LIVONIA HOTEL LLC V CITY OF LIVONIA
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STATE OF MICHIGAN
COURT OF APPEALS
LIVONIA HOTEL, LLC,
FOR PUBLICATION
October 21, 2003
9:00 a.m.
Plaintiff-Appellant,
v
CITY OF LIVONIA and BUILDING OFFICIAL
OF LIVONIA,
Defendant-Appellees.
No. 237609
Wayne Circuit Court
LC No. 01-119729-CE
Updated Copy
December 19, 2003
Before: Owens, P.J., and Griffin and Schuette, JJ.
PER CURIAM.
In this zoning case, plaintiff appeals as of right from the October 11, 2001, order of
dismissal with prejudice entered by the Wayne Circuit Court. We reverse and remand.
I. Facts
Plaintiff owns and operates a Quality Inn hotel on Plymouth Road in Livonia. Plymouth
Road, a major, heavily traveled, east-west thoroughfare that runs the entire length of the city, is
zoned and used for commercial and industrial uses. There are a number of restaurants on
Plymouth Road, many of which serve beer, wine, and other alcoholic beverages.
The Quality Inn hotel was initially developed as a Holiday Inn hotel in 1967. At the
time, the Livonia Zoning Ordinance (LZO) permitted a two-story structure to be constructed
within the existing C-2 zoning designation. According to defendant city, the LZO in effect at the
time required that waiver use approval be obtained in order to operate a hotel. As a result, the
property owners filed and were granted a waiver use permit in 1967 allowing the construction of
the two-story Holiday Inn hotel.
The waiver use approval granted in 1967 was limited to hotel use because the LZO, at the
time, provided that restaurants were permitted uses in C-2 zoning districts. Further, the
restaurant or lounge on the property was permitted to serve alcoholic beverages, apparently
pursuant to the class B hotel liquor license held by the Holiday Inn.
In 1968, the year after the Holiday Inn was constructed, the LZO was amended to provide
that restaurants were allowed only as waiver uses (rather than permitted uses) in C-2 zoning
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districts. In addition, the LZO has since been amended to allow hotels as permitted uses (rather
than waiver uses) in C-2 zoning districts.
The LZO requires a separate waiver use approval in order to use a class C liquor license
in connection with a restaurant in a C-2 zoning district. According to Mark Taormina, the city's
planning director, "[t]he requirement that waiver use approval must be obtained in order to
utilize a Class C liquor license in a C-2 zoning district was in effect when the Holiday Inn was
constructed in 1967 and the requirement has remained continuously in effect since then." City
records indicate that waiver use approval has never been granted for a class C liquor license at
the property in question. In 1997, the LZO was amended to enlarge the class of liquor licenses
that require waiver use approval in C-2 zoning districts and now includes tavern, club, class A
hotel and class B hotel licenses, and microbrewers and brewpubs, as well as class C licenses.
However, before the LZO was amended in 1997, a waiver use approval was not required for the
use of a class B hotel liquor license at the property.
Since 1967, the property in question has been used as a hotel, becoming a Ramada Inn for
a time, then a Terrace Inn, and finally a Quality Inn. Until some time in 1995, a restaurant and a
lounge/night club occupied part of the hotel. Both the restaurant and the lounge/nightclub were
licensed to sell alcoholic beverages for consumption on the premises. As already stated, the
restaurant and the nightclub were apparently permitted to sell alcoholic beverages pursuant to the
hotel's liquor license. The restaurant and the night club were uses accessory to the hotel and
were permitted as waiver uses under the Livonia zoning ordinance.
In 1995, plaintiff purchased the property in question. "In 1995, the operator of the
restaurant and night club vacated the premises." Since the closure of the restaurant and the
nightclub in 1995, plaintiff has kept the hotel liquor license current and attempted to obtain a
new operator for the restaurant. Despite numerous efforts, plaintiff was unsuccessful in
attracting a restaurant operator to reopen the restaurant until May 2000. On September 6, 2000,
plaintiff entered into a lease with Hooters of Livonia, Inc., to operate a restaurant in the
restaurant portion of the premises. The Hooters restaurant would serve beer and wine, but not
liquor, using Hooters own class C liquor license.
