Committee for Marshall-Not the Megasite v. City of Marshall

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

COMMITTEE FOR MARSHALL-NOT THE FOR PUBLICATION

MEGASITE, June 18, 2024

2:45 p.m.

Plaintiff-Appellant/Cross-Appellee,

and

REGIS KLINGLER, STEPHANIE KLINGLER,

HOLLY HARNDEN, MARK ROBINSON,

GRETCHEN ESSER, JAMES SLEIGHT, JR., and

DIANE KOWALSKE,

Plaintiffs,

v No. 369603

Calhoun Circuit Court

CITY OF MARSHALL and MICHELLE EUBANK LC No. 2023-001712-CZ

in her capacity as the MARSHALL CITY CLERK,

Defendants-Appellees,

and

MARSHALL AREA ECONOMIC

DEVELOPMENT ALLIANCE,

Intervening Defendant-Appellee,

and

MICHIGAN ECONOMIC DEVELOPMENT CORP.

and MICHIGAN STRATEGIC FUND,

Cross-Appellants.

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Before: CAMERON, P.J., and N. P. HOOD and YOUNG, JJ.

PER CURIAM

In its simplest form, this case is about (1) when a party is entitled to mandamus and (2)

interpretation of the city of Marshall’s charter. This case started with efforts by defendant-

appellee, the city of Marshall (the City), to rezone a parcel of real estate from Marshall Township

zoning to the City’s new industrial and manufacturing zoning designation, as part of a project to

develop an electric battery manufacturing facility called the Ford BlueOval Battery Park (the so-

called “Marshall Megasite”), and counterefforts by plaintiff-appellant/cross-appellee, Committee

for Marshall-Not the Megasite (the Committee) to prevent the rezoning. The City eventually

rezoned the property through an ordinance that also included appropriations. Plaintiffs Regis

Klingler, Stephanie Klingler, Holly Harnden, Gretchen Esser, and Mark Robinson (the

petitioners)1 then formed the Committee and, with others, circulated a petition for a ballot

referendum on the City’s decision. The City Clerk, defendant Michelle Eubank, rejected the

petition because it related to an ordinance that included appropriations (among other reasons). The

Committee and the petitioners sued seeking a writ of mandamus compelling Eubank to put the

referendum on the ballot as well as injunctive and declaratory relief, claiming that the ordinance

violated the City’s charter. Numerous other stakeholders, including the Marshall Area Economic

Development Alliance (MAEDA), the Michigan Economic Development Corporation (MEDC),

the Michigan Strategic Fund (MSF), and others, sought to intervene; only MAEDA succeeded.

The Committee now appeals the trial court order dismissing its claims. It argues that the

trial court erred in several ways by rejecting its claims that the City violated the law when it

rezoned the property. It also maintains that the trial court should have determined that Eubank

exceeded her authority when she rejected the petition for a referendum.

On cross-appeal, MEDC and MSF challenge the trial court’s order denying their motions

to intervene. They also argue—in the form of issues on cross-appeal—that this Court should affirm

the trial court’s decision to dismiss the Committee’s claims.

We affirm the trial court’s decision to dismiss the Committee’s claims. It correctly

concluded that the Committee was not entitled to mandamus relief because of the existence of an

alternative adequate remedy (namely, an appeal of the Marshall City Council’s final decision on

certification) and the lack of a clear, legal right. It also correctly concluded that the ordinance at

issue complied with the Marshall City charter. We dismiss MEDC and MSF’s cross-appeal for

lack of jurisdiction. For these reasons and those stated below, we affirm.

I. BACKGROUND

The subject of the City’s rezoning efforts and the Committee’s petition drive, and

ultimately its lawsuit, was the development of the Ford BlueOval Battery Park. The City,

1

The seven individual plaintiffs are not parties to this appeal. Only the Committee filed a claim

of appeal.

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MAEDA, MEDC, MSF, and others worked to facilitate the development. The Committee and

petitioners worked to stop the development.

