DANIEL H WHITMAN V GALIEN TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
DANIEL H. WHITMAN, LARRY PICCOLI, and
MARY PICCOLI,
FOR PUBLICATION
June 10, 2010
9:10 a.m.
Plaintiffs-Appellants,
and
GEORGE KLINGSPON, ETTA KLINGSPON,
EDWARD HOWARD, LOIS HOWARD, and
JOYCE CHASE,
Plaintiffs,
v
GALIEN TOWNSHIP and GALIEN TOWNSHIP
ZONING BOARD OF APPEALS,
No. 287991
Berrien Circuit Court
LC No. 2006-003177-AA
Defendants-Appellees.
Before: OWENS, P.J., and O’CONNELL and TALBOT, JJ.
O’CONNELL, J.
On September 30, 2008, plaintiffs filed an application for leave to appeal the circuit
court’s September 9, 2008, order affirming defendant Galien Township Zoning Board of
Appeals’ (the Board) grant of a special use permit pursuant to the Galien Township Zoning
Ordinance (zoning ordinance). Specifically, the circuit court affirmed the Board’s grant of
Timothy Richter and Corrine Hoetger’s (applicants) application for a special use permit to allow
the operation of a snowmobile, dirt bike, and ATV racetrack during the summer months in the
township’s agricultural zoning district. This Court denied plaintiffs’ application for leave to
appeal. Whitman v Galien Twp, unpublished order of the Court of Appeals, entered February 20,
2009 (Docket No. 287991). The Supreme Court subsequently remanded the case to this Court
for consideration as on leave granted. Whitman v Galien Twp, 485 Mich 859; 771 NW2d 783
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(2009).1 For the reasons stated in this opinion, we reverse the circuit court’s order affirming the
Board and vacate the special use permit.
The applicants own a 70-acre parcel of property (the property) in Galien Township
(township) located at the corner of Mt. Zion Road and US 12, a major highway in the township’s
agricultural zoning district. Several residential homes are located near the property. The
township’s agricultural zoning district is governed by the zoning ordinance, which provides in
pertinent part:
The following uses and regulations shall apply in the Agricultural District.
SECTION 2.4A – PERMITTED USES
1. Any use allowed in “A” Residential District.
2. Farming, including the raising of livestock, raising trees, and harvesting wood,
excluding animal confinement or production feeding operations.
3. Sale of products produced mainly on the premises.
4. Mobile homes subject to the provisions of Section 3.1.
SECTION 2.4B – USES BY SPECIAL PERMIT AS PROVIDED FOR BY
SECTION 3.13
1. Rooming Houses or Boarding Houses, subject to the provisions of Section
3.13[2] (Special Use Permits & Building Standards).
1
By stipulation of the parties, George Klingspon, Etta Klingspon, Edward Howard and Lois
Howard were dismissed from the application for leave to appeal to the Michigan Supreme Court.
Whitman v Galien Twp, 764 NW2d 788 (2009).
2
Section 3.13 provides, in relevant part:
Uses requiring special permits are those uses of land which are not essentially
incompatible with the uses permitted in a zoning district, but possess
characteristics or locational qualities which require individual review and
restriction in order to avoid incompatibility with the character of the surrounding
area, public services and facilities, and adjacent uses of land. Proposed uses will
be evaluated according to their compatibility with the nature, extent and density
of the surrounding area.
Special permit uses may be permitted only in those zoning districts where they are
designated by this Ordinance, and only when specifically approved by the Gailen
Township Zoning Board in accordance with the provisions of this Ordinance.
(continued…)
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2. Establishments for the conducting of commercial or industrial activities,
subject to approval of the Zoning Board.
3. Animal confinement or production feeding operations.
(…continued)
Prior to the approval of a Special Use Permit, the Zoning Board shall insure that
the standards specified in this Section, as well as standards established elsewhere
in this Ordinance shall be satisfied. All uses by special permit shall comply with
each of the following standards and requirements:
(a) The nature, location, and size of the special use shall not change the essential
character of the surrounding area, nor disrupt the orderly and proper development
of the district as a whole. The use shall not be in conflict with, or discourage the
adjacent or neighboring lands or buildings.
