City of Livonia v. Department of Social Services

• Decision Date: 06 May 1983
• Docket Number: Docket No. 59112
• Parties: CITY OF LIVONIA, a Michigan Municipal Corporation, and Alfred J. Tousignant and Barbara C. Tousignant, his wife, and Joan P. Hayden, jointly and severally, Plaintiffs-Appellants, v. DEPARTMENT OF SOCIAL SERVICES, State of Michigan, John T. Dempsey, Director of the Department of Social Services, Human Services and Aftercare, Inc., and Jean A. Novinskey, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 151

333 N.W.2d 151

123 Mich.App. 1

CITY OF LIVONIA, a Michigan Municipal Corporation, and Alfred J. Tousignant and Barbara C. Tousignant his wife, and Joan P. Hayden, jointly and severally, Plaintiffs-Appellants, v. DEPARTMENT OF SOCIAL SERVICES, State of Michigan, John T Dempsey, Director of the Department of Social Services, Human Services and Aftercare Inc., and Jean A. Novinskey Defendants-Appellees.

Docket No. 59112.

Court of Appeals of Michigan.

Submitted Oct. 8, 1982.

Decided Feb. 8, 1983.

Released for Publication May 6, 1983.

Harry C. Tatigian, City Atty., Livonia, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Janice Meija and William K. Basinger, Asst. Attys. Gen., for defendants-appellees.

Jon R. Garrett, P.C., Detroit, for defendant-appellee Human Services and Aftercare, Inc.

Michael J. Kiley, Lansing, for intervening defendants-appellants.

Before DANHOF, C.J., and KAUFMAN and RILEY, JJ.

RILEY, Judge.

Plaintiffs, City of Livonia and certain home owners and residents in the Sunset Hills Subdivision, appeal the trial court's order of summary judgment dismissing their suit to enjoin the issuance of a license by the defendant, Department of Social Services (Department) to the defendant Human Services and Aftercare, Inc. (Applicant), for immediate use of certain premises situated in the Sunset Hills Subdivision in the City of Livonia as an adult foster care small group home for six or fewer persons, or, in the alternative, to enjoin the use of the premises by the Applicant in violation of state and local law or building and use restrictions. Plaintiffs raise a plethora of issues which we consider seriatim.

I. Exemption From Local Zoning Ordinances

At the outset, we reject plaintiffs' contention that the Applicant must comply with the Livonia Zoning Ordinance which prohibits residentially zoned property, such as that involved in this case, from being used for adult foster care homes. Our Legislature has provided that adult foster care small group homes, caring for six or less persons, shall be exempt from local residential single-family zoning restrictions and, therefore, may be legally licensed by the defendant Department under the Adult Foster Care Facility Licensing Act, 1979 P.A. 218, M.C.L. Sec. 400.701 et seq.; M.S.A. Sec. 16.610(51) et seq., in a residentially zoned area. In licensing the adult foster care small group home in the instant case, the defendant Department relied upon Sec. 3b of 1921 P.A. 207 as amended by 1976 P.A. 396 as amended by 1977 P.A. 28, M.C.L. Sec. 125.583b; M.S.A. Sec. 5.2933(2), for the necessary zoning exemption.

That statute provides in pertinent part as follows:

"Sec. 3b. (1) As used in this section, 'state licensed residential facility' means a structure constructed for residential purposes that is licensed by the state pursuant to Act No. 287 of the Public Acts of 1972, as amended, being sections 331.681 to 331.694 of the Michigan Compiled Laws, or Act No. 116 of the Public Acts of 1973, as amended, being sections 722.111 to 722.128 of the Michigan Compiled Laws, which provides resident services for 6 or less persons under 24-hour supervision or care for persons in need of that supervision or care.

"(2) In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone." (Emphasis added.)

Under this statute, the Applicants are exempt from the Livonia Zoning Ordinance.

We also reject plaintiffs' contention that the exemption from local zoning ordinances previously granted state licensed residential facilities by Sec. 3b,supra, was abolished with the adoption of the new Adult Foster Care Facility Licensing Act, 1979 P.A. 218, which replaced and repealed 1972 P.A. 287. Plaintiffs reason that, since the Legislature, when repealing 1972 P.A. 287, failed to change the statutory reference in Sec. 3b of 1921 P.A. 207, state licensed adult foster care facilities are no longer exempted by statute from local zoning ordinances. We disagree. It is readily apparent that, when the Legislature granted exemptions to adult foster care facilities, it was careful to limit that exemption to those facilities which were state licensed and which, in addition, cared for six or fewer persons; hence, the reference in Sec. 3b(1) to 1972 PA 287. This statutory reference was only necessary for the informational purpose of indicating under what statute such facilities were then state licensed. The mere fact that such facilities are now licensed under a different statute is not sufficient reason to hold that the exemption of Sec. 3b(1) is no longer applicable.