According to plaintiff, when the city was contacted in connection with the work of
preparing the premises for Hooters' occupancy, the city's building official informed John
Glasnak, plaintiff 's managing representative, that plaintiff would be required to obtain a new
waiver use approval because the prior restaurant use had been discontinued for over one year,
and, thus, the right to operate a restaurant had been "abandoned" under § 18.18 of the LZO.
Plaintiff stated that it "never even considered the idea of abandoning the restaurant use."
Plaintiff filed a waiver use petition with the city on November 2, 2000. Plaintiff was
required to file a waiver use petition because the city claimed that the prior restaurant use had
been discontinued for more than one year. However, according to plaintiff, it already had waiver
use approval for a restaurant. Hooters also filed a waiver use petition. A separate waiver use
petition was required because Hooters wanted to use its class C liquor license in connection with
the operation of its restaurant and because there had not been a previous use of such a license at
this location.
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The planning commission conducted a public hearing on both petitions on December 12,
2000. At the conclusion of the public hearing, the planning commission recommended that both
petitions be denied.
The city council then considered the waiver use petitions at a public hearing conducted
on March 28, 2001, and a regular meeting held on May 2, 2001. The city council approved the
waiver use petitions, each by a four-to-three vote, at its regular meeting on May 2, 2001. On
May 7, 2001, the mayor vetoed the city council's approval of the waiver use petitions.
On June 15, 2001, plaintiff and Hooters filed a seven-count complaint seeking a
declaratory judgment, that would state, in pertinent part, that plaintiff "has a lawful vested right
to the proposed restaurant on the premises, which has not been abandoned" and seeking an order
requiring the city to issue "a certificate of occupancy and such other approvals and permits as are
required to permit the operation of the proposed Hooters restaurant within the restaurant portion
of the premises upon presentation of plans which comply with the City's building code." On July
2, 2001, defendants answered the complaint and set forth their affirmative defense, requesting
that judgment be entered against plaintiff and Hooters for no cause of action. On August 2,
2001, plaintiff and Hooters moved for summary disposition under MCR 2.116(C)(9) (defendants
have failed to state a valid defense to the claims asserted against them) and MCR 2.116(C)(10)
(no genuine issue of material fact). In their response on August 29, 2001, defendants requested
that plaintiff and Hooters' "appeal" be dismissed as "procedurally improper," and, alternatively,
that summary disposition be granted in favor of defendants pursuant to MCR 2.116(C)(8) (failure
to state a claim on which relief can be granted) and (C)(10).
A hearing regarding the parties' cross-motions for summary disposition was held on
September 6, 2001. After hearing argument, the trial court denied plaintiff 's and Hooters'
motion for summary disposition. In pertinent part, the trial court stated:
Clearly the City had the right to require—first of all, the restaurant was
abandoned.
Secondly, the license itself was a Class C license which is a new non
conforming [sic] use. So clearly the proper procedure the plaintiff had applied to
the zoning—or the Planning Commission and then go to City Council, which they
did. The City Council denied it by a four to three vote the mayor vetoed, and the
city council decided not to override the veto, and the majority was one vote short.
As far as the legal procedures, that was perceived or conducted by the city
in accordance with the law. The proper procedures were there. He had to go
before the Planning Commission, City Council, and then has the right to do so.
Plaintiff came up with one vote short with the City Council. So the motion for
summary disposition is denied.
* * *
The City had the right to reject [the waiver petitions]. They need one
more vote. The bottom line here is the claim of Livonia Hotel, which is Hooters,
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came up one vote short with the City Council and Mayor. Proper legal procedure
was followed; they don't have the vote. That's the bottom line.
On October 8, 2001, the trial court entered an order dismissing the case with prejudice.
II. Jurisdiction
In their appeal brief, defendants argue that plaintiff is not entitled to an appeal as of right
under MCR 7.203(A), but is required to seek leave to appeal under MCR 7.203(B), because the
decision challenged by plaintiff "is properly the subject of a Circuit Court appeal from the
decision of the City Council pursuant to Const 1963, art 6 [,] § 28." As set forth in Const 1963,
art 6, § 28:
All final decisions, findings, rulings and orders of any administrative
officer or agency existing under the constitution or by law, which are judicial or
quasi-judicial and affect private rights or licenses, shall be subject to direct review
by the courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole
record. . . .
Defendants rely, in part, on Krohn v Saginaw, 175 Mich App 193; 437 NW2d 260 (1988), in
support of their argument that the trial court's dismissal of plaintiffs' complaint in this case arose
from an appeal to the circuit court, not an original action, because plaintiffs' claims "relate to the
denial of its waiver use petitions and the procedures employed in reaching that decision." We
disagree.