A. THE MASTER 425 AGREEMENT

In February 2022, the City and Marshall Township (Township) entered a land transfer

agreement (the Master 425 Agreement).2 Previously, from 2006 until the 425 Agreement, the City

and Township were parties to another agreement governing land transfers between the two

jurisdictions for economic development. Under the new agreement, the City and Township

contemplated that they would enter individual “425 Agreements” governing particular transfers

consistent with the Master 425 Agreement, and provided rules for such agreements. The

applicable rules depended on whether the individual agreement involved a commercial or

industrial development, or involved a residential development; it also depended on the location of

the development relative to certain interstates.

The Master 425 Agreement provided a process for property owners with property

designated within the Master 425 Agreement and located within the Township to request services

and conditionally transfer the property to the City for commercial or industrial purposes. Once a

property owner requests services, a contract for the property’s conditional transfer is presented to

the Marshall City Council and the Township Board of Trustees for approval.

Under the Master 425 Agreement, and pursuant to the Joint Municipal Planning Act, 2003

PA 226, MCL 125.141 et seq., the City and Township also established a Joint Municipal Planning

Commission (JPC). They agreed that the JPC would “control all land usages for lands subject to

a 425 Agreement between the City and Township.” The JPC had an equal number of members

from both the City and the Township.

Schedule A to the Master 425 Agreement provided the rules for the JPC, including rules

regarding the application of the City’s zoning ordinances versus the Township’s. Critically, the

zoning definitions within the City’s zoning ordinances applied to residential lands located south

of I-94 and east of I-69. The parties also agreed that the City’s zoning ordinances applied to all

commercial and industrial lands subject to the JPC jurisdiction regardless of location. But

“residential zoned lands lying west of I-69 or north of I-94 shall be administered by the JPC” per

the Township’s zoning and planning acts and Township procedures and definitions.

B. REZONING THE MEGASITE

In February 2023, the Marshall Board of Trustees and the Marshall City Council approved

conditional land transfers that brought certain properties located in the Township under the City’s

jurisdiction. This followed requests the City manager received from property owners to enter into

individual 425 agreements to bring their properties located in the Township under the City’s

2

The parties refer to land transfers under this agreement as Act 425 transfers after the law that

permits cities, townships, and villages to enter into agreements to transfer jurisdiction over land

for a period of years for the purpose of facilitating economic development, which was first enacted

by 1984 PA 425. See MCL 124.21 et seq.

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jurisdiction in order to receive the City’s services. The owners had either transferred their property

to MAEDA or were under contract to do so. MAEDA eventually obtained approval to combine

these properties into one parcel. It subsequently obtained approval to split off 741 acres for the

proposed development. Those 741 acres formed a new parcel, identified as parcel no. 53-281-

021-00 and commonly known as 13700 West Michigan Avenue. This was the proposed

development site for the Ford BlueOval Battery Park.

In April 2023, both MAEDA and the City took steps to rezone the parcel in overlapping

processes before both the JPC and the Marshall City Council. On April 4, 2023, MAEDA applied

to the JPC to rezone the land at issue from Township zoning to the City’s new Industrial and

Manufacturing Complex (I-3) zoning designation, a special zoning classification that the City had

adopted specifically for the parcel to be used as the Marshall Megasite. See MCL 125.3401. On

April 25, 2023, the JPC held a meeting where it considered and denied MAEDA’s request to rezone

13700 Michigan Avenue in a four-to-two vote.

Meanwhile, a parallel rezoning effort was proceeding before the Marshall City Council.

On April 15, 2023, 11 days after MAEDA’s application and 10 days before the JPC vote, Eubank,

the City Clerk, published a Notice of Public Hearing, scheduled for May 1, 2023 at 7:00 p.m.

before the Marshall City Council regarding MAEDA’s rezoning application. The published notice

was in the Ad-visor and Chronicle, a local weekly publication. On April 17, 2023, the Marshall

City Council introduced Ordinance 2023-8, titled “AN ORDINANCE TO AMEND THE

ZONING MAP OF THE CITY OF MARSHALL SO AS TO CHANGE THE ZONING OF A

PARCEL OF REAL PROPERTY, PARCEL #53-281-021-00, FROM TOWNSHIP ZONING TO

INDUSTRIAL AND MANUFACTURING COMPLEX (I-3).” On May 1, 2023, the City held a

public hearing on MAEDA’s rezoning application, where it adopted Ordinance 2023-08. The

ordinance rezoned 13700 Michigan Avenue from Township zoning to Industrial and

Manufacturing Complex (I-3). It also included an appropriation of $40,000 for site plan review

services and $250,000 for building inspection services for the proposed development of the land

at issue.

