Betz v. Berrien County Building Authority

162 N.W.2d 856, 12 Mich. App. 304, 1968 Mich. App. LEXIS 1185
CourtMichigan Court of Appeals
DecidedJune 28, 1968
DocketDocket No. 4,321
StatusPublished
Cited by3 cases

This text of 162 N.W.2d 856 (Betz v. Berrien County Building Authority) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Betz v. Berrien County Building Authority, 162 N.W.2d 856, 12 Mich. App. 304, 1968 Mich. App. LEXIS 1185 (Mich. Ct. App. 1968).

Opinion

Ziem, J.

The defendant county of Berrien caused the incorporation of the defendant Berrien County Building Authority (herein referred to as the Authority) under the authorization found in CL 1948, § 123.951 et seq., as amended (Stat Ann 1961 Rev and 1968 Cum Supp § 5.301 [1] et seq.), herein referred to as the Building Authority Act.

[307]*307Defendant county approved a contract for the purchase of land upon which a new county building was to be constructed and the county board passed a resolution to appropriate money to the Authority for the purchase of the land. The land was conveyed to the Authority for $70,000. By ordinance, the Authority authorized the issuance of revenue bonds in the amount of $2,575,000 for the purpose of constructing, furnishing’, and equipping, on the land acquired by the county and conveyed to the Authority, a building suitable for use by the county for administrative offices and court facilities. The land and building’ were then “leased” to the county for an amount sufficient to pay principal and interest on the Authority’s bonds. These bonds were payable solely from and secured by payments to be made by the county to the Authority pursuant to a “lease contract” entered into by the county and the Authority. The term of the lease contract was for a period extending beyond the last maturity date of the bonds issued by the Authority (slightly longer than 20 years from their date and thus approximately 20 years after the county’s going into possession of the premises). The Authority declared the useful life of the building to be not less than 40 years. The “lease contract” provided for the payment of a single initial rental payment of $450,000 and fixed annual rentals of $195,000 each year. Subsequently, the Authority by ordinance authorized the issuance of $650,000 additional revenue bonds of equal standing as the bonds originally issued and to be payable from the same revenues and secured in the same way as the original bond issue. In order to assure proper payment of the principal and interest of the original bond issue and the additional bond issue, the fixed annual rental was increased from $195,000 to $250,-000. This was done by a supplemental lease contract entered into by the county and the Authority.

[308]*308Plaintiff, a taxpayer and resident of the county, for himself and all other taxpayers of the county, filed his complaint asking the court to enter a judgment declaring that the “lease contract”, as supplemented, is not a lease but rather a disguised contract of purchase by installments and further declaring that the aggregate of the “rentals” constitutes a present indebtedness of the county incurred in contravention of State statute and, therefore, void. The complaint also sought relief enjoining the payment of county funds to the Authority pursuant to the “lease contract”. The trial court granted defendants’ motion for summary judgment.

Basically, plaintiff urges three positions. The first is that, for a number of reasons, the so-called lease is not a lease, but a contract of purchase. The second is that the agreement, even if determined to be a lease, creates a present debt in excess of the statutory limits for Berrien county. The third is that the question of reasonable rental raises an issue of fact which should not have been disposed of by summary judgment.

The county has proceeded under the above-mentioned Building Authority Act. Had the county attempted to build this building directly, it most likely would have been illegal. See State v. Doyle & Associates (1965), 374 Mich 222. The agreement and procedure in the case at bar must be judged in the light of the Building Authority Act. In effect the Act has been held valid. Walinske v. Building Authority (1949), 325 Mich 562, and Rude v. Muskegon County Building Authority (1953) 338 Mich 363.

Many of plaintiff’s claims already have been presented and determined by the Supreme Court adversely to the plaintiff’s position in the Walinslce and Rude cases. The claims of the plaintiff are some[309]*309what similar to the claims made in Walinske. (See Walinske v. Building Authority, supra, page 574).

Plaintiff asserts that the agreement here is not a lease, because the payment of $70,000 for a site and $450,000 initial rental, prior to taking possession, were donations. The agreement provides that these sums be credited to the county as rent. Such advances were in effect held proper in the Walinske case.

That the term of the lease in question is relatively short and results in higher annual rentals, is not ground for objection. The statute provides for the minimum and maximum terms of the lease. It cannot be for a term in excess of 40 years1 and it cannot be for a term expiring sooner than the last maturity date on the bonds.2 The short term will save the county a substantial sum in interest costs.

The statute contains no prohibition against the county assuming the risk of loss or paying the operating expenses of the building. The Walinske case recognized that Detroit and Wayne county would be paying operational expenses. That these costs are paid directly rather than to the Authority in the form of increased rentals, cannot be construed to change the agreement from the lease provided for by the statute to a contract of sale.

The conveyance of the premises to the county on the expiration of the lease does not convert it to a contract of sale, for such result is anticipated and specifically authorized by the statute. Conveyance by the Authority to the county at the expiration óf the lease was involved in both the Walinske and Rude cases. The fact that the Authority is created for the apparent purpose of providing the incorpo[310]*310rating unit with a method to acquire buildings is not a valid objection. It is a logical disposition of the building to give it to the incorporating unit after the financing is paid. The Building Authority-Act reflects this in its own terms, for in section 13 (CL 1948, § 123.963 [Stat Ann 1961 Rev § 5.301(13)]) it provides as follows:

“When all bonds issued pursuant to the provisions of this act shall have been retired, then the authority may convey the title to the property acquired hereunder to the incorporating unit or units in accordance with the provisions therefor contained in the articles of incorporation, or, if there be no such provisions, then in accordance with any agreement adopted by the respective governing bodies of the incorporating units.”

The statute thus provides that the Authority may convey the title to the property, after the bonds have been retired, to the incorporating unit.

The plaintiff has failed to demonstrate that the contracts in question, under the Building Authority Act, represent county debt in violation of any statute. Section 14 of the Building Authority Act provides :

“The powers herein granted shall be in addition to those granted by any statute or charter.”

It is apparent that the legislature intended, by that act, to create a new means for municipalities to solve pressing problems which could not be solved within the old framework of the law. The powers granted by the act were of a sort not previously possessed by the municipalities affected.

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Related

Alan v. Wayne County
200 N.W.2d 628 (Michigan Supreme Court, 1972)
Butcher v. Township of Grosse Ile
180 N.W.2d 367 (Michigan Court of Appeals, 1970)

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Bluebook (online)
162 N.W.2d 856, 12 Mich. App. 304, 1968 Mich. App. LEXIS 1185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/betz-v-berrien-county-building-authority-michctapp-1968.