Township of Holly v. Department of Natural Resources
| Decision Date | 03 June 1991 |
| Docket Number | Docket No. 119028 |
| Citation | 473 N.W.2d 778,189 Mich.App. 581 |
| Parties | TOWNSHIP OF HOLLY, Township of Grand Blanc, City of Grand Blanc, City of Burton, and Mt. Holly Ski Area, Inc., Plaintiffs-Appellees, v. DEPARTMENT OF NATURAL RESOURCES, Defendant, and Holly Disposal, Inc., and William H. Leoni, Sr., Defendants-Appellants. 189 Mich.App. 581, 473 N.W.2d 778 |
| Court | Court of Appeal of Michigan — District of US |
[189 MICHAPP 582] Booth, Patterson, Lee, Karlstrom & Steckling by Parvin Lee, Jr., Pontiac, for the Township of Holly, Township of Grand Blanc, City of Grand Blanc, and the City of Burton.
Robert L. Bunting, Oxford, for Mt. Holly Ski Area, Inc.
Richard J. Quist, Grand Rapids, for Holly Disposal, Inc., and William H. Leoni, Sr.
Before BRENNAN, P.J., and MICHAEL J. KELLY and WALSH, * JJ.
Defendants Holly Disposal, Inc., and William H. Leoni, Sr., president of Holly Disposal, appeal as of right from a June 28, 1989, permanent injunction order issued by Oakland Circuit Judge Fred Mester, barring those defendants from further construction of a solid waste landfill and precluding defendant Department of Natural Resources from issuing a permit for the landfill to Holly Disposal. We affirm in part, reverse in part, and remand the case to the DNR to issue public notice of Holly Disposal's permit application.
On October 21, 1981, defendants Holly Disposal, Inc., and William Leoni applied to the DNR for a permit to construct the landfill in issue. After giving notice in the local newspaper and holding a public hearing, the DNR denied the permit. On May 20, 1982, Holly Disposal and Leoni again applied for a permit to construct the landfill. Notice was again given inviting comments and, once again, the permit was denied. After the filing of a third application on September 23, 1982, a construction permit was granted. Notice of the [189 MICHAPP 583] third application, however, was never published in a newspaper. Thereafter, on January 28, 1983, the Township of Holly, the Township of Grand Blanc, the City of Grand Blanc, and the City of Burton filed a complaint, challenging the permit and seeking injunctive relief to prevent construction and operation of the landfill. The complaint alleged violations of the Solid Waste Management Act (SWMA), 1 the clean water act, 2 the Environmental Protection Act (MEPA), 3 and the Holly Township zoning ordinances.
The court granted a temporary injunction preventing construction of the landfill pending trial. On September 23, 1983, Mt. Holly Ski Area, Inc., commenced a separate action, alleging identical theories. In addition, the Mt. Holly action alleged private nuisance and joined William H. Leoni, Sr., in the action. The cases were consolidated and the court dismissed the zoning violation counts of each complaint, finding that the SWMA preempted the ordinances. By stipulation, the trial judge decided the case after conducting a six-day bench trial and viewing videotaped depositions which were admitted as substantive testimony. The court found that the MEPA had been violated and issued a permanent injunction barring Holly Disposal and Leoni from constructing or operating the landfill and the DNR from issuing a permit for the landfill. The court further found that the permit issued to Holly Disposal was not validly issued because the third application was not published in the newspaper, because the corporation was not a legal entity, and because rules promulgated under the SWMA were violated. Defendants Holly Disposal, Inc., and William H. Leoni, Sr., appeal this ruling.
Defendants contend that because plaintiffs failed to intervene or contest the DNR's action of granting defendants a permit before seeking judicial review, they failed to exhaust their administrative remedies. Defendants therefore assert that the trial court lacked jurisdiction to hear the case. Count II of plaintiffs' complaint alleges a violation of the MEPA. The MEPA does not require exhaustion of administrative remedies before judicial review is sought. 4 Therefore, the trial court properly heard plaintiffs' claims under the MEPA. It is less clear whether plaintiffs were required to exhaust all administrative remedies before seeking judicial review of count I of their complaint, which alleges violations under the SWMA.
