Topics that will be covered include Open Meetings Act (closed sessions), Freedom of Information Act (electronic records), Michigan Medical Marihuana Act Update, Complete Streets legislation, Municipal Partnership Act, Publicly Funded Health Insurance Contribution Act, fees/cost recovery, sign ordinances, selective enforcement and mineral extraction.

Sessions of the seminar are scheduled for Marquette (April 10), Gaylord (April 11), Frankenmuth (April 17, ) Big Rapids (April 18) and Battle Creek (April 20).

For more information, contact Shelley Tucker at Michigan Townships Association.  shelley@michigantownships.org

The property owner then sought to take its case to federal court (including a new claim of inverse condemnation), which court declined jurisdiction, given that the Allegan County circuit court had not reviewed the inverse condemnation claim.   The Allegan County circuit court then granted summary disposition for the Village on all counts.  

On appeal to the Court of Appeals, the property owner argued that the circuit court erred in granting summary disposition for the Village on all counts.   The Court of Appeals agreed, in part.   While the Court of Appeals found that res judicata barred the relitigation of the property owner’s appeal claims (ie., proper procedure, denial of PUD), the Court of Appeals reversed the grant of summary disposition as to the inverse condemnation claim.   The Court of Appeals held that as the inverse condemnation claim had not been heard by the circuit court in the original appeal, the court was premature in granting summary disposition on that claim.  Citing Houdini Properties v Romulus, 480 Mich 1022 (2006), the Court of Appeals reversed the circuit court’s grant of summary disposition as to the property owner’s inverse condemnation claim and remanded for further proceedings. 

Rodriguez v City of Village of Douglas, Court of Appeals, case no. 299510, unpublished, 1/10/12

The Woys’ property was a legal non conforming use, as it was residentially zoned but used as a junk yard.  Beginning in 1983, the Township sought injunctive relief to prevent the property owner from bringing additional heavy equipment onto the property, as well as prohibiting the property owner from expanding commercial activities on the property.

Over the next several years, the Township returned to court repeatedly to show cause the property owner as to the property owner’s failure to comply with the circuit court’s order.   In 1999, the trial court issued an order that provided, in part, if the property owner did not comply with the order regarding use of the property, “. . .the property owner shall cease and desist from any commercial operations or storage of any material not presently permitted under the zoning ordinances as if a non conforming use did not exist.”  

In 2009, the Township requested another show cause hearing to determine if the property owner was in violation of the trial court’s order regarding use of the property.  The trial court then determined, after a site visit and testimony, that the property owner had brought new materials onto the property, in violation of the court’s order, and that the property owner was to immediately cease and desist from using the property for commercial operations or storage. 

The Michigan Court of Appeals upheld the circuit court, finding that the circuit court had the authority to terminate the property owner’s nonconforming use through a contempt order. The Court of Appeals held that the circuit court’s suppression of the nonconforming use was within the court’s remedial powers, as the property owner improperly expanded the nonconforming use.

Charter Township of Portsmouth v Jerry Woys, et al, Court of Appeals, case no. 302319, unpublished, 2/9/12

In most cases, a homestead property tax credit is applied to income taxes owed.  In the case at hand, however, the property owner did not have to pay income taxes, because of her annual income.  She therefore received a refund of her homestead property tax credit.  When she applied for a poverty tax exemption to her township board of review, the board of review included that refund amount in her income.

The Court of Appeals reversed the Michigan Tax Tribunal, holding that “the homestead property tax credit does not confer income nor is it a program to transfer new monies to individuals. . . .rather. . . it is to rebate a portion of the property taxes a person has already paid.”  Ferrero v Township of Walton, Court of Appeals, case no. 302221, February 23, 2012 (for publication).  Tax refunds are not considered income and should not have been added to her income for purposes of evaluating the poverty exemption under MCL 211.7u.

Ferrero v Township of Walton, Court of Appeals, case no. 302221, 2/23/12 (released for publication)

The Village served a condemnation notice on the property owner under the State Construction Code Act, advising that the property owner’s building was significantly deteriorated and fit the International Property Maintenance Code (IPMC) definition for demolition. The notice also advised the property owner to take immediate action or the Village would secure the building and hire a demolition contractor.

The Village then used a different procedure (loosely based on the Dangerous Building Code provisions of the Michigan Housing Code) to approve the demolition of the building.  Despite the fact that the property owner protested at two Village council meetings and submitted a written  protest, the Village denied the property owner’s appeal and demolished the building.

The property owner sued the Village.  The circuit court granted summary disposition for the Village, holding that the court lacked jurisdiction to hear the case and the Village had governmental immunity.

