ROBERT J WILLIAMS V CITY OF TROYAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT J. WILLIAMS, KARLA WILLIAMS,
MATTHEW GOODMAN, AMY GOODMAN,
THOMAS FOOT, JACQUELINE FOOT,
WILLIAM BIGELOW, MARGO BIGELOW,
CARL QUALMANN, MARGE QUALMANN,
CALVIN ROBERTSON, VIRGINIA
ROBERTSON, ROGER HOWARD, NANCY
HOWARD, JOHN F. MILLS, and KATHLEEN A.
December 13, 2005
February 14, 2006
Oakland Circuit Court
LC No. 2003-049527-CH
CITY OF TROY and KEN FREUND, d/b/a
FREUND & ASSOCIATES,
Official Reported Version
Before: Cavanagh, P.J., and Cooper and Donofrio, JJ.
Plaintiffs, landowners in the Middlesex Country Homesites Subdivision, appeal as of
right from the trial court's orders denying their motion for summary disposition and granting
defendants city of Troy and Ken Freund's motions for summary disposition pursuant to MCR
2.116(C)(8) and MCR 2.116(C)(10). The trial court dismissed plaintiffs' claims seeking to
prevent the construction of Mr. Freund's proposed condominium development within the
subdivision. We affirm.
I. Factual Background
The original plat for the Middlesex Country Homesites Subdivision was recorded in
1926. At that time, the subdivision was divided into 31 lots. As originally platted, many lots
covered over three acres of land. The subdivision was zoned "R-1A One Family Residential,"
which required that single-family residences be built on no smaller than half-acre lots.1 Over
time, several of the lots were divided into smaller parcels2 under the Land Division Act (LDA).3
As a result, there are currently 63 individual parcels of land within the subdivision.4 While many
of the lots were divided into one- and two-acre parcels, several of the divided parcels are
approximately half-acre lots.
Mr. Freund, a developer, purchased three parcels of vacant land in Lots 21 and 225 for a
proposed "site condominium" development under the Condominium Act.6 Mr. Freund planned
to combine the parcels into a single "condominium project"7 consisting of six detached
"condominium units."8 The gross density of the proposed development would be 1.48 homes per
acre.9 Access to the development would be provided by a private road intersecting Adams Road,
the western boundary of the subdivision. Once constructed, the development would physically
resemble a traditional planned subdivision with free-standing residences. However, the homes
would be owned as condominiums and the homeowners would share an interest in designated
Mr. Freund submitted his proposed condominium subdivision plan11 to the City for
review and approval under Troy Zoning Ordinance, § 34.30.06. The City's planning commission
Troy Zoning Ordinance, § 34.10.01.
The original lot designations were retained following these divisions. The City referred to the
separate, divided properties as "parcels" and assigned each a unique tax identification number.
MCL 560.101 et seq. The LDA was formerly known as the Subdivision Control Act and is
referenced as such in the City's zoning ordinance.
Homes have not been built on every parcel within the subdivision. However, it does not appear
from the record that any regulation or restriction would prevent construction.
Preexisting homes stood on the remainder of Lot 22 and another divided parcel in Lot 21. The
remaining land in Lot 21 had previously been dedicated to the City for the creation of a detention
MCL 559.101 et seq. The zoning ordinance also refers to the Condominium Act by the title of
its predecessor, the Horizontal Real Property Act.
A "condominium project" is defined as "a plan or project consisting of not less then 2
condominium units established in conformance with this act." MCL 559.104(1).
In a residential site condominium development, a "condominium unit" refers to the residence
and land "designed and intended for separate ownership and use . . . ." MCL 559.104(3).
The maximum gross density in the City's R-1A zoning classification is 1.6 dwelling units per
acre. Troy Zoning Ordinance, § 34.30.02.
See OAG, 1989-1990, No 6,577, p 77 (March 13, 1989).
conducted a preliminary review and determined that Mr. Freund's proposed development
complied with the requirements for the zoning classification.12 Although one condominium unit
included less than a half-acre of land, the commission determined that the average parcel area in
the development exceeded the minimum requirement.13 The commission specifically noted that
the members had reviewed the plans for several adjacent subdivisions and considered the rural
nature of the area before recommending that the City approve Mr. Freund's proposal. Based on
that recommendation, the city council subsequently approved Mr. Freund's proposed
development in March of 2003.
