KENT CTY. AERO. BD. v. Dept. of State Police

• Decision Date: 19 April 2000
• Docket Number: Docket No. 210852.,Docket No. 210067,Docket No. 210448
• Citation: KENT CTY. AERO. BD. v. Dept. of State Police, 609 N.W.2d 593, 239 Mich. App. 563 (Mich. App. 2000)
• Parties: KENT COUNTY AERONAUTICS BOARD, Plaintiff-Appellant, v. DEPARTMENT OF STATE POLICE, Defendant-Appellee, and Motorola Communications and Electronics, Inc, Intervening Defendant-Appellee. Ada Township, Plaintiff-Appellant, v. Department of State Police and Motorola, Inc., Defendants-Appellees. Norman Byrne, Rosemary Byrne, Donald Nolte, Lee, Nolte, Richard Burton, Sue Burton, Bernard Rooker, Margaret Rooker, Arthur Vadeboncoeur, Connie Vadeboncoeur, Daniel White, Jane White, Gene McGann, Robert Scudder, Kathy Scudder, and Lil Vroma, Plaintiffs-Appellants, v. State of Michigan and Department of State Police, Defendants-Appellees, and Motorola Communications and Electronics, Inc., Intervening Defendant-Appellee.
• Court: Court of Appeal of Michigan

609 N.W.2d 593

239 Mich. App. 563

KENT COUNTY AERONAUTICS BOARD, Plaintiff-Appellant, v. DEPARTMENT OF STATE POLICE, Defendant-Appellee, and Motorola Communications and Electronics, Inc, Intervening Defendant-Appellee.

Ada Township, Plaintiff-Appellant, v. Department of State Police and Motorola, Inc., Defendants-Appellees.

Norman Byrne, Rosemary Byrne, Donald Nolte, Lee, Nolte, Richard Burton, Sue Burton, Bernard Rooker, Margaret Rooker, Arthur Vadeboncoeur, Connie Vadeboncoeur, Daniel White, Jane White, Gene McGann, Robert Scudder, Kathy Scudder, and Lil Vroma, Plaintiffs-Appellants, v. State of Michigan and Department of State Police, Defendants-Appellees, and Motorola Communications and Electronics, Inc., Intervening Defendant-Appellee.

Docket Nos. 210067, 210448, 210852.

Court of Appeals of Michigan.

Submitted June 1, 1999, at Grand Rapids.

Decided February 4, 2000, at 9:00 a.m.

Released for Publication April 19, 2000.

Law, Weathers & Richardson, P.C. (by Robert A. Buchanan), Grand Rapids, for Kent County Aeronautics Board.

Miller, Johnson, Snell & Cummiskey, P.L.C. (by Jeffrey S. Ammon and James R. Peterson), Grand Rapids, for Ada Township.

Varnum, Riddering, Schmidt & Howlett, LLP (by Teresa A. Decker), Grand Rapids, for Norman Byrne and others.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Gary L. Hicks and Darrin F. Fowler, Assistant Attorneys General, for State of Michigan and Department of State Police

Honigman Miller Schwartz and Cohn (by John Pirich and Ann L. Andrews), Lansing, for Motorola Communications and Electronics, Inc.

Before: RICHARD ALLEN GRIFFIN, P.J., and WILDER and R.J. DANHOF,¹ JJ.

WILDER, J.

In these consolidated appeals arising out of defendants' plans to construct a communications tower as part of the new Michigan Public Safety Communications System (hereafter MPSCS),² plaintiffs appeal as of right the trial court's grant of summary disposition to defendants under MCR 2.116(C)(10). We affirm.

I. Basic Facts

In 1984, defendant Michigan Department of State Police (hereafter State Police) conducted a series of studies that identified serious problems with the existing State Police radio system. In order to address the public safety problems posed by the old radio system, the Legislature authorized construction of the MPSCS in the capital outlay appropriations acts of 1990 and 1993, and appropriated $2.85 million in general fund money to the State Police for construction of the new system. See 1990 PA 253, 1993 PA 19. After bidding was completed, the State Police selected intervening defendant Motorola Communications and Electronics, Inc., (hereafter Motorola) for final contract negotiations and, on December 8, 1994, Motorola was awarded a $187 million contract to design and implement the new MPSCS, an integrated radio tower network communications system.

When completed, the new system, comprised of approximately 181 towers constructed throughout the state of Michigan, will provide radio coverage over the entire state enabling state and local public safety officers, as well as law enforcement agencies and other state departments, to communicate with each other instantaneously. Pursuant to the contract, the State Police and Motorola executed a Detailed Design Plan of a four-phase construction project. In this regard, the State Police and Motorola selected a site in Ad Township in the vicinity of Honey Creek Avenue and Three Mile Road (hereafter Honey Creek site) for construction of a 475-foot radio communications tower, and they prepared to notify the local units of government affected by the project.