A. Standard of Review
Questions of law are reviewed de novo. Sun Communities v Leroy Twp, 241 Mich App
665, 668; 617 NW2d 42 (2000).
B. Analysis
As plaintiff points out in its reply brief, the present case does not fall within the exception
to an appeal as of right that is listed in MCR 7.203(A)(1)(a). As plaintiff rightly notes, "[t]his
suit has not been treated as an appeal." Plaintiffs' complaint raised issues that "had nothing to do
with whether appellant was entitled to special use approval." Rather, plaintiffs challenged the
legal authority of the mayor to veto the city council's approval of a special use, asserted that it
had a vested right to a restaurant licensed to serve alcoholic beverages, and "challenged on
constitutional grounds the validity of the zoning ordinance's treatment of restaurants in hotels."
To hold that the present appeal is not an appeal of right from the circuit court's decision in this
case would be contrary to MCR 7.203(A).
III. Abandonment
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Plaintiff argues that the trial court erred in finding that plaintiffs had abandoned the
restaurant use of the property. We agree that the trial court erred in finding that plaintiffs had
abandoned the property, but we do not agree with plaintiff 's contention that plaintiff had a vested
right to have a restaurant operate on the property using a class C liquor license.
A. Standard of Review
This Court reviews de novo a trial court's grant or denial of summary disposition. Sun
Communities, supra at 668. Summary disposition of all or part of a claim or defense may be
granted when:
[e]xcept as to the amount of damages, there is no genuine issue as to any
material fact, and the moving party is entitled to judgment or partial judgment as a
matter of law. MCR 2.116(C)(10).
A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual
support for a claim. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998);
Mino v Clio School Dist, 255 Mich App 60, 67; 661 NW2d 586 (2003). When deciding a motion
for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions,
and other documentary evidence submitted in the light most favorable to the nonmoving party.
Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999).
B. Analysis
The record indicates that a waiver use petition was granted in 1967 for the construction of
the Holiday Inn hotel. At the time the Holiday Inn was constructed in 1967, restaurants were
permitted uses in C-2 zoning districts. Further, at the time of the opening of the Holiday Inn in
1967, the restaurant and the lounge/nightclub on the property were permitted to serve alcoholic
beverages, apparently pursuant to the class B hotel liquor license held by the Holiday Inn. After
the construction of the Holiday Inn, the LZO was amended in 1968 to designate restaurants as
waiver uses in C-2 zoning districts. Further, in 1997, the LZO was amended again to designate
establishments having class B hotel liquor licenses as waiver uses in C-2 zoning districts.
Restaurants were permitted uses in C-2 zoning districts when the waiver use was granted in 1967
to operate a hotel on the property; therefore, a waiver use was never granted for a restaurant or
nightclub/lounge on the property. Likewise, there is no indication that a waiver use was ever
granted to permit a restaurant or lounge on the property to serve alcoholic beverages.
The LZO was amended in 1968 to designate restaurants as waiver uses in C-2 zoning
districts, and, as a result, the restaurant use in the hotel became a nonconforming use after the
Holiday Inn was initially opened. As set forth in part in § 18.17 of the LZO:
The lawful use of land or a structure exactly as such existed at the time of
the enactment of this ordinance, may be continued, except as provided in Section
18.18 of this ordinance, although such use or structure does not conform with the
provisions of this ordinance. Such a use, where lawfully continued pursuant to
the provisions of this section, shall, for the purpose of this ordinance, be know
[sic] as a "Valid Nonconforming Use"; but where such use is not thus lawfully
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continued, the same, for the purpose of this ordinance, shall be known as an
"Invalid Nonconforming Use."[1]
Although plaintiff claims that there was no evidence that there was ever a change in the zoning
ordinance that made restaurant use nonconforming because "the restaurant was a use permitted
by the zoning ordinance, albeit as a waiver use, on the premises," defendants rightly contend that
the restaurant use in plaintiff 's hotel became nonconforming after 1968, because restaurant uses
in C-2 zoning districts were not permitted unless the waiver use standards were met and specific
approval was granted for the waiver use. Given that a waiver use had not been approved for the
restaurant in the hotel after 1968, it follows that the restaurant use in plaintiff 's hotel became a
valid nonconforming use after 1968, because "such use . . . does not conform with the provisions
of this ordinance." LZO § 18.17.