The Court of Appeals upheld the Village’s demolition pursuant to governmental immunity, despite finding that the Village had used improper procedure to demolish the building.

Please contact a BSLTS attorney if your municipality intends to commence the dangerous building process or enter condemnation proceedings under the State Construction Code, to make sure you are following the required process.

Patton v Village of Cassopolis and Kevin Gillette, Court of Appeals, case no. 301754, unpublished, 1/24/12

BSLTS clients Maple Grove,  Clayton Charter, Montrose, Hazelton, Flushing, New Haven, Venice and Caledonia Townships joined together to halt the hearing of necessity and any later determination of necessity for the large scale drainage improvement project.

Attorneys Bauckham and Lohrstorfer authored briefs and argued for a stay at the circuit court level, but were unsuccessful.   The Michigan Court of Appeals, however, granted  a stay of the hearing of necessity, until the Court of Appeals hears the matter.

For more information on Drain Code issues, please contact a BSLTS attorney.

The Woys’ property was a legal non conforming use, as it was residentially zoned but used as a junk yard.  Beginning in 1983, the Township sought injunctive relief to prevent the property owner from bringing additional heavy equipment onto the property and from expanding commercial activities on the property.

Over the next several years, the Township returned to court repeatedly to show cause the property owner regarding the property owner’s failure to comply with the circuit court’s order.   In 1999, the trial court issued an order that provided, in part, if the property owner did not comply with the court’s order regarding use of the property, “. . .the property owner shall cease and desist from any commercial operations or storage of any material not presently permitted under the zoning ordinances as if a nonconforming use did not exist.”  

In 2009, the Township requested another show cause hearing to determine if the property owner was in violation of the trial court’s order.  After a site visit and taking testimony, thge trial court determined that the property owner had brought new materials onto the property, in violation of the court’s order.  The circuit court ordered the property owner to immediately cease and desist from using the property for commercial operations or storage. 

The Michigan Court of Appeals upheld the circuit court, finding that the circuit court had the authority to terminate the property owner’s nonconforming use through a contempt order. The Court of Appeals held that the circuit court’s suppression of the nonconforming use was within the court’s remedial powers, as the property owner had improperly expanded the nonconforming use.

Charter Township of Portsmouth v Jerry L. Woys, et al. No. 302319, Court of Appeals, unpublished, February 9, 2012.

Attorney Thall submitted an amicus brief in support of MTA in Toll Northville Limited Partnership v Township of Northville.

Attorney Thall submitted an amicus brief in support of MTA and MML in Michigan Properties LLC v Meridian Township.

Oral argument on both cases is scheduled for March 6, 2012 at the Michigan Supreme Court

Defendant sign company removed a portion of a non- conforming billboard and replaced it with a new sign face that was still non-conforming in terms of the township zoning ordinance, but which decreased the level of non- conformity.   The defendant did not seek township approval before updating its non-conforming sign.   The township brought suit, asserting that the non-conforming sign was a violation of the zoning ordinance and a nuisance per se.  Defendant sign company counter-claimed, alleging that the township’s sign regulations (spacing) violated the First Amendment and that the zoning ordinance did not provide standards for the zoning administrator’s determination on changing non-conforming uses.

The trial court held for the township, finding that the defendant’s sign was non-conforming in three respects:  sign surface was too big, sign was too tall and sign was located too close to another sign.   The trial court also found that while the new sign was in greater conformity with zoning ordinance requirements than the previous sign, the sign was still non-conforming as to spacing distance from other signs.   The trial court held that the revised sign was in violation of the zoning ordinance and was a nuisance per se.  The trial court ordered the revised sign removed within 21 days and dismissed Defendant’s counter claim.

On appeal, defendant argued that Michigan law prohibits the township from restricting the modification of a non-conforming use or structure if the modification lessens the non-conformity.   The Court of Appeals, however, found this argument to be without merit, noting that Michigan law does not authorize any improvement to a non-conforming use, exclusive of the application of the pertinent zoning ordinance.   Notably, the township’s zoning ordinance did not prohibit maintenance or modernization of a non-conforming sign if the proposed improvement did not exceed 30% of the replacement value.  Defendant’s cost of updating its billboard, however, exceeded 30% of the replacement cost.  Accordingly, it was a violation of the zoning ordinance and a nuisance per se.

Additionally, the Court of Appeals upheld the trial court’s striking of a sentence of the zoning ordinance that authorized the zoning administrator to make a determination on non- conforming uses, as there were no standards included to guide the zoning administrator’s decision.  The Court of Appeals also upheld the township’s spacing requirement for billboards, noting that the regulation was properly tailored as a restriction on commercial speech.

Township of Blair v Lamar OCI North Corporation, 10/27/11, unpublished