In a very similar case, Livonia v. Dep't of Social Services, 119 Mich.App. 806, 328 N.W.2d 1 (1982), another panel of this Court rejected this identical argument for the reasons stated in Brandon Twp. v. North-Oakland Residential Services, Inc., 110 Mich.App. 300, 306-307, 312 N.W.2d 238 (1981). The controversy in Brandon Twp. centered around Sec. 16a of the township rural zoning act, M.C.L. Sec. 125.286a(2); M.S.A. Sec. 5.2963(16a)(2), which, like M.C.L. Sec. 125.583b; M.S.A. Sec. 5.2933(2), provided an exemption from township zoning ordinances to state licensed residential facilities and also defined "state licensed residential facility" by reference to 1972 P.A. 287. The Brandon Twp. Court rejected the argument that the exemption from local zoning applied only to adult foster care facilities licensed under the old act.

"Since the old [Adult Foster Care Facility Licensing Act] was repealed, all adult foster care facilities will be licensed under the new act, and the construction fostered by plaintiff would render Sec. 16a a nullity, a highly disfavored result. See Thomas v Consumers Power Co, 58 Mich App 486; 228 NW2d 786 (1975). The failure to amend subsection (1) of Sec. 16a of the [township rural zoning act] must be viewed as a legislative oversight, since the Legislature's expressed intent in enacting Sec. 16a was to 'implement the policy of this state that persons in need of community residential [sic ] care shall not be excluded by zoning * * * '." Brandon Twp., supra, pp. 306-307, 312 N.W.2d 238.

We are in accord with this reasoning and the result in Livonia v. Dep't of Social Services, supra, and, therefore, conclude that the enactment of 1979 P.A. 218 did not abolish the provision of Sec. 3b, supra, exempting state licensed residential facilities providing care for six or fewer persons from local zoning regulations.

Our conclusion is supported by the fact that the new licensing statute, M.C.L. Sec. 400.716(2); M.S.A. Sec. 16.610(66)(2) provides:

"A temporary license shall not be granted under this act if the proposed adult foster care facility for more than 6 adults has not obtained zoning approval or obtained a special or conditional use permit if required by an ordinance of the city, village, or township in which the proposed facility is located."

The clear implication of this language is that the Legislature intended that facilities housing six or fewer persons need not obtain local zoning approval.

We are not persuaded by plaintiffs' alternative argument that, if the exemption from local zoning regulations for facilities which provide care for six or fewer persons, as provided by 1921 P.A. 207 as amended, is still valid, it is inapplicable to the case at bar as the premises in question is a "small group home" which, by definition, has capacity for 12 adults and, therefore, is not within the scope of the exemption which only applies to structures providing resident services for six or fewer persons.

Section 3b of 1921 P.A. 207 as amended, requires that a state licensed residential care facility "providing supervision or care, or both, to 6 or less persons" be considered a residential use by local governments. Plaintiffs' argument overlooks the fact that this statute does not provide that facilities must be "licensed" for the care of six or fewer to be considered residential uses; rather, the criteria is whether a facility is actually providing care to six or fewer persons. The exemption is obviously concerned with the number of residents actually living in the facility, not the number of potential residents. See Brandon Twp., supra, p. 309, 312 N.W.2d 238. Moreover, the Applicant in the case at bar only sought a license for a facility to care for six or fewer persons and, therefore, the small group home license issued by defendant Department was restricted to six or fewer persons. Our conclusion in this regard is supported by the statutory provisions under the new Adult Foster Care Facility Licensing Act. M.C.L. Sec. 400.713(5); M.S.A. Sec. 16.610(63)(5) requires a license for an adult foster care facility to state the maximum number of persons to be received for foster care at one time. Any increase beyond six in the number of persons to be received for foster care at one time in a small group home requires application for a temporary license. M.C.L. Sec. 400.719(3); M.S.A. Sec. 16.610(69)(3). A proposed adult foster care facility for more than six adults must obtain zoning approval or obtain a special or conditional use permit if required by a local ordinance before a temporary license can be granted. M.C.L. Sec. 400.716(2); M.S.A. Sec. 16.610(66)(2). Thus, if a structure has the capacity for more than six residents, it may not expand beyond six without conforming to local zoning ordinances. ...