ROLLINGWOOD HOME OWNERS CORP., INC. v. City of Flint

181 N.W.2d 797, 26 Mich. App. 1

• Court: Michigan Court of Appeals
• Decided: October 21, 1970
• Docket: Docket 6,383
• Status: Published

Opinions

Holbrook, J.

This case involves an action brought in the Genesee County Circuit Court by individual plaintiffs, residents of the Rollingwood Village area of the City of Flint, and a corporate plaintiff, an association of residents of the same area, to enjoin the defendants, City of Flint, a Michigan municipal corporation, the Flint Housing Commission, and Cruse-Loren Corporation, a Michigan corporation engaged in the business of real estate development, from constructing a public housing project on property adjacent to Rolling-wood Village and zoned as an A-2 single-family medium density district.

The parties, pursuant to GCR 1963, 812.10, as amended 1965, submitted an agreed statement of facts which is restated in part as follows:

“On July 27, 1964, the City of Flint enacted ordinance No 1788, creating the Flint Housing Commission, pursuant to Act No 18, Public Acts of 1933, Extra Session, as amended, MCLA § 125.651 et seq. Some time prior to May 9, 1968, defendant Cruse-Loren Corporation negotiated with defendant Flint Housing Commission and the Housing Assistance Administrator of the Department of Housing and Urban Development, both United States government agencies, for the construction of a project to be known as Branchwood East, labeled by the Housing Assistance Administrator and the Flint Housing-Commission project Michigan 9-9. The project is for 183 single family dwellings on property in the City of Flint, presently unplatted, but adjacent to various platted parcels known as Bolling-wood Village in which the individual plaintiffs reside. In addition to the 183 single family dwellings, a community building, so-called, will be constructed as part of the project.

“Prior to May 9, 1968, it became known that the Flint Housing Commission and Cruse-Loren Corporation would enter into a contract for the said project. On May 9,1968, plaintiffs filed a complaint asking among- other things a temporary restraining order and a preliminary injunction blocking the further actions of all defendants in regard to the project. On May 13, 1968, the court issued a temporary restraining order. On May 16, 1968, defendant Cruse-Loren Corporation filed its motion to dissolve the temporary restraining order and the hearing on the same was held on May 17, 1968.

“After hearing arguments of counsel on the 17th of May, 1968, the temporary restraining order was dissolved by order of the court. Arguments on plaintiffs’ order to show cause why a temporary injunction should not issue were heard on May 21, 1968 and May 23, 1968, and on May 24, 1968, the court issued its opinion denying the injunctive relief requested by plaintiffs. An order denying injunctive relief was filed on May 27, 1968.

“On July 8, 1968, the city commission of the City of Flint adopted a resolution approving the Flint Housing- Commission contract with Cruse-Loren Corporation. Thereafter, the contract was submitted to the Housing Assistance Administrator for his approval. That approval has not yet been granted.

“Within 30 days after the adoption of the resolution authorizing the contract, plaintiffs caused to be filed with the clerk of the City of Flint referendum petitions² seeking a referendum election on the resolution approving the contract. The city clerk has refused to take any action certifying or otherwise recognizing the validity of the petitions, acting on advice of the city attorney to the effect that the resolution is not subject to referendum.

* * *

“The contract in question is a so-called ‘turnkey’ project, whereby the contract is negotiated directly between the sponsor or developer, in this case, Cruse-Loren Corporation and the Public Housing Commission, subject to the approval of the Housing Assistance Administrator. * * *

“In summary, the four basic factual matters to which the parties stipulate and which give rise to the instant appeal are as follows:

“1. The Flint City Commission acted to approve execution of the contract between Cruse-Loren Corporation and the Flint Housing Commission by adoption of a resolution rather than by passage of an ordinance.

“2. The City of Flint, acting through its city clerk refuses to certify the referendum petitions circulated by plaintiffs and their associates and delivered to the city clerk for certification, requesting a referendum vote on the resolution approving execution of the contract.

* * *

“4. The project is a so-called ‘turnkey’ project as defined in the ‘Low-Rent Housing Manual’ promulgated by the Housing Assistance Administrator of the department of Housing and Urban Development of the United States Government. No competitive bidding procedures were used in the negotiation of this contract and the execution of this contract.”

Plaintiffs appeal from the court’s dismissal of their motion for summary judgment and from entry on September 30, 1968, of summary judgment of no cause of action for defendants, upon motion filed on August 19, 1968 pursuant to GCR 1963, 117, on all issues.

The issue to be determined is restated as follows:

Was the defendant City of Flint required to approve by ordinance, rather than by resolution, a contract between defendant Flint Housing Commission and Cruse-Loren Corporation for construction of the public housing project in question, thereby rendering said approval subject to referendum¶

Plaintiffs contend that PA 1933, No 18, MCLA § 125.651 et seq. (Stat Ann 1969 Rev § 5.3011 et seq.), generally known as the housing and slum clearance act of 1933, requires that the authorization of a contract for the construction of public housing facilities must be accomplished by ordinance since a permanent influence will thereby be established on the community, with authorization having the effect of repealing or amending a prior ordinance. As authority for this position plaintiffs cite Parr v. Lansing City Clerk (1968), 9 Mich App 719. Also, see, Ranjel v. City of Lansing (1969), 417 F2d 321.

Defendants maintain that the housing and slum clearance act, supra, does not prevent authorization of a contract for construction of a public housing project by resolution. The purpose of the act is stated to be that of authorizing

“any city * * * to purchase, acquire, construct, maintain, operate, improve, extend and repair housing facilities; to eliminate housing conditions which are detrimental to the public peace, health, safety, morals or welfare; and for any such purposes to authorize any such city * * * to create by ordinance a commission with power to effectuate said purposes, and to prescribe the powers and duties of such commission and of such city.”

