Burt Township v. Department of Natural Resources

593 N.W.2d 534, 459 Mich. 659

• Court: Michigan Supreme Court
• Decided: June 2, 1999
• Docket: 111334, Calendar No. 13
• Status: Published

Opinions

Young, J.

We granted leave to appeal in this case to determine whether defendant, the Michigan Department of Natural Resources, is required to comply with plaintiff Burt Township’s zoning ordinance in constructing a public-access boat launch on the shores of Burt Lake. We conclude that the dnr is subject to Burt Township’s zoning ordinance. Accordingly, we affirm the judgment of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1989, the dnr obtained title to two lots on Burt Lake¹ for the purpose of constructing a public-access boat launch.² Upon learning of the proposed development, the Burt Township zoning administrator sent a letter to the dnr, noting that the project had not been approved by the township zoning board and requesting that the dnr submit an application for the board’s review. The dnr responded that it did not need the board’s approval because the dnr was a state agency and local zoning ordinances therefore did not apply to it.

Burt Township originally filed suit in 1992, requesting a declaratory judgment that the dnr was required to comply with the zoning ordinance. However, Burt Township voluntarily dismissed the lawsuit without prejudice in June 1993. According to Burt Township, it agreed to the dismissal because the dnr indicated that it did not have sufficient funding to complete the boat launch. Moreover, township officials believed that they had reached an informal agreement with the dnr concerning the scope of the project in the event that the DNR later chose to pursue the project.

In 1995, having obtained the necessary funding, the dnr began construction of the boat launch. However, the dnr did not seek approval from or otherwise notify the township board. As a result, Burt Township filed the instant lawsuit. The township again sought a declaratory judgment that the dnr was required to comply with the township zoning ordinance. The complaint also requested permanent injunctive relief.

Following a hearing, the trial court issued a written opinion. The court held that, while Burt Township could not prevent the DNR from building the boat launch, the dnr had to comply with the township zoning ordinance. The Court of Appeals, over a dissent by Judge White, affirmed. 227 Mich App 252; 576 NW2d 170 (1997). We granted the dnr’s application for leave to appeal. 458 Mich 865 (1998).

H. STANDARD OF REVIEW

Whether the dnr’s construction of the boat launch facility is subject to Burt Township’s zoning ordinance is a question of law subject to de novo review. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).

m. ANALYSIS

A. DEASDEN v DETROIT — LEGISLATIVE INTENT

We agree with the parties and the Court of Appeals that the present dispute is governed by this Court’s decision in Dearden v Detroit, 403 Mich 257, 264; 269 NW2d 139 (1978), in which we held that “the legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances.”

In Dearden, the Michigan Department of Corrections leased a multiresidential structure from the archdiocese of Detroit with the intent to convert it into a rehabilitation center. However, the Detroit Board of Zoning Appeals denied the archdiocese’s request for a variance and permission to change the use of the property. The archdiocese brought suit, seeking to set aside the board’s decision. The Department of Corrections intervened. The circuit court and the Court of Appeals affirmed the board’s decision denying the requested variance. Id. at 260-261.

This Court disagreed and held that the Department of Corrections was immune from local zoning ordinances when establishing state penal institutions. Id. at 267. The Court found in the statute establishing the authority of the Department of Corrections, MCL 791.201 et seq.-, MSA 28.2271 el seq., “a clear expression of the Legislature’s intent to vest the department with complete jurisdiction over the state’s penal institutions . . . .” Id. at 265. Conversely, the Court found nothing in the language of the zoning enabling act, MCL 125.581 et seq.) MSA 5.2931 et seq., to suggest a legislative intent

to subject the department’s exclusive jurisdiction over the state’s penal institutions, and its duty to coordinate and adjust those institutions as an integral part of a unified, general correctional system, to the many and varied municipal zoning ordinances throughout the state. [Id. at 266-267.]

