GREEN OAK TP. v. Green Oak MHC

• Decision Date: 18 April 2003
• Docket Number: Docket No. 231704.
• Citation: 661 N.W.2d 243,255 Mich. App. 235
• Parties: GREEN OAK TOWNSHIP, Plaintiff-Appellee, v. Green Oak MHC and Kenneth B. Lipshutz, Defendants-Appellees, and Ruth E. MUNZEL, Personal Representative of the Estate of Herbert Munzel, Deceased, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

661 N.W.2d 243

255 Mich. App. 235

GREEN OAK TOWNSHIP, Plaintiff-Appellee, v. Green Oak MHC and Kenneth B. Lipshutz, Defendants-Appellees, and Ruth E. MUNZEL, Personal Representative of the Estate of Herbert Munzel, Deceased, Defendant-Appellant.

Docket No. 231704.

Court of Appeals of Michigan.

Submitted January 14, 2003, at Lansing.

Decided February 4, 2003, at 9:00 a.m.

Released for Publication April 18, 2003.

Connelly, Crowley, Groth & Seglund, (by Bruce R. Seglund), Walled Lake, for Green Oak Township.

Hyman Lippitt, P.C., (by Roger L. Myers), Birmingham, for Green Oaks MHC and Kenneth B. Lipshutz.

Keusch, Flintoft & Conlin, PC, (by Peter C. Flintoft), Chelsea, for the defendant.

John F. Rohe for Environmental Council and Michigan Land Use Institute, Petoskey, for Amici Curiae.

Before: O'CONNELL, P.J., and RICHARD ALLEN GRIFFIN and MARKEY, JJ.

O'CONNELL, P.J.

Defendant Ruth E. Munzel¹ appeals as of right the circuit court's entry of judgment declaring Herbert Munzel's zoning referendum petition invalid and enjoining the requisite certification of the petition. We affirm.

The facts in this case are essentially undisputed. Defendant Kenneth B. Lipshutz petitioned the Green Oak Township Board to rezone 233 acres of land from RF (residential farming) to RMH (residential mobile home park), permitting the development of a 912-unit mobile home park. According to the township ordinance set forth in the record, mobile home communities are allowed only in districts zoned RMH. See, e.g., Green Oak Township Ordinances, § 4.7.3. The board denied Lipshutz's petition. After the board's denial, defendants Lipshutz and Green Oak MHC (GOMHC), landowners of the property at issue, sued the township in the Livingston Circuit Court and reached a settlement with the township. The terms of the settlement were reduced to a consent judgment, which was accepted by a four-to-three vote of the board members, and the judgment was entered by the circuit court. The judgment allowed the development of the mobile home park for which Lipshutz initially petitioned, despite the zoning of the property.

Herbert Munzel, a property owner in Green Oak Township, filed a notice of intent to file a petition with the township clerk for a referendum on the adoption of the terms of the consent judgment pursuant to § 12 of the township rural zoning act (TRZA), M.C.L. § 125.282. That provision allows a registered elector residing in the township to submit a petition requesting that a zoning ordinance be placed before the other electors residing in the township. Thereafter, the township was presented with over one thousand signatures asking that the issue be placed on the ballot in the upcoming November election. Next, the township sued Munzel, Phil Berg (another petition circulator), Lipshutz, and GOMHC, to seek a declaratory judgment regarding whether a referendum could be properly invoked to overturn the consent judgment. GOMHC then filed a motion to declare the referendum petition invalid and to enjoin certification of the petition.

Essentially, the township, GOMHC, and Lipshutz argued that the consent judgment was valid because it did not in fact constitute a rezoning of the property, and, therefore, no right of referendum existed. On the other hand, Munzel claimed that the consent judgment actually did constitute rezoning while "disenfranchising the people[']s right to a referendum." Munzel maintained that the ordinance only allows mobile home parks in established zones. Nonetheless, the trial court ruled that the TRZA does not allow a referendum to be taken on a consent judgment. This appeal followed, and we accepted briefing from amici curiae.²

Defendant Munzel argues on appeal that the township board did not comply with the TRZA when it signed the consent judgment permitting GOMHC to build the mobile home park and that township residents have the right of referendum on the zoning issue. Because the issues raised in defendant Munzel's appeal are intertwined, we address them together.

