City of Livonia v. Department of Social Services

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: City of Livonia v. Department of Social Services, 328 N.W.2d 1, 119 Mich.App. 806 (Mich. App. 1983)
• Decision Date: 06 January 1983
• Docket Number: Docket Nos. 59727,59728
• Parties: CITY 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, John T. Dempsey, Director of the Department of Social Services, R. Roberts Residential Services, Inc., and Virginia Buzbuzian, Defendants- A and Disabled Residents, Intervenor-Defendant-Appellee. 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, John T. Dempsey, Director of the Department of Social Services, Brant Homes, Inc., and Harvey L. Plaskov and Dolores M. Plaskov, his wife, Defendants-Appellees. 119 Mich.App. 806, 328 N.W.2d 1

Page 1

328 N.W.2d 1

CITY 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, John T.

Dempsey, Director of the Department of Social

Services, R. Roberts Residential

Services, Inc., and Virginia

Buzbuzian,

Defendants-

A

and

Disabled Residents, Intervenor-Defendant-Appellee.

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, John T.

Dempsey, Director of the Department of Social Services,

Brant Homes, Inc., and Harvey L. Plaskov and Dolores M.

Plaskov, his wife, Defendants-Appellees.

Docket Nos. 59727, 59728.

119 Mich.App. 806, 328 N.W.2d 1

Court of Appeals of Michigan.

Submitted June 1, 1982.

Decided Sept. 23, 1982.

Rehearing Denied Nov. 4, 1982.

Released for Publication Jan. 6, 1983.

[119 MICHAPP 808] Harry C. Tatigian, City Atty., Livonia, for plaintiffs-appellants.

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

Michael J. Kiley, Lansing, for Disabled Residents.

Jon R. Garrett, P.C., Detroit, for R. Roberts Residential Services, Inc., Brant Homes, Inc., and Harvey L. and Dolores M. Plaskov.

Before BRONSON, P.J., and MAHER, and WARSHAWSKY, ^* JJ.

PER CURIAM.

In two cases, the City of Livonia joined with individual landowners of the city in challenging the use by the Department of Social [119 MICHAPP 809] Services (hereafter DSS) of residences as adult foster care homes. Their challenges were rejected in the trial courts and they bring separate appeals by right. The cases have been consolidated on appeal. To begin, we address the numerous issues germane to both cases.

We reject plaintiffs' claim that, with the repeal of 1972 P.A. 287, the Legislature ended the specific exemption from zoning ordinances for state licensed residential facilities. In doing so, we agree with the reasons stated in Brandon Twp. v. North-Oakland Residential Services, Inc., 110 Mich.App. 300, 306-307, 312 N.W.2d 238 (1981). We adopt the reasoning in the same opinion in rejecting plaintiffs' claim that only "adult foster care family homes" are included in the exemption from zoning in M.C.L. Sec. 125.583b; M.S.A. Sec. 5.2933(2). The strength of this interpretation is bolstered by the requirement that an adult foster care facility for more than six persons obtain zoning approval or a special or conditional use permit. M.C.L. Sec. 400.716(2); M.S.A. Sec. 16.610(66)(2). We also reject the claim that the statute unconstitutionally displaces local zoning power. See Brandon Twp., supra, pp 303-305, 312 N.W.2d 238.

Plaintiffs claim that the presence of an exemption for state licensed residential facilities in the zoning enabling act for cities and villages violates the stricture on statutes having more than a single object. Const.1963, art. 4, Sec. 24. This argument is without merit. A restriction on a municipality's zoning power clearly belongs in the act granting that power. Plaintiffs' argument that 1979 P.A. 218 violates this constitutional provision is clearly without merit.

Plaintiffs make two claims concerning lack of standards governing the power of the DSS to prevent excessive concentration of facilities within [119 MICHAPP 810] a city, township or village. This type of analysis is inapplicable. The locating of facilities is an administrative task, not a legislative one. The delegation doctrine simply does not apply. The Legislature has not delegated to DSS the authority to determine the meaning of "excessive concentration". Plaintiffs remain free to claim that DSS has not complied with the law.

We do not consider plaintiffs' claim that "mentally ill" persons may not be housed in an adult foster care small group home. It is unnecessary to decide this issue on appeal since the individuals who are to live in the homes are developmentally disabled. Developmentally disabled persons are clearly eligible for placement in adult foster care facilities. See M.C.L. Sec. 400.703(4); M.S.A. Sec. 16.610(53)(4).

Plaintiffs next claim that DSS failed to comply with statutory requirements by failing to send notice to both the city council, M.C.L. Sec. 125.583b(4); M.S.A. Sec. 5.2933(2), and the city clerk, M.C.L. Sec. 400.732(1); M.S.A. Sec. 16.610(82)(1). Instead, the department sent notice to the city's Bureau of Inspection. There is no question that the council received actual notice long before the issuance of the license. We find no prejudicial error. See Montiy v. East Detroit Civil Service Board, 54 Mich.App. 510, 515-516, 221 N.W.2d 248 (1974).

Plaintiffs claim that the notice to neighboring landowners required by statute is inadequate, resulting in a deprivation of their property without due process of law. The interest of an owner in the zoning of property abutting his is one which is guaranteed by statute, not by the state or federal constitution. Baker v. Algonac, 39 Mich.App. 526, 535, 198 N.W.2d 13 (1972). The need for caution in rezoning to protect the stability of existing zones has also been recognized in judicial decisions. [119 MICHAPP 811] Raabe v. City of Walker, 383 Mich. 165, 174 N.W.2d 789 (1970); Baker, supra, p. 533, 198 N.W.2d 13. Our Legislature has generally recognized the need for protecting the interests of owners of land affected by zoning decisions short of rezoning which result in changes in use. See, e.g., M.C.L. Sec. 125.585(6); M.S.A. Sec. 5.2935(6); Brown v. East Lansing Zoning Board of Appeals, 109 Mich.App. 688, 311 N.W.2d 828 (1981). Where, however, the Legislature has clearly shown an intent to limit legally enforceable interests of abutting landowners in a zoning decision, the landowners' constitutional rights are not abridged. See Lamb v. Monroe, 358 Mich. 136, 147, 99 N.W.2d 566 (1959).

Plaintiffs have also raised a number of minor claims alleging statutory violations. Plaintiffs' claim concerning lack of rules required by M.C.L. Sec. 400.713(3)(b); M.S.A. Sec. 16.610(63)(3)(b) is without merit. See M.C.L. Sec. 24.231(2); M.S.A. Sec. 3.560(131)(2).

Forbidding the department from issuing the specific licenses involved in these cases is not an appropriate remedy for the alleged violation of M.C.L. Sec. 400.709(2); M.S.A. Sec. 16.610(59)(2), requiring the department to cooperate with local units of government in administering the act. At the same time, we cannot say that this question was properly decided on summary judgment. If the department has not complied with the law in the past, it may be permanently enjoined from issuing licenses in the future if it fails to take measures to comply. Past compliance is a question of fact. The affidavits and documents used in deciding the summary judgment motion provide insufficient information for this Court to decide the issue.

Plaintiffs claim that the department violated M.C.L. Sec. 400.713(4); M.S.A. Sec. 16.610(63)(4) by failing to require that the names of lessors of the facility be [119 MICHAPP 812] included on the application for licensure. This claim was not made in plaintiffs' complaint and is waived. We note that the statute precludes this information from appearing in the notice of the application the department is required to give the city. M.C.L. Sec. 400.712(3); M.S.A. Sec. 16.610(62)(3). This information should have been supplied to the city as a party in the DSS contested case involving the city's challenges to these licenses.

We agree with defendant DSS that the city...