(b) The special use shall not diminish the value of the land, buildings or
structures in the neighborhood.
(c) The special use shall not increase traffic hazards or cause congestion on the
public highways or streets of the area. Adequate access to the parcel shall be
furnished.
(d) The water supply and sewage disposal system shall be adequate for the
proposed special use by conforming to State and County Health Department
requirements, and the special use shall not over-burden any existing services or
facilities.
(e) Any agricultural use shall be conducted in conformity with generally accepted
agricultural practices and shall not be located within 1000 feet of existing
residential structures.
(f) Uses by special permit shall not be significantly more objectionable to nearby
properties by reason of traffic, noise, vibrations, dust, fumes, odor, smoke glare,
lights, or disposal of waste than the operation of any principal permitted use, nor
shall the special use increase hazards from fire or other damages to either the
property or adjacent property.
(g) The Zoning Board may require that the premises be permanently screened
from adjoining or contiguous properties by a wall, fence, plant screen and/or other
approved enclosure when deemed necessary to buffer the surrounding uses from
objectionable noise, light, etc., created by the special use.
(h) The special use shall be consistent with the intent and purpose of this
Ordinance. The special use shall be compatible with the natural environment and
shall not [be] inimical to the public health, safety and general welfare.
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4. Outdoor display and advertising media as provided by Section 3.17.
5. Automobile or travel trailers subject to the provisions of Section 3.11.
On or about September 11, 2006, the applicants applied for a special use permit to
construct and operate a snowmobile, dirt bike, and ATV racetrack on the property during the
summer months. Specifically, the applicants requested a special use permit to allow the
operation of ATV and dirt bike drag races on dirt tracks and snowmobile races on a pond that the
applicants planned to construct on the property.3 The Board granted the permit without making
any findings of fact or conclusions of law on the record. Plaintiffs, and several neighboring
landowners, appealed the Board’s decision to the circuit court. Thereafter, because the Board
failed to create a proper record for review, the parties stipulated that the Board would hold a
rehearing.
The Board concluded that the proposed racetrack was a permissible commercial use for
purposes of a special use exception in the agricultural district, but concluded that the applicants
failed to submit a proper site plan. After receiving the requested information and holding
another hearing, the Board found that the applicants’ plan met all the factors in Section 3.13.
After making findings on the record, the Board approved the special use permit with
restrictions.4 On appeal, the circuit court ruled that the Board properly concluded that it had
authority to grant a special use permit for the racetrack in the agricultural district. The circuit
court held that the Board had authority under the ordinance to issue a special use permit because
a racetrack qualified as a “commercial use” under Section 2.4B(2), and determined that a zoning
board may authorize a special use permit even if the proposed use is not specifically enumerated
in the applicable zoning ordinance. The circuit court held that the Board’s findings with respect
to seven of the eight factors in Section 3.13 of the zoning ordinance were supported by
competent, material, and substantial evidence on the record, but remanded the case back to the
Board for further findings regarding whether the proposed racetrack would diminish the value of
the land, buildings, or structures in the surrounding neighborhood.
After a hearing and opportunity for public comment, the Board found that the racetrack
would not diminish the value of neighboring properties. On appeal, the circuit court ruled that
the Board’s findings were supported by competent, material, and substantial evidence, and
affirmed the Board’s decision to grant the applicants’ special use permit.
3
The applicants referred to snowmobile racing in the summer over a body of water as
“watercross.”
4
In particular, the Board restricted operation of the racetrack to four Saturdays per year in July,
August, September, and October. The Board restricted the timing of the races to 8:00 a.m. to
10:00 p.m. in July and August, and 8:00 a.m. to 8:00 p.m. in September and October. The Board
allowed the applicants to hold races on Sunday if scheduled Saturday races were rained out. In
addition, the Board required two weeks’ notice of the races and prohibited commercial camping
on the property.
