Detroit Edison Co. v. Richmond Tp.

• Decision Date: 18 June 1986
• Docket Number: Docket No. 81561
• Citation: Detroit Edison Co. v. Richmond Tp., 388 N.W.2d 296, 150 Mich.App. 40 (Mich. App. 1986)
• Parties: The DETROIT EDISON COMPANY, a Michigan corporation, Plaintiff-Appellee, v. TOWNSHIP OF RICHMOND, a Municipal corporation; Richmond Township Planning Commission, and Richmond Township Board, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 296

388 N.W.2d 296

150 Mich.App. 40

The DETROIT EDISON COMPANY, a Michigan corporation, Plaintiff-Appellee, v.TOWNSHIP OF RICHMOND, a Municipal corporation; Richmond Township Planning Commission, and Richmond Township Board, Defendants-Appellants.

Docket No. 81561.

Court of Appeals of Michigan.

Submitted Oct. 15, 1985.

Decided March 18, 1986.

Released for Publication June 18, 1986.

Solomon Bienenfeld and Thomas P. Beagen, Detroit, for plaintiff-appellee.

Ross, Einheuser & Braun by Michael Einheuser, Mount Clemens, for defendants-appellants.

Before BRONSON, P.J., and T.M. BURNS and SIMON^*, JJ.

PER CURIAM.

Plaintiff is a public utility which provides electrical services in southeastern Michigan.In providing these services, it operates power generating plants, regulating stations and substations, as well as a network of transmission and distribution lines.Defendant township is located in northern Macomb County and is primarily rural and agricultural.In 1972, plaintiff began planning the Belle River Power Plant in St. Clair County.The proposed plant would consist of two 675-megawatt units.Plaintiff believed that the existing transmission system would be subject to unacceptably high power flows under certain conditions and, therefore, plaintiff began to plan and design the Saratoga-Jewell Transmission Line.The line was designed to be an extra-high-voltage line which would be energized at 345,000 volts of electricity.It would bisect defendant township in an L-shaped pattern.

In 1979, citizens of the township became aware of plaintiff's plans to construct the transmission line.The first notice came when individual property owners were contacted by plaintiff regarding potential acquisition of property along the projected right-of-way.Some time later, plaintiff's representatives approached the township government officials to explain the plans for the transmission line.

On December 2, 1982, the township board of trustees approved a zoning ordinance which amended existing ordinances.The new ordinance required a public utility to receive a special use permit to construct extra high voltage energy transmission lines.The ordinance contained several detailed requirements which must be met in order to obtain a permit.Three provisions of the ordinance are the basis of the present dispute.The provisions regulate (1) the minimum width of any extra-high-voltage transmission line corridor, (2) the minimum distance of the line from dwellings, and (3) the maximum noise levels for the line.

On or about April 23, 1983, plaintiff instituted the present suit in Macomb County Circuit Court seeking a declaratory judgment to have those three specific provisions of the township zoning ordinance declared invalid.Plaintiff eventually moved for summary judgment pursuant to GCR 1963, 117.2(3) on the ground that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law.One of plaintiff's contentions was that the township had exceeded the scope of its authority in passing the zoning ordinance.On October 5, 1984, the circuit court issued an opinion granting plaintiff's motion for summary judgment.On November 5, 1984, the court entered an order in accordance with that opinion declaring the provisions of the ordinance to be invalid.Defendants now appeal as of right from the grant of summary judgment.We affirm.

I

The trial court granted summary judgment pursuant to GCR 1963, 117.2(3).Summary judgment pursuant to that subsection is properly granted only if there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law.A motion based on GCR 1963, 117.2(3) is designed to test the factual support for a claim or defense.Maccabees Mutual Life Ins. Co. v. Dep't of Treasury, 122 Mich.App. 660, 663, 332 N.W.2d 561(1983), lv. den.417 Mich. 1100.15(1983).The court must consider the pleadings, affidavits, and other available evidence and be satisfied that the claim or position asserted cannot be supported by evidence at trial because of some deficiency which cannot be overcome.Id.The court must give the benefit of any reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party.Id.

