ROBERT J HERRERA V DELHI LEASING INCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT J. HERRERA,
July 7, 1998
Ingham Circuit Court
LC No. 96-84816 CZ
DELHI LEASING, INC., d/b/a
ALBERT SAND & GRAVEL, INC.
a Michigan corporation,
Before: Sawyer, P.J., and Kelly and Doctoroff, JJ.
Plaintiff Robert J. Herrera appeals as of right from an order denying him injunctive relief against
defendant and imposing sanctions on him for filing a frivolous lawsuit. We affirm the order denying
plaintiff injunctive relief, but reverse the trial court’s award of sanctions against plaintiff.
Defendant leased land from plaintiff’s parents. When defendant began mining activities on the
land, it obtained a special use permit in compliance with an Aurelius Township ordinance. The permit
provided that the minimum setback of the slope of the mining operation was to be 150 feet from the
residential property line, unless the property owner gave consent to the contrary. In February 1995,
Aurelius Township passed Ordinance 11.01, which set out the requirements for special use permits and
stated that setback slopes had to be only 75 feet from residential lot lines. Subsequently, defendant
applied for and was granted a new special use permit, which required defendant to comply with the
setback requirement of Ordinance 11.01. As a result, plaintiff sued for injunctive relief, alleging that
defendant’s setback was only 96 feet from the property line, in violation of the original special use
permit. The lower court held that the new ordinance controlled over the old special use permit and that
defendant was within the new legal setback requirement. Accordingly, plaintiff ’s request for injunctive
relief was denied.
In equity cases such as those granting or denying injunctive relief, this Court reviews the record
de novo, giving due deference to the findings of the circuit court. This Court is required to sustain the
findings of the circuit court unless it is convinced that, had it heard the evidence in the first instance, it
would have been compelled to reach a contrary result. Groveland Twp v Jennings, 106 Mich App
504, 509-510; 308 NW2d 259 (1981); aff’d 419 Mich 719 (1984).
Plaintiff first argues that the lower court erred in denying him injunctive relief, asserting that the
language of the original special use permit issued on September 21, 1994 controls over language in the
new ordinance, effective February 14, 1995, and over the new special use permit. He claims that if the
original permit does not control, the new ordinance would allow for the expansion of a nonconforming
use which is contrary to policy considerations behind special use permits and variances. We disagree.
While it is true that Michigan law has routinely refused to allow for the expansion of a
nonconforming use, see e.g., Norton Shores v Carr, 81 Mich App 715, 719-720; 265 NW2d 802
(1978), the cases cited by plaintiff involve property owners expanding their uses in violation of local
zoning ordinances. In the present case, the township approved both the new ordinance and the second
special use permit, with which defendant is currently in compliance. That the common law does not
allow for the expansion of a nonconforming use by the land owner does not answer the question actually
presented by this appeal.
The question this Court must address is whether the language of the old special use permit
controls over the new ordinance and new special use permit. We find that it does not. The general rule
is that the law to be applied is that which was in effect at the time of the decision. MacDonald
Advertising Co v McIntyre, 211 Mich App 406, 410; 536 NW2d 249 (1995); Lockwood v City of
Southfield, 93 Mich App 206, 211; 286 NW2d 87 (1979). In MacDonald, supra, we held that in a
dispute between an old ordinance and a new amendment to the same, the newly amended ordinance
controlled. Plaintiff has presented no evidence here to convince us to rule otherwise.
Granting injunctive relief is a matter committed to the discretion of the trial court. Charter Twp
of Lyon v Lazechko, 197 Mich App 681, 682; 495 NW2d 839 (1992). Injunctive relief is granted
only when (1) justice requires it, (2) there is no adequate remedy at law, and (3) there exists a real and
imminent danger of irreparable injury. Id. Plaintiff has not presented any evidence to show that justice
requires an injunction, particularly in light of the planning commission’s intent that the new ordinance
should control. See Lazechko, supra at 682. Therefore, the trial court did not abuse its discretion in
denying plaintiff injunctive relief.
Next, plaintiff argues that the trial court erred in denying injunctive relief based on the assertion
that the township ordinance was enacted specifically with the knowledge of defendant’s commercial use
of the land. However, plaintiff failed to raise this issue in either its motion for injunctive relief or during
its oral argument. Therefore, this issue is not preserved for appellate review. McReady v Hoffius, 222
Mich App 210, 218; 564 NW2d 493 (1997).
Finally, plaintiff argues that the trial court erred when it imposed sanctions on plaintiff for filing a
frivolous suit. We agree.
A trial court's finding that a claim is frivolous will not be reversed on appeal unless clearly
erroneous. Cvengros v Farm Bureau Ins, 216 Mich App 261, 266; 548 NW2d 698 (1996). A
finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court is
left with a definite and firm conviction that a mistake has been committed. Contel Systems Corp v
Gores, 183 Mich App 706, 711; 455 NW2d 398 (1990). If a claim is found frivolous, imposition of
sanctions is mandatory. MCR 2.114(E). A claim is frivolous when (1) the party's primary purpose was
to harass, embarrass, or injure the prevailing party, or (2) the party had no reasonable basis upon which
to believe the underlying facts were true, or (3) the party's position was devoid of arguable legal merit.
Cvengros, supra at 266-267. Because another judge had previously awarded plaintiff a preliminary
injunction in this case, plaintiff had reason to believe that his claim for a permanent injunction had some
merit. Therefore, we are left with a definite and firm conviction that a mistake has been made, and the
trial court clearly erred in finding that plaintiff’s claim was frivolous.
We affirm the trial court's denial of plaintiff’s motion for a permanent injunction, but we reverse
the award of sanctions and remand this matter to the trial court for entry of the appropriate order. We
do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Michael J. Kelly
/s/ Martin M. Doctoroff