Charter Tp. of Harrison v. Calisi, Docket No. 59401

• Citation: 121 Mich.App. 777,329 N.W.2d 488
• Decision Date: 16 February 1983
• Docket Number: Docket No. 59401
• Parties: CHARTER TOWNSHIP OF HARRISON, a Michigan Municipal Corporation, Plaintiff-Appellant, v. Hugo CALISI and Concetta Calisi, Jointly and Severally, Defendants-Appellees. 121 Mich.App. 777, 329 N.W.2d 488
• Court: Court of Appeal of Michigan (US)

Page 488

329 N.W.2d 488

CHARTER TOWNSHIP OF HARRISON, a Michigan Municipal Corporation, Plaintiff-Appellant, v. Hugo CALISI and Concetta Calisi, Jointly and Severally Defendants-Appellees.

Docket No. 59401.

121 Mich.App. 777, 329 N.W.2d 488

Court of Appeals of Michigan.

Submitted June 16, 1982.

Decided Dec. 7, 1982.

Released for Publication Feb. 16, 1983.

[121 MICHAPP 778] Ross & Bruff, P.C. by John B. Bruff, Mount Clemens, for plaintiff-appellant.

Emil E. Cardamone, Warren, for defendants-appellees.

Before V.J. BRENNAN, P.J., and RILEY and PAYANT, ^* JJ.

PAYANT, Judge,

Plaintiff appeals from an order granting defendants' motion for summary judgment. This case involves the authority of charter townships to require site plan approval prior to the issuance of a building permit and the right of the township to enforce certain site improvement conditions.

In January 1977, defendants, owners of a restaurant[121 MICHAPP 779] and nightclub facility on Jefferson Avenue in Harrison Township of Macomb County, applied to the township for approval of a planned expansion and improvement of their establishment. The township required submission by defendants of a site plan for review and approval as a prerequisite to issuance of a building permit.

Several meetings were held by the township Planning Commission in reviewing the site plan submitted by defendants. The Commission conditioned its approval on a requirement that defendants construct a deceleration or by-pass lane at the entrance of their establishment so that cars waiting to turn into the restaurant's parking lot would not stall through traffic. This by-pass lane was not constructed.

In July of 1980, the plaintiff township brought suit in the Macomb County Circuit Court to compel defendants to construct the by-pass lane. Plaintiff claims that the by-pass lane was ordered by the planning commission in accordance with its zoning ordinance, that defendants through their attorney agreed to install the by-pass and that defendants have failed to comply with the condition for issuance of the building permit and with their promise.

Defendants responded to the complaint by denying that plaintiff had legal authority to impose a site review requirement and further denied that the township had authority to require off-site improvements as a condition for granting a building permit.

Defendants moved for summary judgment. Although labeled as a motion under GCR 1963, 117.2(3), defendants state that this was a typographical error and that the motion was made, argued and considered by them as a motion under [121 MICHAPP 780] GCR 1963, 117.2(1), a failure to state a claim upon which relief can be granted.

An opinion and order was entered by the trial court granting defendants' motion for summary judgment under GCR 1963, 117.2(3). It is from this order that plaintiff appeals.

I SUMMARY JUDGMENT--WHICH SUBDIVISION?

It appears clear from the pleadings and argument going to defendants' motion for summary judgment that both parties' attorneys understood that the motion was to the legal sufficiency of the complaint. In its opinion, however, the trial court set forth the standard for review of a motion made under GCR 1963, 117.2(3)--motions based on a lack of genuine issue as to any material fact. Bob v. Holmes, 78 Mich.App. 205, 259 N.W.2d 427 (1977).

In considering the motion, the trial court's opinion notes that the defendants are contending that the township had no legal authority to require site plan review. The court, however, did not appear to address that issue, but found that the condition established in the site plan review was beyond the township's authority. Arguably, the court found that the review authority existed but had been misused.

Questions of misuse of authority may sometimes be amenable to motions for summary judgment under subsection 3, that there is no genuine issue of material fact. Such a motion, however, going to questions of fact, is to be determined on the basis of the pleadings, affidavits, depositions and other evidence then available. See Bob v. Holmes, supra. [121 MICHAPP 781] This does not seem to be the review conducted by the trial court.

Defendants, at least in their motion, do not challenge the reasonableness of the conditions but rather challenge the township's authority to impose such conditions in any case. As long as neither party is misled and since both parties have clearly treated this as a challenge to the legal sufficiency of plaintiff's complaint, we analyze the legal issues raised below to determine whether summary judgment was properly granted for failure to state a cause of action. Todd v. Biglow, 51 Mich.App. 346, 349-350, 214 N.W.2d 733 (1974); Walker v. Cahalan, 97 Mich.App. 346, 355, 296 N.W.2d 18 (1980), rev'd on other grounds, 411 Mich. 857, 306 N.W.2d 99 (1981), cert. den. 454 U.S. 1032, 102 S.Ct. 570, 70 L.Ed.2d 476 (1981).

