BRANDON CHARTER TP. v. Tippett

• Decision Date: 06 September 2000
• Docket Number: Docket No. 208705.
• Parties: BRANDON CHARTER TOWNSHIP, Plaintiff-Appellee, v. David TIPPETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

616 N.W.2d 243

241 Mich. App. 417

BRANDON CHARTER TOWNSHIP, Plaintiff-Appellee, v. David TIPPETT, Defendant-Appellant.

Docket No. 208705.

Court of Appeals of Michigan.

Submitted April 3, 2000, at Detroit.

Decided June 13, 2000, at 9:00 a.m.

Released for Publication September 6, 2000.

Campbell, Keenan, Cooney, Karlstrom & Steckling, LLP (by Stuart B. Cooney), Clarkston, for the plaintiff.

Steven P. Iamarino, Grand Blanc, for the defendant.

Before HOOD, P.J., and GAGE and WHITBECK, JJ.

WHITBECK, J.

Defendant David Tippett appeals as of right from an order denying his motion for summary disposition and granting summary disposition in favor of plaintiff Brandon Charter Township pursuant to MCR 2.116(I)(2). We reverse.

I. Basic Facts And Procedural History

Tippett owns ten acres of land, zoned as Rural Estate (RE) District, in Brandon Township. He parked and stored various pieces of heavy equipment on his property, including a backhoe, excavator, bulldozer, semi-tractor, and dump truck and trailer. Tippett, who occasionally used the equipment to maintain his private road in Brandon Township and to run a part-time excavating business, did not store the equipment in a building or other structure on the property and did not engage in farming activities in Brandon Township. More importantly, Tippett also used the equipment in "bona fide farming operations" in Marlette, Michigan, which is not in Brandon Township.

On November 29, 1995, Brandon Township filed its complaint requesting injunctive relief. Brandon Township alleged that, by storing farming equipment on his property, Tippett had violated subsection 8.03 of the local zoning ordinance, which states in pertinent part:

The following uses may be permitted subject to the conditions hereinafter imposed and subject further to the review and approval of the Planning Commission, and subject to the standards set forth in Section 5.18 of this Ordinance.

* * *

10. Parking and storing of commercial trailers, trucks and or equipment with a rated capacity exceeding 10,000 pound G.V.W. subject to the following conditions:

A. Minimum acreage required shall be 10 acres.

B. Not more than 3 vehicles or vehicles and mobile equipment in combination shall be parked or stored on the property.

C. All vehicles and equipment shall be parked or stored in completely enclosed building(s).

The restrictions in item 10 of this section do not apply to vehicles and equipment that are used on a bona fide farm and in farming operations as defined by article III of this ordinance. [Emphasis supplied.]

The township also alleged that Tippett, who continued to refuse to remove the equipment, had not applied for special use approval to maintain the equipment on his property.

Subsequently, in addition to agreeing to the facts outlined above, the parties stipulated that (1) the zoning ordinance was enacted in 1989, four years before Tippett built and occupied his house, (2) the zoning ordinance was in force at all relevant times and applied to Tippett's property, and (3)

[o]n or about January 10, 1996, Defendant provided the Plaintiff with sixty photographs, taken at or about that time, depicting commercial equipment located on private residential property. Of the sixty (60) photographs, eleven (11) represented situations which violated the Brandon Township zoning ordinance Rural Estate (RE) provisions, but had not, previous to that date, been enforced by the Township.

Tippett moved for summary disposition pursuant to MCR 2.116(C)(10). Relying on the stipulated facts, Tippett argued that the zoning ordinance did not prohibit him from storing the equipment on his property because the zoning ordinance had an exception for equipment used for bona fide farming. Tippett also argued that Brandon Township selectively enforced the zoning ordinance and, therefore, denied him equal protection. Brandon Township countered that exception for equipment used in bona fide farming operations only applied to such an operation within the township. Further, Brandon Township contended, it had not avoided enforcing the zoning ordinance to the extent that enforcing it against Tippett denied him equal protection.

The trial court rejected Tippett's argument that by using the equipment for a bona fide farming operation outside Brandon Township he could qualify for a zoning exception within the township. The trial court reasoned that

the zoning ordinances don't extend the authority of the Township to govern other regions. Therefore, it appears that although the zoning ordinance in question really didn't specifically state that the exception as applied to farming equipment was limited to farming activities in the Township, to allow the lack of specificity to mean that any activity anywhere allows one to store commercial vehicles on their property is ... ridiculous.