Plaintiffs immediately filed suit for declaratory and injunctive relief to prevent the
construction of the development.14 The trial court initially granted partial summary disposition
in defendants' favor. Accordingly, the trial court dismissed plaintiffs' claims that Mr. Freund's
proposal to combine parcels from two separate lots in a platted subdivision violated both the
LDA and the City's zoning ordinance.15 The trial court subsequently dismissed plaintiffs' claim
that the City violated their right to due process of law through its application of the zoning
ordinance to the proposed development.
II. Land Division Act
Plaintiffs first challenge the trial court's determination that Mr. Freund was not required
to vacate the subdivision plat under the provisions of the LDA before dividing the land into a
condominium development under the Condominium Act. Specifically, plaintiffs contend that
Mr. Freund was required to file a court action to vacate the existing plat and submit a "replat,"
excluding the proposed condominium development.16
We review a trial court's determination regarding a motion for summary disposition de
novo.17 A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the
See Troy Zoning Ordinance, § 30.10.01.
Troy Zoning Ordinance, § 34.30.01 ("The average parcel area shall be at least equal to the
standard lot size as prescribed by [§ 30.10.01].").
Plaintiffs also recorded a lis pendens against Mr. Freund's property, asserting that it was the
subject of ongoing litigation. Mr. Freund filed a separate action against the current plaintiffs
alleging slander of title. That case was assigned to a different judge, but the trial judge in this
case dismissed the current plaintiffs' claims before resolving their motion to consolidate. There
is no information in the record regarding the final resolution of Mr. Freund's suit.
This Court dismissed plaintiffs' premature appeal from the trial court's order. Williams v City
of Troy, unpublished order of the Court of Appeals, entered July 1, 2004 (Docket No. 254974).
We further note that the trial court failed to address Mr. Freund's separate motion for sanctions
pursuant to MCR 2.114. However, Mr. Freund has not raised that issue on appeal.
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
pleadings alone and should be granted only if the factual development of the claim could not
justify recovery.18 A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff 's
claim.19 "In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we
consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence
submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue
of material fact exists."20 Summary disposition is appropriate only if there are no genuine issues
of material fact, and the moving party is entitled to judgment as a matter of law.21
The applicability of the LDA to a condominium development within the boundaries of a
preexisting subdivision is a question of statutory construction which we review de novo.22
Divisions23 and subdivisions24 of land are generally controlled by the LDA. However, the
Condominium Act specifically provides that the LDA "shall not control divisions made for any
condominium project."25 This statutory language is plain and unambiguous and we must enforce
the statute as written.26 Moreover, the administrative rules promulgated pursuant to the
Condominium Act specifically recognize that a proposed condominium development may
overlap with a previously platted subdivision.27 Yet, neither the statutes nor the regulations
require that the plat be vacated pursuant to the LDA before a condominium project may be
We further note that, even if the LDA were applicable to the current development, a
"replat" would not be necessary under these circumstances. A developer must take court action
to vacate a recorded plat when a proposed development would change the boundaries of the
plat.28 Mr. Freund's proposed condominium development clearly falls within the boundaries of
Id. at 129-130.
Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d
Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001).
MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001).
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139
Krug v Ingham Co Sheriff 's Office, 264 Mich App 475, 481; 691 NW2d 50 (2004).
See 1999 AC, R 559.401(4)(h) (when a lot within a previously platted subdivision is
incorporated into a condominium development, it must be demarcated with "dashed lines and
MCL 560.102(u); MCL 560.104.
the existing subdivision.29 Accordingly, the trial court properly determined that Mr. Freund was
not required to institute an action to vacate the existing plat, pursuant to the LDA, before seeking
the City's approval of his proposed development.
III. Zoning Ordinance
Plaintiffs also contend that the City improperly approved Mr. Freund's proposed
development under § 34.30.00 of the zoning ordinance. Plaintiffs assert that, as the land was part
of a preexisting platted subdivision, Mr. Freund's proposed development was not "unplatted" as
envisioned by the ordinance. The interpretation of a municipal ordinance is a question of
statutory construction, which we review de novo.30
Section 34.30.00 of the zoning ordinance provides for the creation of site condominium
projects within the City as follows:
It is recognized that Michigan Statutes provide for the implementation of
developments consisting of one-family detached residential dwelling units and
sites, through procedures other than those enabled by the [LDA]. The intent of
this Section is to provide procedures and standards for review and approval or
disapproval of such developments, in order to insure that they will be consistent
and compatible with other one-family residential developments in the community,
and not detrimental to the orderly development of the adjacent area.