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On appeal, appellants contend that the zoning ordinance unlawfully delegates legislative
power to the Board by allowing the Board to issue special use permits within the agricultural
zoning district to any establishment for “commercial or industrial activities.” However,
appellants have failed to preserve this issue for our review because the question whether the
zoning ordinance unlawfully delegated legislative power to the Board was not first raised in the
circuit court. Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005).
“[T]his Court may overlook preservation requirements if the failure to consider the issue would
result in manifest injustice, if consideration is necessary for a proper determination of the case,
or if the issue involves a question of law and the facts necessary for its resolution have been
presented.” Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427; 711 NW2d 421
(2006). Because this Court is not obligated to address issues raised for the first time on appeal,
and considering that manifest injustice would not result from our failure to consider the issue, we
decline to address this issue. Polkton Charter Twp, 265 Mich App at 95-96; Smith, 269 Mich
App at 427.
Next, appellants claim that the Board’s decision did not comport with the law because the
zoning ordinance does not comply with the Michigan Zoning Enabling Act (MZEA). We agree.
Although this issue is also unpreserved, it involves a question of law, and the facts necessary for
its resolution have been presented. In addition, failure to consider this issue would result in
manifest injustice because the grant of the special use permit did not comport with the law.
Polkton Charter Twp, 265 Mich App at 95-96; Smith, 269 Mich App at 427. Therefore, we will
consider the issue on the merits.
We review de novo a circuit court’s decision in an appeal from a zoning board. Risko v
Grand Haven Charter Twp Zoning Bd of Appeals, 284 Mich App 453, 458; 773 NW2d 730
(2009). When reviewing a zoning board’s decision whether to issue an exception to a zoning
ordinance, “this Court must review the record and . . . [the board’s decision] . . . to determine
whether it (1) comports with the law, (2) was the product of proper procedure, (3) was supported
by competent, material, and substantial evidence on the record, and (4) was a proper exercise of
reasonable discretion.” Id. (quotations omitted). A decision by a zoning board that violates a
statute or the Constitution is not authorized by the law. Northwestern Nat’l Cas Co v Comm’r of
Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998). We review de novo issues involving
statutory and ordinance construction. Soupel v Shady View, Inc, 469 Mich 458, 462; 672 NW2d
171 (2003).
Municipalities have no inherent power to regulate land use through the enactment of
zoning legislation; instead, a local unit of government must be specifically authorized by the
Legislature to exercise any zoning authority. Krajenke Buick Sales v Hamtramck City Engineer,
322 Mich 250, 254; 33 NW2d 781 (1948). The Legislature has granted municipalities the power
to zone through the enactment of enabling legislation. Sun Communities v Leroy Twp, 241 Mich
App 665, 669; 617 NW2d 42 (2000). A local unit of government may regulate land use through
zoning only to the limited extent authorized by that legislation. Krajenke, 322 Mich at 254-255.
In 2006, the Legislature consolidated three separate zoning enabling acts for cities and
villages, townships, and counties into the MZEA, MCL 125.3101 et seq. The MZEA governs
the creation and administration of local zoning ordinances and provides in relevant part:
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The legislative body of a local unit of government may provide by ordinance for
the manner in which the regulations and boundaries of districts or zones shall be
determined and enforced or amended or supplemented. Amendments or
supplements to the zoning ordinance shall be adopted in the same manner as
provided under this act for the adoption of the original ordinance. [MCL
125.3202(1).]
The MZEA also provides that a local zoning ordinance may include provisions for special use
permits within a zoning district as follows:
The legislative body may provide in a zoning ordinance for special land uses in a
zoning district. A special land use shall be subject to the review and approval of
the zoning commission, the planning commission, an official charged with
administering the zoning ordinance, or the legislative body as required by the
zoning ordinance. The zoning ordinance shall specify all of the following:
(a) The special land uses and activities eligible for approval and the body or
official responsible for reviewing and granting approval.
(b) The requirements and standards for approving a request for a special land use.
