Bevan v. Brandon Tp.

• Citation: 475 N.W.2d 37,438 Mich. 385
• Decision Date: 15 October 1991
• Docket Number: Docket No. 86358
• Parties: William BEVAN and Wava Bevan, Plaintiffs-Appellees, v. BRANDON TOWNSHIP, a municipal corporation, and Township of Brandon Board of Appeals, Defendants-Appellants. 438 Mich. 385, 475 N.W.2d 37
• Court: Supreme Court of Michigan

Page 37

475 N.W.2d 37

William BEVAN and Wava Bevan, Plaintiffs-Appellees, v. BRANDON TOWNSHIP, a municipal corporation, and Township of

Brandon Board of Appeals, Defendants-Appellants.

Docket No. 86358.

438 Mich. 385, 475 N.W.2d 37

Supreme Court of Michigan.

Argued March 6, 1991.

Decided Sept. 9, 1991.

As Amended Oct. 15, 1991.

[438 MICH 386] Thomas J. Ryan, P.C., Sylvan Lake, for plaintiffs-appellees.

Campbell, Keenan, Harry & Cooney by Richard Campbell, Stuart B. Cooney, Clarkston, for defendant-appellant Brandon Tp.

Kohl, Secrest, Wardle, Lynch, Clark and Hampton by [438 MICH 387] Gerald A. Fisher, Farmington Hills, amicus curiae.

Bauckham, Sparks, Rolfe & Thomsen, P.C. by John H. Bauckham, Lynda E. Thomsen, Kalamazoo, amicus curiae Michigan Townships Assn.

OPINION

ROBERT P. GRIFFIN, Judge.

We must decide whether enforcement of a township ordinance which restricts the use of plaintiffs' land amounts in this case to an unconstitutional "taking" without just compensation. Plaintiffs own approximately six acres of undeveloped land which does not front on a public road. Their predecessor in title had divided the parcel into two contiguous lots, each with its own tax description, and the lots were sold separately to plaintiffs. The only access to plaintiffs' property is an easement 20 feet wide and 290 feet long across a neighbor's land. Under township land-use ordinances adopted after plaintiffs acquired title, the land is zoned for single family homes, and one house may be built on the property. Plaintiffs are restricted from building two or more houses on the property unless access is made available over a road with a right of way width of at least sixty-six feet.

Because the access regulation in question serves a legitimate governmental interest and does not deny the owners economically viable use of their land, we conclude that enforcement does not effect an unconstitutional taking of plaintiffs' property. Accordingly, we reverse the decision of the Court of Appeals.

I

In the circuit court, the parties waived a trial and submitted the case for decision upon stipulated facts. A copy of the statement of stipulated facts, which was signed by the parties and accepted by the circuit judge, is appended to this opinion.

It is undisputed that the easement providing the only access to plaintiffs' property does not meet the minimum width requirement of the township ordinance applicable to a private road which serves two or more homes. ¹ After their application for permits to build two houses on the property was rejected, plaintiffs sought a variance, or waiver of the requirement; however, it was denied on August 28, 1985, by the board of zoning appeals. Thereafter, in December 1986, plaintiffs commenced this lawsuit and complained that, as applied, the township's zoning scheme, and particularly the private road ordinance, denied them use of one lot in violation of the Fifth and Fourteenth Amendments of the United States Constitution as well as art. 1, Sec. 17 and art. 10, Sec. 2 of the Michigan Constitution. Plaintiffs sought relief under 42 U.S.C. Sec. 1983, and they asked for a declaratory judgment holding the road ordinance unconstitutional.

In a brief written opinion, the circuit judge ruled that application of the road ordinance to plaintiffs' property "constitutes a regulatory taking and is confiscatory." After pointing out that plaintiffs had sought no compensation for a temporary taking, the court enjoined enforcement of the ordinance and awarded plaintiffs an attorney fee of $5,300. ²

On appeal to the Court of Appeals, the decision of the lower court was affirmed. 176 Mich.App. 452, 440 N.W.2d 31 (1989). Reasoning that plaintiffs' property is "unquestionably two separate parcels," and that plaintiffs' easement "would be wide enough to accommodate emergency equipment," the panel concluded that the road ordinance "as applied to [plaintiffs'] property precludes its use for any purpose to which it is reasonably adapted" and "constitutes a regulatory taking of one of plaintiffs' two parcels." Id. at 464-465, 440 N.W.2d 31.

Thereafter, we granted leave to appeal. 436 Mich. 881, 463 N.W.2d 710 (1990).

