Carlson v. City of Troy, Docket No. 78-2877

• Decision Date: 05 June 1979
• Docket Number: Docket No. 78-2877
• Citation: 282 N.W.2d 387,90 Mich.App. 543
• Parties: Harry C. CARLSON, Plaintiff-Appellee, v. CITY OF TROY, Defendant-Appellant. 90 Mich.App. 543, 282 N.W.2d 387
• Court: Court of Appeal of Michigan — District of US

Page 387

282 N.W.2d 387

Harry C. CARLSON, Plaintiff-Appellee, v. CITY OF TROY, Defendant-Appellant.

Docket No. 78-2877.

90 Mich.App. 543, 282 N.W.2d 387

Court of Appeals of Michigan.

June 5, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 545] William S. Wolanin, Troy, for defendant-appellant.

J. Timothy Patterson, Pontiac, for plaintiff-appellee.

[90 MICHAPP 546] Before RILEY, P. J., and KELLY and BEASLEY, JJ.

BEASLEY, Judge.

Plaintiffs sought a writ of mandamus to compel defendant City of Troy to approve an amended preliminary plat which defendant, through its city council, rejected. Plaintiffs alleged that defendant violated sections 106 and 112(2) of the Subdivision Control Act of 1967. ¹

Defendant appeals of right the trial court's judgment granting plaintiffs a writ of mandamus.

The record indicates that on March 28, 1978, the plan commission of defendant city passed the following resolution:

"RESOLVED, that the Plan Commission hereby recommends to the City Council that Tentative Approval be granted to the Preliminary Plat of Ironwood Subdivision (phases 1 and 2) subject of the following conditions:

"1. That the retention basin proposed in the northerly portion of the subdivision be located on lots which do not abut the Scott Lands Subdivisions.

"2. That the northerly cul-de-sac be revised to extend to the 200 foot strip exception extending to Livernois, and that a potential platting configuration be shown for that exception."

On April 24, 1978, the preliminary plat was submitted to defendant's city council with the plan commission recommendation. Plaintiffs' preliminary plat was discussed and the matter was tabled.

On May 8, 1978, after further consideration, defendant's city council denied approval of the preliminary plat, as follows:

[90 MICHAPP 547] "RESOLVED, that Tentative Approval of the Preliminary Plat for Ironwood Subdivision, located in the northeast one-quarter of Section 16, is hereby denied, because the proprietor fails to indicate future subdivision plans for all lands owned by said proprietor and adjoining the plat at the northeast corner and extending along the northern border of the Plat of Scott Lands, No. 2, from the extension of Elgin Street easterly to Livernois."

A copy of the minutes containing this resolution was mailed to plaintiffs on May 11, 1978. Defendant has presented no other reasons for rejection of the preliminary plat.

The requirements for issuance of mandamus are:

" '(P)laintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one "where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." 38 C.J. p. 598.' Toan v. McGinn, 271 Mich. 28, 34, 260 N.W. 108, 111 (1935). See also Kortering v. Muskegon, 41 Mich.App. 153, 199 N.W.2d 660 (1972)." ²

This Court will not interfere with the granting of mandamus if there is evidence to support the trial court's findings. Absent abuse of discretion, the trial court's ruling will not be disturbed. ³

The trial judge's order granting the issuance of the writ of mandamus was based on his interpretation[90 MICHAPP 548] of section 112(2) of the Subdivision Control Act of 1967, ⁴ which states:

"(2) The governing body, within 90 days from the date of filing, shall tentatively approve and note its approval on the copy of the preliminary plat to be returned to the proprietor, or set forth in writing its reasons for rejection and requirements for tentative approval."

The trial judge's interpretation of the statute is indicated by the following colloquy with the city attorney:

"THE COURT: You didn't put these reasons in writing on the preliminary plat, did you?

"MR. WOLANIN: The minutes of the council pursuant to affidavit presented by our City Clerk indicated these were transmitted to the plaintiff May 11.

"THE COURT: Forget being transmitted to the plaintiff.

"MR. WOLANIN: They were stated at the Planning Commission level.

"THE COURT: Let's assume they were.

