Riverview v. Sibley Limestone

• Decision Date: 18 April 2006
• Docket Number: Docket No. 257337.
• Parties: CITY OF RIVERVIEW, Plaintiff-Appellee, v. SIBLEY LIMESTONE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

716 N.W.2d 615

270 Mich. App. 627

CITY OF RIVERVIEW, Plaintiff-Appellee, v. SIBLEY LIMESTONE, Defendant-Appellant.

Docket No. 257337.

Court of Appeals of Michigan.

Submitted March 14, 2006, at Detroit.

Decided April 18, 2006, at 9:05 a.m.

Released for Publication July 7, 2006.

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Pentiuk, Couvreur & Kobiljak, P.C. (by Randall A. Pentiuk and Kerry L. Morgan), Wyandotte, for the plaintiff.

Couzens, Lansky, Fealk, Ellis, Roeder & Lazar, P.C. (by Bruce J. Lazar), Farmington Hills, for the defendant.

Howard & Howard Attorneys, P.C. (by Wallace G. Long), Bloomfield Hills, for the city of Trenton.

Lewis & Munday, P.C. (by Darice E. Weber), Detroit, for The Detroit Edison Company.

Before: OWENS, P.J., and KELLY and FORT HOOD, JJ.

PER CURIAM.

Defendant appeals by leave granted a circuit court order affirming the district court's finding that defendant was responsible for a civil infraction for violating an ordinance that prohibits blasting without a permit. We reverse.

Defendant operates a quarry in the city of Trenton that runs along Trenton's border with plaintiff.¹ Plaintiff's police chief, Patrick Knight, issued a civil infraction citation to defendant for blasting without a permit, contrary to Riverview ordinances § 22-173 and § 22-191 of article V of plaintiff's code. Defendant pleaded not responsible and requested a formal hearing in the district court. Defendant moved in the district court to dismiss the citation on the grounds that it conducted its activities solely within Trenton. It argued that plaintiff could not lawfully exercise its authority beyond its boundaries and that the 27th District Court was not the proper venue to adjudicate civil infractions occurring in Trenton.²

The district court concluded that the effect of the blasting on plaintiff's real estate and citizens fell within the scope of plaintiff's ordinance, which was presumed valid and constitutional, and it found that venue was proper. It conducted a formal hearing on the civil infraction citation. Chief Knight testified that he felt and heard a blast at his home. He later ascertained that the blasting occurred at its scheduled time. After verifying with plaintiff's engineering office that defendant did not procure a blasting permit, he issued a civil infraction citation to the quarry. He was unaware of any possible source of the blast other than the quarry operation. The district court found by a preponderance of the evidence that defendant committed a civil infraction under the ordinance. It assessed fines and costs of $150 against defendant, but stayed payment pending appeal.

On appeal, the circuit court affirmed the district court's decision. It relied on Coldwater v. Tucker, 36 Mich. 474 (1877), to find that a home rule city can exercise power beyond its own boundaries in unusual circumstances. At issue in Coldwater was whether a city, which had no express authority in its charter to execute drainage works outside its borders, but had general authority over drainage, could enter into a contract for drainage works outside its borders to provide an adequate outlet for sewage. Our Supreme Court held that the contract was not repugnant to the charter's purpose or beyond the city's corporate powers. Id. at 480. It recognized:

The general doctrine is clear that a municipal corporation cannot usually exercise its powers beyond its own limits. If it has in any case authority to do so, the authority must be derived from some statute which expressly or impliedly permits it. [Id. at 477-478.]

Defendant first argues that the circuit court erred when it determined that plaintiff had authority to adopt an ordinance regulating defendant's blasting operations outside plaintiff's boundaries pursuant to MCL 117.4i(d). We agree.

Issues of statutory interpretation are reviewed de novo. Ford Motor Credit Co. v. Detroit, 254 Mich.App. 626, 628, 658 N.W.2d 180 (2003). The applicability of a statute is also a question of law that is reviewed de novo. Adams Outdoor Advertising, Inc. v. City of Holland, 463 Mich. 675, 681, 625 N.W.2d 377 (2001). The rules governing statutory interpretation apply with equal force to a municipal ordinance. Gora v. City of Ferndale, 456 Mich. 704, 711, 576 N.W.2d 141 (1998). A municipal corporation has no inherent power and must derive its authority from the state. Bivens v. Grand Rapids, 443 Mich. 391, 397, 505 N.W.2d 239 (1993). An ordinance of a home rule city is valid only if it is consistent with the powers granted by constitution or statute and if it falls within the scope of authority in the city's charter. Id. Const. 1963, art. 7, § 22 grants the electors of each city the power to adopt and amend its charter and grants the city the power to adopt ordinances relating to municipal concerns, property, and government, subject to law. The dispositive question is whether the pertinent ordinances are consistent with plaintiff's express or implied powers conferred by the Home Rule City Act, MCL 117.1 et seq. The challenged ordinance, § 22-191,³ states in relevant part:

It shall be unlawful for any person, firm, entity, corporation or association to engage in any blasting operations within the city or located outside of the city whose operations affects any real property or persons located within the city, without having first secured a permit from the city council....