In addition, use of a class B hotel liquor license in the restaurant became a
nonconforming use after the LZO was amended in 1997 to designate establishments having class
B hotel liquor licenses as waiver uses in C-2 zoning districts.
While the operation of a restaurant in the hotel was a valid nonconforming use after 1968,
there is no evidence that plaintiff abandoned this use, as defendants allege. Section 18.18 of the
LZO addresses the abandonment of a nonconforming use of property. Specifically, it provides,
in pertinent part, "Actual discontinuance of such valid nonconforming use for a period of one (1)
year, either as to the whole or any part of a building or parcel of land, in which case such
discontinuance shall be considered an abandonment of said use[.]" LZO § 18.18(b).
As plaintiff points out, the Court in Dusdal v City of Warren, 387 Mich 354; 196 NW2d
778 (1972), and Rudnik v Mayers, 387 Mich 379; 196 NW2d 770 (1972), addressed the
definition of "abandonment" in the context of zoning law. As stated in Dusdal, supra at 360:
The record does not support a finding of legal abandonment.
Abandonment in the contemplation of the law is something more than mere
nonuser. It is rather a nonuser combined with an intention to abandon the right to
the nonconforming use. The burden of proving the abandonment was on the city.
It introduced no evidence from which it would be reasonable to conclude that the
plaintiff ever intended to relinquish or abandon his vested right to use his property
in the manner in which it was being used prior to the residential zoning
amendment.
1
As plaintiff points out, § 18.17 incorporates the definition of nonconforming use set forth in the
City and Village Zoning Act, the zoning enabling statute, in which MCL 125.583a(1) provides,
in pertinent part, that "[t]he lawful use of land or a structure exactly as the land or structure
existed at the time of enactment of the ordinance affecting that land or structure may be
continued . . . although that use or structure does not conform with the ordinance."
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In Rudnik, supra at 384, the Court stated, "The necessary elements of "abandonment" are intent
and some act or omission on the part of the owner or holder which clearly manifests his
voluntary decision to abandon."
As plaintiff correctly notes, "Section 18.18 is in direct contravention of the Supreme
Court's holdings in Rudnik and Dusdal" because it defines abandonment solely on the basis of
"actual discontinuance of such valid nonconforming use for a period of one (1) year," LZO
18.18(b), without requiring an intent to abandon the right to the nonconforming use. Further, as
plaintiff correctly points out, there was no genuine issue of material fact in this case whether
there was an abandonment. As indicated in Glasnak's affidavit, after purchasing the property in
1995, plaintiff continued to operate the hotel and has kept the hotel liquor license in full effect
even after the operator of the restaurant ceased the operation of the restaurant. It is undisputed
that Glasnak, as plaintiff 's managing representative, then began to search for a new operator for
the restaurant, which culminated in a lease with Hooters in September 2000. We agree with
plaintiff that the "continued efforts to reopen a restaurant in the hotel [negates] any suggestion
that Appellant abandoned its waiver use for a restaurant licensed to serve liquor." The record
indicates that, as a matter of law, plaintiff did not abandon its restaurant use. Thus, the trial court
erred in finding that "the restaurant was abandoned."
Nevertheless, although the trial court erred in finding that plaintiff had abandoned its
restaurant use, it does not follow that plaintiff was thereby entitled to summary disposition on
this basis. Although plaintiff frames the issue in terms of having a vested right to have the
Hooters restaurant in the hotel because it had a waiver use for a restaurant licensed to dispense
alcoholic beverages pursuant to its class B hotel liquor license, defendants point out that Hooters
sought approval to use its own class C liquor license in connection with its operation of the
restaurant. As defendants rightly note, "[t]his type of use is a new use for this location and has
always required waiver use approval under the applicable provisions of the LZO." Defendants
claim that plaintiff did not have a vested right of a valid nonconforming use to operate a
restaurant on the property using a class C liquor license.
In its reply brief, plaintiff contends that the LZO, as amended in 1997, "does not require
waiver use approval for establishments having Class C liquor licenses; it requires waiver use
approval for 'Establishments having liquor licenses such as Class C, Tavern, Club, Class A
Hotel, Class B Hotel licenses and Micro brewers and Brewpubs . . . .'" quoting from LZO
11.03(h). According to plaintiff, "[t]he distinction is significant" because "[t]he use which the
ordinance makes a special use is a licensed restaurant." There was a licensed restaurant on the
property since 1967, and as a result, plaintiff claims that it had a vested right to a restaurant
licensed to serve liquor, provided that such use was not abandoned.