Defendants contend that summary judgment was improperly granted in this case because further factual development should have been allowed.We disagree.All material facts were before the court.The sole question before the court was whether the provisions of the ordinance were invalid because they conflicted with state statutes or the state regulatory scheme.The validity of the ordinance provisions can be determined simply by looking at those provisions and the statutes of this state.There was no need for any further factual development.

II

Both plaintiff and defendants focus their arguments on whether the provisions of the ordinance in question are "preempted" by state law.The parties point to the guidelines to be looked at in making a determination whether a statute has or has not preempted a field of regulation as laid out in People v. Llewellyn, 401 Mich. 314, 322-324, 257 N.W.2d 902(1977), cert. den.435 U.S. 1008, 98 S.Ct. 1879, 56 L.Ed.2d 390(1978).The parties also point to Detroit Edison Co. v. Wixom, 382 Mich. 673, 172 N.W.2d 382(1969), because of its factual similarity to this case.

In Wixom, the Supreme Court noted that a transmission power line height regulation of a municipal zoning ordinance was actually a regulation attempting to control the route or location of the power line.The Supreme Court noted that this Court's decision in that case, Detroit Edison Co. v. Wixom, 10 Mich.App. 218, 159 N.W.2d 230(1968), had correctly concluded that a city was not precluded from passing reasonable zoning regulations applying to electric utilities.However, the Supreme Court then held in favor of the power company by stating that the company held a vested right to locate the power lines on the existing right of way because it was a prior nonconforming use of the land.We believe that Wixom should be limited to its facts.The zoning regulations therein attempted to control location and route.While the Supreme Court stated that this Court had "correctly analyzed the preemption argument", this Court had dealt with the ordinance as if it were solely a height regulation without realizing that its purpose was to control location and route.We believe that the ultimate holding of the Supreme Court under the facts of the Wixom case is that a city's reasonable zoning regulations relating to the location and route of electric power lines are not precluded by statutes granting authority to the Michigan Public Service Commission(MPSC) to control other aspects of electrical transmission lines.

The facts of this case are much different.Herein we are faced with a township ordinance which is claimed to be a zoning ordinance regulating land use.However, the township has actually attempted to regulate the safety aspects of the electrical transmission lines of a public utility.

III

The question of the validity of the provisions of the ordinance in this case cannot be classified simply as a "preemption" question.In general, the preemption concept works as a limitation on the exercise of inherent police powers by a governmental body when the purported regulations relate to subject matter on which superior governmental authority exists.Cities and villages have the power to adopt resolutions and ordinances relating to municipal concerns, property and government, subject only to the constitution and law.Const. 1963, art. 7, Sec. 22.Because the adoption of an ordinance by a municipality is "subject to the constitution and law", such broad power to adopt ordinances relating to municipal concerns may be "preempted" if a state statutory scheme occupies the field of regulation which the municipality seeks to enter.Townships, however, have no police power of their own, but have only those powers and immunities which are provided by law.Const. 1963, art. 7, Sec. 17, Brandon Twp. v. North-Oakland Residential Services, Inc., 110 Mich.App. 300, 304, 312 N.W.2d 238(1981), lv. den.412 Mich. 900(1982).Their ability to pass laws comes directly from the legislative enactments.As a result, the function of this Court, when township ordinances are involved, appears to be one relating more to statutory construction and interpretation than one of making a determination of preemption.

However, the rules of preemption are not totally irrelevant to zoning disputes.The zoning ordinance involved in the present case is based on the Township Rural Zoning Act, M.C.L. Sec. 125.271 et seq.;M.S.A. Sec. 5.2963(1) et seq.That statute grants townships the power to pass ordinances concerning zoning.Likewise, the Legislature has passed a municipal zoning enabling act since Const. 1963, art. 7, Sec. 22 does not grant cities power to zone independent of enabling legislation....