(c) The procedures and supporting materials required for the application, review,
and approval of a special land use. [MCL 125.3502(1).]
***
If the zoning ordinance authorizes the consideration and approval of special land
uses . . . or otherwise provides for discretionary decisions, the regulations and
standards upon which those decisions are made shall be specified in the zoning
ordinance. [MCL 125.3504(1).]
In this case, Galien Township apparently enacted its zoning ordinance in 2001 pursuant
to the MZEA’s predecessor, the Township Zoning Act (TZA), MCL 125.271 et seq., repealed
2006 PA 110. Hughes v Almena Twp, 284 Mich App 50, 59; 771 NW2d 453 (2009). The
provisions governing the issuance of special use permits under the TZA were substantively
identical to the language used in the MZEA. Compare MCL 125.286b(1) and MCL 125.286d(1)
with MCL 125.3502(1) and MCL 125.3504(1). In addition, because this action arose after the
effective date of enactment of the MZEA, the MZEA governs the resolution of this proceeding.
Hughes, 284 Mich App at 59, citing MCL 125.3702(2).
The quintessential issue in this case is whether Section 2.4B(2) of the zoning ordinance
complies with MCL 125.3502(1)(a), which provides that if a zoning ordinance allows for special
use permits, the ordinance “shall specify . . . [t]he special land uses and activities eligible for
approval . . . .” Section 2.4B(2) of the zoning ordinance provides that “[e]stablishments for the
conducting of commercial or industrial activities” are eligible for special use permits within the
agricultural zoning district, subject to Board approval and compliance with the requirements set
forth in Section 3.13 of the ordinance. Appellants contend that the zoning ordinance fails to
“specify” the land uses and activities that are eligible for special use permits because the
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ordinance generalizes that any establishment for commercial or industrial activities is eligible for
special use status. Thus, we must determine whether the provision of the ordinance conflicts
with the MZEA. Resolution of this question necessarily involves statutory and ordinance
interpretation.
For purposes of interpretation, ordinances and statutes are reviewed in the same manner.
Hughes, 284 Mich App at 61. “The primary goal of statutory interpretation is to ascertain and
give effect to the intent of the Legislature . . . .” USAA Ins Co v Houston Gen Ins Co, 220 Mich
App 386, 389; 559 NW2d 98 (1996). When a statute’s language is clear, “we assume that the
Legislature intended the plainly expressed meaning, and we enforce it as written.” Hughes, 284
Mich App at 62. However, when a statute’s language is ambiguous, “we apply a reasonable
construction that best accomplishes the intent of the Legislature.” Id. Unless otherwise defined
by statute, every word or phrase should be accorded its plain and ordinary meaning. Risko, 284
Mich App at 458-460. Statutes granting power to Michigan townships are construed liberally in
the township’s favor. Hughes, 284 Mich App at 62.
As stated above, the language from the MZEA at issue provides that a zoning ordinance
“shall specify . . . the special land uses and activities eligible for approval . . . .” When used in a
statute, the term “shall” is considered to require mandatory conduct. Hughes, 284 Mich App at
62. Because the terms at issue are not defined in the statute, see MCL 125.3102, consultation of
dictionary definitions is appropriate. Risko, 284 Mich App at 460. Random House Webster’s
College Dictionary (1997) defines “specify” as “to mention or name specifically or definitely;
state in detail” and as “to give a specific character to.” It defines “specific” as “having a special
application, bearing, or reference; explicit or definite,” and as “specified, precise, or particular.”
Id. It defines “use” as “an instance or way of using something,” as “a way of being used; a
purpose for which something is used,” as “continued, habitual, or customary employment or
practice, custom,” and as “the enjoyment of property, as by occupation or enjoyment of it.” Id.
