Dearden v. City of Detroit
| Decision Date | 30 August 1978 |
| Docket Number | No. 18,Docket No. 58974,18 |
| Citation | 269 N.W.2d 139,403 Mich. 257 |
| Parties | John F. DEARDEN, Archbishop of the Roman Catholic Archdiocese of Detroit, and St. Theresa's Roman Catholic Church, Plaintiffs, Frank J. Kelley, Attorney General of the State of Michigan ex rel. Michigan Department of Corrections, Intervening Plaintiff- Appellant, v. CITY OF DETROIT, a Municipal Corporation and the Board of Zoning Appeals, Defendant-Appellee. Calendar 403 Mich. 257, 269 N.W.2d 139 |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Solomon H. Bienenfeld, First Asst. Atty. Gen., Mark E. Blumer, Asst. Atty. Gen., Lansing, for intervening plaintiff-appellant.
Lawrence R. Green, Detroit, for plaintiffs.
Kermit G. Bailer, Corp. Counsel, John F. Hathaway, Asst. Corp. Counsel, Detroit, for defendant-appellee.
Roger E. Craig, Corp. Counsel, John F. Hathaway, William B. Beach, Asst. Corp. Counsels, Detroit, for City of Detroit.
This case requires us to determine whether the Michigan Department of Corrections is subject to the regulation of a municipal zoning ordinance when the department is leasing an existing facility for use as a neighborhood pre-release center. We hold it is not subject to the zoning ordinance.
Plaintiff archdiocese has owned the property in Detroit that is the subject of this litigation for some time. In 1938, the archdiocese constructed a three-story, multi-residential structure on that property for use as a convent. When the city adopted a zoning ordinance in 1940, the property was zoned R2 (two-family residential). However, the building's use as a convent continued, undisturbed, as a nonconforming use.
In the latter months of 1970, the archdiocese leased this structure to the Department of Corrections to be used as a neighborhood rehabilitation center. The center provides controlled and closely supervised housing for certain convicts during the last 90 days of their sentences. It affords its occupants an opportunity to adjust to the transition from prison to civilian life by living in a residential area while working at a job or attending school.
After the department had begun using the building, the lessor archdiocese applied to the Detroit Department of Building and Safety Engineering for permission to use the former convent as a rehabilitation center. This application was denied and the archdiocese appealed to the Board of Zoning Appeals.
When the Board denied the request for a variance and permission to change the use of the property, the archdiocese filed a complaint for superintending control in circuit court, seeking to set aside the Board's order. There the appellant, Michigan Department of Corrections, intervened. The circuit court affirmed the decision of the Board of Zoning Appeals and, subsequently, the Court of Appeals affirmed the decision of the trial court. 1
We granted the Department of Corrections' application for leave to appeal and for a stay of the lower court order pending appeal. 400 Mich. 815 (1977).
We reverse.
We are asked in this case to decide whether the Department of Corrections, an agency of the state, is immune from, or subject to, the local zoning ordinance of the City of Detroit, a political subdivision of the state.
Although many courts in other jurisdictions have adjudicated similar cases, the tests employed to resolve the stated issue have proven to be largely unsatisfactory. In reaching their decisions, some courts have held that the sovereignty of the state extends to its agencies and renders them immune from compliance with local zoning ordinances. Others have based immunity on a determination that the function, use or activity of the agency was "governmental" as opposed to "proprietary". Still others have found immunity if the agency was granted the power of eminent domain, regardless of whether it chose to exercise that power to obtain the use of the property. 2
A number of legal commentators have soundly criticized these tests, claiming the courts have employed inappropriately simplistic labels to decide these cases, instead of coming squarely to grips with the critical question of which, among competing governmental interests, should prevail in any particular situation of conflict between them. 3
No Michigan case has resolved, with finality, the question of whether our State or its agencies are inherently immune from local zoning ordinances. Nonetheless, a review of our earlier cases dealing with the issue in varying contexts is of some value in our effort to develop the proper test for deciding the question before us.