The Court concluded that Detroit’s zoning ordinance was “void to the extent that it attempts to prohibit the use of the subject property as a rehabilitation center.” Id. at 267.³

B. THE DNR’S PROPOSED BOAT LAUNCH

In order to determine whether the dnr’s boat launch is exempt from Burt Township’s zoning ordinance, we must, as required by Dearden, examine the texts of the Township Rural Zoning Act (trza),⁴ which provides Burt Township with authority to regulate land use and development, and the Natural Resources and Environmental Protection Act (nrepa),⁵ which governs the dnr’s activities here.⁶

1. TOWNSHIP ZONING AUTHORITY

The Legislature, through the TRZA, has granted significant authority to townships bearing on their right to regulate the use and development of boating and recreational facilities such as the one at issue. The TRZA broadly vests authority in townships to regulate land development “to meet the needs of the state’s citizens for . . . recreation . . . and other uses of land . . . .” MCL 125.271(1); MSA 5.2963(1)(1). The TRZA further provides that zoning ordinances shall be based on a plan designed to, among other things, “conserve natural resources.” MCL 125.273; MSA 5.2963(3).⁷ Indeed, the status and force of this zoning authority is enhanced by our state constitution. Const 1963, art 7, § 34 provides that statutory provisions relating to townships “shall be liberally construed in their favor.”

In addition to the broad grant of regulatory authority contained in the trza, we also believe the township planning act (tpa), MCL 125.321 et seq.-, MSA 5.2963(101) et seq., to be particularly relevant in this case involving waterfront development. The TPA provides that a basic zoning plan shall show the planning commission’s recommendations for the development of the township and include certain subjects pertinent to the future development of the township, including the general location, character, and extent of, among other things, “waterways and water front developments.” MCL 125.327(2)(b); MSA 5.2963(107)(2)(b).

These statutory provisions reveal that the trza and the TPA provide townships with extensive authority to regulate the use and development of land within their borders, including waterfront property. Moreover, this Court in Dearden declined to adopt a rule that state agencies have inherent immunity from local zoning ordinances. Dearden, supra at 261. Thus, we conclude that it is incumbent upon the DNR to establish a clear legislative intent to exempt the dnr’s activities from the Burt Township zoning ordinance.⁸

2. THE DNR’S CLAIMED EXEMPTION FROM ZONING ORDINANCES

As the Court of Appeals noted, the DNR relies upon three NREPA provisions in support of its claim of immunity. The first is § 503, which provides in relevant part:

The department shall protect and conserve the natural resources of this state [and] provide and develop facilities for outdoor recreation .... The department has the power and jurisdiction over the management, control, and disposition of all land under the public domain, except for those lands under the public domain that are managed by other state agencies to carry out their assigned duties and responsibilities. On behalf of the people of the state, the department may accept gifts and grants of land and other property and may buy, sell, exchange, or condemn land and other property, for any of the purposes contemplated by this part. [MCL 324.503(1); MSA 13A.503(1).]

Section 78105 further provides that the DNR “shall” have the following powers and duties:

(a) To acquire, construct, and maintain harbors, channels, and facilities for vessels in the navigable waters lying within the boundaries of the state of Michigan.

(b) To acquire, by purchase, lease, gift, or condemnation the lands, rights of way, and easements necessary for harbors and channels. . . .

(h) To charge fees for both daily and seasonal use of state-operated public access sites, if the cost of collecting the fees will not exceed the revenue derived from the fees for daily and seasonal passes. All revenues derived from this source shall be deposited in the Michigan state waterways fund. A seasonal pass shall grant the permittee the right to enter any state-operated public access site without payment of an additional fee. [MCL 324.78105; MSA 13A.78105.]