Although it is true that plaintiff had a vested right to operate a restaurant licensed to serve
alcoholic beverages pursuant to its class B hotel liquor license, we agree with defendants that it
did not have a vested right to operate a restaurant pursuant to Hooters' class C liquor license
because this constituted a new use of the property. As a result, plaintiff and Hooters were each
required to file a waiver use petition because this constituted a change in the use of the property.
Plaintiff had no vested right to have Hooters, a class C liquor licensed establishment, operate a
restaurant in the hotel; thus, it follows that the trial court did not err in denying plaintiff 's motion
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for summary disposition on this basis because waiver use approval was required to operate a
restaurant in the hotel using a class C liquor license.
IV. Mayoral Veto
The trial court erred in concluding that the mayor had the power to veto the city council's
decisions approving the waiver uses.
A. Standard of Review
Statutory interpretation is a question of law that is reviewed de novo on appeal.
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent
of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573
NW2d 611 (1998). If the plain and ordinary meaning of the language is clear, judicial
construction is neither necessary nor permitted. Sun Valley Foods Co v Ward, 460 Mich 230,
236; 596 NW2d 119 (1999). However, if reasonable minds can differ regarding the meaning of a
statute, judicial construction is appropriate. Adrian School Dist v Michigan Pub School
Employees' Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998). The rules of statutory
construction also apply to ordinances, Gora v Ferndale, 456 Mich 704, 711; 576 NW2d 141
(1998), and city charters, Detroit v Walker, 445 Mich 682, 691; 520 NW2d 135 (1994).
If two statutes lend themselves to a construction that avoids conflict, that construction
should control. House Speaker v State Admin Bd, 441 Mich 547, 568-569; 495 NW2d 539
(1993). The construction should give effect to each "without repugnancy, absurdity, or
unreasonableness." Michigan Humane Society v Natural Resources Comm, 158 Mich App 393,
401; 404 NW2d 757 (1987). When two statutes or provisions conflict, and one is specific to the
subject matter while the other is only generally applicable, the specific statute prevails.
Gebhardt v O'Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994).
B. Analysis
The city of Livonia is organized and operates pursuant to the Michigan Home City Rule
Act, MCL 117.1 et seq. See Korash v Livonia, 388 Mich 737; 202 NW2d 803 (1972). Chapter
IV, § 24, of the Livonia City Charter states:
The Mayor shall have the power to veto, except as otherwise in this
Chapter provided, which veto, with his reasons therefor in writing, must be made
and filed with the City Clerk prior to the time of the next regular meeting of the
Council, at which said meeting the Clerk shall present such veto or vetoes to the
Council; provided, however, that if the next regular meeting of the Council
following the meeting or adjournment thereof, at which an ordinance or resolution
was enacted occurs within seven (7) days of the adjournment, the Mayor shall
continue to have the right to veto such ordinance or resolution until the next
succeeding regular meeting of the Council. The Council may, only at said
meeting, or at any adjournment thereof, reconsider the vote by which such
proceedings were passed and adopted; and if it so elects, may, only at said
meeting or at any adjournment thereof, readopt such proceedings by an
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affirmative vote of five (5) of the members elect, in which event the Mayor shall
have no further right to veto, and in which event, all such proceedings, except
ordinances, shall take effect on the day succeeding said meeting of the Council;
and ordinances so passed shall become effective when published according to
law, provided, however, that if the next regular meeting of the Council following
the receipt of a veto occurs within seven (7) days of the same, the Council shall
continue to have the right to re-adopt such proceedings in the manner herein
prescribed at the next succeeding regular meeting of the Council. All resolutions
and proceedings, not vetoed by the Mayor in the manner and within the time
hereinabove specified, shall become effective on the date succeeding the date of
the next regular meeting of the Council; and ordinances not so vetoed by the
Mayor shall become effective when published and recorded according to law.