"MR. WOLANIN: They were stated a

"THE COURT: Look at the statute. It says the governing body within 90 days from date of filing shall tentatively approve and note its approval on a copy of the preliminary plat to be returned to the proprietor, or set forth in writing its reasons for rejection or requirements for tentative approval.

"MR. WOLANIN: Is the Court saying that the reasons for rejection must be submitted on his own preliminary plat?

"THE COURT: That's what it says.

"MR. WOLANIN: I don't believe that is the way the thing should be construed. All it does is require written notification of the reason for refusal.

"THE COURT: I think you have to read the whole sentence.

[90 MICHAPP 549] "The Court is of the opinion the prayer should be granted. The Court will sign an order to that effect."

We do not believe the wording of section 112(2) intended the restrictive reading that the trial judge imposed. The last two clauses of the statute are independent clauses as is evidenced by the use of the disjunctive "or" which separates them. ⁵

According to the language of the statute, if the preliminary plat is accepted, the noting of its acceptance must be set forth on the preliminary plat itself. However, if the preliminary plat is rejected, the last clause of section 112(2) comes into effect and requires the governing body to set forth in writing (not necessarily on the preliminary plat) its reasons for rejection And its requirements for tentative approval. Section 112(2) serves as a notice provision as is apparent from the mandatory language which sets forth the mechanics for approval and rejection.

Review of the Subdivision Control Act of 1967 in its entirety reveals good reason why Approval of the preliminary plat must be made "On the copy of the preliminary plat to be returned to the proprietor ", while rejection need Not be made On the copy of the preliminary plat although the reasons for objection must be in writing.

For example, under section 112(4), tentative approval gives the proprietor approval of "lot sizes, lot orientation and street layout . . . for a period of one year". Under some circumstances, approvals must be obtained from the county road commission, ⁶ the county drain commission, ⁷ the state highway department,[90 MICHAPP 550] ⁸ the water resources commission ⁹ and the health department having jurisdiction. ¹⁰ Each of the foregoing sections of the statute provide substantially as follows:

" * * * and note its approval on the copy to be returned to the proprietor, or reject it. If rejected, the reasons for rejection and requirements for approval shall be given the proprietor in writing." ¹¹

It is evident that while it is practical and important to have the approvals and the dates of approval on the face of the plat, it would be cumbersome and impractical to place on the face of the plat reasons for rejection and requirements for approval. If the Legislature had desired that undesirable result, it would have been easy to provide language to that effect, E. g., "note its approval or rejection on the plat".

Thus, we find that failure to set forth in writing On the face of the plat the reasons for declining tentative approval was not a violation of the statute by defendant city and, consequently, was not a reason for granting mandamus. We further find that the mailing of the minutes of the city council meeting to the plaintiffs satisfies the notice in writing requirement of section 112(2). But, this is not to say that the Contents of the resolution, I. e., the reasons for denying tentative approval, fell within the permitted range of lawful reasons for denial.

Granting of mandamus by the trial court appeared to be based on two premises: (1) that defendant city failed to comply with section 112(2) and (2) that "rejection of Plaintiff's Preliminary Plat was [90 MICHAPP 551] not based upon any requirement found in Section 105 of 1967 P.A. 288".

M.C.L. § 560.106; M.S.A. § 26.430(106) states:

"Sec. 106. No approving authority or agency having the power to approve or reject plats shall condition approval upon compliance with, or base a rejection upon, any requirement Other than those included in section 105." (Emphasis added; footnote omitted.)

Section 105 of the Subdivision Control Act of 1967, M.C.L. § 560.105; M.S.A. § 26.430(105), reads in pertinent part as follows:

"Sec. 105. Approval of preliminary and final plates shall be conditioned upon compliance with:

"(a) The provisions of this act.

"(b) Any ordinance or published rules of a municipality or county adopted to carry out the provisions or this act."

Subsections (c) through (g) which follow are not relevant here.

Pursuant to subsection (b) of § 105 of the act, defendant enacted ordinance number 41, which is the subdivision control ordinance for the City of Troy. Section 3.01(a)(4)(E) of this ordinance reads as follows:

"Proposed Conditions - Preliminary...