INVERNESS MOBILE HOME COMMUNITY LTD V BEDFORD TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
INVERNESS MOBILE HOME COMMUNITY,
LTD. and GERMANO MANAGEMENT
COMPANY,
FOR PUBLICATION
August 10, 2004
9:00 a.m.
Plaintiffs-Appellants,
v
No. 236740
Monroe Circuit Court
LC No. 93-001764-CH
BEDFORD TOWNSHIP,
Defendant/Cross-DefendantAppellee,
and
PAUL LYNCH and RICK REINBOLT,
Official Reported Version
Intervening Defendants/CrossPlaintiffs-Appellees.
Before: Markey, P.J., and Saad and Wilder, JJ.
PER CURIAM.
Plaintiffs appeal by leave granted an order vacating paragraphs 10 through 13 of the
consent judgment between plaintiffs, Inverness Mobile Home Community, Ltd., and Germano
Management Company, and defendant Bedford Township, and also vacating any reference to the
"future parcel," the subject of paragraphs 10 through 13, in other paragraphs of the parties'
consent judgment. The consent judgment was entered after negotiations between the parties
resolved a 1993 lawsuit that concerned a zoning dispute. We affirm.
I
In March 1993, plaintiffs sought rezoning of an 11.347 acre parcel of vacant land from
RM-1 (Multiple Family Residential District) to MHP (Mobile Home Park District) in order to
expand their existing mobile home park. Defendant Bedford Township denied this application
on June 22, 1993. Plaintiffs filed suit challenging the denial on September 3, 1993.
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The parties negotiated a settlement of the lawsuit, and a consent judgment reflecting the
terms of the settlement was signed on June 28, 1995. In accordance with its terms, the consent
judgment was filed with the trial court under seal and maintained as a confidential record.
Paragraphs 1 through 9 of the consent judgment specifically addressed the 11.347 acre parcel,
and neither the 11.347 acre parcel nor paragraphs 1 through 9 are the subject of this current
appeal.
Paragraphs 10 through 13 of the consent judgment, which are the subject of this appeal,
provide as follows:
10. Defendant and its agents, employees, representatives and officials
hereby agree to amend the Bedford Township Master Plan, adopted in July 1993,
to master plan another parcel of land in Bedford Township (hereinafter "the
Future Property") for a new manufactured home community development. The
Future Property shall be located in the southeast quadrant of Bedford Township; .
. . shall not be less than 30 acres in size and not more than 100 acres in size, all of
which property shall be contiguous; and shall not be located adjacent to land
which is zoned R-1 on the June 1993 revision to the Bedford Township zoning
district map.
11. Plaintiffs shall have five (5) years from the date of entry of this
Consent Judgment to locate and option the Future Property. After Plaintiffs have
identified a particular parcel as the Future Property, they shall, in writing, notify
Defendant of the Future Property's location. The Township shall have thirty (30)
days from receipt of said written notice to confirm that the parcel meets the
criteria for master planning set forth in paragraph ten (10) of this Consent
Judgment. If so confirmed and/or if no response is received from the Township
within thirty (30) days, the parcel identified by Plaintiffs shall automatically be
deemed the Future Property referred to in this Judgment. If the Township objects
to the Future Property identified by Plaintiffs as not meeting the criteria for
master planning set forth in paragraph (10) of this Consent Judgment, it shall state
its objections in writing within thirty (30) days of receipt of notice of the identity
of the Future Property. If Plaintiffs disagree with the determination of the
Township, and the matter cannot be resolved through good faith negotiations
between the parties, plaintiffs may submit the issue to the Court within thirty (30)
days of receipt of the Township's rejection for a determination as to whether the
Future Property meets the criteria for master planning set forth in paragraph ten
(10) of this Consent Judgment. The Court hereby reserves continuing jurisdiction
to undertake the review called for herein, which review shall be de novo. The
determination of the Court as to the compliance of any parcel of land with the
terms and conditions herein shall be entered as a final declaratory judgment
binding on all parties. All writings, communications and/or discussions between
Plaintiffs and Defendant with respect to the proposed Future Property shall be
strictly confidential, up [sic] until commencement of proceedings for the approval
of the Master Land Use Plan and the decision to confirm or reject any particular
parcel shall be made by the Township in executive session.