Defendant argues that the challenged ordinance was not permitted under MCL 117.4i, which provides in part:

Each city may provide in its charter for 1 or more of the following:

* * *

(d) The regulation of trades, occupations, and amusements within city boundaries, if the regulations are not inconsistent with state or federal law, and the prohibition of trades, occupations, and amusements that are detrimental to the health, morals, or welfare of the inhabitants of that city. [Emphasis added.]

The circuit court essentially ruled that plaintiff's ordinance should be presumed valid under this statute and that the authority to regulate a trade outside plaintiff's boundaries could be implied from the statute's "prohibition" clause. Laws concerning a city must be liberally construed in its favor. Const. 1963, art. 7, § 34; Bivens, supra at 400, 505 N.W.2d 239. But the primary purpose of statutory interpretation is to give effect to legislative intent. Casco Twp. v. Secretary of State, 472 Mich. 566, 571, 701 N.W.2d 102 (2005). Legislative intent is determined by reviewing the language of the statute. Id. When the language is unambiguous, we presume the Legislature intended the meaning plainly expressed. Id. A statute is construed by considering both the plain meaning of a critical word or phrase and its placement, purpose, and grammatical context within the statute. Sun Valley Foods Co. v. Ward, 460 Mich. 230, 237, 596 N.W.2d 119 (1999). Every word, phrase, and clause must be given effect. Shinholster v. Annapolis Hosp., 471 Mich. 540, 549, 685 N.W.2d 275 (2004).

Here, it is clear that the "regulation" clause in MCL 117.4i(d) only authorizes the regulation of a trade within a city's boundaries. Had the Legislature intended to allow regulation outside a city's boundaries, it could have used the phrase "within or without," as it has done when enacting other statutes. See Sabaugh v. Dearborn, 384 Mich. 510, 517-518, 185 N.W.2d 363 (1971) ("within or without" language in the Revenue Bond Act, MCL 141.1401 et seq., at MCL 141.104, construed as permitting a city to acquire public works outside the state). Because the statute does not confer the authority to regulate a trade outside a city's boundaries, as a matter of law there is no basis for implying any power necessary to carry out the regulatory function.

Furthermore, the "prohibition" clause is not relevant to plaintiff's permit ordinance because the ordinance does not prohibit any particular trade, but rather requires a permit, subject to specified regulations, to engage in a blasting operation. To the extent that the circuit court construed the "prohibition" clause as impliedly authorizing a city to "regulate" a trade outside its boundaries, its construction was incorrect. An absolute prohibition is an extreme form of regulation. See Grocers Dairy Co. v. Dep't. of Agriculture Director, 377 Mich. 71, 76, 138 N.W.2d 767 (1966); Van Buren Twp. v. Garter Belt, Inc., 258 Mich.App. 594, 609-611, 619, 673 N.W.2d 111 (2003). If the "prohibition" clause were construed to permit lesser forms of regulation such as permitting, then the "regulation" clause would be nullified. Moreover, because prohibition is a form of regulation, Van Buren Twp., supra, the prohibition must also take place within a city's boundaries and comply with state and federal law. It follows, as a matter of law, that MCL 117.4i(d) does not provide the necessary authority for plaintiff to regulate defendant's blasting operation, which is not within plaintiff's boundary.⁴

Legal texts and case authority from other jurisdictions do not support a different interpretation of Michigan law. The general rule appears to be that a municipality's police powers may only be exercised within its boundaries, absent statutory or other special authority. See 56 Am.Jur.2d, Municipal Corporations, Counties, & Other Political Subdivisions, § 395, p. 435, and 6A McQuillian, Municipal Corporations (3d ed.), § 24.57, pp. 163-164.⁵ In Almquist v. City of Biwabik, 224 Minn. 503, 507, 28 N.W.2d 744 (1947), the Minnesota Supreme Court rejected the notion that the failure to specifically deny a power was enough to authorize it by implication. The court relied on an earlier Minnesota case, Duluth v. Orr, 115 Minn. 267, 132 N.W. 265 (1911), involving a city ordinance that regulated explosive materials within the city and within one mile of the city. A constitutional provision empowered the city council to frame a charter "for its own government," and the general grant of authority provided by statute for the city stated that "nothing in this...