Unlike the Wetland Protection Act 5 and the Inland Lakes and Streams Act, 6 the SWMA does not mandate that plaintiffs exhaust administrative remedies before filing suit. In fact, the SWMA indicates the following:
(1) The director or a health officer may request that the attorney general bring an action in the name of the people of the state, or a municipality or county may bring an action based on facts arising within its boundaries, for any appropriate relief, including injunctive relief, for a violation of this act or rules promulgated pursuant to this act.
* * * * * *
(4) This act shall not be construed to preclude any person from commencing a civil action based on facts which may also constitute a violation of this act.... [M.C.L. Sec. 299.433; M.S.A. Sec. 13.29(33).]
[189 MICHAPP 585] Further, before one can be required to exhaust administrative remedies, he must have administrative remedies available to him. 7 In the instant case, there is no avenue of review available to the plaintiffs other than requesting a public hearing and filing written comments concerning the permit application. 8 The SWMA does not provide any additional administrative relief. Furthermore, even if an avenue of relief was available to plaintiffs, exhaustion of remedies is not required since it would be futile to obtain relief because the administrative decision maker is predisposed to rule against the plaintiffs. 9 Invalidating the permit would require the DNR to admit it erred in issuing the permit. Therefore, we find that plaintiffs were not required to exhaust administrative remedies under either the SWMA or the MEPA.
Defendants also argue that plaintiffs failed to exhaust administrative remedies because they failed to get a declaratory ruling regarding the validity of the rules promulgated under the SWMA pursuant to M.C.L. Sec. 24.264; M.S.A. Sec. 3.560(164). Defendants rely on the language of that section which states:
An action for declaratory judgment may not be commenced under this section unless the plaintiff has first requested the agency for a declaratory ruling and the agency has denied the request or failed to act upon it expeditiously.
However, the entire section provides as follows:
Unless an exclusive procedure or remedy is provided by a statute governing the agency, the [189 MICHAPP 586] validity or applicability of a rule may be determined in an action for declaratory judgment when the court finds that the rule or its threatened application interferes with or impairs, or imminently threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The action shall be filed in the circuit court of the county where the plaintiff resides or has his principal place of business in this state or in the circuit court for Ingham county. The agency shall be made a party to the action. An action for declaratory judgment may not be commenced under this section unless the plaintiff has first requested the agency for a declaratory ruling and the agency has denied the request or failed to act upon it expeditiously. This section shall not be construed to prohibit the determination of the validity or applicability of the rule in any other action or proceeding in which its invalidity or inapplicability is asserted.
In the present case, plaintiffs' suit was not a declaratory judgment action. Therefore, this statute is inapplicable and plaintiffs could have the validity of the rules promulgated under the SWMA determined by the trial court. 10
Defendants argue that the trial court erred in finding that the issued construction permit was invalid for lack of notice. Defendants contend that literal compliance with the rule requiring notification and an opportunity for a public hearing was not warranted because defendants substantially complied with the notice provisions and because plaintiffs failed to show material prejudice.
[189 MICHAPP 587] The SWMA provides that notification and opportunity for hearing must be provided before a construction permit may be issued. Specifically, the statute states in pertinent part as follows:
(2) Upon receipt of a construction permit application, the director or an authorized representative of the director shall:
(a) Immediately notify the clerk of the municipality in which the disposal area is located or proposed to be located, the local soil erosion and sedimentation control agency, each division within the department that has responsibilities in land, air, or water management, and the designated regional solid waste management planning agency.
(b) Publish a notice in a newspaper having major circulation in the vicinity of the proposed disposal area. The required published notice shall contain a map indicating the location of the proposed disposal area and shall contain a description of the proposed disposal area and the location where the complete application package may be reviewed and where copies may be obtained.
(c) Indicate in the public, departmental, and municipality notice that the department shall hold a public hearing in the area of the proposed disposal area if a written request is submitted by the applicant or a municipality within 30 days after the date of publication of the notice, or by a petition submitted to the department containing a number of...
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