This ... construction would be inappropriate in light of the fact that the Township really can't regulate activities outside of its jurisdiction.

So the Defendant's contention that the lack of specificity should be construed in favor of the property owner would be to give an absurd affect [sic] to the statute.

The trial court also commented that, even though Tippett had provided photographic evidence of other zoning violations in the township, he had failed to show that they were "identical" to his alleged violation. He also failed to present evidence that Brandon Township had not "ticketed" the property owners who had committed these other zoning violations. As a result, the trial court ruled, Tippett failed to show that he was treated unequally. The trial court's resulting order enjoined Tippett from parking commercial vehicles on his property without a permit.

II. Brandon Charter Township's Zoning Ordinance

A. Standard Of Review

Tippett presents the same arguments on appeal regarding the meaning of, and his exemption from, subsection 8.03.10 of Brandon Township's zoning ordinance. Because he asks us to interpret this zoning ordinance, he presents us with a question of law subject to review de novo.¹ Burt Twp. v. Dep't of Natural Resources, 459 Mich. 659, 662, 593 N.W.2d 534 (1999).

B. Interpretation

We interpret ordinances in the same manner that we interpret statutes. Ahearn v. Bloomfield Charter Twp., 235 Mich.App. 486, 498, 597 N.W.2d 858 (1999). If the language is clear and unambiguous, the courts may only apply the language as written. Id. However, if reasonable minds could differ regarding the meaning of the ordinance, the courts may construe the ordinance. See generally Adrian School Dist. v. Michigan Public School Employees Retirement System, 458 Mich. 326, 332, 582 N.W.2d 767 (1998). We follow these rules of construction in order to give effect to the legislative body's intent. Ballman v. Borges, 226 Mich.App. 166, 167, 572 N.W.2d 47 (1997).

C. Plain Language

In most cases, whether a property owner would be exempt from the requirements in subsection 8.03.10 of the zoning ordinance would rely on proof that the property owner used the disputed equipment or vehicles on a "bona fide farm and in farming operations." However, those terms are not at issue in this case because the parties agreed that the equipment on Tippett's Brandon Township property generally fell within this exception. The narrow issue on appeal, then, is whether using the equipment in this manner in Marlette—but not in Brandon Township—exempts Tippett from complying with subsection 8.03.10 of Brandon Township's zoning ordinance.

There is no question that subsection 8.03.10 of Brandon Township's zoning ordinance regulates, as a whole, on the basis of many factors. Those factors included the size of the property at issue, the nature of the equipment or vehicles stored on the property, the number of vehicles or pieces of equipment, how the equipment and vehicles are used, and where the vehicles and equipment are stored on the property, i.e., in an enclosed structure. However, none of these factors, including the exception for equipment and vehicles used on a bona fide farm, explicitly or implicitly mentions a geographic location where the equipment is used. Brandon Township's argument relies wholly on having this Court add three words to the exception in subsection 8.03.10, so that it would read:

The restrictions in item 10 of this section do not apply to vehicles and equipment that are used on a bone fide farm and in farming operations in Brandon Township as defined by article III of this ordinance.

This, however, is beyond our authority because courts may not legislate. See generally Morgan v. Taylor, 434 Mich. 180, 192, 451 N.W.2d 852 (1990), quoting Melia v. Employment Security Comm., 346 Mich. 544, 561-562, 78 N.W.2d 273 (1956).

Subsection 8.03.10 of the zoning ordinance, as written by the proper authority, is unambiguous and must be applied as written. Ahearn, supra at 498, 597 N.W.2d 858. That Brandon Township, when drafting the zoning ordinance, may have omitted what it now considers to be critical language limiting the exception to farming within the township is certainly not Tippett's fault and should not be construed in a manner that prejudices him.

D. Absurd Results

Brandon Township nevertheless argues that Tippett's interpretation is inconsistent with the purpose for enacting the zoning ordinance, which it contends is to protect farming within the township. Courts attempt not to interpret statutes, and by implication ordinances, in a manner that leads to absurd results. See Rowell v. Security Steel Processing Co., 445 Mich. 347, 354, 518 N.W.2d 409 (1994); Ahearn, supra at 498, 597 N.W.2d 858. However, we disagree that applying the plain language in this case leads to an absurd result.

Subsection 8.01 of the zoning ordinance explains the goals of zoning in this particular type of district:

1. Land containing agricultural value should be preserved because it is a vital resource.

2. Land with agricultural value justifies a design technique which attempts

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