On August 12, 1997, the State Police and Motorola notified plaintiff Ada Township of their intention to construct the communications tower at the Honey Creek site. The notification advised Ada Township that within thirty days it must either issue a special use permit authorizing construction of the tower at the selected site or, if Ada Township opposed the site selected by the State Police, it must propose an alternative site that met "Equivalent Site Criteria" adopted by the State Police.

On September 10, 1997, the Ada Township Planning Commission held a special meeting at which it tabled a recommendation of an alternative site and approved a special use permit for the construction of the MPSCS radio tower on the Honey Creek site. The special use permit, however, limited the permissible height of the tower to 175 feet, applied setback and other restrictions contained in the township zoning ordinance, and incorporated height restrictions contained in the Kent County International Airport Zoning Ordinance.

On September 12, 1997, the State Police and Motorola similarly notified Kent County of its intention to construct a communications tower in Ada Township, and advised the county that it had thirty days to propose an equivalent site or grant a special use permit, if the county believed that the proposed tower did not comply with its zoning ordinance. Kent County neither proposed an alternative site nor issued a special use permit, and instead advised the State Police that it must apply for a permit to construct the tower.

In early December 1997, the State Police and Motorola notified Ada Township and Kent County of their intention to proceed with construction on the Honey Creek site and began pre-construction activity. Ada Township issued a stop-work order. Thereafter, Ada Township and the State Police reached an agreement under which the State Police would evaluate the feasibility of constructing the tower at the alternative site previously tabled by Ada Township. The agreement acknowledged that if third-party litigation ensued to challenge construction of the tower at the alternative site, the State Police would abandon the alternative site and return to the Honey Creek site.

In fact, on January 7, 1998, a group of citizens opposed to construction of the tower at the alternative site filed suit seeking to require the State Police to construct the tower at the Honey Creek site.³ The State Police promptly abandoned the alternative site and commenced construction at the Honey Creek site.

Before construction, on December 12, 1997, the Federal Aviation Administration concluded that the proposed tower "would not be a hazard to air navigation." On January 13, 1998, the Michigan Bureau of Aeronautics, to whom airspace reviews and approvals had been delegated by the Michigan Aeronautics Commission, issued a "Tall Structure Permit" for the proposed tower, an indication that its study found the tower would pose "noninterference to air navigation."

II. Procedural History

In Docket No. 210067, plaintiff Kent County Aeronautics Board (hereafter Kent County) filed its complaint against defendant State Police, seeking to enjoin construction of the communication tower as a violation of the height restrictions contained in the zoning ordinance. Kent County asserted in the complaint that the proposed tower would present a danger to aircraft and that therefore the State Police was required to apply for and obtain a dimensional variance. Defendant Motorola was permitted to intervene in the action filed by Kent County. In lieu of answers to the complaint, defendants filed motions for summary disposition arguing that the township zoning ordinance was preempted by subsection 2 of § 2 of the Radio Broadcasting Stations Act (hereafter RBSA), M.C.L. § 28.282(2); MSA 4.492(2), as amended by 1996 PA 538, and that the Tall Structure Permit issued by the state authorized the erection of the tower. Following a hearing on the motions, the trial court concluded that by enacting 1996 PA 538, the Legislature intended to exempt the State Police from local zoning ordinances in connection with construction of the MPSCS. Accordingly, the trial court granted summary disposition to defendants and dismissed Kent County's action with prejudice.

In Docket No. 210448, plaintiff Ada Township filed its complaint alleging that (1) 1996 PA 538 violated the due process provisions of the Michigan Constitution by inappropriately delegating legislative power to the State Police and was also unconstitutional because it failed to provide reasonably precise standards to guide the State Police in locating a new communication system, (2) defendants violated the Administrative Procedures Act (hereafter APA), M.C.L. § 24.201 et seq.; MSA 3.560(101) et seq., because the "Equivalent Site Criteria" provided by the State Police were not promulgated pursuant to the rule-making procedures in the APA, and (3) construction of the communications tower on the Honey Creek site violated the conditions imposed in the township's special use permit.

Defendants filed motions for summary disposition, asserting that plaintiff lacked standing to raise a constitutional due process challenge to the statute and that, in any event, the standard articulated in the statute provided sufficient direction to the State Police. Defendants also argued that the rule-making procedures articulated in the APA were inapplicable to this case because the "Equivalent Site Criteria" used for determining whether an alternative site for construction was acceptable were not "rules" as defined by the APA. Finally, defendants maintained that because the State Police was not subject to the provisions set forth in the zoning ordinance, Ada Township could not preclude construction of the tower by incorporating similar restrictions in the special use permit.

After entertaining arguments on the motions, the trial court denied Ada Township's motion for a preliminary injunction and subsequently granted summary disposition to defendants. The trial court found that Ada Township lacked standing to raise the constitutional claims and that, in any event, the claims were not meritorious. The trial court also found that the "Equivalent Site Criteria" issued by the State Police are not "rules" within the meaning of the APA and therefore the...