Mettler Walloon v. Melrose Twp.

Decision Date02 October 2008
Docket NumberDocket No. 269051.
Citation281 Mich. App. 184,761 N.W.2d 293
CourtCourt of Appeal of Michigan — District of US

Carson Fischer, P.L.C., Bloomfield Hills (by Robert M. Carson and Michelle C. Harrell), for the plaintiff.

Daniel W. White, Alpena, for the defendants.

Before: MARKEY, P.J., and SAAD, C.J., and WILDER, J.


Plaintiff Mettler Walloon, L.L.C. (Mettler Walloon), appeals as of right the trial court's final judgment upon the remaining claims and its decision after trial. The trial court's orders decided the pertinent issues in defendants' favor, finding no cause of action on plaintiff's damages claims.1 We affirm.


The principal member of plaintiff is Louis P. Mettler (Mettler). Mettler acquired the property at issue in various parts in 2002 and 2003. Mettler acquired parcels on Walloon Lake (lakeside parcels) and parcels across the highway from the lake (dry side parcels). The lakeside parcels in question were zoned C-3 (village commercial) at all relevant times. The zoning ordinance states that the village commercial "[d]istrict is intended to provide areas for business uses that serve the township and that are located in the village area." Melrose Township Zoning Ordinance (MTZO), art. IV, § 6.6(A). Numerous uses are permitted in the village commercial zone, including boathouses and wet storage, dry boat storage, marinas, and "[a]partments above all of the allowed uses[.]" MTZO, art. IV, § 6.6(B).

At the time Mettler purchased the initial parcels, he had a marina permit and was considering using the lakeside parcels for the sale of antique boats. Mettler was also contemplating boathouses with living spaces above them. Mettler initially planned to develop his property as a planned unit development (PUD).

In March of 2003 plaintiff entered into a purchase agreement with the Hass brothers for the acquisition of nine additional parcels, three on the lakefront and six on the opposite side of the highway. There had been a fire on one of the Hass parcels, and some people encouraged Mettler to buy the Hass properties. After purchasing the Hass properties, Mettler incorporated them into the site plan.

Before the purchase of the Hass properties, the plan for the lakeside parcels was to build two buildings, each in turn with two units (four total), and move an existing building across the street to be used for restoration of wooden boats. But the acquisition of the Hass properties doubled the site plan size from two buildings to four with two living units in each (eight total living units), and then one large boathouse underneath them.

Mettler initially attempted to purchase the Hass properties on land contract. It was alleged, however, that Mettler's plan subsequently began to be disfavored. Plaintiff testified at trial that at that time "there was a definite turn in the direction of the feeling ... most definitely by Mr. [Michael] Webster," the township supervisor.

On March 28, 2003, David Drews, a project manager for Mettler, sent an e-mail to W. Randolph Frykberg, the township zoning administrator, discussing PUD issues. On March 28, 2003, Frykberg notified Webster of a meeting with Drews to discuss PUD details, but on that same date, David Drews notified Frykberg that plaintiff would not pursue a PUD, would seek approval of its development under existing zoning, and was no longer contemplating the sale of antique wooden boats.

On April 24, 2003, the Melrose Township Zoning Board of Appeals (ZBA) held a meeting. Among those present were Richard Hermann, the chairman of the planning commission and a planning commission representative on the ZBA, as well as Frykberg and township attorney Bryan Graham. Graham stated that the meeting was convened to define the term "boathouse." The ZBA acknowledged that a boathouse is a use permitted by right in the C-3 zone, and that "boathouse" is not defined in the ordinance. The ZBA interpreted "boathouse" to mean "a building or shed, usually built partly over water, for sheltering a boat or boats, but which excludes any residential use."

On April 29, 2003, Webster removed Hermann from his position on the planning commission. On May 2, 2003, Mettler submitted a site plan for the lakeside parcels. The plan proposed marina and boathouses uses. The township directed the site plan to Graham for review. On May 23, 2003, Graham sent a letter to plaintiff indicating deficiencies in the site plan.

On June 20, 2003, Webster sent an email to Frykberg, with copies to various township officials, stating:

I want to reiterate the importance of having the amendments completed prior to continuing with any receipt of application or review of the Mettler project or any large scale project. These types of projects must meet the amended standards, particularly the "performance guarantee" amendment to protect the interest of the community.

I realize that delays will frustrate Mr. Mettler and others, but if the policy has been "no condominiums allowed on the waterfront in the Village" then that is the policy we must follow until zoning is clarified or changed. I have made it clear that condominiums under the guise of boathouses was [sic] not appropriate and that there would be public discontent, but some people just did not want to listen. I continue to get negative comments and letters in regard to the condo/boathouses.

I feel that the priority of the Township Board is to remedy any misunderstandings as to zoning interpretations before proceeding with any large scale projects such as Mettler's. Allowing the Zoning Board of Appeals and the Planning Commission to clearly define the interest of the township will take the onus of such a momentous decision off of a single individual and place it on several people.

In the long run, having taken deliberate steps to clarify and improve our zoning ordinance will be best for the community. To expedite matters in the interest of a developer is shortsighted and is a recipe for disaster. I expect that you will act accordingly.

