Burt Tp. v. Department of Natural Resources

• Decision Date: 02 June 1999
• Docket Number: Docket No. 111334,No. 13,13
• Citation: 593 N.W.2d 534,459 Mich. 659
• Parties: TOWNSHIP OF BURT, Plaintiff-Appellee, v. STATE of Michigan, DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 534

593 N.W.2d 534

459 Mich. 659

TOWNSHIP OF BURT, Plaintiff-Appellee, v. STATE of Michigan, DEPARTMENT OF NATURAL RESOURCES Defendant-Appellant.

Docket No. 111334.

Calendar No. 13.

Supreme Court of Michigan.

Argued Jan. 22, 1999.

Decided June 2, 1999.

Secrest, Wardle, Lynch, Hampton, Truex & Morley (by Gerald A. Fisher and Thomas R. Schultz ), Farmington Hills, MI, and Lyon & Ingelson (by Jeffrey T. Lyon ), Cheboygan, MI, for plaintiff-appellee.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and James L. Stropkai and Stephen M. Rideout, Assistant Attorneys General, Lansing, MI, for defendant-appellant.

Kohler & Black, P.L.C. (by Ellen J. Kohler ), Traverse City, MI, amici curiae, for Michigan Environmental Council.

Olson, Noonan, Ursu & Ringsmuth, P.C. (by James M. Olson and Christopher M. Bzdok ), Traverse City, MI, amici curiae, for Burt Township Association.

Butzel, Long (by James Y. Stewart ), Birmingham, MI, amici curiae, for Michigan Boating Industries Association.

Miller, Canfield, Paddock & Stone, P.L.C. (by Larry J. Saylor ), Detroit, MI, amici curiae, for Huron-Clinton Metropolitan Authority.

David M. McCleary, Lansing, MI, amici curiae, for Michigan United Conservation Clubs, Federation of Fly Fishers, Anglers of the AuSable, and Michigan Recreation and Parks Association.

Bauckham, Sparks, Rolfe & Thomsen, P.C. (by John H. Bauckham ), Kalamazoo, MI, amici curiae, for Michigan Townships Association and Michigan Municipal League Legal Defense Fund.

Opinion

YOUNG, J.

We granted leave to appeal in this case to determine whether defendant, the Michigan Department of Natural Resources, is required to comply with plaintiff Burt Township's zoning ordinance in constructing a public-access boat launch on the shores of Burt Lake. We conclude that the DNR is subject to Burt Township's zoning ordinance. Accordingly, we affirm the judgment of the Court of Appeals.

I. Factual and Procedural Background

In 1989, the DNR obtained title to two lots on Burt Lake ¹ for the purpose of constructing a public-access boat launch. ² Upon learning of the proposed development, the Burt Township zoning administrator sent a letter to the DNR, noting that the project had not been approved by the township zoning board and requesting that the DNR submit an application for the board's review. The DNR responded that it did not need the board's approval because the DNR was a state agency and local zoning ordinances therefore did not apply to it.

Burt Township originally filed suit in 1992, requesting a declaratory judgment that the DNR was required to comply with the zoning ordinance. However, Burt Township voluntarily dismissed the lawsuit without prejudice in June 1993. According to Burt Township, it agreed to the dismissal because the DNR indicated that it did not have sufficient funding to complete the boat launch. Moreover, township officials believed that they had reached an informal agreement with the DNR concerning the scope of the project in the event that the DNR later chose to pursue the project.

In 1995, having obtained the necessary funding, the DNR began construction of the boat launch. However, the DNR did not seek approval from or otherwise notify the township board. As a result, Burt Township filed the instant lawsuit. The township again sought a declaratory judgment that the DNR was required to comply with the township zoning ordinance. The complaint also requested permanent injunctive relief.

Following a hearing, the trial court issued a written opinion. The court held that, while Burt Township could not prevent the DNR from building the boat launch, the DNR had to comply with the township zoning ordinance. The Court of Appeals, over a dissent by Judge White, affirmed. 227 Mich.App. 252, 576 N.W.2d 170 (1997). We granted the DNR's application for leave to appeal. 458 Mich. 865, 582 N.W.2d 836 (1998).

II. Standard of Review

Whether the DNR's construction of the boat launch facility is subject to Burt Township's zoning ordinance is a question of law subject to de novo review. Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991).

III. Analysis

A. Dearden v. Detroit

--Legislative Intent

We agree with the parties and the Court of Appeals that the present dispute is governed by this Court's decision in Dearden v. Detroit, 403 Mich. 257, 264, 269 N.W.2d 139 (1978), in which we held that "the legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances."

