that the municipality took the property
without compensation. Plaintiffs do not claim they have no practical use for their property
besides manufactured housing.
Defendant's amended ordinance does not totally exclude manufactured housing
communities, either effectively or on its face. Therefore, the ordinance in question does not
violate MCL 125.297a.
In addition to the statutory violations of MCL 125.297a analyzed previously, plaintiffs
assert violations of state and federal rights of due process and equal protection under the law.
The state and federal constitutions guarantee equal protection of the laws. US Const, Am
XIV; Const 1963, art 1, § 2; In re Hawley, 238 Mich App 509, 511; 606 NW2d 50 (1999). When
no suspect or somewhat suspect classification can be shown, the plaintiff has the burden of
establishing that the statute is arbitrary and not rationally related to a legitimate governmental
interest. Crego v Coleman, 463 Mich 248, 259; 615 NW2d 218 (2000). This test specifically
applies to zoning ordinances. Cryderman v Birmingham, 171 Mich App 15, 26; 429 NW2d 625
(1988).
The state and federal constitutions also guarantee that no person will be deprived of life,
liberty, or property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17;
Marlin v Detroit (After Remand), 205 Mich App 335, 339; 517 NW2d 305 (1994). Unless a
fundamental right is involved, the statute need only be rationally related to a legitimate
governmental interest. Electronic Data Sys Corp v Flint Twp, 253 Mich App 538, 549; 656
NW2d 215 (2002). The essence of a claim of violation of substantive due process is that the
government may not deprive a person of liberty or property by an arbitrary exercise of power.
Id.
The Supreme Court has specifically said that zoning ordinances must be reasonable to
comply with due process. Silva v Ada Twp, 416 Mich 153, 157-158; 330 NW2d 663 (1982). A
zoning ordinance may be unreasonable either because it does not advance a reasonable
governmental interest or because it does so unreasonably. Hecht v Niles Twp, 173 Mich App
453, 461; 434 NW2d 156 (1988); see also Cryderman, supra.
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A zoning ordinance is, in general, presumed valid, Silva, supra; Kirk, supra, and the
burden is on the party challenging the ordinance, Cryderman, supra. The statement in Sabo v
Monroe Twp, 394 Mich 531; 232 NW2d 584 (1975), that any proposed use must be permitted if
reasonable was not binding precedent because it was the opinion of only one judge and, further, it
has since been overruled. See Kirk, supra.
The idea that a plaintiff challenging a zoning ordinance on its face under due process or
equal protection must establish total exclusion stems from a statement by the Supreme Court in
Kropf, supra, which said that "an ordinance which totally excludes . . . a use recognized by the
constitution or other laws of this state as legitimate also carries with it a strong taint of unlawful
discrimination and a denial of equal protection of the law . . . ." Id. at 156. The Court made this
statement after overruling the holding in Bristow v Woodhaven, 35 Mich App 205, 210-211; 192
NW2d 322 (1971), that the burden shifted to the defendant to prove constitutionality when the
desired use was considered a "preferred use." Kropf, supra at 153-155. The Court noted that
Bristow was correct only when it said that total prohibition of a use shifted the burden to the
defendant. Kropf, supra at 155. The Court then explained that total prohibition created a strong
taint of unlawful discrimination. Id. at 155-156.
The Court in Kropf, supra at 155-156, did not hold that total prohibition was required to
prevail on either an equal protection or due process claim. Rather, the Court stated that the test
under either constitutional claim is essentially whether the zoning ordinance is reasonable and,
specifically, due process is violated if the ordinance either does not advance a reasonable
governmental interest or if the exclusion of other legitimate land uses is arbitrary, capricious, or
unfounded. Id. at 158.
Kropf, supra at 155-156, held only that total exclusion of a particular use shifts the
burden to the defendant to establish the ordinance's reasonableness. The standard for a due
process or equal protection claim remained the same; the ordinance must reasonably advance a
legitimate governmental interest. Id. at 158.
In Nickola, supra at 607 n 7, 608, 612 n 13, the concurring opinion recognized that Kropf,
supra, at 155-156, did not hold that total exclusion was required for a due process claim, but
instead held that it justified shifting the burden. A year later in Kirk, supra at 442, 444, the Court
quoted the total exclusion statement in Kropf, supra at 155-156, and ended its analysis after
finding no exclusion. However, according to the Court's description of the issues, the plaintiff
claimed only an exclusion, not a general due process violation.
