Avon Tp. v. Michigan State Boundary Commission

• Decision Date: 21 April 1980
• Docket Number: Docket No. 78-4249
• Parties: TOWNSHIP OF AVON, a Municipal Corporation in Oakland County, Michigan; Thelma G. Spencer, Alice Serrell, Joseph T. Frank and H. Katherine Frank, Plaintiffs- Appellants, v. MICHIGAN STATE BOUNDARY COMMISSION, Defendant-Appellee, and City of Rochester, Intervening Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 691

293 N.W.2d 691

96 Mich.App. 736

TOWNSHIP OF AVON, a Municipal Corporation in Oakland County Michigan; Thelma G. Spencer, Alice Serrell, Joseph T. Frank and H. Katherine Frank Plaintiffs- Appellants, v. MICHIGAN STATE BOUNDARY COMMISSION, Defendant-Appellee and City of Rochester, Intervening Defendant-Appellee.

Docket No. 78-4249.

Court of Appeals of Michigan.

April 21, 1980.

Released for Publication July 11, 1980.

Lawrence R. Ternan, Bloomfield Hills, for plaintiffs-appellants.

Christopher J. Dembowski, Asst. Atty. Gen., Lansing, for Mich. Boundary Comm.

Arthur R. Cox, Rochester, Louis C. Andrews, Jr., Ann Arbor, for City of Rochester.

R. B. BURNS, P. J., and HOLBROOK and GLENNIE, ^* JJ.

GLENNIE, Judge.

Plaintiff Township of Avon appeals as of right the decision of the trial court affirming the Michigan State Boundary Commission's approval of the City of Rochester's petition for annexation of approximately 22 square miles of Avon Township, located in Oakland County.

On May 2, 1974, the city filed a petition for annexation, requesting that part of Avon Township be annexed to the City of Rochester, which is a home rule city.

On October 16, 1974, the Boundary Commission declared the petition legally sufficient and held that it had jurisdiction to proceed over the objections of Avon Township. The township claimed the petition before the Boundary Commission should be dismissed because it was in violation of § 9(6) of the Home Rule Cities Act, 1909 P.A. 279; M.C.L. § 117.1 et seq. ; M.S.A. § 5.2071 et seq., in that it was filed within two years of consideration of and decision on a previous annexation petition involving exactly the same area.

A public hearing was set for December 3, 1974, to consider the merits of the city's petition. Prior to such hearing plaintiffs filed a complaint with the Ingham County Circuit Court seeking to reverse the decision of the Boundary Commission, and subsequently the parties stipulated that such litigation be held in abeyance until the Boundary Commission entered its final order with respect to the city's petition for annexation and that any annexation ordered by the commission would not be effective until ordered by the circuit court.

The Boundary Commission issued its summary of proceedings, findings of fact, and order on January 27, 1976. Such order approved the petition and ordered the annexation. Over the objection of plaintiffs, the trial court ordered that the matter be held in abeyance pending resolution of Midland Twp. v. State Boundary Comm., which was then pending before the Michigan Supreme Court. Midland Twp. v. State Boundary Comm., 401 Mich. 641, 259 N.W.2d 326 (1977).

On March 20, 1978, defendant city moved for summary judgment under GCR 1963, 117.2(1) and (3) and plaintiffs sought summary judgment on June 1, 1978, under GCR 1963, 117.2(3).

On June 7, 1978, the Avon Township Board adopted a resolution of intent to incorporate pursuant to M.C.L. § 42.3a; M.S.A. § 5.46(3a), and was formally incorporated as a charter township on August 24, 1978. Prior to final incorporation, plaintiffs again moved to dismiss the annexation proceedings, claiming exemption as a charter township under 1978 P.A. 242.

In an opinion rendered September 11, 1978, the trial court affirmed the action of the Boundary Commission and dismissed plaintiffs' complaint by order dated September 21, 1978. Plaintiffs filed a claim of appeal on October 11, 1978.

An amended order of the trial court, signed and filed November 29, 1978, made the annexation effective at midnight, November 28-29, 1978. This Court stayed the annexation pending appeal by order dated December 5, 1978.

The township and the individual plaintiffs contend that the annexation ordered by the Boundary Commission should not take effect because 1978 P.A. 242; M.C.L. § 42.34; M.S.A. § 5.46(34), amending § 34 of the charter township act, 1947 P.A. 359; M.C.L. § 42.1 et seq. ; M.S.A. § 5.46(1) et seq., is procedural in nature and should be retroactively applied to annexations finalized before the June 15, 1978, effective date of that Act.