For purposes of this Section, "Unplatted One-Family Residential
Development" shall include proposed developments consisting of two or more
single family detached residential structures on a single parcel, which could not
otherwise be implemented through parcel splitting in accordance with Article VI
of Chapter 41 of the City Code. Unplatted One-Family Residential Developments
would therefore include developments implemented under [the Condominium
Section 34 further provides that any such development must comply with the standards for other
developments within the zoning district.32
Compare Brookshire-Big Tree Ass'n v Oneida Twp, 225 Mich App 196, 199-201; 570 NW2d
294 (1997) (finding a replat necessary where the owner of lots in two separate platted
subdivisions sought to combine the lots into one development).
Soupal v Shady View, Inc, 469 Mich 458, 462; 672 NW2d 171 (2003).
Troy Zoning Ordinance, § 34.30.00.
See Troy Zoning Ordinance, §§ 34.30.01 and 34.30.03.
It is clear from the ordinance's definition of "unplatted one-family development" that this
section governs the creation, review, and approval of developments established under statutes
other than the LDA. The use of the word "unplatted" in the ordinance is imprecise.33 Neither the
zoning ordinance nor any statute or regulation requires a developer to vacate an existing plat
before dividing land in a condominium development. Furthermore, had Mr. Freund proposed to
divide this property for the construction of single-family residences under the LDA, plaintiffs
would have no grounds to challenge the development. The division and use of the land strictly
complies with the City's zoning ordinance. The City is statutorily required to approve a site plan
submitted in compliance with its zoning ordinance and other applicable law.34 The City is
further prohibited from treating a proposed condominium project differently than any other form
of development allowed by local law.35 Accordingly, the trial court properly determined that the
City approved Mr. Freund's proposed development under this section.
IV. Substantive Due Process
Finally, plaintiffs contend that their property interest was diminished without due process
of law, as the City approved Mr. Freund's proposed development without evaluating whether it
was in harmony with the character of the neighborhood. Plaintiffs challenge the City's approval
of a condominium development comprised of half-acre units adjacent to a subdivision with
larger lot sizes.
It is well established that zoning ordinances designed to control land use and population
density may be implemented for the public's health, safety, and welfare.36
Although the police power allows the government to regulate land use, the
Fifth Amendment requires that compensation be paid if a government regulation
unreasonably shifts social costs to an individual or individuals. A claim for
compensation may allege that an ordinance is confiscatory "as applied" or "on its
face." A facial challenge alleges that the mere existence and threatened
enforcement of the ordinance materially and adversely affects values and curtails
opportunities of all property regulated in the market. An "as applied" challenge
The word "unplatted," standing alone, suggests that the ordinance governs proposed
developments on land that has not been previously platted. Placed in context, however, the
ordinance governs proposed developments not subject to the provisions of the LDA.
Paragon Properties Co v City of Novi, 452 Mich 568, 573; 550 NW2d 772 (1996). See also
MCL 125.581; MCL 125.582.
alleges a present infringement or denial of a specific right or of a particular injury
in process of actual execution.
Plaintiffs conceded below that the City's zoning ordinance was facially valid. The
ordinance allows for the development of condominiums as an alternative to standard housing, but
mandates that these developments comply with the requirements for the zoning district in which
they are constructed. However, plaintiffs' challenge to the ordinance "as applied" lacks merit.
Contrary to plaintiffs' assertion, the City did evaluate whether Mr. Freund's proposed
development was "consistent and compatible with other one-family residential developments in
the community, and not detrimental to the orderly development of the adjacent area."38 The trial
court and the City reviewed the documentary evidence provided by the parties regarding the
character of the area and the proposed developments. The evidence reveals that lot sizes in
adjacent subdivisions are much smaller than those in Middlesex Country Homesites Subdivision
and are consistent with Mr. Freund's proposed development. Furthermore, the ordinance does
not require that a new development be consistent and compatible with the immediate
subdivision. Accordingly, plaintiffs have not created an issue of material fact that the City
violated their right to due process in its application of the ordinance.
/s/ Mark J. Cavanagh
/s/ Jessica R. Cooper
/s/ Pat M. Donofrio
Paragon Properties, supra at 576 (internal citations omitted).
Troy Zoning Ordinance, § 34.30.00 (emphasis added).