Howell Township v. Rooto Corporation

• Decision Date: 10 November 2003
• Docket Number: Docket No. 236440.
• Parties: HOWELL TOWNSHIP, Plaintiff-Appellant, v. ROOTO CORPORATION, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

670 N.W.2d 713

258 Mich. App. 470

HOWELL TOWNSHIP, Plaintiff-Appellant, v. ROOTO CORPORATION, Defendant-Appellee.

Docket No. 236440.

Court of Appeals of Michigan.

Submitted May 6, 2003, at Lansing.

Decided September 16, 2003, at 9:20 a.m.

Released for Publication November 10, 2003.

Foster, Swift, Collins & Smith, P.C. (by Charles E. Barbieri and Kirsten M. McNelly), Lansing, for the plaintiff.

The Kizer Law Firm, P.C. (by Thomas Kizer, Jr.), Howell, for the defendant.

Before: BANDSTRA, P.J., and GAGE and SCHUETTE, JJ.

GAGE, J.

This case involves a long legal battle between plaintiff Howell Township and defendant Rooto Corporation over compensation for costs the township incurred in responding to a fire at defendant's plant. The township sought compensation under Howell Township Ordinance 53. The trial court found Ordinance 53 preempted by Part 201 of the Natural Resources and Environmental Protection Act (NREPA), M.C.L. § 324.20101 et seq., and dismissed the township's claims against defendant. We affirm in part, reverse in part, and remand for further proceedings.

I

A. FACTUAL BACKGROUND

Around Thanksgiving of 1995, a fire occurred at defendant's packaging plant located in Howell Township.¹ The conflagration caused a release into the environment of many chemical compounds, including chemicals defined by the Legislature as "hazardous materials." The local fire department evacuated the area near the plant because of potentially toxic fumes. With regard to the actual cause of the fire, city of Howell Fire Chief James Reed opined that the fire was "probably intentionally set" and "was the result of arson."

The multitude of emergency personnel that responded to the fire requested payment for their services from the township totaling more than $75,000. Pursuant to the purported mandates of Ordinance 53, the township thereafter requested compensation from defendant for the costs that the township incurred by using the services of the various agencies. Defendant refused to compensate the township.

B. PROCEDURAL HISTORY

In 1996, the township brought suit against defendant, alleging that Ordinance 53 required defendant to reimburse the township for expenses it incurred in quelling the fire on defendant's premises. The township moved for summary disposition, in part seeking a ruling that the township properly enacted Ordinance 53. The township also sought summary disposition in its favor on its claim for compensation under the ordinance.

Defendant likewise sought summary disposition, arguing in part that the township did not properly record the ordinance. Defendant also argued that summary disposition in its favor regarding plaintiff's claims was appropriate because Part 201 of the NREPA, provided defendant with an absolute defense to liability, notwithstanding the mandates of the ordinance.

The trial court granted defendant summary disposition of the township's claims brought pursuant to the ordinance, agreeing that the township had not properly enacted the ordinance. The court, however, denied defendant's motion for summary disposition of plaintiff's claims based on the NREPA because there was a question of material fact regarding the cause of the fire. Plaintiff appealed to this Court, and this Court reversed the trial court's decision with regard to the ordinance. Howell Twp. v. Rooto Corp., 236 Mich.App. 438, 600 N.W.2d 412 (1999). The Supreme Court affirmed this Court's reversal and remanded the matter to the trial court. Howell Twp. v. Rooto Corp., 463 Mich. 347, 617 N.W.2d 533 (2000).

On remand, defendant filed a motion for summary disposition of plaintiff's claims brought pursuant to the ordinance. Essentially, defendant argued that Part 201 of the NREPA preempts the ordinance and provides defendant with an absolute defense to liability because a third party ignited the fire. The township likewise moved for summary disposition of its claims brought under the ordinance. Essentially, the township argued that the plain language of the ordinance provided for strict liability and required defendant to reimburse the township for expenses incurred in quelling the fire. In addition, the township argued that the ordinance does not permit defendant to assert a defense based on a theory of third-party culpability. In essence, the township averred that the NREPA does not preempt the ordinance.

The trial court denied both parties' motions for summary disposition, but in denying the township's motion, the court stated that defendant was entitled to assert a third-party defense to liability and that the township could assert a lack of due care argument in opposition to the third-party defense. The court directed the parties to submit their arguments in briefs and to submit a stipulated set of facts. The trial court issued a written opinion and order dismissing the township's claims, holding that Part 201 of the NREPA preempts the ordinance. In addition, the court held that Part 201 of the NREPA protected defendant from liability because a third party ignited the fire. Finally, the court found that defendant did not contribute to the conflagration.

II

This Court reviews de novo a trial court's decision to grant or deny summary disposition. Thomas v. United Parcel Service, 241 Mich.App. 171, 174, 614 N.W.2d 707 (2000). Likewise, we review de novo the application of the theory of preemption, which is an issue of statutory interpretation. Id.

III

A. LEGAL CONTEXT

Townships, such as Howell Township, have no inherent powers, but have only those limited powers conferred on them by the Legislature or by the Michigan Constitution. Graham v. Kochville Twp., 236 Mich.App. 141, 146, 599 N.W.2d 793 (1999). The township ordinance act, M.C.L. § 41.181, is the basic enabling act granting townships the power to enact ordinances that regulate the public health, safety, and general welfare. Id. While the provisions of the Constitution and law regarding counties, townships, cities, and villages must be liberally construed in their favor, the powers granted to townships by the Constitution and by law must include only those fairly implied and not prohibited by the Constitution. Const. 1963, art. 7, § 34.

"[A] municipal ordinance is preempted by state law if 1) the statute completely occupies the field that ordinance attempts to regulate, or 2) the ordinance directly conflicts with a state statute." Rental Prop Owners Ass'n of Kent Co. v. Grand Rapids, 455 Mich. 246, 257, 566 N.W.2d 514 (1997), accord People v. Llewellyn, 401 Mich. 314, 322, 257 N.W.2d 902 (1977); see also Michigan Coalition for Responsible Gun Owners v. City of Ferndale, 256 Mich.App. 401, 408, 662 N.W.2d 864 (2003). With regard to whether a statute preempts a municipal ordinance by completely occupying the field of regulation, our Supreme Court set forth several guidelines:

"First, where the state law expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted.

"Second, pre-emption of a field of regulation may be implied upon an examination of legislative history.

"Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of pre-emption.

"Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest." [ Rental Prop Owners Ass'n, supra at 257, 566 N.W.2d 514, quoting Llewellyn, supra at 323-324, 257 N.W.2d 902 (citations omitted).]

With regard to determining whether the provisions of a municipal ordinance conflict with a statute covering the same subject

"the test is whether the ordinance prohibits an act which the statute permits, or permits an act which the statute prohibits. Accordingly, it has often been held that a municipality cannot lawfully forbid what the legislature has expressly licensed, authorized, permitted, or required, or authorize what the legislature has expressly forbidden.

* * *

"The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal ordinance are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory, and the only difference between them is that the ordinance goes further in its prohibition but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail." [Id. at 262, 566 N.W.2d 514, quoting 56 Am. Jur. 2d, Municipal Corporations, § 374, pp. 408-409 (emphasis in Rental Prop Owners Ass'n).]

With the legal context in mind, we review the trial court's finding that the township's ordinance is preempted by state statute. We note, however, that while the trial court did not directly analyze the theory on which it found the ordinance preempted, the court found that Part 201 of the NREPA "preempts the field," and further determined that the NREPA...