As the parties acknowledge, the charter grants broad veto power to the mayor. In Livonia
Drive-In Theatre Co v Livonia, 363 Mich 438; 109 NW2d 837 (1961), the Supreme Court,
interpreting the Livonia Charter, found that the mayor had veto power over not just legislation,
but also over administrative matters decided by the city council. In that case, the plaintiff
challenged the right of the mayor to veto a decision of the city council involving the issuance of
a license to operate a drive-in theatre on industrially zoned property. In Livonia Drive-In, the
Court ruled that the mayor had the authority to veto the decision and concluded that there was no
valid approval of the plaintiff 's application because the city council failed to override the
mayor's veto.
Plaintiff argues that Livonia Drive-In is not controlling in this case because "[that]
decision did not . . . deal with the question of whether the provisions of the CVZA [City and
Village Zoning Act, MCL 125.581 et seq.] overrode the Charter." Since Livonia Drive-In was
decided, the CVZA has been substantially revised, with the adoption, in 1978, of MCL 125.584a
and 125.584c. According to plaintiff, "Sections 4a and 4c were added to the CVZA to ensure
that administrative decisions, such as the waiver use decision involved in the instant case, were
based on standards and procedures specified in the zoning ordinance, and were protected from
arbitrary, standardless action." In plaintiff 's view, "[t]his case thus involves a clash between the
provisions of a city charter and the provisions of the CVZA."
In support, plaintiff relies on Korash, supra, in which the city defended the use of
initiative to amend the Livonia Zoning Ordinance on the ground that the charter provided
broadly for enactment of ordinances by initiative. Ruling against the city, the Supreme Court in
Korash held that, under the CVZA, a zoning ordinance could not be enacted by initiative because
the CVZA, a state statute, prevails over the provisions of the city charter. Id. at 743 (noting that
the Home Rule City Act, MCL 117.36, states that, "No provision of any charter shall conflict
with or contravene the provisions of any general law of the state.").
According to plaintiff, Korash controls the outcome of this case because § 4a of the
CVZA directs that the zoning ordinance "shall specify . . . the body or official charged with
reviewing special land uses and granting approval[,]" MCL 125.584a(1)(a), and "[t]he
procedures . . . required for application, review, and approval[,]" MCL 125.584a(1)(c). In
accordance with the CVZA, the LZO specifies the procedures for application, review, and
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approval of a waiver use, and designates the body or official to review and approve waiver uses.
Specifically, LZO § 11.03, pertaining to "waiver uses," provides, in pertinent part:
The following uses are permitted only if specifically recommended by the
City Planning Commission and approved by the Council. The Commission shall
recommend approval of the use only if it finds that the proposal for such use
complies with the special requirements and regulations provided therefor and with
the standards set forth in Section 19.06 of this ordinance. . . .
In relevant part, § 19.06 provides:
Where this ordinance empowers the City Planning Commission to review
waivers or approval of conditional uses to be approved by the City Council, such
waiver or use shall be approved only where the proposal complies with all of the
special requirements for the waiver or use sought to be approved and that the
proposal, whether it is for a waiver or use approval, complies with all of the
following general standards:
* * *
The Commission and/or City Council in acting on any request for waiver
or approval of a conditional use, may attach any conditions to its approval which
it determines as necessary to accomplish the reasonable application of the special
requirements and the foregoing standards.
The zoning ordinance in question, § 11.03, essentially provides that an application for
waiver use is to be reviewed by the planning commission, which then makes a recommendation
to the city council for review and ultimate approval or rejection.2 The relevant zoning ordinance
is silent, however, about the role of the mayor in this process. Thus, plaintiff argues that because
the zoning ordinance does not give the mayor a role in this process, "the Mayor has no authority
to make his own determination as to whether the standards required by the zoning ordinance
have been met, and the Mayor has no authority to set aside, reverse, or veto the determination by
the City Council." Put in other terms, plaintiff asserts that "[t]he zoning ordinance clearly grants
th[e] authority to grant approval for waiver uses to the City Council with no power whatsoever
granted to the Mayor to overturn the City Council's approval." In this regard, plaintiff points out
that defendants' brief in support of their motion for summary disposition concedes as much by
admitting that the city council has "absolute discretion" and "exclusive authority" to grant waiver
use approvals.
2
There does appear to be some conflict between the two sections in the LZO. Section 11.03
provides that approval of waiver uses requires both the planning commission's approval and the
city council's approval. On the other hand, § 19.06 provides that the planning commission
reviews waiver uses, which require the approval of city council. Reading the two sections of the
LZO together, we believe that the planning commission's approval is not necessary for the final
approval of a waiver use and that only the approval of city council is required.
