City of Livonia v. Department of Social Services

Decision Date21 November 1985
Docket Number71155 and 71377,70316,Docket Nos. 70315
Citation378 N.W.2d 402,423 Mich. 466
PartiesCITY OF LIVONIA, a Michigan municipal corporation, and Richard M. Donnelly and Lois M. Donnelly, his wife; and George N. Bageris and R. Jeanne Bageris, his wife, jointly and severally, Plaintiffs-Appellants, v. DEPARTMENT OF SOCIAL SERVICES, State of Michigan, Director of the Department of Social Services, R. Roberts Residential Services, Inc., and Virginia Buzbuzian, Defendants-Appellees, and Disabled Residents, Intervenor Defendants-Appellees. CITY OF LIVONIA, a Michigan municipal corporation, and Gary R. Garbin and Judith A. Garbin, his wife; and Arvid H. Pravis and Stella Pravis, his wife, jointly and severally, Plaintiffs-Appellants, v. DEPARTMENT OF SOCIAL SERVICES, State of Michigan, Director of the Department of Social Services, Brant Homes, Inc., and Harvey L. Plaskov and Dolores M. Plaskov, his wife, Defendants-Appellees. 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, Director of the Department of Social Services, Human Services and Aftercare, Inc., and Jean A. Novinskey, Defendants-Appellees. GREENTREES CIVIC ASSOCIATION, INC., a Michigan non-profit corporation, Plaintiff-Appellant, and The City of Southfield, a Michigan municipal corporation, Intervening Plaintiff-Appellant, v. Joseph PIGNATIELLO, Kim D. Rust, and Victory Wisdom Nonprofit Housing, Inc., a Michigan non-profit corporation, Defendants-Appellees. 423 Mich. 466, 378 N.W.2d 402
CourtMichigan Supreme Court

Harry C. Tatigian, City Atty., Cathy L. Kerby, Asst. City Atty., for City of Livonia & plaintiffs-appellants in Nos. 70315, 70316 and 71377.

Garrett & Rogers, P.C., by Jon R. Garrett, Detroit, for defendants-appellees, and amicus curiae Metropolitan Public Interest Law Center.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Janis Meija, William K. Basinger, Asst. Attys., Gen., Lansing, for Michigan Dept. of Social Services and Director, Michigan Dept. of Social Services.

Dolores M. Coulter, Lansing, for intervenor defendants-appellees Michigan Protection & Advocacy Service for Developmentally Disabled Citizens, Inc.

Marsha Lynn Tuck, Ass'n for Retarded Citizens/Oakland County, Inc., Birmingham, for amicus curiae, Ass'n for Retarded Citizens/Michigan, Inc.

Clan Crawford, Jr., Ann Arbor, for Michigan Ass'n of Mun. Attys. and Public Corp. Section of State Bar of Michigan.

Michael G. Weiss, Southfield, Stuart J. Rice, Detroit, for plaintiff-appellant Greentrees Civic Ass'n, Inc.

Phillip L. Poole, Ferndale, for intervening plaintiff-appellant City of Southfield.

T. Gordon Scupholm, Bloomfield Hills, for defendants-appellees Pignatiello, et al.

CAVANAGH, Justice.

Plaintiffs contest the propriety of allowing four adult foster care (AFC) small group homes for six or less developmentally disabled or mentally ill adults to operate in several residential areas of Livonia and Southfield, Michigan. They raise a variety of challenges to the 1979 Adult Foster Care Facility Licensing Act (AFCFLA), 1979 P.A. 218, M.C.L. Sec. 400.701 et seq.; M.S.A. Sec. 16.610(51) et seq., and Sec. 3b of the City and Village Zoning Act (CVZA), 1921 P.A. 207, as amended by 1976 P.A. 396, M.C.L. Sec. 125.583b; M.S.A. Sec. 5.2933(2). We reject each of plaintiffs' challenges.

I

Livonia v DSS

Three of these cases involve AFC small group homes located in residential areas of Livonia, Michigan. Defendants R. Roberts Residential Services, Inc., Brant Homes, Inc., and Human Services and Aftercare, Inc., are nonprofit corporations. Each corporation filed an unrelated application with the Department of Social Services (DSS) for a temporary license to operate an AFC small group home for six or less developmentally disabled persons. In January and February, 1981, the DSS notified the City of Livonia Bureau of Inspection of these applications and its intent to issue three temporary licenses. On March 19, 1981, the city attorney filed three separate complaints with the DSS requesting that the licenses be denied because of alleged noncompliance with the AFCFLA, Livonia zoning ordinances and building code, and restrictive covenants in the homeowners' deeds. On May 4, 1981, the Director of the DSS responded that there was no basis to deny any of the applications.

