Township of Burt v. Department of Natural Resources, Docket No. 200328

• Decision Date: 30 December 1997
• Docket Number: Docket No. 200328
• Citation: 227 Mich.App. 252,576 N.W.2d 170
• Parties: TOWNSHIP OF BURT, Plaintiff-Appellee/Cross-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 170

576 N.W.2d 170

227 Mich.App. 252

TOWNSHIP OF BURT, Plaintiff-Appellee/Cross-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant/Cross-Appellee.

Docket No. 200328.

Court of Appeals of Michigan.

Submitted Oct. 7, 1997, at Grand Rapids.

Decided Dec. 30, 1997, at 9:10 a.m.

Released for Publication March 26, 1998.

Jeffrey T. Lyon, Cheboygan, for plaintiff-appellee.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, A. Michael Leffler, Assistant in Charge, and James L. Stropkai and Stephen M. Rideout, Assistant Attorneys General, for Department of Natural Resources.

Olson, Noonan, Ursu & Ringsmuth, P.C. by James M. Olson, Traverse City, for amici curiae Burt Township Association, Tip of the Mitt Watershed Council, Michigan Lake & Streams Association, Torch Lake Property Owners Association, and United Burt Lake Association.

Before WHITE, P.J., and MARK J. CAVANAGH and REILLY, JJ.

MARK J. CAVANAGH, Judge.

Defendant Michigan Department of Natural Resources (DNR) appeals as of right the trial court order finding that it must comply with plaintiff Burt Township's zoning ordinances in constructing a public access facility on the northwest shore of Burt Lake. Plaintiff cross appeals. We affirm.

In 1989, defendant obtained options on two lots on Burt Lake for the purpose of constructing a boat launch facility for public access. In a letter dated December 22, 1990, plaintiff's zoning administrator, Stanley Parvanoff, noted that defendant's proposed project had not been approved by the township and requested that defendant submit an application for the township's review. Defendant informed Parvanoff that it did not need plaintiff's approval of the project because defendant is a department of the State of Michigan.

On February 13, 1992, plaintiff filed a complaint requesting a declaratory judgment that the DNR is required to comply with its zoning ordinances. However, pursuant to a stipulation between the parties, the action was dismissed without prejudice on January 8, 1993, because defendant did not have sufficient funding to complete the project. Thereafter, defendant obtained funding for the boat launch and began construction without obtaining plaintiff's approval. On September 30, 1996, plaintiff filed its complaint in the instant action, again seeking a declaratory judgment that defendant was required to comply with its zoning ordinances.

At a hearing on October 8, 1996, the parties presented arguments regarding whether defendant was subject to plaintiff's zoning ordinances. On November 5, 1996, the trial court issued a written opinion finding that defendant was required to conform with plaintiff's zoning ordinances. On December 16, 1996, an order incorporating this ruling was entered.

Defendant appealed as of right. Plaintiff filed a cross appeal. Because funding for the boat launch will expire in September 1998, this Court granted defendant's motion for an expedited appeal.

I

Defendant argues that the trial court erred in finding that its construction and operation of a public access facility was not exempt from local zoning ordinances. This issue presents a question of law. We review questions of law de novo. Schroeder v. Detroit, 221 Mich.App. 364, 366, 561 N.W.2d 497 (1997).

The trial court relied on the Supreme Court's decision in Dearden v. Detroit, 403 Mich. 257, 269 N.W.2d 139 (1978). In Dearden, the Michigan Department of Corrections sought to lease a building owned by the Archdiocese of Detroit as a neighborhood rehabilitation center. The area was zoned two-family residential. The Board of Zoning Appeals denied requests for a variance and permission to change the use of the property, and the Department of Corrections appealed. The issue on appeal was whether the Department of Corrections, a state agency, was subject to the local zoning ordinances of the City of Detroit. Id. at 260-261, 269 N.W.2d 139.