At a June 23, 2003, planning commission meeting, Graham recommended zoning ordinance amendments. Thomas Swenor, the newly elected chairman of the planning commission, announced a special meeting would be held on July 17, 2003, to conduct a public hearing on the proposed amendments. Hermann, who was present, questioned the need for a special meeting, but Frykberg explained that he was expecting a lengthy site plan review at the next regular meeting and that the amendments should be considered first. Also at the June 23, 2003, planning commission meeting, it was announced that the commission would consider amending the zoning ordinance to add the word "commercial" in front of "boat houses" in the C-3 zone, and that a public hearing would be held at the July 17 special meeting to consider doing so.

On July 17, 2003, the planning commission held a special meeting, considered zoning ordinance amendments, and conducted a public hearing. The commission considered the proposed amendment to add "commercial" before "boathouses and wet storage" in the C-3 zone. Swenor explained the purpose of the amendment, but commission member Wayne Ramsey suggested that the amendment was unnecessary because the ordinance already designates C-3 as a commercial zone. Frykberg indicated that questions and ambiguity were what prompted the proposal, and that it was requested by the township board. He agreed that the purpose and intent of the zoning ordinance would be unchanged, but stated that it was being proposed in the interest of clarity. The commission unanimously passed a motion to recommend acceptance of the amendment to add "commercial" in front of the phrase "boat houses and wet storage" that are allowed uses in a C-3 zone.

On July 21, 2003, the ZBA met. Chairman Errol Lee stated that the meeting was a continuation of the earlier meeting regarding interpretation of the zoning ordinance provisions, as requested by the township board. A motion was filed, based on findings of fact, to rule that a boathouse must be commercial to be allowed in a C-1 or C-3 zone. The motion passed.

On July 18, 2003, Mettler's development plan became available for public view at the library. On July 28, 2003, the planning commission held a regular meeting. The commission first dealt with the unfinished business of reviewing Mettler's preliminary development plan. The meeting had to be moved to the fire hall to accommodate the additional persons who wanted to attend. There was substantial public discussion about whether Mettler's proposed development was an allowed use in a C-3 zone. There was concern that the duplex concept would result in the boathouses below being sold or leased on a long-term basis to the upstairs occupant, effectively eliminating any semblance of a commercial enterprise. When asked for his definition of a "commercial" use of the proposed buildings, John Turner, plaintiff's counsel, repeatedly responded that the terms and conditions of access would be determined by the owner. Following the close of the public hearing portion of the July 28, 2003, meeting, the commission deliberated, but was not prepared to decide whether the proposed project was commercial in nature and adjourned the issue to a meeting on August 1, 2003.

On July 30, 2003, Frykberg provided a memorandum to the planning commission, for purposes of the August 1, 2003, meeting. Frykberg noted that the site plan included two garages on the street side of the first floor and two boathouses on the lakeside of the first floor in each of the four buildings. Frykberg opined that the proposed use of the garages and boathouses "is not, to me, a commercial use." Frykberg opined that the proposed use of the garages and boathouses "does not, to me, meet the purpose of the C-3 Village Commercial" zone, viz., to provide areas for business uses. Frykberg recommended denial of the...

To continue reading

Request your trial
69 cases
  • Bank of Am., NA v. Fid. Nat'l Title Ins. Co.
    • United States
    • Court of Appeal of Michigan — District of US
    • June 21, 2016
    ... ... Cf. McManamon v. Redford Charter Twp., 273 Mich.App. 131, 141, 730 N.W.2d 757 (2006) (" [I]t is the ultimate ... Mettler Walloon, LLC v. Melrose Twp., 281 Mich.App. 184, 221 n.6, 761 N.W.2d 293; ... ...
  • People v. Bosca
    • United States
    • Court of Appeal of Michigan — District of US
    • March 26, 2015
    ... ... Const.Am. V ; U.S. Const.Am. XIV ; Const. 1963, art. 1, 17 ; Elba Twp. v. Gratiot Co. Drain Comm'r, 493 Mich. 265, 288, 831 N.W.2d 204 (2013) ... 2d 1043 (1998) (quotation marks and citation omitted); see also Mettler Walloon, LLC v. Melrose Twp., 281 Mich.App. 184, 197, 761 N.W.2d 293 ... ...
  • Cummins v. Robinson Twp.
    • United States
    • Court of Appeal of Michigan — District of US
    • May 12, 2009
    ... ... "the governmental conduct must be so arbitrary and capricious as to shock the conscience." Mettler Walloon, LLC v. Melrose Twp., 281 Mich.App. 184, 198, 761 N.W.2d 293 (2008). In disputes over ... ...
  • McCann v. U.S. Bank, N.A.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • May 25, 2012
    ... ... Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir.1992). The Sixth Circuit explicitly ... [D]eclaratory relief is a remedy [ ], not a claim. Mettler Walloon, L.L.C. v. Melrose Twp., 281 Mich.App. 184, 761 N.W.2d 293, 317 ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Defining the Problem
    • United States
    • Environmental justice: legal theory and practice. 4th edition
    • February 20, 2018
    ...if it can be classiied, in a constitutional sense, as arbitrary or shocking to the conscience.); Mettler Walloon, LLC v. Melrose Twp. , 281 Mich. App. 184, 198-202; 761 N.W.2d 293 (2008) (“[W]hen executive action is challenged in a substantive due process claim, the claimant must show that ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT