Bevan v. Township of Brandon

• Decision Date: 05 June 1989
• Docket Number: Docket No. 103711
• Citation: 440 N.W.2d 31,176 Mich.App. 452
• Parties: William BEVAN and Wava Bevan, Plaintiffs-Appellees, v. TOWNSHIP OF BRANDON, a municipal corporation, and Township of Brandon Board of Appeals, Defendants-Appellants. 176 Mich.App. 452, 440 N.W.2d 31
• Court: Court of Appeal of Michigan — District of US

Page 31

440 N.W.2d 31

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

of Brandon Board of Appeals,

Defendants-Appellants.

Docket No. 103711.

176 Mich.App. 452, 440 N.W.2d 31

Court of Appeals of Michigan.

Submitted Dec. 13, 1988.

Decided April 17, 1989.

Released for Publication June 5, 1989.

[176 MICHAPP 454] Thomas J. Ryan, P.C. by Thomas J. Ryan, Pontiac, for plaintiffs-appellees.

Campbell, Keenan & Harry by Richard A. Campbell, Clarkston, for defendants-appellants.

Before SHEPHERD, P.J., and MURPHY and GILLESPIE, ^* JJ.

MURPHY, Judge.

Defendants appeal as of right from a circuit court judgment in plaintiffs' favor permanently enjoining defendants from applying the township's private road ordinance relative to [176 MICHAPP 455] plaintiffs' property and awarding plaintiffs $5,300 in attorney fees. We affirm.

The lower court decided this matter on the following stipulated facts:

"Plaintiffs purchased this lakefront property in two parcels by separate land contracts on September 20, 1954, and June 11, 1964 and took title in 1964 and 1970. Thereafter, Wava Bevan, formerly Wava Warner, transferred title to herself and William Bevan, her husband.

"Deeds creating the above transfers reserve an easement 20 feet wide from the nearest public highway to the parcel, and such deeds predate the Zoning Ordinance and Private Road Ordinance, hereafter discussed.

"The property does not have frontage on any public roadway. The only access is the easement.

"In 1974, Brandon Township adopted its Zoning Ordinance. A copy of the relevant section of that ordinance (Section 5.07 Required Street Frontage ) is attached hereto and incorporated herein. Other than those street frontage requirements, the parcel, as divided meets the Zoning Ordinance requirements for two (2) buildable sites.

"In 1977, Brandon Township adopted a Private Road Ordinance. That ordinance is Brandon Township Ordinance No. 42, a copy of that ordinance is attached hereto and incorporated herein.

"At the time that Wava Bevan purchased the parcel, her predecessor in interest had already divided the parcel, which parcel is approximately six (6) acres, into two (2) tax descriptions.

"The easement that exists for the purpose of serving the parcel does not meet the minimum private road requirement as set forth in Article VII, Section 7.1 of the Brandon Township Private Road Ordinance. (See attached) The Bevans, seeking to obtain two (2) building permits on their parcel, one (1) for each of the tax descriptions, applied to the Township Board of Zoning Appeals for a variance with regard to the road width (from [176 MICHAPP 456] the required 66' to 20', the amount they owned) so as to permit them to build a private road on the parcel, which private road would then entitle them to two (2) building permits. Section 2.5 of the Brandon Township Private Road Ordinance requires a private road when the roadway is going to service more than one (1) residence. The variance would not be necessary if the Bevan's [sic] sought to build only one house because the Bevans would be entitled to one permit, and could obtain that at any time.

"The Brandon Township Zoning Board of Appeals denied the request for a variance with regard to the width requirement. As a result of that denial this Complaint was filed. The first two (2) Counts of the Complaint deal with the appeal, and a request for delayed appeal from the action of the Zoning Board of Appeals. The next three Counts of the Complaint deal with 'Violation of Constitutional Rights', 'Civil Rights Act' and 'Declaratory Judgment: Township of Brandon's Private Road Ordinance as Unconstitutional'.

"Since the Board of Appeals action, the Bevans have tried unsuccessfully to sell the property to the Department of Natural Resources.

"The access easement is unimproved and there has been no construction on the building sites. (See Minutes of Board of Appeals, attached to Plaintiff's Complaint and accepted by Defendant.)

"Bevans' out of pocket damages to date are Five Thousand One Hundred Twenty Five ($5,125.00) Dollars attorney fees, costs of One Hundred Seventy ($170.00) Dollars for expert witness fees, Fifty ($50.00) Dollars court costs, and Sixteen ($16.00) Dollars subpoena fees for a total of Five Thousand Three Hundred Sixty One ($5,361.00) Dollars."