C. THE COMMITTEE AND ITS FAILED REFERENDUM EFFORTS

Days after the City rezoned 13700 Michigan Avenue, five of the petitioners, all City

electors,3 filed an affidavit to form a ballot question committee—the Committee—to initiate a

referendum to challenge Ordinance 2023-08. On the affidavit, the petitioners agreed that they

would “be responsible for circulating the referendum petition and for filing it in proper form.”

Those five petitioners, along with others,4 collected and submitted 810 signatures for the ballot

referendum petitions. The Committee filed its petition signatures with the City Clerk on May 30,

2023.

3

The five petitioners were Regis Klingler, Stephanie Klingler, Holly Harnden, Gretchen Esser,

and Mark Robinson.

4

This included plaintiff James Sleight, Jr., who was a City elector but not a Committee member,

plaintiff Diane Kowalske, who was a Marshall Township resident, and other circulators.

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Eubank served a Certification of Insufficiency on the Committee on June 16, 2023. She

stated that the petition was insufficient for two reasons. First, according to Eubank’s certification,

the petition was invalid because Ordinance 2023-08 was not subject to referendum. Eubank

explained that under Marshall’s charter, an ordinance that contained an appropriation was not

subject to referenda. Second, she rejected the petition because the Committee included signatures

that were not collected by the petitioners themselves. She reasoned that, because the petitioners

agreed on the affidavit that they would be responsible for circulating the petition for signatures,

only signatures actually collected by one of the individual petitioners would count toward the total

number of signatures required to subject the ordinance to a referendum. She wrote that, when the

signatures collected by persons other than the petitioners were excluded, the amount was not

sufficient to meet the threshold for a referendum.

On June 20, 2023, the Committee hand-delivered a letter to the Marshall City Council

seeking to review the legality of the Certificate of Insufficiency at its next regularly scheduled

meeting.5 The Marshall City Council upheld Eubank’s decision at a meeting held later that same

day.

D. TRIAL COURT PROCEEDINGS

On July 27, 2023, the Committee and the petitioners filed a complaint for a writ of

mandamus, seeking to compel Eubank and the City to certify the petition for a referendum on

Ordinance 2023-08. The complaint requested three forms of relief: (1) mandamus, (2) injunctive

relief, and (3) declaratory relief. Regarding mandamus, plaintiffs alleged that Eubank exceeded

her authority by determining that the ordinance was not subject to referendum and invalidating the

signatures on the ground that the person who collected the signatures was not one of the petitioners.

The complaint alleged that Eubanks’s certification was a ministerial task, entitling them to a writ

of mandamus. Regarding injunctive relief, plaintiffs alleged that their petition was valid and that

submission of the petition automatically suspended Ordinance 2023-08. They asked the trial court

to order such suspension until after a referendum on the ordinance. Finally, plaintiffs requested

declaratory relief. Specifically, they asked the trial court to declare that the Marshall City Council

violated the City’s charter by including an appropriation in a zoning ordinance. They alleged that

the ordinance violated the requirement that all ordinances have a single issue given that the

ordinance included two issues: a zoning change and appropriations.

Shortly after plaintiffs filed their complaint, multiple third-parties sought to intervene. The

only successful intervenor-movant was MAEDA, which moved to intervene as the owner of the

subject property. But others, including Ford Motor Company, the proposed developer, and a group

favoring the development called Marshall Citizens for Jobs and Opportunity, unsuccessfully

5

Under the Marshall City Charter, the City Clerk has 20 days to determine the sufficiency of a

referendum petition. If she determines it to be sufficient, the City Council must either repeal the

referred ordinance or place the referendum petition on the ballot. Marshall Charter, § 5.04(a). If

she determines it to be insufficient, she must mail a certified copy of the certificate of insufficiency

to the ballot committee. The ballot committee may then either amend the referendum petition or

file a request with the City Council for a review of sufficiency. See Marshall Charter, § 5.04(b).

