Houdek v. Centerville Twp.

• Decision Date: 24 July 2007
• Docket Number: Docket No. 273469.
• Citation: Houdek v. Centerville Twp., 741 N.W.2d 587, 276 Mich. App. 568 (Mich. App. 2007)
• Parties: James HOUDEK, Madeline Houdek, and Houdek's Pumping Service, Plaintiffs-Appellants, v. CENTERVILLE TOWNSHIP, Defendant-Appellee.
• Court: Court of Appeal of Michigan

741 N.W.2d 587

276 Mich. App. 568

James HOUDEK, Madeline Houdek, and Houdek's Pumping Service, Plaintiffs-Appellants, v.CENTERVILLE TOWNSHIP, Defendant-Appellee.

Docket No. 273469.

Court of Appeals of Michigan.

Submitted July 17, 2007 at Detroit.

Decided July 24, 2007.

Released for Publication November 27, 2007.

Approved for Publication September 6, 2007, at 9:10 a.m.

Zimmerman, Kuhn, Darling, Boyd, Quandt and Phelps, P.L.C.(by Joseph E. Quandt and Gina A. Bozzer), Traverse City, for the plaintiffs.

Olson, Bzdok & Howard, P.C.(by Christopher M. Bzdok and Jeffrey L. Jocks), Traverse City, for the defendant.

Law Offices of Gerald Chefalo(by Matthew C. Connolly), Traverse City, for amicus curiaeMichigan Septic Tank Association.

Before: DAVIS, P.J., and HOEKSTRA and DONOFRIO, JJ.

PER CURIAM.

Plaintiffs, James and Madeline Houdek and Houdek's Pumping Service, appeal as of right the trial court's grant of summary disposition in favor of defendant, Centerville Township, in this action challenging a zoning ordinance.Because Centerville Township's zoning ordinance regulating septage disposal and storage does not violate MCL 125.297a, is not exclusionary regarding both the land application of septage and the siting of septage storage structures, and is not unconstitutional on due process or equal protection grounds, we affirm.

I

Plaintiffs own and operate Houdek's Pumping Service in Lake Leelanau, Michigan.Plaintiffs provide septic tank pumping services to residents of Leelanau County, including residents of defendant Centerville Township.Plaintiffs have been in the septic hauling business for many years and seek to expand their business.Plaintiffs purchased property zoned agricultural located at 3741 French Road in Centerville Township, Michigan, with the intent to apply septage collected from the area on the land and for construction of a septage holding tank.As part of their business, plaintiffs had been applying septage to other land application sites in Centerville Township for which they had the appropriate approvals from the Leelanau County Health Department and the Michigan Department of Environmental Quality(DEQ).

In October 2001, to regulate the land application of septage, defendant enacted § 9.6 of its zoning ordinances, prohibiting land application of septage in Centerville Township "if an existing public wastewater treatment or septage treatment facility in Leelanau, Grand Traverse or Benzie County has the capacity to accept Septage Waste and will accept said Waste."The zoning ordinance grandfathered land application sites that existed at the time the township enacted the ordinance, but, each grandfathered site would lose its status and become subject to the ordinance's regulations when the DEQ permit for the site expired.In December 2001, plaintiffs applied for a special use permit to apply septage to land on a DEQ-approved five-acre parcel on the French Road property.Defendant approved the request in February 2002 and issued the special use permit to plaintiffs in March 2002, pursuant to §§ 9.6(B) and (C) of the ordinance.Later, defendant adopted a resolution allowing for septage waste from Centerville Township to be hauled to the Grand Traverse Septage Treatment Plant (GTSTP) after it came online in 2005.Plaintiffs also entered into a contract to haul waste to the GTSTP.

Beginning in March 2002, plaintiffs had received DEQ approval for four additional sites on the French Road property for both surface application of septage and injection of septage under the ground on their land.But, pursuant to the zoning ordinance, because the GTSTP was online and accepting waste from Centerville Township, plaintiffs could not utilize these additional sites on their property for land application of septage.Also, over the next few years, plaintiffs repeatedly applied for land use permits for the purpose of installing a septage storage tank on their property.Defendant denied plaintiffs' requests for the reason that installation and operation of septage storage tanks are "not a permitted use within the Agricultural District."

Only able to utilize a small portion of their French Road property for land application of septage pursuant to a special use permit issued by defendant, and, unable to construct a septage holding facility on their land because it is zoned agricultural, plaintiffs filed suit against defendant.Plaintiffs' complaint included five counts: exclusionary zoning of land application sites, exclusionary zoning of septage storage tanks, and violations of substantive due process and equal protection.The parties filed motions for summary disposition pursuant to MCR 2.116(C)(10).After entertaining oral argument on the matters the trial court granted summary disposition in favor of defendant on all counts and dismissed the complaint.This appeal followed.

