Armstrong v. Ross Tp.

• Decision Date: 20 March 1978
• Docket Number: 31283,Docket Nos. 31282
• Citation: 266 N.W.2d 674,82 Mich.App. 77
• Parties: James ARMSTRONG and Kathleen Armstrong, Plaintiffs-Appellees, v. ROSS TOWNSHIP, a Municipal Corporation, Defendant-Appellant, and George W. Braymer, Jr., Township Planning Commission and Board of Appeals member, Howard Gilmer, Board of Appeals member, Jerry Harmon, Board of Appeals and Township Board member, Donald C. Slighly, Supervisor, Building Inspector, and Township Board member, Bette Shroyer, Mary Bowman, John F. Sponseller, Township Board members, Robert L. Sauers, Charles Walters, Robert F. Smith, Lois Schadewald and Vincent Flach, Township Planning Commission members, Defendants-Appellants. ROSS TOWNSHIP, a Municipal Corporation, Plaintiff-Appellant, v. James ARMSTRONG and Kathleen Armstrong, Defendants-Appellees, v. Donald C. SLIGHLY, Building Inspector, Supervisor, Township Board member and Township Planning Commission member, Jerry Harmon, Bette Shroyer, Mary Bowman, John F. Sponseller, Township Board members, George W. Braymer, Jr., Robert L. Sauers, Charles Walters, Robert F. Smith, Lois Schadewald, Vincent Flach, Township Planning Commission members, Defendants-Appellants. 82 Mich.App. 77, 266 N.W.2d 674
• Court: Court of Appeal of Michigan — District of US

Page 674

266 N.W.2d 674

James ARMSTRONG and Kathleen Armstrong, Plaintiffs-Appellees, v. ROSS TOWNSHIP, a Municipal Corporation,

Defendant-Appellant,

and

George W. Braymer, Jr., Township Planning Commission and

Board of Appeals member, Howard Gilmer, Board of Appeals

member, Jerry Harmon, Board of Appeals and Township Board

member, Donald C. Slighly, Supervisor, Building Inspector,

and Township Board member, Bette Shroyer, Mary Bowman, John

F. Sponseller, Township Board members, Robert L. Sauers,

Charles Walters, Robert F. Smith, Lois Schadewald and

Vincent Flach, Township Planning Commission members,

Defendants-Appellants.

ROSS TOWNSHIP, a Municipal Corporation, Plaintiff-Appellant, v. James ARMSTRONG and Kathleen Armstrong, Defendants-Appellees, v. Donald C. SLIGHLY, Building Inspector, Supervisor, Township

Board member and Township Planning Commission member, Jerry

Harmon, Bette Shroyer, Mary Bowman, John F. Sponseller,

Township Board members, George W. Braymer, Jr., Robert L.

Sauers, Charles Walters, Robert F. Smith, Lois Schadewald,

Vincent Flach, Township Planning Commission members,

Defendants-Appellants.

Docket Nos. 31282, 31283.

82 Mich.App. 77, 266 N.W.2d 674

Court of Appeals of Michigan.

March 20, 1978.

Released for Publication June 14, 1978.

[82 MICHAPP 80] Bauckham Reed, Lang & Schaefer by Richard D. Reed and Robert F. Travis, Kalamazoo, Early, Starbuck & Lennon by Vincent T. Early, Kalamazoo, for defendant-appellant.

H. v.d.B. Hatch, Marshal, for Armstrong.

Before J. H. GILLIS, P. J., and R. B. BURNS and ALLEN, JJ.

R. B. BURNS, Judge.

In these consolidated cases plaintiffs Armstrong (hereinafter plaintiffs) seek damages and other relief against defendants Ross Township, the township building inspector, and members of the township board, planning commission, and zoning board of appeals, alleging abuse of zoning power and violation of civil rights. Defendants' motions for summary judgment as to liability for damages were denied, except for Ross Township's alleged liability under 42 U.S.C. § 1983. We granted defendants' applications for leave to appeal, and affirm in part and reverse in part.

In case 31282 plaintiffs allege defendants conspired to harass them and destroy their business. They own a machine shop in Ross Township and applied to the building inspector for a building permit so that they could expand. They further allege that despite their entitlement to the permit it was wrongfully and in bad faith refused. Plaintiffs allege that they applied for a special use exception to the zoning board of appeals, which was biased and predisposed not to grant the exception, and denied the application for reasons not supported by the record, despite having given similar exceptions to other nearby machine shops. Plaintiffs allege that the planning commission met in secret session without notice to plaintiffs and recommended rezoning their property so as to block expansion of the shop and that the township [82 MICHAPP 81] board followed the allegedly unlawful recommendation and rezoned the property. The rezoning is alleged to be arbitrary, capricious, discriminatory, confiscatory, and unrelated to the health, safety, welfare or morals of the community.