That decision is subject to review by a court of competent jurisdiction. Marshall Charter, § 5.04(c).

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moved to intervene. The MEDC and MSF filed a joint motion to intervene as investors and

facilitators of the development project. Relevant to this appeal, the trial court denied MEDC and

MSF’s motion to intervene, allowing them to proceed as amici only. The trial court granted

MAEDA’s intervention, concluding was in a significantly different position than the other

proposed intervenors because it owned the property whose zoning was at issue. It further

determined that the City might not adequately protect its interests. It denied MEDC and MSF’s

motion, concluding that their interests were perfectly aligned with and represented by the City and

MAEDA’s positions. The trial court’s order denying intervention was entered on August 7, 2023.

MEDC and MSF did not apply for leave to appeal this order.

The City, Eubanks, and MAEDA quickly moved for summary disposition under MCR

2.116(C)(8). Plaintiffs filed a consolidated response in opposition. After a hearing on the motion,

the Committee and petitioners filed an amended complaint for a writ of mandamus. Plaintiffs

raised their original three claims: mandamus (Count I), injunctive relief (Count II), and declaratory

relief (Count III). They also raised two new claims that mirrored arguments raised in (and which

the court struck from) their response to the motion for summary disposition. First, plaintiffs added

a claim in which they asked the trial court to declare that amending the zoning ordinances violated

the Master 425 Agreement (Count IV). They also alleged a claim that Ordinance 2023-08 had not

been properly noticed before it was adopted by the city council (Count V). The City, Eubank, and

MAEDA moved to strike the amended complaint, maintaining that the Committee and petitioners

failed to seek leave before filing the amended complaint and lacked standing to bring the new

claims. The trial court entered an order holding the motion to strike in abeyance pending the

issuance of its opinion and order in the original motion for summary disposition.

In September 2023, the trial court issued its opinion on the motion for summary disposition.

Regarding mandamus, the trial court found that the Committee and the petitioners had an alternate

avenue for relief: appealing the Marshall City Council’s decision to affirm Eubank’s refusal to

certify to a court of competent jurisdiction. Specifically, the trial court found that Section 5.04 of

the Marshall City Charter provides this alternative remedy. They did not avail themselves of that

remedy. For that reason alone, the court wrote, the complaint for a writ of mandamus failed as a

matter of law. The trial court further concluded that it should dismiss the mandamus action

because the Committee and petitioners could not establish that Eubank violated a clear legal duty.

It explained that Ordinance 2023-08 included an appropriation and was not subject to referendum.

Eubank, therefore, had a clear legal duty to reject the petition. The trial court also rejected the

collateral attacks on the validity of Ordinance 2023-08. It reasoned that the City’s charter allows

appropriations by ordinance. The trial court similarly determined that Ordinance 2023-08 did not

violate the title and subject restrictions stated in the City’s charter. Relying on these findings and

conclusions, the trial court agreed that the City, Eubank, and the Marshall Development Alliance

were entitled to dismissal of the complaint under MCR 2.116(C)(8). It, however, indicated that

they should be given opportunity to amend.

After withdrawing their motion to strike the amended complaint, the City and Eubank

moved for summary disposition of the amended complaint. The Committee and the petitioners

responded in opposition. Each side largely reiterated arguments raised with respect to the earlier

motion for summary disposition or motions to strike.