Finally, at the time that this case arose, § 78110 provided in pertinent part:

The Michigan state waterways fund is created in the state treasury. The fund shall be administered by the state treasurer and shall be used by the department solely for the construction, operation, and maintenance of recreational boating facilities, the acquisition of property for the purposes of this part, and for the administration of this part. The fund shall receive such revenues as the legislature may provide. [MCL 324.78110(1); MSA 13A.78110(l).[⁹]

The dnr maintains, and the dissenting Court of Appeals judge agreed, that these various statutory provisions evince a legislative intent that the DNR has absolute authority to provide public access facilities on inland lakes to the complete exclusion of municipal zoning interests. However, we agree with the Court of Appeals majority that, unlike the statute at issue in Dearden, there is nothing in the NREPA that similarly suggests a “clear expression” of legislative intent to vest the dnr with exclusive jurisdiction over its subject matter and thus to exempt the dnr’s activities in this case from the Burt Township zoning ordinance.^{9 10}

As an initial matter, we note that the Dearden Court found persuasive to its holding the fact that the statutes establishing the authority of the Department of Corrections explicitly stated that the department had “exclusive jurisdiction” over prison facilities. Dearden, supra at 265. Accordingly, Burt Township has argued that the absence of such a term in the nrepa is controlling. We reject this argument. While the presence of such terms as “exclusive jurisdiction” certainly would be indicative of a legislative intent to immunize the DNR from local zoning ordinances, we decline to require that the Legislature use any particular talismanic words to indicate its intent. The Legislature need only use terms that convey its clear intention that the grant of jurisdiction given is, in fact, exclusive. Whatever terms are actually employed by the Legislature, our task is to examine the various statutory provisions at issue and attempt to discern the legislative intent in enacting them.

The DNR places great emphasis on the mandatory nature of the duties expressed in the NREPA, as evidenced by the Legislature’s repeated use of the term “shall,” as well as the fact that the DNR is given the “power and jurisdiction” to manage and control lands under the public domain.* ¹¹ However, we are not persuaded that the Legislature, in directing that the DNR engage in certain governmental functions, intended that the DNR be authorized to do so in any manner it chooses. According the DNR “power and jurisdiction” to manage land within its control is not the same as granting it exclusive jurisdiction. Thus, the fact that the dnr is mandated to create recreational facilities on public land it manages and controls does not indicate a legislative intent that the dnr may do so in contravention of local zoning ordinances.

We also find no particular significance in the fact that the trza does not expressly provide that state agencies are subject to zoning ordinances. As stated, this Court in Dearden declined to hold that state agencies are inherently immune from local zoning ordinances. Id. at 261. Nor was the Dearden Court persuaded by those foreign decisions finding immunity if, as here, the agency was granted the power of eminent domain. Id. Again, the issue is one “not of absolute governmental immunity, but rather of legislative intent.” Id. at 265.

Further supporting our conclusion that the dnr is not immune from local ordinances enacted under the trza is the fact that the trza itself expressly exempts from local control or regulation “the drilling, completion, or operation of oil or gas wells” as well as the location of such wells. MCL 125.271(1); MSA 5.2963(1)(1). The trza instead vests jurisdiction over wells “exclusively in the supervisor of wells of this state . . . .” Id. The trza further exempts from zoning ordinances a “state licensed residential facility.” MCL 125.286a; MSA 5.2963(16a). As such, the Legislature has demonstrated that it was aware of overriding land-use issues that warranted specific exemption from local regulation, but provided no such exemption for the dnr’s activities. This fact provides additional assurance that there was no legislative intent to exempt the dnr here.

IV. CONCLUSION

In sum, the nrepa and the trza appear to provide coextensive statutory rights concerning the protection of natural resources in general and the development of recreation facilities and other waterfront developments in particular. Moreover, nothing in the NREPA establishes a clear expression of legislative intent to exempt the dnr’s activities in this case from the Burt Township zoning ordinance. Accordingly, for all the reasons stated, we hold that the dnr, in the construction of its public-access boat launch, is subject to Burt Township’s zoning ordinance. The decision of the Court of Appeals is affirmed.

Weaver, C.J., and Brickley, Taylor, and Corrigan, JJ., concurred with Young, J.