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12. The parties hereby stipulate and agree that, when the Future Property
has been identified either through agreement of the parties or judicial
determination, development of a licensed manufactured home community on the
Future Property shall be a reasonable use of said property and consistent with the
Master Land Use Plan; that the denial of the use of the Future Property as a
manufactured home community: would not advance a reasonable governmental
interest, would constitute a purely arbitrary, capricious and unfounded exclusion
of a legitimate land use, and would not substantially advance a legitimate state
interest. The parties hereby stipulate and agree that the Court shall retain
continuing jurisdiction to enforce the parties' respective rights and obligations
relating to the Future Property, as is appropriate.
13. After the Future Property has been identified through agreement of
the parties or through judicial determination, Defendant shall have four months to
master plan the Future Property for manufactured home community development.
Thereafter, Plaintiffs shall apply for rezoning of the Future Property.
Five years later, on June 26, 2000, plaintiffs located and optioned a parcel of land that they
contended met the requirements of the consent judgment. On July 26, 2000, defendant's attorney
notified plaintiffs that, pursuant to paragraph eleven of the consent judgment, defendant objected
to the parcel because the parcel failed to satisfy the consent judgment criteria in several respects.
In response, plaintiffs filed a motion for review of the consent judgment, and, on January 17,
2001, the trial court held that the parcel met the criteria of the consent judgment. Thereafter,
defendant moved for rehearing and asked for relief from the consent judgment, and contended,
for the first time, that the consent judgment constituted an improper delegation of its legislative
powers. Plaintiffs opposed the motion as untimely and argued that the consent judgment did not
contract away legislative powers.1
The trial court granted defendant's motion for relief from judgment, and held that
paragraphs 10 through 13 of the consent judgment operated to disenfranchise voters and
inappropriately bind future township boards, and that, therefore, these provisions of the consent
judgment were void as against public policy. On July 2, 2001, the trial court entered an order
that vacated paragraphs 10 through 13 and set aside all other provisions of the consent judgment
that referred to the disputed parcel. This appeal ensued.
II
"This Court reviews for abuse of discretion a trial court's decision on a motion to set
aside a consent judgment." Vestevich v West Bloomfield Twp, 245 Mich App 759, 763; 630
NW2d 646 (2001). "An abuse of discretion involves far more than a difference in judicial
opinion," Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d 638
1
Landowners who lived near the parcel of land successfully moved to intervene as defendants
and cross-plaintiffs and joined defendant's motion to set aside the consent judgment.
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(1999), and "exists when the result is so palpably and grossly violative of fact and logic that it
evidences perversity of will or the exercise of passion or bias rather than the exercise of
discretion." Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000). Issues of
statutory construction are questions of law that we review de novo. Gulley-Reaves v Baciewicz,
260 Mich App 478, 484; 679 NW2d 98 (2004).
III
Plaintiffs contend that because defendant's motion to set aside certain aspects of the
consent judgment was not filed within one year of entry of the judgment, it was untimely and the
trial court abused its discretion in granting defendant's relief. We disagree that the motion was
untimely, and find that the trial court did not abuse its discretion in entertaining the motion.
MCR 2.612(C)(1)(d) provides that a final judgment may be set aside if the judgment is void.
Defendant alleged in its motion that paragraphs 10 through 13 of the consent judgment were void
on the basis that the resolution by settlement of the subject matter of these paragraphs constituted
an improper delegation of defendant's legislative authority by prior members of the township
board. Though MCR 2.612(C)(2) requires that certain motions to set aside a judgment be
brought within one year of the entry of judgment, a motion that seeks to set aside a judgment
because it is void is not subject to the one-year requirement. Instead, such a motion may be
heard by the trial court if it is brought within a reasonable time. Here, where the terms of the
consent judgment had been negotiated by a prior board and the consent judgment was sealed by
the trial court after its entry, and where the township trustees in office at the time the motion was
brought had only been aware of the terms of the consent judgment for seven months, we cannot
conclude that the trial court's finding that the motion was brought within a reasonable time was
grossly violative of fact and logic. Thus, the trial court did not abuse its discretion.
Further, plaintiffs maintain that the trial court erred in finding that paragraphs 10 through
13 of the consent judgment were void as against public policy, on the basis that the paragraphs
disenfranchised voters and improperly restricted the legislative decision-making authority of
future township boards. We disagree.