This Court reviews de novo questions of law in declaratory judgment actions. Herald Co., Inc. v. Ann Arbor Pub. Schools, 224 Mich.App. 266, 271, 568 N.W.2d 411 (1997). Statutory interpretation is a question of law that is also considered de novo on appeal. Dessart v. Burak, 252 Mich.App. 490, 494, 652 N.W.2d 669 (2002). At the outset we note, as the court below did, that Michigan case law does not address whether a consent judgment is subject to the right of referendum created in M.C.L. § 125.282. Therefore, this is an issue of first impression.³

MCL 125.282, on which defendant Munzel relies, is the part of the TRZA that authorizes the initiation of a referendum election. It states:

Within 7 days after publication of a zoning ordinance under section 11a, a registered elector residing in the portion of the township outside the limits of cities and villages may file with the township clerk a notice of intent to file a petition under this section. If a notice of intent is filed, then within 30 days following the publication of the zoning ordinance, a petition signed by a number of registered electors residing in the portion of the township outside the limits of cities and villages equal to not less than 10%⁴ of the total vote cast for all candidates for governor, at the last preceding general election at which a governor was elected, in the township may be filed with the township clerk requesting the submission of an ordinance or part of an ordinance to the electors residing in the portion of the township outside the limits of cities and villages for their approval. Upon the filing of a notice of intent, the ordinance or part of the ordinance adopted by the township board shall not take effect until 1 of the following occurs:

(a) The expiration of 30 days after publication of the ordinance, if a petition is not filed within that time.

(b) If a petition is filed within 30 days after publication of the ordinance, the township clerk determines that the petition is inadequate.

(c) If a petition is filed within 30 days after publication of the ordinance, the township clerk determines that the petition is adequate and the ordinance or part of the ordinance is approved by a majority of the registered electors residing in the portion of the township outside the limits of cities and villages voting thereon at the next regular election which supplies reasonable time for proper notices and printing of ballots, or at any special election called for that purpose. The township board shall provide the manner of submitting an ordinance or part of an ordinance to the electors for their approval or rejection, and determining the result of the election. [MCL 125.282.]

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). "The rules of statutory construction merely serve as guides to assist the judiciary in determining intent with a greater degree of certainty." Title Office, Inc. v. Van Buren Co. Treasurer, 249 Mich.App. 322, 326, 643 N.W.2d 244 (2002). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp. v. Ann Arbor, 247 Mich.App. 410, 415, 636 N.W.2d 787 (2001). "[O]nce the intention of the Legislature is discovered, it must prevail regardless of any conflicting rule of statutory construction." Traffic Jam & Snug, Inc. v. Liquor Control Comm., 194 Mich.App. 640, 645, 487 N.W.2d 768 (1992). Courts may not speculate about the probable intent of the Legislature beyond the language expressed in the statute. Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002). "If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted." Guardian Photo, Inc. v. Dep't of Treasury, 243 Mich.App. 270, 277, 621 N.W.2d 233 (2000).

In this case, the plain and ordinary language of M.C.L. § 125.282 indicates that the right of referendum is applicable to zoning ordinances only. We emphasize that the Legislature expressly refers to the word "ordinance" to the exclusion of other types of zoning actions including variances, exceptions, and special use permits. In our view, the term "ordinance" has a particularized meaning when used with reference to the TRZA. Specifically, the enactment of a zoning ordinance is considered a "distinct legislative act." 8 McQuillin, Municipal Corporations (3d ed.), § 25.52, p. 163; see also Sun Communities v. Leroy Twp., 241 Mich.App. 665, 669, 617 N.W.2d 42 (2000), citing Schwartz v. Flint, 426 Mich. 295, 307-308, 395 N.W.2d 678 (1986). Notably, the TRZA sets forth formal provisions for the enactment of an ordinance by the appropriate boards and governing bodies. MCL 125.281.

The consent judgment at issue did not comport with the aforementioned particularized requirements of a zoning ordinance or amendment. Accordingly, the consent judgment was neither the promulgation of a zoning ordinance nor an amendment of a zoning ordinance as contemplated by M.C.L. § 125.282. Therefore, a determination that M.C.L. § 125.282 is applicable to a consent judgment would be contrary to the plain language of the statute. See Guardian Photo, supra.

Adopting defendant Munzel's argument would not only be in conflict with the plain language of the statute, but would also lead to an unreasonable result whereby any zoning board decision could potentially be subject to a right of referendum.⁵ That result would be untenable because even the most routine zoning decisions could be subject to a costly and time consuming referendum. Moreover, if that were the Legislature's intent, it would have expressed as much. Instead, the Legislature chose to specify that M.C.L. § 125.282 applies to zoning ordinances, as opposed to a variety of other zoning actions and decisions.

While the consent judgment...