1 The lots consist of 5.6 acres, with 362.3 feet of water frontage.

2 The proposed facility would accommodate fifty vehicles and trailers and would include a “vault toilet.”

3 We note that the test enunciated in Dearden, while relatively straightforward in concept, has proven to be difficult to apply. Indeed, the Court of Appeals has issued several published decisions reaching varying conclusions regarding the application of the Dearden test. See, e.g., Addison Twp v Dep’t of State Police (On Remand), 220 Mich App 550; 560 NW2d 67 (1996) (holding that the Department of State Police was not immune from a local zoning ordinance); Lutheran High School Ass’n v Farmington Hills, 146 Mich App 641; 381 NW2d 417 (1985) (holding that a school district was subject to a zoning ordinance); Cody Park Ass’n v Royal Oak School Dist, 116 Mich App 103; 321 NW2d 855 (1982) (same); Marquette Co v Northern Mich Univ Bd of Control, 111 Mich App 521; 314 NW2d 678 (1981) (holding that a state university was immune from the State Construction Code Act, MCL 125.1501 et seq.; MSA 5.2949[1] et seq). We express no opinion on the results reached in these cases. However, we note that the decisions in Cody Park Ass’n, Lutheran High School Ass’n, and Addison Twp have since been “overruled” by subsequent legislative amendments of the statutes at issue in those cases.

4 MCL 125.271 et seq.; MSA 5.2963(1) et seq.

5 MCL 324.101 et seqMSA 13A.101 et seq.

6 We reject at the outset the dnr’s claim that the Legislature, through part 301 of the nrepa, MCL 324.30101 et seq.; MSA 13A.30101 et seq., formerly the Inland Lakes and Streams Act, MCL 281.951 et seq.; MSA 11.475(1) et seq., has established in the dnr “an exclusive framework for the protection of the public trust in the waters of this [sjtate.”

Const 1963, art 4; § 52 mandates that the Legislature conserve and develop the natural resources of the state and provides that such protection is of “paramount public concern in the interest of the health, safely and general welfare of the people.” As fully explained below, the Legislature clearly has charged both the dnr, through the nrepa, and townships, through their statutory zoning power, with the protection of natural resources. Indeed, we recognized in Hess v West Bloomfield Turp, 439 Mich 550, 565; 486 NW2d 628 (1992), that

by granting townships the authority to promote the public health, safety, and general welfare through enactment of zoning ordinances, the Legislature was complying with th[e] constitutional mandate to protect the environment, including bodies of water, from impairment or destruction.

7 Reiterated in this section is the importance of zoning ordinances in meeting “the needs of the state’s residents for . . . places of . . . recreation.”

8 The dissent takes issue with the “order” in which we address the relevant statutes. We believe our analysis to be consistent with Dearden. The dissent, on the other hand, would presume that the dnr, by virtue of its grant of authority under the nrepa, is exempt from local zoning ordinances unless a contrary intent is stated in the trza. This is tantamount to a rule of inherent immunity that Dearden expressly rejected.

9 We note that the Legislature has since amended part 781 of the nrepa. See 1998 PA 210. Because those amendments became effective on July 1, 1998, they are not applicable to this appeal.

10 We agree with the observation made in the Court of Appeals dissent that the nrepa “sets forth a comprehensive legislative scheme addressing the protection, conservation, and development of the natural resources of this state.” 227 Mich App 262 (White, J.). However, we do not accept the dissent’s conclusion that such a scheme is “inconsistent with the view that a local unit of government can control public access through local zoning.” Id. at 263. The creation of a comprehensive regulatory scheme simply does not, standing alone, equal a grant of exclusive jurisdiction, particularly in light of townships’ rival comprehensive regulatory power under the trza.

11 “Public domain” is defined by statute merely as “all land owned by the state or land deeded to the state under state law.” MCL 324.301(h); MSA 13A.301(h).