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Plaintiff also maintains that The Raven, Inc v Southfield, 69 Mich App 696; 245 NW2d
370 (1976), rev'd for reasons stated in dissent, 399 Mich 853; 387 NW2d 925 (1977), is
dispositive, thereby supporting its view that the mayor had no veto authority in this case. In The
Raven, the Supreme Court, reversing the decision of this Court, adopted this Court's dissenting
opinion by Judge Danhof in concluding that the city council's four-to-three decision approving
an application for a liquor license was final because the state statute, which gave the mayor no
veto power, prevailed over the mayor's general veto power conferred by the city's charter. As
plaintiff notes, Judge Danhof stated in his dissenting opinion that the state statute, which had
"only one plain meaning," provided for "a delegation of exclusive legislative power to the City of
Southfield's 'legislative body.'" Judge Danhof further stated that "[t]he statute does not, and the
city charter cannot, confer any authority upon the mayor of the city." [The] Raven, supra at 704.
We agree with plaintiff that "under the authority of [The] Raven and Korash and under
MCL 117.36, the Mayor had no veto power, and the City Council's approval must stand." Under
the CVZA, the zoning ordinance designates "the body or official charged with reviewing special
land uses and granting approval." MCL 125.584a(1)(a). Sections 11.03 and 19.06 of the LZO,
when read together, provide that city council ultimately makes the decisions regarding
applications for special land uses, such as waiver uses. Although the Livonia City Charter grants
broad veto power to the mayor, the LZO does not explicitly provide for a mayoral veto with
regard to waiver use decisions. Given that the city council chose not to provide for a mayoral
veto in the LZO when enacting the special land use provisions of the CVZA, we agree with
plaintiff that the trial court erred in concluding that the mayor had the power to veto the city
council's decisions approving the waiver uses.
The complete silence of the LZO regarding mayoral veto power of the waiver use
decision of the Livonia City Council requires a judicial adherence to the state statute on the
matter before this Court. The city officials in Livonia may wish to specifically provide for
mayoral veto power in the future. But, the stark omission of such power is in sharp contrast with
the specificity required by MCL 125.584a(1)(a) and (c) with which the Livonia City Council
adhered consistently.
Contrary to defendants' claim, reliance upon Korash is not misplaced. Although Korash
was decided before the 1978 amendments of the CVZA pertaining to special land uses, Korash
remains controlling legal authority for the general proposition that a charter provision may not
conflict with or contravene a state statute. Here, we agree with plaintiff that the charter provision
pertaining to the veto power of the mayor conflicts with the CVZA, which provides that if a city
wishes to provide for special uses, it must do so "in [the] zoning ordinance" and specify the body
or official reviewing proposals and deciding on them. MCL 125.584a(1). Under Korash, the
Livonia charter provision granting the mayor broad veto power does not override the CVZA,
which indicates that the zoning ordinance must specify the body or official with the power to
grant approvals for special land uses and the procedure for approval. In this instance, §§ 11.03
and 19.06 of the LZO specify that the city council is the body authorized to grant approvals for
special land uses. Thus, even though the Livonia City Charter, adopted pursuant to the Home
Rule City Act, provides the mayor with broad veto power over the decisions of city council, the
CVZA prevails over the city charter provision, which may not conflict with "any general law of
the state" under MCL 117.36 of the Home Rule City Act. Further, the CVZA, as a more specific
statute, prevails over the Home Rule City Act in the event of a conflict concerning the Livonia
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City Charter provision regarding mayoral veto power. Gebhardt, supra at 542-543. Provisions
of the LZO, namely, §§ 11.03 and 19.06, which were enacted pursuant to the CVZA, do not
grant the mayor the power to veto the city council's approval of a special land use decision, such
as a waiver use; thus, the city council's decisions approving the waiver uses in this case must
stand as final decisions.
Further, contrary to defendants' contention, the power of the mayor to veto land use
decisions of the city council does present a conflict with the procedures set forth in the CVZA
because the zoning ordinance, § 11.03, provides no authority to the mayor to veto the city
council's approval. Indeed, defendants' admission that "[t]he subsequent veto by the Mayor
served only to force a super-majority vote requirement on the part of the City Council in order to
grant final approval of the petitions" is a clear recognition that the charter provision conferring
veto power upon the mayor conflicts with the procedures set forth in the CVZA and expressed in
the zoning ordinance, which only requires the city council's approval by a majority vote, not a
supermajority vote.