In support of its position, defendants refer to §§ 2, 3, 7, 12 and 39 of the act which provide that a city may “purchase, acquire, construct, maintain, operate, improve, extend or repair housing facilities”, MCLA § 125.652 (Stat Ann 1969 Rev § 5.3012); that it may create, by ordinance, a commission to accomplish the purposes of the act, MCLA § 125.653 (Stat Ann 1969 Rev § 5.3013); that such commission may determine in what area of the city proper sanitary housing facilities for low income families should be erected, and may contract for the design and construction of any housing project or projects, MCLA § 125.657 (Stat Ann 1969 Rev § 5.3017); that the commission shall have complete control of the housing project or projects including construction, maintenance and operation as if the commission represented private owners, MCLA § 125.662 (Stat Ann 1969 Rev § 5.3022); and that the act, by its terms, is to be deemed full authority for the purpose provided therein, “any provision of the general laws of the state or of any charter to the contrary notwithstanding”, MCLA § 125.689 (Stat Ann 1969 Rev § 5.3049).

Defendants assert that the charter of the City of Flint does not expressly provide that contracts are to be approved by ordinance and cite Renshaw v. Coldwater Housing Commission (1969), 381 Mich 590. They argue that even if such provision were in the charter it would be inoperative. Renshaw, supra, held that a city’s zoning ordinance is subordinate to the powers of its housing commission as those powers are defined and declared by the housing and slum clearance act and that, therefore, a housing commission is deemed to have “full” authority to carry into effect the purposes of the act notwithstanding that the action of such commission may violate the provisions of a city charter or ordinance or the general laws of the state. The Court, in Renshaw, did not, however, speak to the issue under consideration in the case at hand, i.e., whether the city commission action (resolution versus ordinance) is subject to referendum.

The zoning ordinance of the City of Flint, No 2046, provides that the lot area of property, such as that involved in this case, zoned as an A-2 single-family medium density district, shall contain a minimum of 5,000 square feet per dwelling unit, a minimum front yard of 25 feet, a minimum side yard of 5 to 6 feet, and a minimum rear yard of 25 to 30 feet. The contract of sale executed between Cruse-Loren Corporation and the City of Flint Housing Commission and approved by the Flint City Commission provides that completed improvements “shall be in accordance with [a schedule set forth in] exhibit ‘A’; in accordance with all state and local laws, codes, ordinances, and regulations applicable to the City of Flint, Michigan”. A study of the proposed plat of the 183 lots encompassing the proposed Branchwood East housing project reveals that not all of the lots in question contain at least the minimum lot area specified in the ordinance and, in several instances, the proposed front and rear yard areas likewise do not meet the minimum requirements of the ordinance.

While the housing and slum clearance act, as interpreted in Renshaw, allows a city to violate the provisions of its own zoning ordinance, we rule that, in a ease such as the present, where the contract in question was let to defendant construction corporation without the aid of competitive bidding procedures at a total project cost of $3,556,812, and where it is clear that the impact and permanent influence of such action upon the community will be substantial, the city’s zoning ordinance may not be superseded except by an ordinance which necessarily is subject to a referendum.

We are constrained to follow the decision of this Court in Parr v. Lansing City Clerk (1968), 9 Mich App 719. In that case Judge McGregor stated in part as follows at pp 722, 723:

“Nomenclature in the legislative field is in somé ways analogous to naming a new-born child. In both areas the given name is important, but not determinative of much. A masculine name applied to the 7th daughter in a family will not change that lovely girl into the anticipated first son. Likewise, the fact that the city council of Lansing chose to label its action of May 8th a resolution is of little moment, if in fact, it was improperly designated.

“The city attorney argues that only ordinances are subject to referendums and for city action to be an ordinance, it must be adopted in the manner prescribed in section 6.3 of the Lansing city charter. That section requires, among other things, that each ordinance begin with the phrase, ‘The city of Lansing ordains * * * ’. While this argument has some appeal, the city council of Lansing is not free to insulate its actions by mislabelling such actions.

“As pointed out in 5 McQuillin, Municipal Corporations, § 15.02 at p 51, the difference between municipal ordinances and resolutions is in what the actions do, rather than in the manner in which they are passed. Besolutions are for implementing ministerial functions of government for short-term purposes. Ordinances are for establishing more permanent influences on the community itself. Kalamazoo Municipal Utilities Association v. City of Kalamazoo (1956), 345 Mich 318, 328. By no stretch of logic can we find that a large-scale rezoning of property for the purpose of providing for public or quasi-public housing and involving the building of multimillion dollar housing complexes, largely with federal grants, is only a ministerial function of government.

“Normally, when faced with the fact of a resolution passed by a city government in an area where an ordinance is required, this Court would respond by declaring the resolution void. 5 McQuillin, Municipal Corporations, § 16.10 at pp 173-177. In this case, however, we believe the better procedure is that followed by the trial court in allowing the resolution to stand as an ordinance, thus subject to the referendum procedures.” (Emphasis supplied.)

Pursuant to Parr, supra, we determine the resolution of the Flint City Commission to be, in reality, an ordinance which, pursuant to §§ 158 and 159 of the city charter, is subject to referendum.

Reversed and remanded for further proceedings not inconsistent with this opinion. No costs, a public question being involved.

Bronson, J., concurred.

2 Petitions with 5995 signatures were filed pursuant to PA 1933, No 18 § 3, as amended (MCLA § 125.653; Stat Ann 1969 Rev § 5.3013), and §§ 158, 159 of the charter of the City of Flint.