PETOSKEY INVESTMENT GROUP LLC V BEAR CREEK TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
PETOSKEY INVESTMENT GROUP, LLC,
UNPUBLISHED
December 2, 2004
Plaintiff-Appellant,
v
No. 246641
Emmet Circuit Court
LC No. 01-006542-CH
BEAR CREEK TOWNSHIP,
Defendant-Appellee,
and
ZACHARY M. KUZNICKI,
Intervening-Defendant.
WALLACE WEBURG, JR.,
Plaintiff-Appellant,
No. 248203
Emmet Circuit Court
LC No. 02-007393-AW
v
BEAR CREEK TOWNSHIP,
Defendant-Appellee,
and
PETOSKEY INVESTMENT GROUP, LLC,
Intervener.
PETOSKEY INVESTMENT GROUP, LLC,
Plaintiff-Appellant,
v
No. 248801
Emmet Circuit Court
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BEAR CREEK TOWNSHIP,
LC No. 01-006542-CH
Defendant-Appellee,
and
ZACHARY M. KUZNICKI,
Intervening-Defendant/Appellee.
Before: Borrello, P.J., and Murray and Fort Hood, JJ.
MURRAY, J. (dissenting)
I do not disagree with the majority’s analysis of the substantive law raised by the parties
in this appeal. However, in my view, the opinion is merely advisory in nature, for the appeal in
this case is moot. Therefore, I must dissent.
In Morales v Parole Bd, 260 Mich App 29, 32; 676 NW2d 221 (2003), we set forth the
well-known standard for determining whether a case is moot:
This Court’s duty is to consider and decide actual cases and controversies.
Federated Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383
(2002). “To that end, this Court does not reach moot questions or declare
principles or rules of law that have no practical legal effect in the case before us
unless the issue is one of public significance that is likely to recur, yet evade
judicial review.” Id. This Court will entertain cases that are technically moot if
the issues involved are of public significance and are likely to recur in the future
and yet evade judicial review. In re Wayne Co Election Comm, 150 Mich App
427, 432; 388 NW2d 707 (1986). Generally, a case is not moot if the issues
sought to be litigated are capable of repetition, yet evade review. Ferency v
Secretary of State, 139 Mich App 677, 681; 362 NW2d 743 (1984).
Although the burden of proving mootness is a heavy one, MGM Grand Detroit, LLC v
Community Coalition for Empowerment, Inc, 465 Mich 303, 306; 633 NW2d 357 (2001), here it
is clearly established. There is no dispute that the only issue on appeal in this case is whether the
trial court properly allowed a referendum to occur in which the voters ultimately rejected
plaintiff Petoskey Investment Group’s (plaintiff) proposed development. Plaintiff was seeking to
overturn that decision on appeal so that the consent judgment, which granted plaintiff the right to
develop the property, would be enforced.
However, while this appeal was pending, plaintiff and Emmett County settled the case of
Petoskey Investment Group, LLC v Emmett County, Docket No. 5: 04 CV 0059, which was filed
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in the United States District Court for the Western District of Michigan. In that case, plaintiff
sued Emmett County to seek approval of the same project at issue in this case.1 The resulting
consent judgment, signed by the district court on September 7, 2004, provides plaintiff the
authority to build the project on the same property that was at issue in this case. There is no
dispute about these facts. It is therefore abundantly clear that plaintiff has obtained permission
from the only relevant zoning authority to build the same (if not larger) project as they were
seeking to do by successfully prosecuting this appeal.
As a result of the foregoing, plaintiff can now proceed to build its project without any
decision from this Court. We can therefore provide plaintiff with no meaningful relief in this
case, and it is moot. City of Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 493;
608 NW2d 537 (2000) (plaintiffs challenge to an earlier conditional use permit was moot
because defendant obtained a new conditional use permit that was unchallenged); B P 7 v
Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998) (“It is evident that
regardless of our decision, petitioners can now proceed under the amended statute to obtain the
same permission granted by the circuit court and that is the subject of these appeals.”).
Plaintiff’s arguments that this case is not moot do not hold water. Our constitutional duty
is to decide the live, actual controversies that are raised by the parties in each case. Princeton
Univ v Schmid, 455 US 100, 103; 102 S Ct 867; 70 L Ed 2d 855 (1982); Federated Publications,
Inc, supra at 112. It is certainly not within our constitutional duty to decide issues that will have
no bearing on this case, but will be helpful to one party in another case. Mootness is focused on
the outcome of this case, not an unrelated case. Federated Publications, Inc, supra at 112.
Moreover, the federal court is more than able to resolve any state law issue regarding the validity
of the referendum if necessary to determine an element of damages in that case.
Additionally, plaintiff’s argument that if the consent judgment in this case was held
invalid, it would be entitled to reopen its entire case, is without merit. The proper focus is not on
what would occur if the appellant lost, but what remedy could be awarded if it won. Attorney
General v Pub Service Comm, 244 Mich App 401, 407; 625 NW2d 786 (2001). The argument is
also speculative, and fails to recognize that plaintiff has not only obtained permission to build the
project, but that it has another federal lawsuit seeking damages for a temporary taking.
Finally, although this case involves an issue of public significance, it is not the sort likely
to evade judicial review. Morales, supra at 32. Indeed, Green Oak Twp v Green Oak MHC, 255
Mich App 235; 661 NW2d 243 (2003), is proof enough of that.
In sum, this case is moot. Plaintiff has, through a separate federal lawsuit, obtained all
the relief it could obtain if it was successful in this appeal. Other than imprudently issuing an
advisory opinion, we can offer no further relief to plaintiff.
/s/ Christopher M. Murray
1
Emmett County was sued, rather than Bear Creek Township, because Emmett County was
responsible for zoning issues in the township once the township’s zoning ordinance expired.
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