The Dearden Court held that "legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances." Id. at 264, 269 N.W.2d 139. The Court then compared the statutory provisions delineating the authority of the Department of Corrections, M.C.L. § 791.201 et seq.; M.S.A. § 28.2271 et seq., with the city's statutory authority to regulate the use of the lands within its territory, M.C.L. § 125.581 et seq.; M.S.A. § 5.2931 et seq. The Court noted that, pursuant to M.C.L. § 791.204; M.S.A. § 28.2274, the Department of Corrections has exclusive jurisdiction over penal institutions. The Court considered the statute "a clear expression of the Legislature's intent to vest the department with complete jurisdiction over the state's penal institutions, subject only to the constitutional powers of the executive and judiciary, and not subject in any way to any other legislative act." Dearden, supra at 265, 269 N.W.2d 139. Furthermore, the Court concluded that the language of the statute "evidences a legislative intent to nullify the effect of any other statute which is inconsistent with the department's exclusive jurisdiction over the state's penal institutions." Id. at 266, 269 N.W.2d 139. The Court could not find any expression of a legislative intent in the zoning enabling act to subject the department's exclusive jurisdiction over penal institutions "to the many and varied municipal zoning ordinances throughout the state." Id. at 266-267, 269 N.W.2d 139. Accordingly, the Court held that the Legislature had intended to grant the Department of Corrections immunity from local zoning ordinances when establishing state penal institutions. Id. at 267, 269 N.W.2d 139.

Therefore, under Dearden, the appropriate analysis is to compare the statutes at issue and discern the legislative intent to determine whether the DNR is immune from plaintiff's zoning ordinances. Accordingly, we must examine the texts of the Natural Resources and Environmental Protection Act (NREPA), M.C.L. § 324.101 et seq.; M.S.A. § 13A.101 et seq., and the Township Rural Zoning Act (TRZA), M.C.L. § 125.271 et seq.; M.S.A. § 5.2963 et seq.

Under the TRZA, local units of government are given the authority to regulate land use. M.C.L. § 125.271(1); M.S.A. § 5.2963(1)(1) provides in part:

The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures; to meet the needs of the state's citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land; to insure that use of the land shall be situated in appropriate locations and relationships; to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities; to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare.... Ordinances regulating land development may also be adopted designating or limiting the location, the height, number of stories, and size of dwellings, buildings, and structures that may be erected or altered, including tents and trailer coaches, and the specific uses for which dwellings, buildings, and structures, including tents and trailer coaches, may be erected or altered.

The TRZA states that townships cannot regulate or control oil and gas wells. In addition, M.C.L. § 125.271(2); M.S.A. § 5.2963(1)(2) specifies that any ordinance adopted pursuant to the act is subject to the Electric Transmission Line Certification Act, M.C.L. § 460.561 et seq.; M.S.A. § 22.150(1) et seq. However, the TRZA does not specifically indicate whether the Legislature intended the DNR to be subject to local zoning ordinances. See Dearden, supra at 266, 269 N.W.2d 139.

We therefore turn to the NREPA to ascertain whether the Legislature intended to grant the DNR immunity from the provisions of local zoning ordinances. Defendant relies on three sections of the NREPA to support its claim. Section 503 provides in pertinent part, "The department shall ... provide and develop facilities for outdoor recreation." M.C.L. § 324.503(1); M.S.A. § 13A.503(1). The relevant portion of § 78105 states:

The department shall have the following powers and duties:

(a) To acquire, construct, and maintain harbors, channels, and facilities for vehicles in the navigable waters lying within the boundaries of the state of Michigan. [M.C.L. § 324.78105; M.S.A. § 13A.78105.]

Finally, § 78110 states:

The Michigan state waterways fund is created in the state treasury. The fund shall be administered by the state treasurer and shall be used by the department solely for the construction, operation, and maintenance of recreational boating facilities, the acquisition of property for the purposes of this part, and for the administration of this part. [M.C.L. § 324.78110(1); M.S.A. § 13A.78110(a).]

The use of the word "shall" in a statute connotes a mandatory duty or requirement. Hadfield v. Oakland Co. Drain Comm'r, 218 Mich.App. 351, 357, 554 N.W.2d 43 (1996). Defendant contends that the use of the word "shall" in the sections quoted above manifests the Legislature's intent that the DNR provide public boating access facilities free of any constraints imposed by local zoning ordinances.

In support of this argument, defendant relies on Marquette Co. v. Bd. of Control of Northern Michigan Univ., 111 Mich.App. 521, 314 N.W.2d 678 (1981). In Marquette Co., the issue was whether the state construction code act, M.C.L. § 125.1501 et seq.; M.S.A. § 5.2949(1) et seq., applied when a state university was constructing buildings on its campus. This Court found that...