Leemreis v. Sherman Township

731 N.W.2d 787, 273 Mich. App. 691
CourtMichigan Court of Appeals
DecidedJanuary 23, 2007
DocketDocket Nos. 261887, 263667, 263808
StatusPublished
Cited by15 cases

This text of 731 N.W.2d 787 (Leemreis v. Sherman 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
Leemreis v. Sherman Township, 731 N.W.2d 787, 273 Mich. App. 691 (Mich. Ct. App. 2007).

Opinion

PER CURIAM.

In these consolidated appeals, Sherman Township appeals as of right the trial court’s order denying its motion for summary disposition and a subsequent order awarding costs and attorney fees to Joseph A. Leemreis and Lori M. Leemreis. The Leem-reises appeal as of right, contending that the trial court should have awarded them more costs and attorney fees. We affirm in part, reverse in part, and vacate the trial court’s order awarding costs and attorney fees to the Leemreises.

I. FACTS

In April or May of 2003, the Leemreises applied to the Sherman Township Planning Commission for approval of a four-foot side-yard variance and a ten-foot setback variance for a pole barn they planned to build on their property. The Leemreises obtained the variances requested and proceeded with construction. After a dispute with a neighbor, the Leemreises applied for and received, on August 12,2003, approval for a six-foot side-yard variance instead of the four-foot side-yard variance. Later in August 2003, however, the neighbor filed an appeal of the decision to grant the six-foot side-yard variance. On September 8,2003, the Sherman Township Zoning Board of Appeals (ZBA) held a meeting that was attended by 35 or 40 members of the public who voiced strong opinions about the decision on appeal. The meeting was videotaped by a police officer. Following extensive public input, the ZBA chairman, Randall Chupp, stated either that the meeting was closed for public comment or was closed to the public. It is undisputed, however, that after the announcement, public attendees were cleared from the room. The ZBA [694]*694decided to “go with the 6-foot side yard set back and 10-foot set back from the right of way. Also, building not to exceed 20-feet in height to comply with [Township Ordinance] 13.1-2.” Because the Leemreises’ building already exceeded the height limitation, they sought reconsideration of the decision to no avail.

On October 22, 2003, Sherman Township filed a complaint against the Leemreises, seeking to enforce the township’s zoning and building code ordinances.1 On October 27, 2003, the Leemreises filed a complaint that included one count appealing the September 8, 2003, decision. In the second count, the Leemreises alleged that Chupp and board member Art Laws intentionally violated the Open Meetings Act, MCL 15.261 et seq., and that Sherman Township violated the OMA by closing the September 8, 2003, meeting to the public. They requested that the trial court invalidate the September 8, 2003, decision.

Beginning on December 23, 2003, and continuing on February 18, 2004, the ZBA reenacted the September 8, 2003, decision as authorized by the OMA. In this reenacted decision, the ZBA affirmed the August 12, 2003, variance and denied the neighbor’s appeal.

On July 12, 2004, a stipulated order was entered dismissing the Leemreises’ claim of appeal, leaving only their claims under the OMA. On July 28, 2004, Sherman Township filed a motion for summary disposition, in which it argued that the Leemreises’ claims under the OMA should be dismissed. It argued that the relief the Leemreises sought was invalidation of the September 8, 2003, decision and, because the decision was reenacted, it could no longer be invalidated. Sherman Township also contended that the claim of intentional [695]*695violation should be dismissed because the reenactment cured the original decision or rendered it a nullity and, therefore, any violation, even if intentional, was also cured or rendered a nullity. Sherman Township argued that, if the decision could no longer be invalidated and any violation was rendered a nullity, the case must be dismissed with no basis for awarding costs or attorney fees.

The Leemreises responded to Sherman Township’s motion, arguing first that intentional violation of the OMA is a separate cause of action that cannot he undone by a reenactment and results in a separate request for damages and a right to costs and attorney fees. The Leemreises also contended that the reenactment ensued only because they filed a lawsuit, and the legislative intent of the OMA would be thwarted if a public body could avoid paying costs and attorney fees by reenacting a violative meeting at any point during a lawsuit. They further asserted that when a trial court declares that the OMA has been violated, regardless of whether it grants injunc-tive relief, costs and attorney fees may be awarded.

In a written opinion, the trial court ruled that the reenactment did not preclude the Leemreises from obtaining relief, stating that they were also “seeking a declaration from the Court that the meeting of September 8, 2003 violated the ‘OMA.’ ” The trial court determined that injunctive relief and a determination of an OMA violation are “two distinct options for relief set forth in the statute,” and, while the reenactment made injunctive relief unnecessary, the Leemreises still sought an adjudication of whether Sherman Township violated the OMA. Additionally, the trial court stated that the claim of intentional violation by Chupp and Laws, while also subject to the above analysis, was a separate cause of action that was unaffected by the reenactment provision.

[696]*696The case proceeded to trial on the issues of whether Sherman Township violated the OMA and whether Chupp and Laws intentionally violated the OMA. The trial court ruled:

At issue is whether a part of a meeting of the Sherman Township Board of Appeals of September 8, 2003 was closed to the public in violation of the Open Meetings Act.
At the conclusion of public comment Defendant Randy Chupp, as chairperson, made an announcement and the public left the meeting. Later, Mr. Chupp went outside the township hall and invited persons outside to come in to hear the decision of the board.
I find that Mr. Chupp’s announcement was: “Meeting is closed... Meeting closed to the public.” My finding is based on a video tape of the hearing, testimony and the unusual departure of the public at this announcement.
I find that Defendant Chupp did not intentionally violate the Open Meetings Act. He intended to close the meeting for public comment and he believes that is what he said. Defendant Art Laws, board member, believed that Chairperson Chupp closed the meeting for public comment and did not intentionally violate the Open Meetings Act.
Therefore, judgment for Plaintiffs Joseph A. Leemreis and Lori M. Leemreis is found against Defendant Sherman Township for violation of the Michigan Open Meetings Act with statutory costs in favor of plaintiffs.
It is further ordered that the complaint against Defendants Randy Chupp and Art Laws is dismissed.

Subsequently, the Leemreises filed a bill of costs, to which Sherman Township filed an objection. After conducting a hearing, a successor judge entered a written opinion and order. Quoting MCL 15.271(4), he stated:

As quoted above, [the] LEEMREIS[ES]’ prayer for relief asked that the decision of the Zoning Board of Appeals be invalidated. They did not ask the court to compel compli-[697]*697anee or to enjoin farther noncompliance with the OMA. They did not succeed in obtaining relief in the action except for the [ruling] that there had been a violation of the OMA and they were entitled to statutory costs.

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Leemreis v. SHERMAN TP.
731 N.W.2d 787 (Michigan Court of Appeals, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
731 N.W.2d 787, 273 Mich. App. 691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leemreis-v-sherman-township-michctapp-2007.