In Dearden, the Michigan Department of Corrections leased a multiresidential structure from the archdiocese of Detroit with the intent to convert it into a rehabilitation center. However, the Detroit Board of Zoning Appeals denied the archdiocese's request for a variance and permission to change the use of the property. The archdiocese brought suit, seeking to set aside the board's decision. The Department of Corrections intervened. The circuit court and the Court of Appeals affirmed the board's decision denying the requested variance. Id. at 260-261, 269 N.W.2d 139.

This Court disagreed and held that the Department of Corrections was immune from local zoning ordinances when establishing state penal institutions. Id. at 267, 269 N.W.2d 139. The Court found in the statute establishing the authority of the Department of Corrections, M.C.L. § 791.201 et seq.; MSA 28.2271 et seq., "a clear expression of the Legislature's intent to vest the department with complete jurisdiction over the state's penal institutions...." Id. at 265, 269 N.W.2d 139. Conversely, the Court found nothing in the language of the zoning enabling act, M.C.L. § 125.581 et seq.; MSA 5.2931 et seq., to suggest a legislative intent

to subject the department's exclusive jurisdiction over the state's penal institutions, and its duty to coordinate and adjust those institutions as an integral part of a unified, general correctional system, to the many and varied municipal zoning ordinances throughout the state. [Id. at 266-267, 269 N.W.2d 139.]

The Court concluded that Detroit's zoning ordinance was "void to the extent that it attempts to prohibit the use of the subject property as a rehabilitation center." Id. at 267, 269 N.W.2d 139. ³

B. The DNR's Proposed Boat Launch

In order to determine whether the DNR's boat launch is exempt from Burt Township's zoning ordinance, we must, as required by Dearden, examine the texts of the Township Rural Zoning Act (TRZA), ⁴ which provides Burt Township with authority to regulate land use and development, and the Natural Resources and Environmental Protection Act (NREPA), ⁵ which governs the DNR's activities here. ⁶

1. Township Zoning Authority

The Legislature, through the TRZA, has granted significant authority to townships bearing on their right to regulate the use and development of boating and recreational facilities such as the one at issue. The TRZA broadly vests authority in townships to regulate land development "to meet the needs of the state's citizens for ... recreation ... and other uses of land...." MCL 125.271(1); MSA 5.2963(1)(1). The TRZA further provides that zoning ordinances shall be based on a plan designed to, among other things, "conserve natural resources." MCL 125.273; MSA 5.2963(3). ⁷ Indeed, the status and force of this zoning authority is enhanced by our state constitution. Const 1963, art 7, § 34 provides that statutory provisions relating to townships "shall be liberally construed in their favor."

In addition to the broad grant of regulatory authority contained in the TRZA, we also believe the township planning act (TPA), M.C.L. § 125.321 et seq.; MSA 5.2963(101), to be particularly relevant in this case involving waterfront development. The TPA provides that a basic zoning plan shall show the planning commission's recommendations for the development of the township and include certain subjects pertinent to the future development of the township, including the general location, character, and extent of, among other things, "waterways and water front developments." MCL 125.327(2)(b); MSA 5.2963(107)(2)(b).

These statutory provisions reveal that the TRZA and the TPA provide townships with extensive authority to regulate the use and development of land within their borders, including waterfront property. Moreover, this Court in Dearden declined to adopt a rule that state agencies have inherent immunity from local zoning ordinances. Dearden, supra at 261, 269 N.W.2d 139. Thus, we conclude that it is incumbent upon the DNR to establish a clear legislative intent to exempt the DNR's activities from the Burt Township zoning ordinance. ⁸

2. The DNR's Claimed Exemption From Zoning Ordinances

As the Court of Appeals noted, the DNR relies upon three NREPA provisions in support of its claim of immunity. The first is § 503, which provides in relevant part:

The department shall protect and conserve the natural resources of this state [and] provide and develop facilities for outdoor recreation.... The department has the power and jurisdiction over the management, control, and disposition of all land under the public domain, except for those lands under the public domain that are managed by other state agencies to carry out their assigned duties and responsibilities. On behalf of the people of the state, the department may accept gifts and grants of land and other property and may buy, sell, exchange, or condemn land and other property, for any of the purposes contemplated by this part. [MCL 324.503(1); MSA 13A.503(1).]

Section 78105 further provides that the DNR "shall" have the following powers and duties:

(a) To acquire, construct, and maintain harbors, channels, and facilities for vessels in the navigable waters lying within the boundaries of the state of Michigan.

(b) To acquire, by purchase, lease, gift, or condemnation the lands, rights...