In case 31283 plaintiffs Armstrong allege that they asked the building inspector whether a restaurant would be a permitted use on their land, and were advised that it would be. They allege that in reliance upon that representation they filled the property, constructed a fence, and submitted plans in application for a building permit at a cost of over $17,000. They further allege that notwithstanding plaintiffs' right to a permit, the building inspector stalled the permit while conspiring with the planning commission and township board to rezone the property so as to exclude the intended use and that the planning commission initiated rezoning without a formal petition, and the township board rezoned the property without complying with statutory procedural requirements. The rezoning is alleged to be arbitrary, capricious, discriminatory, and unrelated to the health, safety, welfare or morals of the community. As commercial property, its highest use, plaintiffs allege that the land is worth $50,000; as rezoned, only $10,000.

Defendants moved for summary judgment under GCR 1963, 117.2(3). The motion was based on the deposition of Mr. Armstrong, but no affidavits were submitted by defendants. This lack of affidavits is fatal to the motion even absent objection by plaintiffs at the trial court level. GCR 1963, 117.3, Creech v. Consumers Power Co., 59 Mich.App. 167, 170, 229 N.W.2d 358, 360 (1975). Consequently we do not reach the merits of the motions on appeal.

Defendants also moved for summary judgment [82 MICHAPP 82] for failure of plaintiffs to state a claim upon which relief can be granted. GCR 1963, 117.2(1). On review of such a motion we "accept as true all of plaintiff(s') factual allegations as well as any conclusions which can reasonably be drawn therefrom", Van Liere v. State Highway Department, 59 Mich.App. 133, 137, 229 N.W.2d 369, 371 (1975), and determine "whether plaintiff(s') claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery", Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 431, 202 N.W.2d 577, 580 (1972). Where immunity from suit is an issue the complaint must plead facts in avoidance of immunity. Dionne v. City of Trenton, 79 Mich.App. 239, 242, 261 N.W.2d 273, 275 (1977).

We turn initially to the alleged liability of Ross Township for damages for alleged abuse of zoning power by its officials. As a governmental agency engaged in the discharge of governmental functions the township is immune from tort liability by statute. M.C.L.A. § 691.1407; M.S.A. § 3.996(107). Although the sovereign immunity act provides several exceptions to the immunity doctrine, none apply here.

In Buckeye Union Fire Insurance Co. v. Michigan, 383 Mich. 630, 640-644, 178 N.W.2d 476, 482-483 (1970), the Supreme Court held that the Legislature's power to grant governmental agencies sovereign immunity is limited by the constitutional provision prohibiting the taking of private property for public use without compensation. Const.1963, art. 10, § 2. In Tamulion v. State Waterways Commission, 50 Mich.App. 60, 66-67, 212 N.W.2d 828, 831 (1973), this Court recognized that a compensatory obligation arises under the constitution,[82 MICHAPP 83] not in tort, for inverse condemnation, and that sovereign immunity does not insulate the state from liability thereon.

A township may not so restrictively zone property as to confiscate it. Property is not confiscated unless the ordinance "would preclude its use for any purpose to which it is reasonably adapted". Kirk v. Tyrone Twp., 398 Mich. 429, 444, 247 N.W.2d 848, 854-855 (1976); Kropf v. Sterling Heights, 391 Mich. 139, 163, 215 N.W.2d 179, 189 (1974). Mere disparity in value between uses, Brae Burn, Inc. v. Bloomfield Hills, 350 Mich. 425, 433, 86 N.W.2d 166, 170 (1957); Reibel v. Birmingham, 23 Mich.App. 732, 738, 179 N.W.2d 243, 246 (1970), or depreciation in value caused by rezoning, Lamb v. City of Monroe, 358 Mich. 136, 144, 99 N.W.2d 566, 570 (1959), will not justify a finding of confiscation.

Each of the complaints allege in conclusional terms confiscation, but in evaluating the complaint we ignore conclusions and look to the facts alleged. Binder v. Consumers Power Co., 77 Mich.App. 343, 346-347, 258 N.W.2d 221, 224 (1977). In each case we find plaintiffs have pled depreciation in value, not confiscation. In case 31283 plaintiffs indicate that the property has a working machine shop. In case 31282 plaintiffs admit the property has value as rezoned, albeit a substantial depreciation has occurred. Plaintiffs' loss suffered in reliance upon the building inspector's representation sounds in tort, not inverse condemnation. Since neither complaint alleges facts in avoidance of immunity, Ross Township's motion for summary judgment should have been granted.

We next turn to the alleged liability of the township officials for damages, first under state law, then under 42 U.S.C. § 1983.

Under state law government officials may be [82 MICHAPP 84] held liable for negligent performance of ministerial duties, but are immune from suit for injuries caused by discretionary acts within the scope of their authority, even if done maliciously. Sherbutte v. Marine City, 374 Mich. 48, 54, 130 N.W.2d 920, 923 (1964); Walkowski v. Macomb County Sheriff, 64 Mich.App. 460, 236 N.W.2d 516 (1975). The justification for immunity for discretionary acts is that the exercise of discretion should not be influenced by even the possibility of unsuccessful litigation against the official. Sherbutte v. Marine City, supra.

Since almost any act involves some discretion, the distinction between ministerial and discretionary acts is one of degree. Prosser, Torts (4th ed), § 132, p. 990. By discretionary is meant actions of a legislative, executive or judicial character. Sherbutte v. Marine City, supra, see Pawlowski...