In Taber v. Benton Harbor, 280 Mich. 522, 274 N.W. 324 (1937), a city was held to be subject to its own zoning ordinance when constructing a water tower because the construction was found to be a proprietary function, and no exemption for the city was provided in the ordinance. We think this proprietary-governmental distinction has been justly criticized as too amorphous to provide any real guidance in deciding this case and reject it as controlling. It is worth noting, however, that the Taber court looked to the zoning ordinance for direction in deciding the controversy, and found that to allow the tower to be built would be in:
"(D)isregard of the plain legislative enactments of (defendant's) citizens." 280 Mich. 522, 526, 274 N.W. 324, 325.
In In re Petition of Detroit, 308 Mich. 480, 14 N.W.2d 140 (1944), a township ordinance which prohibited the use of certain lands for an airport was found to be unenforceable and void because it was in direct conflict with a general statute granting cities the power to acquire, own and operate airports either within or without their city limits. Although the case involved condemnation proceedings by the city, the power of condemnation was not relied upon as the basis for the court's ruling. Rather, the Court's decision appears to rest on the finding that the broad grant of statutory power to the city was an expression of legislative intent to exempt the city from local land use regulation.
In DeGaynor v. Dickinson County Memorial Hospital, 363 Mich. 428, 109 N.W.2d 777 (1961), the court held that a county hospital was subject to a municipal zoning ordinance. The court reached this conclusion because it could find no exception in the zoning enabling act for county hospitals and it did find a specific provision in the statute under which the hospital was established that required compliance with the ordinances of the city in which the hospital was located.
The court in Renshaw v. Coldwater Housing Commission, 381 Mich. 590, 594, 165 N.W.2d 5 (1969), held that a municipality's housing commission was not subject to the municipality's zoning ordinance. In so declaring, the court found that the statute under which the commission was established contained conspicuous and repeated expressions of the Legislature's intent to exempt the commission from all other laws, including statutes, charters or ordinances, which were in conflict with its statutory authority.
Finally, in Detroit Edison Co. v. Wixom, 382 Mich. 673, 683, 172 N.W.2d 382 (1969), the court found the public service commission was prohibited from approving construction of an electrical line for a utility in violation of a municipal zoning ordinance. The court reached this conclusion after noting the statutory power of the commission to regulate all public utilities was qualified by the phrase, "except as otherwise restricted by law".
The common thread running through these cases, although not clearly stated in some, is an attempt to determine the intent of the Legislature when deciding whether a governmental unit is subject to a municipal zoning ordinance. We hold today that the legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances. 4
In the case before us, we are asked to resolve a conflict between the statutory authority of the Department of Corrections over the state's penal institutions 5 and the city's statutory authority to regulate the use of the lands within its territory. 6
As we have observed, our prior case law supports the Court of Appeals characterization of this issue as one, not of absolute governmental immunity, but rather of legislative intent. We agree with that court that the zoning enabling act does not disclose what effect, if any, a zoning ordinance should have on state agencies. We disagree, however, with that court's analysis of the legislation which established the authority of the Department of Corrections. 70 Mich.App. 163, 168, 245 N.W.2d 700 (1976).
The Court of Appeals found no indication of whether or not the department was to be subject to local ordinances in the legislation which established the authority of the department. We read that legislation differently.
In establishing the jurisdiction of the Department of Corrections, the Legislature expressly provided:
"Subject to constitutional powers vested in the executive and judicial departments of the state, the department Shall have exclusive jurisdiction over the following: * * * (c) penal institutions * * *." M.C.L. § 791.204; M.S.A. § 28.2274. (Emphasis supplied.)
We read this language as a clear expression of the Legislature's intent to vest the department with complete jurisdiction over the state's penal institutions, subject only to the constitutional powers of the executive and judiciary, and not subject in any way to any other legislative act, such as the zoning enabling act.
This reading of the statutory power of the department is supported by the title of the statute.
That title provides in pertinent part:
"An act to revise, consolidate and codify the laws relating * * * to the...
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