It defines “activity” as “a specific deed, action, function, or sphere of action.” Id. When these
definitions are considered together, the statute can be read to mandate that a zoning ordinance
must set forth in explicit, precise, definite and detailed language both the customary uses and the
specific actions and functions that are eligible for special use permits. The legal definition of
“special use permit” supports this reading of the statute. Black’s Law Dictionary (9th ed) defines
a “special-use permit” as “[a] zoning board’s authorization to use property in a way that is
identified as a special exception in a zoning ordinance.” Accordingly, the MZEA’s specificity
requirement ensures that property uses and activities eligible for special use status are identified
in the language of the zoning ordinance.
The MZEA’s requirement that a zoning ordinance specifically identify the land uses and
activities that are eligible for special use status encourages uniformity within a zoning district by
placing limits on discretionary zoning decisions. See MCL 125.3201(2) (“Except as otherwise
provided under this act, the regulations shall be uniform for each class of land or buildings,
dwellings, and structures within a district”). The MZEA’s specificity requirement encourages
consistency within a zoning district and guards against undesirable “spot zoning,” which has
been defined as “[a] zoning ordinance or amendment . . . creating a small zone of inconsistent
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use within a larger zone.”5 Penning v Owens, 340 Mich 355, 367; 65 NW2d 831 (1954). By
requiring a zoning ordinance to specifically enumerate all the land uses and activities that are
eligible for a special use permit, the MZEA guards against an administrative body’s ability to
haphazardly create small zones of inconsistent use within a larger district.
The MZEA’s specificity requirement also protects against an administrative body
engaging in rezoning by creating wholesale changes to the character of a zoning district.
Rezoning is exclusively a legislative function. Sun Communities, 241 Mich App at 669. The
specificity requirement, when coupled with the MZEA’s requirement that the zoning ordinance
include standards governing a zoning board’s discretionary authority, serves to ensure that the
ordinance complies with the Constitution and does not amount to an improper delegation of
legislative authority.
Finally, one of the purposes of the MZEA is to provide for and facilitate the orderly
development of land use districts, whether residential, agricultural, industrial, or commercial.
“The foundation of traditional zoning has been the division of the municipality into one or more
land use districts. The intent is that these districts will be separated, organized, and regulated to
achieve legitimate zoning objectives as set forth in the [MZEA] . . . .” Fisher, Gerald A., et al,
Michigan Zoning, Planning and Land Use, The Institute of Continuing Legal Education (2008), §
1.3. In order to effectuate this intent, the MZEA provides:
A local unit of government may provide by zoning ordinance for the regulation of
land development and the establishment of 1 or more districts within its zoning
jurisdiction which regulate the use of land and structures to meet the needs of the
state’s citizens for food, fiber, energy, and other natural resources, places of
residence, recreation, industry, trade, service, and other uses of land, to ensure
that use of the land is situated in appropriate locations and relationships, to limit
the inappropriate overcrowding of land and congestion of population,
transportation systems, and other public facilities, to facilitate adequate and
efficient provision for transportation systems, sewage disposal, water, energy,
5
Michigan courts closely scrutinize instances of “spot zoning.” See Raabe v City of Walker, 383
Mich 165, 168-170, 175-179; 174 NW2d 789 (1970) (invalidating rezoning of a 180-acre parcel
within a residential district from agricultural to industrial use where the industrial use was
inconsistent with the surrounding area and where there was no showing of a valid need for the
public health, safety, and welfare); Trenton Dev Co v Village of Trenton, 345 Mich 353, 357358; 75 NW2d 814 (1956) (invalidating the rezoning of three city blocks to single family
residential where surrounding area was zoned for multiple dwellings and commercial use and
noting that the inconsistency was invalid where there were no purported health, safety, or welfare
considerations); Cf. Bruni v Farmington Hills, 96 Mich App 664; 293 NW2d 609 (1980)
(affirming special use permit for cluster housing within low density housing district because of
unique character of the land); City of Essexville v Carrollton Concrete Mix, Inc, 259 Mich App
257, 277-278; 673 NW2d 815 (2003) (finding that rezoning of an area from industrial to
developmental despite area being surrounded by industrial use was not “spot zoning” where
rezoning was in accordance with master land use plan).
