Nolan Bros. of Texas, Inc. v. City of Royal Oak, Docket No. 179387

• Decision Date: 01 November 1996
• Docket Number: Docket No. 179387
• Citation: 219 Mich.App. 611,557 N.W.2d 925
• Parties: NOLAN BROTHERS OF TEXAS, INC., Plaintiff-Appellee, v. CITY OF ROYAL OAK, Defendant-Appellant, and Michigan Municipal League, Amicus Curiae.
• Court: Court of Appeal of Michigan — District of US

Page 925

557 N.W.2d 925

219 Mich.App. 611

NOLAN BROTHERS OF TEXAS, INC., Plaintiff-Appellee, v. CITY OF ROYAL OAK, Defendant-Appellant and Michigan Municipal League, Amicus Curiae.

Docket No. 179387.

Court of Appeals of Michigan.

Submitted May 14, 1996, at Lansing.

Decided Nov. 1, 1996, at 9:05 a.m.

Released for Publication Jan. 24, 1997.

Hyman and Lippitt, P.C. by H. Joel Newman and Roger L. Myers, Birmingham, for plaintiff-appellee.

Johnson, Rosati, Galica, Shifman, LaBarge, Aseltyne, Sugameli & Field, P.C. by Carol A. Rosati, Farmington Hills, Marcelyn A. Stepanski, Farmington Hills, and Charles Semchena, Jr., Royal Oak, for defendant-appellant.

Kohl, Secrest, Wardle, Lynch, Clark and Hampton by Gerald A. Fisher and William P. Hampton, Farmington Hills, for amicus curiae Michigan Municipal League.

Before HOEKSTRA, P.J., and MICHAEL J. KELLY and J.M. GRAVES, Jr., ^* JJ.

HOEKSTRA, Presiding Judge.

Defendant, City of Royal Oak, appeals by leave granted from an order of the Oakland Circuit Court denying its motion for reconsideration of an earlier order granting partial summary disposition for plaintiff and denying defendant's motion for partial summary disposition in this zoning action. We reverse.

The property at issue is located in the City of Royal Oak and is currently owned by the Michigan Department of Transportation (MDOT). Plaintiff has an option to purchase the property, which the MDOT obtained in 1984 following condemnation proceedings relating to the expansion of I-696. At that time, the property was zoned industrial. The property was authorized for sale in 1987, after it was determined to be excess right of way. In 1991, defendant rezoned the property from industrial to multiple-family residential in accordance with the amended General Development Plan (Master Plan) for the city. In 1993, plaintiff executed an application to purchase and agreement of sale with the MDOT for the subject property with the intention of constructing a miniwarehouse, which was not a permissible use under the then current zoning. Plaintiff sought rezoning of the property in 1993 and 1994, but was denied each time. A request for a use variance was likewise denied. Plaintiff then filed the instant action, alleging that defendant lacked jurisdiction to rezone the property and that defendant's actions constituted an unconstitutional taking. Plaintiff sought to have the zoning ordinance declared invalid and defendant enjoined from interfering with plaintiff's development of the land. The trial court, relying on State Hwy. Comm'r v. Redford Twp., 4 Mich.App. 223, 144 N.W.2d 690 (1966), eventually granted partial summary disposition for plaintiff. This Court then granted defendant's motion for leave to appeal.

Defendant raises three issues on appeal, one of which we find dispositive. Defendant first argues that the trial court erred in determining that defendant lacked the authority to rezone the land owned by the MDOT and optioned for purchase by plaintiff. We agree. Municipalities in Michigan, lacking inherent power to zone, derive their authority to zone from the zoning enabling act, M.C.L. § 125.581 et seq.; M.S.A. § 5.2931 et seq., § 1 of which provides, in pertinent part:

(1) The legislative body of a city or village may regulate and restrict the use of land and structures; to meet the needs of the state's residents for food, fiber, energy and other natural resources, places of residence, recreation, industry, trade, service, ... and for those purposes may divide a city or village into districts of the number, shape, and area considered best suited to carry out this section....

(2) The land development regulations and districts authorized by this act shall be made in accordance with a plan designed to promote and accomplish the objectives of this act. [M.C.L. § 125.581; M.S.A. § 5.2931.]

Section 6 of the Municipal Planning Act, M.C.L. § 125.36; M.S.A. § 5.2996 further states that this master plan shall encompass public as well as private land:

The commission shall make and adopt a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the commission's judgment, bear relation to the planning of the municipality. The plan, with the accompanying maps, plats, charts, and descriptive matter shall show the commission's recommendations for the development of the territory, including, among other things, the general location, character, and extent of streets, viaducts, subways, bridges, waterways, flood plains, water fronts, boulevards, parkways, playgrounds and open spaces, the general location of public buildings and other public property, and the general location and extent of public utilities and terminals, whether publicly or privately owned or operated, for water, light, sanitation, transportation, communication, power, and other purposes....

The foregoing provisions should be liberally construed in light of Const.1963, Art. 7, § 34, which provides:

The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution.

Defendant concedes that, in certain...