Plaintiffs additionally contend that the January 26, 1976, Boundary Commission order approving the annexation of Avon Township to the City of Rochester should be dismissed for two reasons: (1) The subject annexation was a "pending" annexation matter as defined by § 2 of the amendatory statute, thereby exempting Avon Township from annexation; and (2) Avon Township was a township with "statutory proceedings pending to become a charter township on the effective date of (the) act", as defined by § 2 of the amendatory statute, thereby exempting Avon Township from annexation.

The amendatory statute (1978 P.A. 242) to the Charter Township Act, provided that charter townships were exempted from annexation as follows:

"Sec. 34. (1) Any charter township existing on the effective date of this act and any township thereafter incorporated as a charter township that complies with the following standards, shall be exempt from annexation to any contiguous city except as provided in subsections (2), (3), (4), (5), (6), (7), and (8):

"(a) Has a state equalized valuation of not less than $25,000,000.

"(b) Has a minimum population density of 150 persons per square mile to be determined by the secretary of state by dividing the most recent regular or special census of population by the number of square miles then under the jurisdiction of the charter township not to include the population or territory within the jurisdiction of an incorporated village.

"(c) Provided fire protection service by contract or otherwise.

"(d) Is governed by a comprehensive zoning ordinance or master plan.

"(e) Provides solid waste disposal services to township residents, within or without the township, by contract, license or municipal ownership.

"(f) Provides water and or sewer services by contract or otherwise.

"(g) Provides police protection through contract with the sheriff in addition to normal sheriff patrol or through its own police department."

Plaintiffs contend that 1978 P.A. 242 became effective June 15, 1978, after the Boundary Commission order, but before the circuit court opinion affirming the annexation.

Section 2 of Act 242 provided:

"This Act shall take immediate effect and shall apply to all annexation matters pending before the Michigan state boundary commission which have not, as yet, been decided by said commission, and shall also apply to a township that has statutory proceedings pending to become a charter township on the effective date of this act." (Emphasis supplied.)

Section 2 of 1978 P.A. 242 was entirely eliminated by 1978 P.A. 591; M.C.L. § 42.34; M.S.A. § 5.46(34), effective January 4, 1979. Such subsequent amendment kept intact with only minor changes the substantive provisions quoted earlier in this opinion, however.

It is the rule of statutory construction that an amendment to a specific section of a previous statute strikes the former section from the law, obliterating it completely. Rookledge v. Garwood, 340 Mich. 444, 455, 65 N.W.2d 785 (1954). Once amended, the original section "ceases to exist" and is superseded as if the subsequent amendment had always been there. Ballog v. Knight Newspapers, Inc., 381 Mich. 527, 537-540, 164 N.W.2d 19 (1969).

In amending 1947 P.A. 359, § 34, twice in the same year the intent of the Legislature is clear and unambiguous. The Legislature intended a cut-off date of June 15, 1978, after which the annexation of property in a charter township by a contiguous city or village would be considerably limited.

The principle of statutory construction applicable where no ambiguity exists has been determined by the Supreme Court in City of Lansing v. Lansing Twp., 356 Mich. 641, 648-649, 97 N.W.2d 804, 808 (1959), as follows:

" 'The cardinal rule of statutory construction is to ascertain and give effect to the intention of the legislature. If the language of a statutory provision is unambiguous, the intent must be determined accordingly.' (citing Melia v. Employment Security Comm., 346 Mich. 544, 562, 78 N.W.2d 273 (1956).)

"A statute is not open to construction as a matter of course, but only where the language used in the statute requires interpretation where it is ambiguous or where 2 or more constructions can be placed upon it, where it is of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning. 'A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.' 50 Am.Jur., Statutes, § 225, p. 207.

"The express wording of the statute in this case does not fall within the above provisions so as to justify judicial interpretation. Certainly it is plain, unambiguous and not subject to different interpretations by 2 reasonable minds. It is clear, definite, and would be easily understood by even those not trained in the law. The language of this statute, therefore, leaves no room for judicial construction."

The language indicated above aptly describes the statutory language in the instant appeal.

Since § 2 of 1978 P.A. 242 does not apply to finalized Boundary Commission determinations, it is irrelevant whether Avon Township was a township with statutory in corporation proceedings pending at the effective date of the Act. Plaintiffs contend that the provision of § 2 of the Act relating to "pending" matters should be read to operate independently of the provision relating to pending charter townships. This would lead to the anomalous result, however, that inchoate charter townships would be exempted from the Act even though their annexation matters had been fully resolved, while existing charter townships with similarly finalized annexation matters would not be exempted from the Act.

Although the law is clearly stated with respect to whether a statute should...