English v. Augusta Tp.

• Decision Date: 07 March 1994
• Docket Number: Docket No. 141480
• Citation: English v. Augusta Tp., 514 N.W.2d 172, 204 Mich.App. 33 (Mich. App. 1994)
• Parties: James ENGLISH and Barbara English, Plaintiffs-Appellees, v. AUGUSTA TOWNSHIP, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 172

514 N.W.2d 172

204 Mich.App. 33

James ENGLISH and Barbara English, Plaintiffs-Appellees, v. AUGUSTA TOWNSHIP, Defendant-Appellant.

Docket No. 141480.

Court of Appeals of Michigan.

Submitted Dec. 20, 1993, at Lansing.

Decided March 7, 1994, at 9:10 a.m.

Released for Publication April 27, 1994.

Henry C. Ritchie, Ypsilanti, and Jan Armon, Bryn Mawr, PA, for plaintiffs.

John W. Stanowski, Saline, for defendant.

Before SHEPHERD, P.J., and McDONALD and JANSEN, JJ.

SHEPHERD, Presiding Judge.

Defendant appeals as of right from a judgment of the trial court ordering defendant to rezone plaintiffs' property from agricultural/residential (AR) to manufactured housing park (MHP). We affirm the trial court's conclusion that defendant engaged in exclusionary zoning, but vacate its order of rezoning and replace it with an injunction that defendant not interfere with plaintiffs' proposed use.

Plaintiffs own a forty-nine acre parcel of land on Whittaker Road in Augusta Township. In 1989, plaintiffs filed a petition with defendant seeking a change in the zoning classification of their property from AR to MHP for the purpose of constructing a mobile-home park. Defendant township denied plaintiffs' petition for rezoning. In response, plaintiffs filed a lawsuit in the Washtenaw Circuit Court against defendant, seeking monetary damages and a writ of mandamus to compel defendant to rezone their property to MHP.

At a bench trial, testimony revealed that while the township had no existing mobile-home parks, the township had zoned a ninety-six acre area for mobile homes. However, a former township zoning official testified that that particular area was chosen by the township board for MHP zoning because the board believed that it would never be developed. The township supervisor who owned eighty of the ninety-six acres in the MHP zone intended to have his family continue to operate the parcel as a farm. The MHP zone was located in the extreme southwest corner of the township, away from available water and sewer systems. A toxic-waste landfill was located immediately adjacent to the MHP zone, and a federal prison at Milan was just three-quarters of a mile away! The former township zoning official testified that he was pressured by the township board to keep manufactured housing out of the township, despite inquiries by a number of developers. There was also testimony that the building department was under pressure to limit the issuance of permits for low-cost housing in general. The township planner who examined plaintiffs' application for rezoning testified that the township considered itself a rural residential and agricultural community, and it did not need a mobile-home park.

With respect to plaintiffs' proposed development, there was testimony that a nearby water line could provide adequate pressure and volume for a mobile-home park via an extension. The nearby sewer system was not capable of handling the additional volume; however, the system could handle the additional volume with an expansion of two pump stations. Topographically, plaintiffs' property is suitable for development, with the exception of a lowland swale that cuts roughly across the middle. According to the township's master plan, the larger portion of plaintiffs' property north of the swale was to have a density of five to seven units an acre, while the southern portion was to remain agricultural. Plaintiffs' proposal to the township was for approximately five to seven units an acre over the entire parcel, excluding the wetlands area. Roadways would have to be built for the mobile-home development; however, the construction of roads would also be necessary for any other development of similar density. The local roads were found sufficient to handle the proposed development.

Following the bench trial, the trial court issued its written findings of fact and conclusions of law. The trial court found that defendant had, in effect, unconstitutionally excluded mobile-home parks from the township by relegating mobile homes to an undevelopable area. Further, the trial court found that plaintiffs had demonstrated a demand for their proposed use, and that plaintiffs' parcel was suitable for a mobile-home park. Subsequently, the trial court ordered defendant to rezone plaintiffs' property from AR to MHP. Herein, defendant appeals as of right from that order.