II

Both the Fifth Amendment of the United States Constitution ³ and art. 10, Sec. 2 of the Michigan Constitution ⁴ prohibit governmental taking of private property without just compensation. In Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960), the United States Supreme Court stated that, the

"Fifth Amendment's guarantee ... [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

As this Court has explained, speaking through Chief Justice Riley in Electro-Tech, Inc. v. H.F. Campbell Co., 433 Mich. 57, 68, 445 N.W.2d 61 (1989),

"a taking may occur where a governmental entity exercises its power of eminent domain through formal condemnation proceedings, see, e.g. Berman v Parker, 348 US 26; 75 S Ct 98; 99 L Ed 27 (1954) (Fifth Amendment taking), or where a governmental entity exercises its police power through regulation which restricts the use of property, see Pennsylvania Coal Co v Mahon, 260 US 393, 415; 43 S Ct 158 ; 67 L Ed 322 (1922) (this claim may be framed as a Fifth Amendment taking or as a Fourteenth Amendment 'due process' type taking)."

Zoning laws are a classic example of regulation that may amount to a "taking," if application "goes too far" in impairing a property owner's use of his land. Pennsylvania Coal Co., supra at 415, 43 S.Ct. at 160. Generally speaking, however, zoning regulation has been upheld where it promotes the health, safety, morals, or general welfare even though the regulation may adversely affect recognized property interests. ⁵ As the United States Supreme Court has explained, "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." Id. at 413, 43 S.Ct. at 159.

The Supreme Court has declared that "land-use regulation does not effect a taking if it " 'substantially advance[s] legitimate state interests' and does not 'den[y] an owner economically viable use of his land.' " " Nollan v. California Coastal Comm., 483 U.S. 825, 834-835, 107 S.Ct. 3141, 3147, 97 L.Ed.2d 677 (1987), citing Agins v. Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). Although the Supreme Court has provided little guidance regarding what it considers a legitimate state interest and the type of connection required between that interest and the regulation, Nollan, supra 483 U.S. at 834, 107 S.Ct. at 3147, it has made clear that the question whether a regulation denies the owner economically viable use of his land requires at least a comparison of the value removed with the value that remains. Keystone Bituminous Coal Ass'n. v. DeBenedictis, 480 U.S. 470, 497, 107 S.Ct. 1232, 1248, 94 L.Ed.2d 472 (1987).

As previously noted, a taking claim may be framed as a violation of the Just Compensation Clause of the Fifth Amendment or the Due Process Clause of the Fourteenth Amendment. Algernatively, as Justice Brickley, dissenting, explained in Electro-Tech, supra 433 Mich. at 94, 445 N.W.2d 61, a claim may be based on a denial of substantive due process where a plaintiff is deprived of property rights "by irrational or arbitrary governmental action." ⁶

We note, preliminarily, that this case was not presented and argued in the courts below as a substantive due process claim; ⁷ the rulings of the courts below focus only on plaintiffs' claim of a regulatory taking. In any event, we note the absence of record evidence to support a contention that enactment or enforcement of the ordinance in this case was a "deliberate and arbitrary abuse of power" aimed at these particular plaintiffs. Consequently, our review focuses on the question whether the lower courts erred in ruling that application of the challenged ordinance amounted to a "taking" without just compensation of plaintiffs' property. ⁸

However, before reaching that question, we must consider a subissue: whether for purposes of a "taking" analysis the property of plaintiffs is to be viewed as a whole, or as two separate lots.

III

Noting that the two lots were purchased at different times and that each lot carried its own tax identification number, the Court of Appeals viewed the property as "unquestionably two separate parcels." 176 Mich.App. at 464, 440 N.W.2d 31. The panel reasoned that one of the two lots had been "taken," since plaintiffs were permitted to build only one house on their land.

As a general rule, a person's property should be considered as a whole when deciding whether a regulatory taking has occurred. 1 Rathkopf, Zoning and Planning, Sec. 6.07(5), p. 6-45.

Since for purposes of a taking analysis it is necessary to compare the value "taken" with the value that remains, "one of the critical questions is determining how to define the unit of property 'whose value is to furnish the denominator of the fraction.' " Keystone, supra 480 U.S. at 497, 107 S.Ct. at 1248.

Specification of the appropriate unit of property under consideration was at the heart of two significant United States Supreme Court decisions dealing with the issue of regulatory taking. Keystone, supra; and Penn Central Trans. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Contrary to the position taken in this case by the Court of Appeals, the Supreme Court has declined to view an owner's property as divisible for purposes of a "taking" analysis. In Penn Central, owners of the New York City's Grand Central Terminal challenged application of the city's Landmarks Preservation Law which prevented them from constructing a multistory office building atop an existing structure. Rejecting the owners' argument that the law deprived them of any gainful use of the airspace above the...