"The power to zone and rezone property is a legislative function." Essexville v
Carrollton Concrete Mix, Inc, 259 Mich App 257, 265; 673 NW2d 815 (2003), citing Schwartz v
Flint (On Remand), 426 Mich 295; 395 NW2d 678 (1986); Sun Communities v Leroy Twp, 241
Mich App 665; 617 NW2d 42 (2000). The granting of a use variance from a zoning ordinance,
on the other hand, does not amend the ordinance itself and, therefore, is an administrative
function. See Puritan-Greenfield Improvement Ass'n v Leo, 7 Mich App 659, 668; 153 NW2d
162 (1967) (stating that a zoning board of appeals, being without legislative power, may not, in
the guise of a variance, amend the zoning ordinance or disregard its provisions). A township
board may by consent judgment agree to grant a use variance, Green Oak Twp v Munzel, 255
Mich App 235, 242; 661 NW2d 243 (2003), and a consent judgment entered for this purpose is
construed as a contract. Gramer v Gramer, 207 Mich App 123, 125; 523 NW2d 861 (1994).
However, while a township board may, by contract, bind future boards in matters of a business
or proprietary nature, a township board may not contract away its legislative powers. "'The true
test is whether the contract itself deprives a governing body, or its successor, of a discretion
which public policy demands should be left unimpaired.'" Harbor Land Co v Twp of Grosse Ile,
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22 Mich App 192, 205; 177 NW2d 176 (1970), quoting Plant Food Co v City of Charlotte, 214
NC 518, 520; 199 SE 712 (1938).
The question here is whether this consent judgment, directing that the master plan would
be amended by a future township board to permit a manufactured housing development,
constitutes an act that impermissibly contracted away the legislative powers of a future
governing body. We hold that it is.
MCL 125.271 of the Township Rural Zoning Act provides in relevant part that a
township board "may provide by zoning ordinance for the regulation of land development . . .
and other uses of land . . . ." MCL 125.273 provides in relevant part that "[t]he zoning ordinance
shall be based upon a plan designed to promote the public health, safety, and general welfare . . .
." "Plan," as that term is used in MCL 125.273, means master plan. MCL 125.321. A master
plan serves as a general guide to future development, Biske v City of Troy, 381 Mich 611, 617618; 166 NW2d 453 (1969), and is a factor in determining the reasonableness of a particular
zoning classification. Troy Campus v City of Troy, 132 Mich App 441, 457; 349 NW2d 177
(1984). Because a zoning ordinance must be based on the applicable master plan, and because
the master plan is a factor in determining the reasonableness of the zoning ordinance, the
adoption of a master plan is tantamount to a legislative act.
The precise terms of the disputed consent judgment make it clear that the intent of the
agreement is legislative in nature. Paragraph 10 of the consent judgment mandates the
amendment of the master plan to provide for a new manufactured home community
development, and paragraph 12 of the consent judgment provides that a future use consistent
with the master plan is deemed reasonable. The language regarding future use that limits future
boards from making determinations about what is reasonable deprives future boards of
"discretion which public policy demands should be left unimpaired." Harbor Land Co, supra at
205 n 2.2
IV
We conclude that paragraphs 10 through 13 of the consent judgment are void because the
limitations on the amendment of the master plan constitute an improper infringement of the
legislative authority of a future township board. Therefore, we affirm the trial court's order that
2
Thus, unlike the case of Green Oak Twp, supra at 242, in which the township board granted a
use variance that neither resulted in a change in the zoning ordinance nor contemplated a future
change in zoning, here the public is deprived of the avenues normally available to challenge the
adoption of an amended zoning ordinance, including referendum. See MCL 125.282; Scots
Ventures, Inc v Hayes Twp, 212 Mich App 530, 533-534; 537 NW2d 610 (1995) (where the
township's comprehensive zoning plan recognized the reasonableness of a five-acre lot
requirement, a referendum vote rejecting a zoning amendment to adopt a five-acre lot
requirement and restoring a prior ordinance with a 10-acre lot requirement was set aside on the
basis that the restored ordinance was arbitrary, capricious, and unreasonable).
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vacates paragraphs 10 through 13 of the consent judgment, and we remand for further
proceedings, including the reinstatement of the portions of plaintiffs' complaint resolved by the
provisions of the consent judgment we find to be void.3 We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Henry William Saad
/s/ Kurtis T. Wilder
3
We note that on appeal, plaintiffs assert that it has satisfied the remaining applicable terms of
the consent judgment in reliance on the provisions that have now been voided. On remand,
plaintiffs shall be entitled to amend their complaint to assert such claims arising from the
satisfaction of the remaining parts of the judgment as may be viable under the facts of this case.
See B & M Die Co v Ford Motor Co, 167 Mich App 176, 181-182; 421 NW2d 620 (1988).
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