II

This Court recently summarized the standard of review for a grant of summary judgment for failure to state a cause of action in Allinger v. Kell, 102 Mich.App. 798, 806-807, 302 N.W.2d 576 (1981), modified 411 Mich. 1053, 309 N.W.2d 547 (1981), as follows:

"In reviewing a grant of summary judgment under GCR 1963, 117.2(1), the motion is tested by the pleadings alone. Todd v. Biglow, 51 Mich.App. 346, 349; 214 N.W.2d 733 (1974). Because the motion tests only the legal and not the factual sufficiency of the pleadings, Grasser v. Fleming, 74 Mich.App. 338, 342; 253 N.W.2d 757 (1977), all well-pleaded allegations must be taken as true. Tash v. Houston, 74 Mich.App. 566; 254 N.W.2d 579 (1977), lv den. 401 Mich. 822 (1978). The motion should be denied unless the alleged claims are so clearly unenforceable as a matter of law that no factual development [121 MICHAPP 782] can possibly justify a right to recover. Koenig v. Van Reken, 89 Mich.App. 102, 104; 279 N.W.2d 590 (1979), Merit Electric Co. v. J. Boyle, Inc., 77 Mich.App. 503; 258 N.W.2d 539 (1977)."

Considering then the plaintiff's well-pleaded allegations as true, the trial court must deny the motion unless the claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery.

Defendants contend that the portion of the Harrison Township Zoning Ordinance requiring site plan approval is invalid because it is not authorized by either the Township Rural Zoning Act, M.C.L. Sec. 125.271 et seq.; M.S.A. Sec. 5.2963(1) et seq., or the Township Planning Act, M.C.L. Sec. 125.321 et seq.; M.S.A. Sec. 5.2963(101) et seq.

Plaintiff concedes that at the time in question neither enabling act mentioned the power of townships to require site plan review. 1978 P.A. 637, Sec. 1, which became effective March 1, 1979, now specifically grants such authority. See M.C.L. Sec. 125.286e; M.S.A. Sec. 5.2963(16e).

The issue then is whether the enabling acts which existed in 1977 permitted the township to require site plan approval.

On at least two occasions, this Court has reviewed the refusal of zoning boards to approve site plans being reviewed, tacitly at least assuming that the municipalities had authority to require site plans to be submitted. In both Hessee Realty, Inc. v. Ann Arbor, 61 Mich.App. 319, 232 N.W.2d 695 (1975), and Bruni v. Farmington Hills, 96 Mich.App. 664, 293 N.W.2d 609 (1980), the authority was simply presumed. In neither case was the right to review site plans directly attacked. While both cases dealt with city rather than township zoning ordinances, specific reference to site plan approval [121 MICHAPP 783] was added to the city and village enabling act at the same time as it was added to the township act. See 1978 P.A. 638, Sec. 1; M.C.L. Sec. 125.584d; M.S.A. Sec. 5.2934(4).

This Court's assumption that municipalities possessed authority to require site plan approval prior to 1979 was correct. It is true that municipalities have no inherent power of zoning and can only exercise such powers as are granted under the respective enabling acts. Detroit Osteopathic Hospital v. Southfield, 377 Mich. 128, 139 N.W.2d 728 (1966). Nevertheless, the Township Rural Zoning Act, even prior to its amendments, enabled townships to establish districts and designate permitted, regulated and prohibited uses. M.C.L. Sec. 125.271; M.S.A. Sec. 5.2963(1). The statute also enabled townships to prescribe specific limitations on the manner in which permitted uses were conducted. The statute further provided that, prior to adopting a zoning ordinance, the zoning board or planning commission was to make recommendations to the township board, including, "[t]he manner of administering and enforcing the zoning ordinance". M.C.L. Sec. 125.277; M.S.A. Sec. 5.2963(7).

Any fair reading of the enabling acts makes it clear that the zoning commission was empowered to exercise its discretion in granting exceptions, variances, or conditions. It is incomprehensible that the administrative body given such authority would not be able to review a developer's compliance prior to granting approval. Site plan review, as a tool in carrying out the purpose of the zoning ordinances, must be inferred.

While the 1979 amendments clarify the requirements relating to site plan review as well as other zoning matters, the amendments did not create in the initial instance the authority to review site [121 MICHAPP 784] plans. Such authority existed prior to the enactment of the amendments.

Thus, to the extent that the trial court's...