On appeal, our review of the trial court's ruling on a constitutional challenge to a zoning ordinance is de novo. Guy v. Brandon Twp., 181 Mich.App. 775, 778, 450 N.W.2d 279 (1989); Macenas v. Village of Michiana, 433 Mich. 380, 394-396, 446 N.W.2d 102 (1989). However, the trial court's findings of fact are accorded considerable deference. Id.; Eveline Twp. v. H & D Trucking Co., 181 Mich.App. 25, 30, 448 N.W.2d 727 (1989).

I EXCLUSIONARY ZONING

The Legislature addressed the problem of exclusionary zoning with the enactment of § 27a of the Township Rural Zoning Act, M.C.L. § 125.297a; M.S.A. § 5.2963(27a), which provides:

A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a township in the presence of a demonstrated need for that land use within either the township or surrounding area within the state, unless there is no location within the township where the use may be appropriately located, or the use is unlawful.

An ordinance that has the effect of totally prohibiting a particular land use within a township is impermissible in the absence of special circumstances. M.C.L. § 125.297a; M.S.A. § 5.2963(27a); Szluha v. Avon Charter Twp., 128 Mich.App. 402, 409, 340 N.W.2d 105 (1983). A zoning ordinance that totally excludes an otherwise legitimate use carries with it a strong taint of unlawful discrimination and a denial of equal protection of the law with regard to the excluded use. Kropf v. Sterling Heights, 391 Mich. 139, 155-156, 215 N.W.2d 179 (1974).

A zoning ordinance may not totally exclude a lawful land use where (1) there is a demonstrated need for the land use in the township or surrounding area, and (2) the use is appropriate for the location. Eveline Twp., supra 181 Mich.App. at 32, 448 N.W.2d 727. Applying the rule adopted by this Court in Eveline, supra, to the facts of the case at bar, we agree with the trial court's conclusion that defendant engaged in exclusionary zoning.

Defendant argues that the existence of the site presently zoned MHP requires a finding that mobile-home parks are not totally excluded from the township. However, there was ample evidence that the zoning of that parcel for mobile homes was nothing less than a subterfuge for the township's unwritten policy of excluding mobile-home parks altogether. As noted above, the township board chose the site because they believed that it would never be developed. The township supervisor owned the vast majority of the site, fully intending to continue to operate the property as a family farm. In addition, the site was inappropriate for its zoned use because of the unavailability of water and sewer service and its proximity to a toxic-waste landfill and a federal prison. Thus, in effect, the township has designated no appropriate site for a mobile-home park. ¹ Contrast Guy v. Brandon Twp., supra at 787-788, 450 N.W.2d 279.

Under the first prong of the test set forth in Eveline Twp., supra at 32, 448 N.W.2d 727, there was evidence of the need for a mobile-home park in the township. There was testimony that numerous developers inquired about developing a mobile-home park, but they were turned away because of the township's unwritten policy of exclusion. There was also testimony that township officials exerted pressure to limit low-cost housing in general. Thus, we will not disturb the trial court's finding that there was a need or demand for the use within the township. Id.; Macenas, supra 433 Mich. at 394-396, 446 N.W.2d 102.

Further, under the second factor outlined in Eveline Twp., supra 181 Mich.App. at 32, 448 N.W.2d 727, there was evidence that the use was appropriate for the proposed location. Plaintiffs' proposed development was near an existing water line with sufficient pressure and volume. Sewer service was feasible with an upgrade of two pumping stations. With respect to the larger portion of the property north of the swale, the proposed development would have the same density as previously contemplated by the township under the AR zoning classification. With respect to the southern portion of plaintiffs' property that was slated by the township for agricultural use, there is no discernible reason for the distinction other than to create an arbitrary boundary along the path of the swale. ² The southern portion is...