In addition, contrary to defendants' claim, The Raven is, for relevant purposes, not
distinguishable from the present case. In The Raven, the statute provided the exclusive authority
to the city council, while in this case the CVZA, as an enabling statute, directs the zoning
ordinance to provide the grant of authority. Although defendants point out that "the CVZA
contains no state mandate as to the appropriate body or official to consider special land use
requests and instead provides that cities shall make this determination by designating such body
or official in their zoning ordinance," the critical legal fact remains that, in both The Raven and
this case, the grant of exclusive authority was unequivocal. In The Raven, the grant of exclusive
authority came directly from the statute, whereas in this case it proceeds from a zoning ordinance
enacted pursuant to the statute. In our view, this is a distinction without an essential legal
difference because in both instances the exclusive authority is statutorily based.
Contrary to defendants' contention, Oakland Co Comm'r v Oakland Co Executive, 98
Mich App 639; 296 NW2d 621 (1980), is not applicable. In Oakland Co Comm'r, the issue
involved the county executive's veto power under the optional unified form of county
government adopted by Oakland County. Pursuant to MCL 45.561, the county executive may
veto any ordinance or resolution adopted by the board of commissioners. In that case, the voters
in Oakland County, as authorized by the statute, expressly chose to grant veto power to the
county executive. In Oakland Co Comm'r, this Court held that the statutes in question were not
in conflict, but were "completely harmonious," where "[t]he ability of the board of
commissioners to vote . . . does not conflict with the ultimate veto power of the county
executive, nor with the board of commissioners' subsequent ability to override such vetoes." Id.
at 652. Unlike Oakland Co Comm'r, where there was no conflict between the statutes, there is a
conflict between the statutes in question here (the CVZA and the Home Rule City Act). As
plaintiff points out, "the applicable statute authorized the City to designate in the zoning
ordinance the body or official empowered to grant or deny special use approval and to specify
the procedures applicable. The City could have chosen to provide in its zoning ordinance for a
role for the mayor in the special use process, but it chose not to." Moreover, as plaintiff rightly
argues, Oakland Co Comm'r is actually consistent with The Raven in that "[b]oth cases stand for
the proposition that there is no inherent veto power, and that one must look to the controlling
statute."
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Finally, as plaintiff notes in its supplemental brief, this Court's recent decision in Harbor
Telegraph 2103, LLC v Oakland Co Bd of Comm'rs, 253 Mich App 40; 654 NW2d 633 (2002),
"while not directly on point, is instructive." In Harbor Telegraph, this Court stated that "[t]he
clear and unambiguous language of MCL 45.561 inescapably leads to our conclusion that the
county executive possessed the authority to veto the board of commissioners' detachment
resolution . . . ." Id. at 54. As plaintiff points out, "[t]he executive veto is a creature of statute"
and does not exist unless the statute creates it. The reasoning, as applied to the present case, is
that because there is no inherent veto power, one must look to the controlling statute to
determine whether veto power has been granted. Thus, because neither the CVZA nor the
zoning ordinance explicitly granted veto power to the mayor regarding special land use
decisions, the mayor did not have the power to veto the city council's approval of the waiver uses
in this case.
V. Conclusion
The mayoral veto issue is dispositive of this appeal. Plaintiff 's remaining issues are
based on the supposition that the mayor did have veto power and, because we find that he did
not, we decline to reach the remaining issues. Accordingly, we reverse the trial court's order
dismissing plaintiff 's complaint. The mayor had no power to veto the city council's special land
use decisions; therefore, we remand for entry of a judgment granting plaintiff 's motion for
summary disposition under MCR 2.116(I), affording it the relief requested in its complaint,
specifically a declaration that the waiver use approvals granted by the city council have full force
and effect and an order directing defendants and their agents to issue "a certificate of occupancy
and such other approvals and permits as are required to permit the operation of the proposed
Hooters restaurant within the restaurant portion of the premises upon presentation of plans which
comply with the City's building code."
Reversed and remanded for entry of an order granting plaintiffs' motion for summary
disposition under MCR 2.116(I). We do not retain jurisdiction.
/s/ Donald S. Owens
/s/ Richard Allen Griffin
/s/ Bill Schuette
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