After brief oral argument by counsel, the court took the matter under advisement and thereafter issued an opinion which concluded that the enactment and enforcement of the ordinance relative to plaintiffs' property constituted a temporary, regulatory[176 MICHAPP 457] taking of property without compensation, and that it was confiscatory. The court also noted that plaintiffs were not seeking any compensation for the temporary taking of their property. However, the parties stipulated to reasonable attorney fees, if awarded, as being $5,300. The court then awarded plaintiffs their attorney fees as a proper incident to a 42 U.S.C. Sec. 1983 claim and under Michigan's Uniform Condemnation Procedures Act, M.C.L. Sec. 213.66(2); M.S.A. Sec. 8.265(16)(2).

Defendants first contend that the trial court erred in granting relief under a federal statute when plaintiffs failed to exhaust all of their state remedies. We disagree.

The township zoning board of appeals rendered its decision on August 28, 1985, denying plaintiffs' request for a variance. A decision by a board of appeals is final. M.C.L. Sec. 125.293a; M.S.A. Sec. 5.2963(23a). Moreover, that statute provides that a person having an interest affected by the zoning ordinance may appeal to the circuit court. Therefore, while plaintiffs could have immediately appealed to the circuit court, they were not required to do so as a condition to filing their several-count complaint. We also note that plaintiffs never had to seek a variance in order to challenge the zoning ordinance. Plaintiffs' taking challenge is separate and distinct from their seeking of a variance. A variance is simply an authorization to a property owner to depart from the literal requirement of zoning regulations in utilization of his property in cases in which strict enforcement of the zoning regulations would cause undue hardship. See, e.g., National Boatland, Inc. v. Farmington Hills Zoning Bd. of Appeals, 146 Mich.App. 380, 380 N.W.2d 472 (1985).

Defendants also argue that plaintiffs should not be allowed to maintain a federal claim under 42 [176 MICHAPP 458] U.S.C. Sec. 1983 when they have an available remedy in a state court. However, a Sec. 1983 claim may be brought in a state court. See Maine v. Thiboutot, 448 U.S. 1, 10-11, 100 S.Ct. 2502, 2507-2508, 65 L.Ed.2d 555 (1980). In addition, in McNeese v. Bd. of Ed. for School Dist. 187, Cahokia, Illinois, 373 U.S. 668, 671, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963), the United States Supreme Court found that a person need not first seek a remedy under state law before bringing a claim under Sec. 1983. The Court, quoting Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), stated:

" 'It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.' "

In this case, plaintiffs brought a claim for inverse condemnation under both U.S. Const., Ams. V and XIV, and Const. 1963, art. 1, Sec. 17, and art. 10, Sec. 2, as a basis of their Sec. 1983 claim. They were not precluded from bringing a claim under 42 U.S.C. Sec. 1983 though they did not first exhaust all possible state remedies.

Defendants next contend that plaintiffs' property was not "taken" by the regulation because they were not deprived of all reasonable use of the property considered as a whole. Defendants contend that plaintiffs can still build one residence on their property. We note that resolution of this issue requires a more in-depth analysis than the previous issues.

U.S. Const., Am. V, provides that private property shall not be taken for public use without just compensation. Const. 1963, art. 10, Sec. 2, provides:

"Private property shall not be taken for public [176 MICHAPP 459] use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record."

It is an established doctrine that, while property can be regulated to some extent, if a regulation goes too far it will be recognized as a taking. First English Evangelical Lutheran Church of Glendale v. Co. of Los Angeles, California, 482 U.S. 304, 316-317, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250, 264-265 (1987). Moreover, where the government elects to discontinue regulations, compensation for the "temporary" taking is payable. Id., at 318-319, 107 S.Ct. at 2387-2389, 96 L.Ed.2d at 266-268. Michigan also recognizes that the application of zoning law to a particular property can constitute a taking. Poirier v. Grand Blanc Twp., 167 Mich.App. 770, 773, 423 N.W.2d 351 (1988). In addition, our Supreme Court in Smith v. Village of Wood Creek Farms, 371 Mich. 127, 128, 123 N.W.2d 210 (1963), reiterated the proposition that a zoning ordinance that renders property almost worthless is unreasonable and confiscatory and, therefore, illegal.

The United States Supreme Court has stated that the application of a zoning ordinance to a particular property is a taking if it does not substantially advance a legitimate state interest and if it denies the owner economically viable use of his land. Nollan v. California Coastal Comm., 483 U.S. 825, 825, 107 S.Ct. 3141, 3146, 97 L.Ed.2d 677, 687 (1987); Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980).

This Court in Bierman v. Taymouth Twp., 147 Mich.App. 499, 503-504, 383 N.W.2d 235 (1985), lv. den. 425 Mich. 869 (1986), in citing the leading case authority in Michigan relative to...