In response to this decision, the city submitted a written objection with the DSS on May 11, 1981, and requested an administrative hearing. In addition, the city and several homeowners filed three separate suits in the Wayne Circuit Court on April 1 and 2, 1981, seeking to permanently enjoin the licensure and operation of the homes. Temporary restraining orders were entered in each case prohibiting the DSS from issuing the licenses. However, by July, 1981, defendants' motions for summary judgment had been granted in each case, and the temporary restraining orders were dissolved. Plaintiffs appealed these decisions to the Court of Appeals.

The administrative proceedings continued while the appeals were pending. Pursuant to M.C.L. Sec. 400.723(3); M.S.A. Sec. 16.610(73)(3), temporary licenses were issued to the AFC small group homes prior to the resolution of the administrative proceedings. In an opinion dated November 25, 1981, a hearing officer rejected or declined to address most of the city's challenges. He nevertheless recommended that the licenses be rescinded without prejudice because the Department of Mental Health (DMH) had failed to notify the city of its plan to establish the homes until after the site-selection process was completed and had failed to give the city an opportunity to present suggestions or objections. 1 On December 17, 1981, the Director of the DSS adopted the hearing officer's findings of fact and conclusions of law, except insofar as the hearing officer had recommended rescission. The director found that the DSS had "no legal obligation" to withhold licensure pending cooperation between the DMH and local units of government. The licensures were therefore upheld. Plaintiffs apparently did not appeal this administrative decision to the circuit court.

The Court of Appeals upheld the circuit court decisions concerning the Roberts and Brant homes in City of Livonia v. Dep't of Social Services, 119 Mich.App. 806, 328 N.W.2d 1 (1982) (hereinafter Livonia I ). However, the court believed that the cases should be remanded to determine whether the DSS had failed to comply with the AFCFLA on prior occasions. As to the Human Services home, the Court of Appeals, in an opinion by Justice Riley, affirmed in all respects. City of Livonia v. Dep't of Social Services, 123 Mich.App. 1, 333 N.W.2d 151 (1983) (hereinafter Livonia II ). We granted plaintiffs' applications for leave to appeal. 418 Mich. 874 (1983).

Greentrees Civic Ass'n v. Pignatiello

Defendant Victory Wisdom Nonprofit Housing, Inc., a nonprofit corporation, applied to the DSS for a license to operate an AFC small group home for six or less women in a residential neighborhood of Southfield, Michigan. The women were to be selected from the residents of Clinton Valley Center, a state psychiatric facility, after appropriate screenings. The home is adjacent to the Greentrees subdivision. Plaintiff Greentrees Civic Association is a group of subdivision homeowners.

The DSS notified the City of Southfield of the proposed licensure in August, 1980. Defendants and representatives of the DSS, the city, and the association met several times to discuss the intended use of the home, but could not reach a mutually agreeable solution. On September 19, 1980, the city attorney filed a complaint with the DSS, alleging that the proposed licensure would violate the AFCFLA. The Director of the DSS responded on November 6, 1980, that there was no basis to deny defendants' application.

In response, plaintiff association filed suit in the Oakland Circuit Court on November 21, 1980, seeking to permanently enjoin the operation of the home. 2 A temporary restraining order was entered prohibiting defendants from operating any type of AFC facility. The City of Southfield was subsequently allowed to intervene. The restraining order was modified on March 31, 1981, to allow defendants to operate an AFC small group home, but prohibited the placement of mentally ill adults therein.

In the meantime, the city attorney submitted a written objection with the DSS on December 1, 1980, contesting the director's decision and requesting an administrative hearing. In an opinion dated May 4, 1981, the hearing officer rejected two of the city's challenges, but agreed that mentally ill persons could not be placed in the home. On June 16, 1981, the Director of the DSS adopted the hearing officer's recommendation that the home should be licensed. However, he concluded that the AFCFLA permitted placement of mentally ill persons in AFC small group homes because the terms "emotionally disturbed" and "mentally ill" are used synonymously in the act. The city appealed this administrative decision to the Oakland Circuit Court on June 29, 1981. The circuit court subsequently affirmed after Oxford Twp. v. Dep't of Social Services, 120 Mich.App. 103, 327 N.W.2d 409 (1982), was issued. The city's appeal of that decision is currently pending in the Court of Appeals. 3

Shortly after the Director of the DSS issued his decision, the independent injunctive action was resolved. The circuit court ruled that defendants could operate an AFC small group home, but could not provide foster care to mentally ill persons. A permanent injunction to that effect was issued on July 1, 1981. Defendants appealed the injunctive order and plaintiffs cross-appealed the decision permitting plaintiffs to operate the home.

While that appeal was pending, plaintiffs filed a petition for an order to show cause wi...

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