Trussell v. Decker
| Citation | 147 Mich.App. 312,382 N.W.2d 778 |
| Decision Date | 21 March 1986 |
| Docket Number | Docket No. 81640 |
| Parties | Vickie L. TRUSSELL, Plaintiff-Appellee, v. Keith M. DECKER and Union Township, Defendants-Appellants |
| Court | Court of Appeal of Michigan (US) |
William R. Thompson, Mt. Pleasant, for plaintiff-appellee.
Miller, Canfield, Paddock & Stone by Thomas C. Phillips and Timothy S. Knowlton, Lansing, for defendants-appellants.
Before KELLY, P.J., and ALLEN and SHUSTER, * JJ.
In this matter of first impression we are asked to decide the sufficiency of notice given plaintiff of a proposed special assessment district for a water improvement project to be constructed by the township under M.C.L. Sec. 41.721 et seq.; M.S.A. Sec. 5.2770(51) et seq. On June 8, 1984, the trial court found the notice to be insufficient and issued an order enjoining defendants from proceeding with the project, the preparation of the assessment roll based upon the creation of a special assessment district, and declaring the resolution establishing the special assessment district void. From the order so issued, defendants appeal as of right.
Defendant Keith M. Decker is the township supervisor of defendant Union Township, a township of more than 2,000 persons in Isabella County. On April 4, 1984, defendant township initiated proceedings under 1954 P.A. 188, as amended, M.C.L. Sec. 41.721 et seq.; M.S.A. Sec. 5.2770(51) et seq., by adopting a resolution to design and build a water system in the eastern portion of the township, which district included the property owned by the plaintiff, the cost of which water system would be paid through a special assessment levied against the properties located in the district. On the same date, after receiving their engineer's report, the township adopted a resolution to hold a public hearing on the proposed plan.
On May 4, 1984, plaintiff received notice of the proposed improvement and assessment district and the fact that a public hearing would be held on May 15, 1984. However, the notice did not inform plaintiff of her right to referendum under M.C.L. Sec. 41.723(1)(b); M.S.A. Sec. 5.2770(53)(1)(b). Under that section the proposed improvement could not be made "if the record owners of land constituting more than 20% of the total land area in the special assessment district file their written objections thereto with the township board at or before the hearing".
Plaintiff attended the public hearing on May 15, 1984, and objected to the proposed improvement. At the meeting plaintiff for the first time learned of the right to a referendum on the proposed project. At the meeting the township board adopted a resolution to proceed with the improvement and directed defendant supervisor to prepare a special assessment roll. Thereafter, plaintiff contacted an attorney who advised her that the right to referendum could only be effective if the written objections of 20% of the property owners were filed at or before the public hearing of May 15, 1984.
On May 29, 1984, plaintiff filed her complaint to enjoin the township and the township supervisor from creating a proposed special assessment district for water improvements and from preparing a special assessment roll. The complaint alleged both that the notice sent to property owners in the proposed district, including plaintiff, did not comply with the applicable statutory requirements and that the notice of the proposed district and improvements denied plaintiff due process of law under the federal and state constitutions.
On June 5, 1984, a hearing was held on plaintiff's order to show cause why an injunction should not be issued, restraining defendants from proceeding with the water improvement project. At the hearing plaintiff testified and the parties stipulated to the facts hereinbefore recited. On June 8, 1984, the trial judge issued an opinion enjoining defendants from proceeding with the project. The basis of the court's decision was that the notice given plaintiff was misleading and denied plaintiff due process of law. At the same time the court found that the notice complied with the requirements for notice set forth in Secs. 4 and 4a of the statute. M.C.L. Sec. 41.724a; M.S.A. Sec. 5.2770(54a). As explained by the court:
(Emphasis supplied by the trial court.)
One issue is raised on appeal, viz.: Was plaintiff denied due process of law by the notice informing her of the right to object to proposed water improvements because the notice did not include information not legislatively mandated to be included in the notice? Shortly before October 2, 1985, the date set for oral argument on appeal, plaintiff's trial counsel filed a "Motion to Dismiss Appeal as Moot" together with a supporting brief. At the request of this Court, plaintiff's counsel appeared at oral argument. Counsel argued that the case was rendered moot because Union Township, by two resolutions adopted August 7, 1985, proposed a different special assessment district which did not include plaintiff's property and set August 22, 1985, as the date for hearing thereon.
Attached to counsel's brief was a copy of the resolutions establishing a new proposed district, the last paragraph of which stated that "all resolutions and parts of resolutions insofar as they conflict with the provisions of this resolution be and the same hereby are rescinded". Counsel argued that the township board's action on August 7, 1985, effectively cancelled the water improvement district proposed on April 4, 1984. Furthermore, counsel noted that the notice of the public hearing given residents of the proposed new district contained all of the information which plaintiff contended should have been included in the notice of the public hearing of May 15, 1984. 1
In response defendants' counsel argued, and at the request of the Court subsequently filed a brief, that the resolution adopted August 7, 1985, was expressly worded as "a tentative determination" and that no final decision had yet been made by the township board to abandon the special assessment district created by the board's resolution of May 22, 1984. Counsel explained that the reason why the first proposed assessment district had not been abandoned was because 20% of the record property owners had filed objections to the project at the public hearing and the board was waiting to see if a petition containing signatures of 51% of the proposed district petitioning the township to proceed with the project would be filed. Attached to defendant's brief as Exhibit A was a copy of the township board's resolution adopted October 2, 1985, reading in relevant part:
Based on the above facts we conclude that a final decision has not yet been made to abandon proceeding with the water project initially proposed and involved in the instant case. Accordingly, we hold that the present appeal is not moot and deny plaintiff's motion.
The establishment of township special water improvement districts is governed by 1954 P.A. 188 as amended, M.C.L. Sec. 41.721 et seq.; M.S.A. Sec. 5.2770(51) et seq. Under Sec. 3(1)(b) of the statute water main improvements may be instituted in two ways: (1) by petition signed by owners of 51% of the land area in the proposed district, (2) in townships exceeding 2,000 in population, on the township board's own initiative, "but an improvement shall not be made without petition if the record owners of land constituting more than 20% of the total land area in the special assessment district file their written objections thereto with the township board at or before the hearing described in section 4...
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...that the Osborn plaintiffs had an affirmative duty to inquire whether their land was affected. Although the Drain Commissioner quotes Trussell v. Decker,40 the quotation is taken out of context. In Trussell,41 this Court held that a notice was misleading. The notice stated that all objectio......
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...the parties of the pendency of the action and afford them an opportunity to present their objections. See Trussell v. Decker, 147 Mich.App. 312, 324, 382 N.W.2d 778 (1985). Even had defendants not received the notice of May 28, 1987, defendants were in default of the court's previous notice......
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...Tempco Heating & Cooling, Inc. v. A Rea Construction, Inc., 178 Mich.App. 181, 189, 443 N.W.2d 486 (1989); Trussell v. Decker, 147 Mich.App. 312, 323, 382 N.W.2d 778 (1985). MCR 2.501(C) requires that a party be given twenty-eight days' notice of trial. Tempco, supra, 178 Mich.App. at p.189......
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