West Bloomfield Charter Tp. v. Karchon

• Decision Date: 21 February 1995
• Docket Number: Docket No. 148609
• Citation: 530 N.W.2d 99,209 Mich.App. 43
• Parties: WEST BLOOMFIELD CHARTER TOWNSHIP, Plaintiff/Counter-Defendant/Appellant, v. James A. KARCHON, a/k/a James A. Karachon, and Dennis M. Karchon, Defendants/Counter-Plaintiffs/Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 99

530 N.W.2d 99

209 Mich.App. 43

WEST BLOOMFIELD CHARTER TOWNSHIP Plaintiff/Counter-Defendant/Appellant, v. James A. KARCHON, a/k/a James A. Karachon, and Dennis M Karchon, Defendants/Counter-Plaintiffs/Appellees.

Docket No. 148609.

Court of Appeals of Michigan.

Submitted Aug. 3, 1994, at Detroit.

Decided Feb. 21, 1995, at 10:15 a.m.

Released for Publication April 17, 1995.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton, P.C. by William P. Hampton and Gerald A. Fisher, Farmington Hills, and Bendure & Thomas by Mark R. Bendure and Victor S. Valenti, Detroit, for plaintiff.

Bodman, Longley & Dahling by Martha B. Goodloe, Troy, and Honigman Miller Schwartz & Cohn by Norman Hyman and Kevin M. Kohls, Detroit, for the defendants.

Amicus Curiae Honigman Miller Schwartz & Cohn by Norman Hyman and Kevin M. Kohls, Detroit, for Builders Ass'n of Southeastern Michigan.

Before TAYLOR, P.J., and CONNOR and CALLAHAN, ^* JJ.

TAYLOR, Presiding Judge.

This case arises from plaintiff's enforcement of its woodlands ordinance and defendants' constitutional challenge to that ordinance and its subsequently amended version. The parties recognize that both the original and the amended ordinances are at issue in this case. The trial court granted defendants' motion for summary disposition on the basis that the ordinances were unconstitutionally vague, overbroad, and lacking in definite standards. Plaintiff appeals as of right from that order. We affirm.

Concerned about the depletion of the township's forested areas, plaintiff adopted a woodland-protection ordinance to preserve the unique and important physical, aesthetic, recreational, and economic benefits the township's woodlands provide. Although the original ordinance contained no findings of fact, the amended ordinance is expressly predicated on findings of fact that woodlands play a vital role in, among other things, absorbing pollution, generating oxygen, protecting groundwater, preventing erosion, reducing excessive noise, and maintaining natural beauty, recreation, and tree diversity. As stated in the amended ordinance, its purpose is to:

(1) Provide for the protection of woodlands, including trees and associated forms of vegetation, as natural resources that contain elements of natural beauty, wildlife habitat, and geological, hydrological, ecological and historical characteristics significant to the citizens of the township.

(2) Provide for the protection, preservation, replacement, proper maintenance and use of woodlands in order to minimize disturbance and structural changes to the vegetative community; prevent damage from erosion, siltation, windthrow, disease; limit loss of wildlife habitat and vegetative cover, all of which, in the aggregate, result in the destruction of the woodland character.

(3) Prohibit the unregulated cutting of trees or harvesting of forest products within a woodland; to establish a permit process which will regulate the manner and extent of tree cutting and harvesting of forest products from within these unique and valuable natural resource areas; and to prescribe the review process for the issuance of tree cutting and harvesting permits.

(4) Protect the township's woodlands for their current and future value, not only for residential areas and homesites, but also as settings for development in all zoning districts; to protect the reproductive and regenerative capabilities of woodland areas; to maintain plant and tree diversity; to protect groundwater recharge areas; to maintain visual screening, windbreak, dust collection and noise barrier characteristics exhibited by woodlands.

(5) Provide for the paramount public concern for these natural resources in the interest of health, safety and general welfare of the residents of the township. [Amended West Bloomfield Charter Township Code § 26-46(b).]

In short, the purpose of the ordinance is to protect the township's woodlands by prohibiting the cutting of trees without first obtaining a permit. Accordingly, the ordinances regulated the cutting of trees or the harvesting of forest products in areas designated by the ordinance as woodlands. Pursuant to the ordinance, before cutting any trees in areas designated as woodlands, property owners are required to apply for and receive a permit from the Woodlands Review Board.

