Dorman v. Township of Clinton
| Decision Date | 07 February 2006 |
| Docket Number | No. 256362.,256362. |
| Citation | 269 Mich. App. 638,714 N.W.2d 350 |
| Parties | Michael DORMAN, Plaintiff-Appellant, v. TOWNSHIP OF CLINTON, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Tomkiw Dalton, PLC (by Daniel P. Dalton), Royal Oak, for the plaintiff.
York, Dolan & Tomlinson, P.C. (by John A. Dolan), Clinton Township, for the defendant.
Before: MARK J. CAVANAGH, P.J., and COOPER and DONOFRIO, JJ.
Plaintiff Michael Dorman appeals as of right from the trial court's order granting defendant Clinton Township's motion for summary disposition pursuant to MCR 2.116(C)(10)1 in this dispute regarding the rezoning of plaintiff's property. The trial court dismissed plaintiff's inverse condemnation action, in which plaintiff alleged that the township's actions amounted to a regulatory taking and violated his right to substantive due process. We affirm.
Plaintiff is a licensed mortgage lender and broker who frequently speculates in real estate. In April of 2001, he purchased the property at issue in this case for $273,000, after reading a newspaper advertisement for its sale, and viewing the property and speaking to the prior owner only once.2 The property is located in a residential neighborhood in Clinton Township. It is undisputed that the only access to the property is through residential roads; the closest main thoroughfare is a half mile away. The property is currently bordered on the south by a single-family residential subdivision, on the north and west by multi-unit residential developments, and on the east by a parcel on which one single-family home has been constructed.3 According to the township's Master Plan, plaintiff's property was originally zoned "Residential Multiple," allowing the construction of apartment buildings, condominium complexes, or single-family residences. In 1993, the township rezoned the property to "Light Industrial" with a special use permit for a local Elks Club to construct a 7,000 square foot lodge. However, the township never amended its Master Plan to reflect this change. The Elks Club subsequently failed to make payments on its mortgage and the property was foreclosed in 2000.4
Plaintiff anticipated beginning a public storage business on the site. According to his preliminary proposal, plaintiff intended to renovate the existing structure into a climate-controlled, mini-storage facility and to construct two additional buildings on the property. He claimed that township officials encouraged his plan to develop the property, and that the planning commission expressed its intent to recommend approval of his plan. Therefore, plaintiff began preparing the interior of the lodge for reconstruction. Plaintiff alleged that the township treasurer, William Sowerby, was opposed to his proposed development and actively pursued its rejection. Plaintiff contended that Mr. Sowerby questioned the propriety of the zoning classification during a Budget Ways and Means Committee meeting and, thereafter, convinced the township to rezone the property back to "Residential Multiple." Following a public hearing, the planning commission recommended rezoning plaintiff's property. The township board ultimately voted to return the property to its original classification in light of recent residential development in the area and to prevent increased truck traffic on residential streets.5 Plaintiff's proposed development was, therefore, rejected.6 Plaintiff admits that he did not review the Master Plan or question the seemingly out-of-place zoning classification before closing on the sale of this property.7
Plaintiff filed the instant action for inverse condemnation, challenging the validity of the township's decision to rezone his property. He asserted that the township's rezoning significantly decreased the value of his property. Therefore, he alleged that the rezoning amounted to a taking and that he was entitled to just compensation. He also challenged the legitimacy of the township's stated purpose in rezoning the property and its belated rezoning following the submission of his proposed site plan. Plaintiff contended that the township singled out his property specifically to prevent his proposed development. Following lengthy discovery, the parties filed cross-motions for summary disposition.8 The trial court subsequently granted summary disposition in the township's favor.
We review a trial court's determination regarding a motion for summary disposition de novo.9 A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim.10 "In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists."11 Summary disposition is appropriate only if there are no genuine issues of material fact and if the moving party is entitled to judgment as a matter of law.12 We also review issues of constitutional law de novo.13
Plaintiff challenges the trial court's dismissal of his inverse condemnation action seeking just compensation for the taking of his property. Plaintiff contends that the township deliberately and improperly interfered with his proposed development by rezoning the property to "Residential Multiple" following the submission of his proposed site plan. By limiting the potential use of this property, plaintiff asserts that the township greatly reduced its value and, therefore, effectively confiscated his property.
The Fifth Amendment of the United States Constitution and Article 10 of the Michigan Constitution both prohibit the taking of private property for public use without just compensation.14 Through its power of eminent domain, however, the state may follow the procedures outlined in the Uniform Condemnation Procedures Act15 and condemn, or "take," private property for public use by providing the requisite compensation.16 A property owner may bring an inverse condemnation action seeking just compensation for a "de facto taking," when the state fails to follow those procedures.17 "While there is no exact formula to establish a de facto taking, there must be some action by the government specifically directed toward the plaintiff's property that has the effect of limiting the use of the property."18 When considering whether a de facto taking has occurred, we must consider "the form, intensity, and the deliberateness of the government actions" in the aggregate.19
An inverse condemnation claim may be based upon the government's "regulatory taking" of private property. A regulatory taking occurs when the state effectively condemns, or takes, private property for public use "by overburdening that property with regulations."20 There are two situations in which a property owner is automatically entitled to just compensation: (1) "where the owner is deprived of `all economically beneficial or productive use of [his or her] land,'" or (2) when the government physically and permanently invades any portion of the property.21 Where the government's actions merely diminish the owner's ability to freely use his or her land, the court must apply the balancing test set forth by the United States Supreme Court in Penn Central Transportation Co v. New York City.22 In determining whether such actions amount to a taking under Penn Central, the court must consider: "(1) the character of the government action, (2) the economic effect of the regulation on the property, and (3) the extent by which the regulation has interfered with distinct, investment-backed expectations."23
We agree with the trial court that plaintiff failed to create a factual dispute that the township zoning ordinance amounted to either a de facto or a regulatory taking of his property. Plaintiff's argument rested on the alleged reduction in the value of his property due to its rezoning to residential use. However, it is well established that a municipality is not required to zone property for its most profitable use,24 and that "[m]ere diminution in value does not amount to [a] taking."25 "`Disparity in values between residential and commercial uses will always exist'"; yet, a municipality clearly is not required to favor the latter use at the expense of the former.26 A plaintiff who asserts that he was "denied economically viable use of his land" must show something more — "`that the property was either unsuitable for use as zoned or unmarketable as zoned.'"27
Plaintiff alleged, without providing any supporting evidence, that his proposed storage facility would be worth approximately $700,000. He further asserted that the township, by rezoning his property to residential use, effectively reduced the property's assessed value to $148,000. Yet, plaintiff's own real estate appraisal expert, Gilbert A. Zook, stated that plaintiff could divide the property into eight residential lots priced at $45,000 each and sell the lots for a net profit of $11,200 after deducting costs. A property owner may present evidence that his or her property could be more profitable if put to a different use. However, an owner may not base his or her claim for just compensation on uncertain and speculative expected profits.28 Nothing in the record suggests that plaintiff's property is unsuitable for residential development. It is located in an established residential area in which single-family residential developments have recently increased. While plaintiff alleges that there is no market for such homes in the area, his own expert witness provided evidence to the contrary. Although plainti...
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