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education, recreation, and other public service and facility requirements, and to
promote public health, safety, and welfare. [MCL 125.3201(1).]
By requiring a zoning ordinance to specifically enumerate the land uses and activities that are
eligible for special use status, the MZEA helps to ensure that land use districts are separated and
created in an orderly manner.
Applying the interpretation of the language in the MZEA to the zoning ordinance at issue
in this case, we conclude that the zoning ordinance does not comply with the enabling
legislation. Here, the zoning ordinance provides that “establishments for the conducting of
commercial or industrial activities” are eligible for special use status within the agricultural
zoning district. The ordinance does not define “commercial” or “industrial.” Random House
Webster’s College Dictionary defines “commercial” as “of, pertaining to, or characteristic of
commerce” and as “engaged in, used for, or suitable to commerce or business, esp. of a public or
nonprivate nature.” It defines “industrial” as “of or pertaining to a type of the nature of, or
resulting from industry” and as “used or appropriate for use in industry.” Id. It defines
“industry” as “any general business activity” and as “trade or manufacture in general.” Id.
Considering these definitions, the language in the zoning ordinance sweeps broadly and makes
all actions or functions (i.e., activities) pertaining to commerce, business, trade, manufacture, or
industry in general, eligible for special use status within the agricultural zoning district. Section
2.4B(2) does not comply with MCL 125.3502(1) because it does not specify the special land uses
and activities eligible for approval, but rather identifies general categories of uses or activities.
Section 3.13 of the ordinance does not change our conclusion. Section 3.13 does not
identify which land uses or activities are eligible for special use permits; instead, it sets forth
standards to govern the zoning board’s decision whether to grant a special use permit to an
eligible land use or activity. In addition to requiring an ordinance to specifically enumerate the
land uses and activities that are eligible for special use status, the MZEA also requires a zoning
ordinance to specifically provide standards and criteria to govern a zoning board’s discretionary
decision whether to grant a permit for an eligible special use. The MZEA provides in relevant
part that a zoning ordinance “shall specify” both “[t]he special land uses and activities eligible
for approval and the body or official responsible for reviewing and granting the approval” and
“[t]he requirements and standards for approving a request for a special land use.” MCL
125.3502(1). The fact that Section 3.13 is specific and detailed regarding “the requirements and
standards for approving a request for a special land use” does not save Section 2.4B from
noncompliance with the statute for failure to specify the special land uses and activities eligible
for approval.
Defendants’ reliance on Reilly v Marion Twp, 113 Mich App 584; 317 NW2d 693 (1982),
is unpersuasive. In Reilly, the plaintiffs appealed the zoning board’s issuance of a special use
permit authorizing a commercial trucking operation within the township’s agricultural-residential
zoning district, arguing that the zoning board acted outside the scope of its authority under the
township’s zoning ordinance. Id. at 585-587. This Court explained that the zoning ordinance
did not limit the zoning board’s authority to grant special exceptions in cases involving only a
use specified in the ordinance. Id. at 588. It noted, “The board is empowered under the
ordinance to add to the list of special use exceptions those exceptions deemed necessary to
protect adjacent properties, the general neighborhood, and its residents and workers . . . .” Id.
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The quintessential issue in Reilly involved the interpretation of a zoning ordinance, while the
central issue in this case concerns whether the zoning ordinance complies with the MZEA.
Because the zoning ordinance does not comply with the MZEA, the Board’s decision to
grant a special use permit did not comport with the law, and the circuit court erred in affirming
the Board’s decision.6
The circuit court’s order affirming the Board is reversed. We vacate the special use
permit.
/s/ Peter D. O’Connell
/s/ Donald S. Owens
/s/ Michael J. Talbot
6
Appellants also argue that the circuit court erred in affirming the Board’s decision to grant the
special use permit because the Board’s conclusion that the racetrack qualified as a “commercial
use” and its application of the factors set forth in Section 3.13 were not supported by the
evidence. Because we have determined that the zoning ordinance in question does not comply
with the MZEA, we need not address this issue.
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