In developing their property, defendants cut a number of trees within the woodland portion of their property without seeking or obtaining a permit. Plaintiff filed suit, asserting that defendants' activity constituted a nuisance and a violation of the ordinance. Plaintiff requested an injunction to prevent defendants from further cutting or harvesting their trees, and from removing any cut or harvested trees or wood products from their property. Plaintiff further sought to compel defendants to replace the trees previously removed. Without prejudice to asserting their rights, defendants stipulated a preliminary injunction restraining further cutting or removal of the trees already cut.

Several months thereafter plaintiff amended its woodlands ordinance, enhancing the prior ordinance's findings of fact and making explicit the main purpose of the ordinance: the protection and preservation of the township's woodlands through a permit process. Although plaintiff's complaint sought only to enforce the prior woodland ordinance, defendants filed a countercomplaint challenging the constitutionality of the amended ordinance. Defendants' counterclaim specifically alleged (1) that the enactment of the ordinance was not authorized by Michigan law and was outside the scope of plaintiff's authority; (2) that the ordinance constituted an unconstitutional taking of private property without due process and without just compensation; and (3) that the ordinance was vague in that it lacked the standards needed to govern plaintiff's discretion, was subject to different interpretations, failed to give persons subject to its restrictions notice of the prohibited conduct, and failed to advance any legitimate governmental interest. Defendants moved for summary disposition of both plaintiff's complaint and their countercomplaint pursuant to MCR 2.116(C)(10). The trial court granted defendants' motions, holding that the ordinances were unconstitutional on their face because they were "vague, overbroad, lack[ing] definite standards, and incapable of being rationally administered." However, the trial court found insufficient evidence to support defendants' takings claim.

First, we consider whether this matter is ripe for adjudication. Plaintiff argues that defendants' constitutional challenge must fail because defendants did not exhaust their administrative remedies. However, the exhaustion of remedies requirement does not apply to a facial challenge to a zoning ordinance. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987); First English Evangelical Lutheran Church v. Los Angeles Co., 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); Hodel v. Indiana, 452 U.S. 314, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981). There are no administrative remedies to exhaust when the facial validity of an ordinance is challenged. Universal Am-Can Ltd. v. Attorney General, 197 Mich.App. 34, 38, 494 N.W.2d 787 (1992). Furthermore, because defendants were being sued by the township for violation of its prior woodlands ordinance, pursuit of administrative remedies would have been futile; therefore, defendants' failure to do so is excusable. Id.; Generou v. Kalamazoo Regional Psychiatric Hosp., 192 Mich.App. 295, 305, 480 N.W.2d 638 (1991).

Having determined that defendants were not required to exhaust administrative remedies in this case, we next address whether the trial court's grant of summary disposition was appropriate. In reviewing a motion for summary disposition granted pursuant to MCR 2.116(C)(10), we must review the record de novo to determine whether defendants would have been entitled to judgment as a matter of law. Borman v. State Farm Fire & Casualty Co., 198 Mich.App. 675, 678, 499 N.W.2d 419 (1993).

A statute or ordinance may be challenged for vagueness on three grounds:

1. It does not provide fair notice of the conduct proscribed.

2. It confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed.

3. Its coverage is overbroad and impinges on First Amendment freedoms.

* * * * * *

[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. [Town & Country Lanes, Inc. v. Liquor Control Comm., 179 Mich.App. 649, 658, 446 N.W.2d 335 (1989), quoting People v. Howell, 396 Mich. 16, 20-21, 238 N.W.2d 148 (1976).]

After reviewing the record in this case, we are convinced that the trial court properly granted summary disposition in favor of defendants. The ordinances at issue in this case are vague and lack definite standards, making rational administration of the ordinances impossible. Further, we conclude that the ordinances are overbroad in that they regulate conduct both within and outside areas designated as woodlands. An ordinance does not provide fair notice of proscribed conduct if it "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Allison v. Southfield, 172 Mich.App. 592, 596, 432 N.W.2d 369 (1988). That is, an ordinance must be sufficiently clear and definite as to give those reading it fair notice of prohibited conduct. Id. Applying this rule to the instant case, a person of common intelligence must be able to determine from reading the ordinance whether part or all of his land is covered by the ordinance and, if his land is included in the ordinance, what conduct is prohibited. Of course, this inquiry must, be begun by looking at the terms of the ordinance.

As is...