This Court addressed the significance of the total exclusion statement in Kropf, supra at
155-156, in Ottawa Co Farms, Inc v Polkton Twp, 131 Mich App 222, 227; 345 NW2d 672
(1983), noting that a zoning ordinance might not be presumed valid if it totally excluded a use.
This Court further held that a totally exclusionary ordinance was valid only if reasonably related
to "health, safety, or general welfare." Id. at 225-226. However, this Court did not hold that an
ordinance must totally exclude a use to violate the constitution. Id.
More recently, in Countrywalk, supra at 23-24, this Court clarified that a zoning
ordinance was not presumed valid when it totally excluded a use and, thus, the burden was on the
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defendant to present evidence that it was reasonably related to a legitimate governmental interest.
This Court therefore indicated that when there was no total exclusion, a claim could still be
made, but the burden was on the plaintiff to demonstrate unreasonableness. This interpretation is
further supported by this Court's opinion in Bell River, supra at 124, which analyzed the
exclusionary and due process claims separately and held that the ordinance violated due process
if it did not advance a legitimate governmental interest.
The essence of an equal protection claim is discrimination based on characteristics not
justifying different treatment, Crego, supra at 258, and the essence of a substantive due process
claim is the arbitrary deprivation of property or liberty interests, Electronic Data Sys Corp, supra
at 549. An ordinance could unconstitutionally treat manufactured housing differently or
unreasonably restrict it without actually prohibiting it completely. Nor does any case law hold
that total exclusion is required for either constitutional claim, as discussed previously.
Therefore, a plaintiff need not demonstrate total exclusion to prevail on a due process or
equal protection claim. If a use is totally excluded, the burden shifts to the defendant to justify
the ordinance. Countrywalk, supra at 23-24. If it is not totally excluded, a plaintiff may still
prevail if he can meet the difficult burden of demonstrating no reasonable relationship to a
legitimate governmental interest. See, e.g., Cryderman, supra at 22-25.
Defendant in the present case also argues that plaintiffs could not bring a due process
claim based on the lack of reasonable relationship to a legitimate governmental interest without
first exhausting their administrative remedies. Plaintiffs never sought a special use permit, nor
did they wait for a response to their rezoning request. Defendant cites Paragon Properties Co v
Novi, 452 Mich 568, 577; 550 NW2d 772 (1996), which held that "as applied" challenges require
exhaustion of administrative remedies, but facial challenges do not. Plaintiffs in the present case
raise facial challenges. This Court clarified in Countrywalk, supra at 23, that a plaintiff can
bring a facial due process challenge that claims arbitrariness or capriciousness and need not
exhaust any administrative remedies. Therefore, plaintiffs were not required to exhaust
administrative remedies before filing suit.
In the present case, as explained earlier, the ordinance did not totally prohibit
manufactured housing. Thus, plaintiffs were required to prove there was no reasonable
relationship to a legitimate governmental interest. See, e.g., Cryderman, supra at 22-25. The
analysis under equal protection and due process is essentially the same. Doe v Dep't of Social
Services, 439 Mich 650, 682 n 36; 487 NW2d 166 (1992). Under the reasonable relationship
test, a law should be upheld if supported by any facts known or reasonably assumed. Vargo v
Sauer, 457 Mich 49, 61; 576 NW2d 656 (1998).
Although no evidence was presented regarding the reason defendant made manufactured
housing permissible only by special use permit or in manufactured housing districts, it is
reasonable that defendant would wish to regulate the location of manufactured housing
communities within the township just as it regulates the location of other uses. Plaintiffs have
not shown why it is unreasonable for defendant to wait to rezone certain areas for manufactured
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housing rather than either permitting them by right in existing districts or specifically designating
certain areas as manufactured housing districts before owners even apply for rezoning.
Plaintiffs failed to meet the burden required to establish a violation of due process or
equal protection. No genuine issue of material fact existed. Therefore, although the trial court
erred when it held that a total exclusion was required in order to prove a constitutional violation,
it did not err when it granted defendant summary disposition of both the statutory and
constitutional claims under MCR 2.116(C)(10).
Our decisions on plaintiffs issues are dispositive and, as a result, we decline to address
defendant's issues on cross-appeal.
Affirmed.
/s/ Bill Schuette
/s/ David H. Sawyer
/s/ Kurtis T. Wilder
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