II

A trial court's decision on a motion for summary disposition is reviewed de novo.Collins v. Comerica Bank,468 Mich. 628, 631, 664 N.W.2d 713(2003).Under MCR 2.116(C)(10), the court reviews all evidence submitted by the parties, and summary disposition should be granted to the moving party only where the evidence and all legitimate inferences, when viewed in the light most favorable to the nonmoving party, fails to establish a genuine issue regarding any material fact.Coblentz v. City of Novi,475 Mich. 558, 567-568, 719 N.W.2d 73(2006).A genuine issue of material fact exists when, giving the benefit of reasonable doubt to the opposing party, the record leaves open an issue on which reasonable minds could differ.West v. Gen. Motors Corp.,469 Mich. 177, 183, 665 N.W.2d 468(2003).

Further, this Court reviews de novo whether an ordinance is unconstitutional.Van Buren Charter Twp. v. Garter Belt, Inc.,258 Mich.App. 594, 627, 673 N.W.2d 111(2003).Only if there is no possible reasonable construction that would render an ordinance constitutional must a court strike it down.Council of Orgs., Others for Ed. About Parochiaid, Inc. v. Governor,455 Mich. 557, 568, 566 N.W.2d 208(1997).All statutes and ordinances are presumed to be constitutional and are construed so unless their unconstitutionality is clearly apparent.Shepherd Montessori Center Milan v. Ann Arbor Charter Twp.,259 Mich.App. 315, 341-342, 675 N.W.2d 271(2003).The party challenging the ordinance has the burden of rebutting the presumption.STC, Inc. v. Dep't of Treasury,257 Mich.App. 528, 539, 669 N.W.2d 594(2003).And, due process and equal protection challenges to zoning ordinances are reviewed de novo.SeeBloomfield Charter Twp. v. Oakland Co. Clerk,253 Mich.App. 1, 30, 654 N.W.2d 610(2002);Bell River Assoc. v. China Charter Twp.,223 Mich.App. 124, 129, 565 N.W.2d 695(1997).

III

Plaintiffs first argue that the zoning ordinance is exclusionary on its face regarding land application of septage within Centerville Township.This Court presumes that a challenged ordinance is valid.Frericks v. Highland Twp.,228 Mich.App. 575, 594, 579 N.W.2d 441(1998).A party may establish that a land use regulation is unconstitutional, either on its face or "as applied," by demonstrating "(1) that there is no reasonable governmental interest being advanced by the present zoning classification or (2) that an ordinance is unreasonable because of the purely arbitrary, capricious, and unfounded exclusion of other types of legitimate land use from the area in question."Id.A facial challenge asserts that the mere existence and potential enforcement of the disputed ordinance materially and adversely affects values and precludes or restricts opportunities for all regulated property.

In raising a facial challenge, plaintiffs must specifically demonstrate that the ordinance totally excludes the proposed use in the township, Kropf v. Sterling Hts.,391 Mich. 139, 155-156, 215 N.W.2d 179(1974), and that the ordinance precludes use of the property for any purposes "to which it is reasonably adapted."Id. at 162-163, 215 N.W.2d 179.To invalidate the ordinance on either basis, plaintiffs must further show that the ordinance serves no "rational relation to the public health, safety, welfare and prosperity of the community...."Frericks, supra at 608, 579 N.W.2d 441, quotingChristine Bldg. Co. v. City of Troy,367 Mich. 508, 516, 116 N.W.2d 816(1962)(further citation omitted).

Plaintiffs argue in particular that the ordinance violates § 27a of the Township Zoning Act (TZA), MCL 125.297a¹ because there is a demonstrated need in the township for the land application of septage, there are appropriate locations within the township for land application, and the use is lawful pursuant to MCL 324.11701 et seq.Defendant counters that the zoning ordinance is not exclusionary because it does not totally prohibit the use and there is no demonstrated need for the use.MCL 125.297a 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.

To establish a violation of MCL 125.297a, plaintiffs must show (1) that the challenged ordinance has the effect of totally excluding the land use within the township, (2) there is a demonstrated need for the excluded land use in the township or surrounding area, (3) the use is appropriate for the location, and (4) the use is lawful.Adams Outdoor Advertising, Inc. v. City of Holland,463 Mich. 675, 684, 625 N.W.2d 377(2001)(Adams II);Adams Outdoor Advertising, Inc. v. City of Holland,234 Mich.App. 681, 694, 600 N.W.2d 339(1999)(Adams I).

A review of the record reveals that there are currently two sites in the township that are approved for land application of septage.Plaintiffs admit that in February 2002...