Independence Township v. Murdoch

400 N.W.2d 714, 155 Mich. App. 770
CourtMichigan Court of Appeals
DecidedNovember 3, 1986
DocketDocket No. 87159
StatusPublished

This text of 400 N.W.2d 714 (Independence Township v. Murdoch) 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
Independence Township v. Murdoch, 400 N.W.2d 714, 155 Mich. App. 770 (Mich. Ct. App. 1986).

Opinion

Per Curiam.

Defendants, William and Wanda Murdoch and their son, Douglas Murdoch, appeal as of right from an opinion and order entered in the Oakland Circuit Court affirming the decision of the Zoning Board of Appeals of plaintiff Township [772]*772of Independence (hereinafter board). The board’s decision interpreted the township’s zoning ordinance as excluding defendants’ Siberian tiger and bobcat from those classifications of animals allowed to be maintained on their premises and denied defendants’ request for a variance from the ordinance. We affirm.

This action was commenced on November 14, 1984, when the township filed a complaint seeking an injunction to prevent defendants from keeping the animals on their premises. Defendants reside in a district zoned R-1R, rural residential. Section 5.19 of the township’s zoning ordinance authorizes all classes of animals, as defined in § 3.01 of the ordinance, to be maintained in that district. The classes of animals, as specified in § 3.01, are:

1. Class I Animal: Domesticated household pets weighing less than 150 pounds.
2. Class II Animal: An animal which is normally part of the livestock maintained on a farm, including:
a) Bovine and like animals, such as the cow.
b) Equine and like animals, such as the horse.
c) Swine and like animals, such as the pig and hog.
d) Ovis (ovine) and like animals, such as the sheep and goat.
Other animals weighing in excess of 75 pounds, and not otherwise specifically classified herein.
3. Class III Animal: Rabbits (which are not maintained or kept as domesticated household pets); animals considered as poultry, and other animals weighing less than 75 pounds not specifically classified herein.

An open hearing was held before the board on January 16, 1985, after which it was to decide whether defendants were allowed to keep the ani[773]*773mals on their premises and, if not, whether defendants were entitled to a variance from the ordinance. Defendants stipulated at the hearing that their animals did not fall within the Class m animal. Further testimony was taken that neither the tiger nor the bobcat could be included in Class i because neither animal would typically be considered a domesticated household pet and that neither animal should be allowed to be kept in a residential zoned district because of the inherent danger involved. Further, neither animal could be included within the Class n definition because that classification included only those animals which are "normally part of livestock maintained on a farm.”

Following the public hearing, the board unanimously voted that the tiger and bobcat were excluded under § 3.01 and therefore were not to be kept on the premises. The board reconvened a week later and denied the variance request on the basis that a variance could be granted only upon a showing of undue hardship or difficulty pertaining to the land. The only undue hardship presented was self-induced which had no effect upon the use of the land. Further, the board concluded that the variance sought was a use variance which was not within the board’s power to grant. The board’s decision was affirmed on appeal to the circuit court.

On appeal to this Court, defendants raise several issues, not all of which merit discussion. First, defendants contend that § 3.01 of the Independence Township zoning ordinance violates state and federal constitutional guarantees of due process because it is impermissibly vague. Defendants argue that Class i of § 3.01 allowing domesticated household pets weighing less than 150 pounds is unclear because the bobcat at issue would fall [774]*774under the definition of "domesticated.” Further, defendants argue that the provision under Class ii allowing "other animals weighing in excess of 75 pounds not otherwise specifically classified herein” is a catch-all provision lacking sufficient definition to allow residents to determine what types of animals are allowed. The circuit court found the ordinance clear enough to give the township residents notice of which animals are allowed.

Before embarking on this review we note that decisions of a zoning board of appeals are largely discretionary. Szluha v Avon Charter Twp, 128 Mich App 402, 410; 340 NW2d 105 (1983). The Township Rural Zoning Act sets forth the standard of review for appeals from zoning board decisions:

(1) The decision of the board of appeals rendered pursuant to section 23 shall be final. However, a person having an interest affected by the zoning ordinance may appeal to the circuit court. Upon appeal the circuit court shall review the record and decision of the board of appeals to insure that the decision:
(a) Complies with the constitution and laws of the state.
(b) Is based upon proper procedure.
(c) Is supported by competent, material, and substantial evidence on the record.
(d) Represents the reasonable exercise of discretion granted by law to the board of appeals. [MCL 125.293a(l); MSA 5.2963(23a)(l).]

The "void for vaguepess” doctrine is derived from the constitutional guarantee that a state may not deprive a person of life, liberty or property without due process of law. US Const, Am XIV; Const 1963, art 1, § 17. A statute may be challenged for vagueness on the ground that it: (1) is [775]*775overbroad, impinging on First Amendment freedoms; (2) does not provide fair notice of the conduct proscribed; or (3) is so indefinite that it confers unstructured and unlimited discretion on a trier of fact to determine whether an offense has been committed. Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980); Oakland Co Prosecutor v 46th Dist Judge, 76 Mich App 318, 329; 256 NW2d 776 (1977). State Treasurer v Wilson (On Remand), 150 Mich App 78, 80-81; 388 NW2d 312 (1986). Plaintiff presumably challenges the instant ordinance on the second ground.

The ordinance at issue is a "permissive” ordinance which states the permissive uses under the classifications and necessarily implies the exclusion of any other nonlisted use. Independence Twp v Skibowski, 136 Mich App 178, 184; 355 NW2d 903 (1984), lv den 422 Mich 853 (1985). Class i clearly provides notice to township residents that only domesticated household pets under 150 pounds are allowed. This necessarily excludes animals under 150 pounds that are not domesticated and animals over 150 pounds whether domesticated or not. We do not find this language to be unconstitutionally vague and uncertain.

Similarly, the language describing the types of animals allowed under Class ii is sufficient to give residents notice of the types of animals allowed thereunder. As noted by the circuit judge, the portion "Other animals ...” could have been more artfully drawn. However, the beginning of the class description limits the whole class to include only those animals which are "normally part of the livestock maintained on a farm.” We find this language to clearly indicate that the animals allowed under the catch-all provision of Class ii are livestock farm animals weighing in excess of seventy-five pounds. This language is not [776]

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Related

State Treasurer v. Wilson
388 N.W.2d 312 (Michigan Court of Appeals, 1986)
Oakland County Prosecutor v. 46th District Judge
256 N.W.2d 776 (Michigan Court of Appeals, 1977)
Butler v. Detroit Automobile Inter-Insurance Exchange
329 N.W.2d 781 (Michigan Court of Appeals, 1982)
Szluha v. Avon Charter Township
340 N.W.2d 105 (Michigan Court of Appeals, 1983)
Independence Township v. Skibowski
355 N.W.2d 903 (Michigan Court of Appeals, 1984)
Woll v. Attorney General
297 N.W.2d 578 (Michigan Supreme Court, 1980)

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Bluebook (online)
400 N.W.2d 714, 155 Mich. App. 770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independence-township-v-murdoch-michctapp-1986.