Conlin v. Scio Township

262 Mich. App. 379
CourtMichigan Court of Appeals
DecidedApril 22, 2004
DocketDocket No. 243886
StatusPublished
Cited by14 cases

This text of 262 Mich. App. 379 (Conlin v. Scio Township) 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
Conlin v. Scio Township, 262 Mich. App. 379 (Mich. Ct. App. 2004).

Opinion

PER CURIAM.

In this zoning case, plaintiffs appeal as of right from the trial court’s order granting defendant’s motion for summary disposition. We affirm.

This action arises from plaintiffs’ desire to develop a 136-acre tract of land in defendant township for residential purposes. The land is zoned A-l, General Agricultural. Section 4.02 of the township’s zoning ordinance allows single-family dwellings as a permitted use in the A-l district, subject to certain density restrictions prescribed in § 4.02.B.1, which, according to plaintiffs, would allow one home for each 7.5 acres. Alternatively, § 5.30.B of the zoning ordinance allows Rural Open Space Developments in the A-l district as a conditional use, also subject to certain density restrictions, prescribed in § 5.30.D, which, according to plaintiffs, would allow one home for each 5.2 acres. Plaintiffs commenced this action alleging that the township’s zoning ordinances, particularly the density restrictions, were unreasonable and arbitrary, contrary to the intent of the Land Division Act, MCL 560.101 et seq., and effectively result in condominiums being prohibited in the A-l district in violation of the Condominium Act, MCL 559.101 et seq. Plaintiffs alleged that §§ 4.02.B.1 and [382]*3825.30.D of the township’s zoning ordinance are ultra vires and a violation of substantive due process, both on their face and as applied.

The trial court granted defendant’s motion for summary disposition, finding that the action was not ripe for review because plaintiffs did not exhaust their administrative remedies. Plaintiffs argue that the trial court erred in finding that their claims were not ripe for judicial review.

A trial court’s grant of summary disposition is reviewed de novo to determine whether the prevailing party was entitled to judgment as a matter of law. Allen v Keating, 205 Mich App 560, 562; 517 NW2d 830 (1994). In reviewing a motion under MCR 2.116(0(10), the court must examine the documentary evidence submitted by the parties and, drawing all reasonable inferences in favor of the nonmoving party, determine whether there is a genuine issue of material fact. Quinto v Cross & Peters Co, 451 Mich 358, 361-362; 547 NW2d 314 (1996).

“[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury . .. .” Paragon Properties Co v Novi, 452 Mich 568, 577; 550 NW2d 772 (1996), quoting Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City, 473 US 172, 193; 105 S Ct 3108; 87 L Ed 2d 126 (1985). In other words, where the possibility exists that a municipality may have granted a variance — or some other form of relief — from the challenged provisions of the ordinance, the extent of the alleged injury is unascertainable unless these alternative forms of potential relief are pursued to a final conclusion. Paragon Properties, supra at 580-581.

[383]*383Plaintiffs allege that the density limitations for the A-l district violate substantive due process on their face and as applied, and that they are ultra vires and void. The trial court properly ruled that plaintiffs’ “as applied” challenge was subject to the rule of finality. Whether pleaded as a violation of substantive due process, a denial of equal protection, or a taking of property without just compensation, “[a] challenge to the validity of a zoning ordinance ‘as applied,’... is subject to the rule of finality.” (Emphasis added). Paragon Properties Co, supra at 576. However, the trial court erred in dismissing plaintiffs’ facial challenge on this basis, as well as plaintiffs’ claim that the ordinance is ultra vires. “Finality is not required for facial challenges because such challenges attack the very existence or enactment of an ordinance.” Id. at 577 (emphasis added); see also Frericks v Highland Twp, 228 Mich App 575, 595; 579 NW2d 441 (1998).

With regard to their “as applied” challenge, plaintiffs argue that the claim should not have been dismissed because they exhausted their administrative remedies. We disagree. Although plaintiffs apparently participated in an informal preapplication conference, as required of all major projects, it is undisputed that a formal site plan was never submitted for preliminary or final approval. Plaintiffs also never applied for conditional land use approval of a Rural Open Space Development, or for a dimensional variance from the challenged density requirements. Lastly, plaintiffs never applied for rezoning of their land to a classification that would allow developments at the density they desired. Thus, the trial court properly found that plaintiffs failed to exhaust their administrative remedies and, therefore, their “as applied” challenge was not ripe for judicial review.

[384]*384Plaintiffs argue that they should be allowed to proceed with their “as applied” challenge because it would have been futile to exhaust their administrative remedies. Plaintiffs cite no relevant authority for this proposition.1 A party may not merely announce a position and leave it to this Court to discover and rationalize the basis for the party’s claim. Joerger v Gordon Food Service, Inc, 224 Mich App 167, 178; 568 NW2d 365 (1997).

Plaintiffs also argue that the trial court erred in denying their motion for reconsideration. We disagree. Even considering the preapplication conference described in plaintiff Conlin’s second affidavit, plaintiffs have not shown that the trial court committed palpable prejudicial error in finding that their “as applied” challenge was not ripe for judicial review. See MCR 2.119(F)(3). Plaintiffs’ remaining arguments merely presented the same issues already decided by the trial court. See MCR 2.119(F)(3). Therefore, the trial court did not abuse its discretion in denying plaintiffs’ motion for reconsideration. Churchman v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000).

While we agree with plaintiffs that the trial court erred in dismissing their claims that the ordinance is ultra vires and facially unconstitutional on the basis of the finality requirement, we take judicial notice of the fact that the township adopted an entirely new zoning ordinance in 2003. See MRE 202(a). Because the old ordinance has been repealed, plaintiffs’ challenges to [385]*385the old ordinance could be considered moot. See In re Contempt of Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003). Nonetheless, it is apparent that plaintiffs’ claims that the ordinance is facially unconstitutional and ultra vires cannot succeed and, therefore, defendant is entitled to summary disposition.

Although the trial court did not address these claims, this Court may consider the issues because they involve a question of law for which all the necessary facts were presented. Joe Panian Chevrolet, Inc v Young, 239 Mich App 227, 233; 608 NW2d 89 (2000).

Plaintiffs allege that both the Land Division Act and the Condominium Act preempt the township’s zoning ordinance to the extent that the ordinance seeks to impose additional restrictions on the platting of land or the development of condominiums. Thus, plaintiffs claim that the township’s ordinance is ultra vires, i.e., beyond the scope of the authority delegated to the township.

This Court has held that, generally, a municipality may not prohibit what state law allows.

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Bluebook (online)
262 Mich. App. 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conlin-v-scio-township-michctapp-2004.