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Following a hearing, the trial court granted summary disposition in favor of the City,

Eubank, and MAEDA in January 2024. It dismissed Counts I through III for the same reasons that

it stated in its first summary disposition opinion. Regarding Count IV (declaratory relief related

to purported violations of the Master 425 Agreement), the trial court determined that neither the

Committee, nor petitioners, had standing to challenge whether the City’s zoning decision breached

the Master 425 Agreement. In a footnote, it alternatively concluded that even if they had standing,

their argument lacked merit. Regarding Count V (declaratory relief related to purported improper

notice of Ordinance 2023-08), the trial court concluded that the Committee and petitioners did not

have standing, but it also concluded that the claim, as alleged, failed as a matter of law. It explained

that the City gave notice of the proposed ordinance on April 15, 2023, and set the date of the city

council’s meeting for May 1, 2023. The City did not, however, introduce the ordinance until

April 17, 2023. Nevertheless, the City gave notice more than five days before the city council’s

meeting, which met the literal requirements of the City’s charter. The court also stated that, as

alleged, the City substantially complied with the notice requirement. The trial court entered its

order dismissing the amended petition on the grounds set forth in the opinion.

This appeal followed. The Committee appealed by right the trial court’s order dismissing

its claims. The seven individual petitioner-plaintiffs did not file a claim of appeal and are not

parties to this appeal. MEDC and MSF cross-appealed on February 26, 2024, challenging the trial

court’s order denying their motions to intervene.

II. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition under

MCR 2.116(C)(8). See Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We

likewise review de novo whether the trial court properly interpreted and applied applicable statutes

and court rules, Franks v Franks, 330 Mich App 69, 86; 944 NW2d 388 (2019), and whether a

party has standing to bring a claim, MCNA Ins Co v Dep’t of Technology, Mgt & Budget, 326 Mich

App 740, 743; 929 NW2d 817 (2019). We also review de novo the proper interpretation and

application of the City’s ordinances, Gmoser’s Septic Serv, LLC v East Bay Charter Twp, 299

Mich App 504, 509; 831 NW2d 881 (2013), and charter, Barrow v Detroit Election Comm, 301

Mich App 404, 411; 836 NW2d 498 (2013).6

6

At the threshold, the Committee argues that the trial court erred by granting defendants’ first

motions for summary disposition because plaintiffs filed a new complaint, which superseded the

complaint that was the subject of the motions. This argument fails for at least two reasons. First,

the Committee waived this issue by not raising it before the trial court. See Tolas Oil & Gas

Exploration Co, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 359090); slip op

at 3 (holding that the failure to raise an issue in the trial court waives that issue for appellate

review). See also Samuel D Begola Servs, Inc v Wild Bros, 210 Mich App 636, 642; 534 NW2d

217 (1995) (a party asserting error must show that it brought to the trial court’s attention the same

basis for the error later claimed on appeal). Second, the issue is moot. The trial court addressed

the merits of the first motions, but it also granted the Committee leave to amend its complaint and

gave the parties an opportunity to address the amended complaint in new motions for summary

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III. MANDAMUS

The trial court did not abuse its discretion when it dismissed the Committee’s claim for a

writ of mandamus. The trial court correctly concluded that the Committee’s mandamus claim

failed for at least two reasons: first, an adequate alternative remedy existed (judicial review as

provided in Section 5.04 of the Marshall Charter), and second, the Committee did not have a legal

right to a ballot referendum on an ordinance containing appropriations.7

While we review de novo a trial court’s decision on a motion for summary disposition

under MCR 2.116(C)(8), see Maiden, 461 Mich at 118, we review for an abuse of discretion the

trial court’s decision whether to issue a writ of mandamus, CB v Livingston County Comm Mental

Health, ___ Mich App ___, ___; ___ NW3d ___ (Docket No. 363697); slip op at 5. “A court

abuses its discretion when its decision is outside of the range of reasonable and principled

outcomes.” Id., quoting Citizens for Higgins Lake Legal Levels v Roscommon Co Bd of Comm’rs,

341 Mich App 161, 177-178; 988 NW2d 841 (2022). “A trial court necessarily abuses its

discretion when it makes an error of law.” CB, slip op at 5 (quotation marks and citation omitted).

A. STANDING

At the threshold, we reject MAEDA’s argument that the Committee lacks standing.

MAEDA frames its standing argument as whether the Committee had standing to challenge the

validity of Ordinance 2023-08. MAEDA, however, relies primarily on authorities related to

appeals to zoning boards and circuit courts rather than standing to challenge a zoning decision in

disposition. When it granted the new motions for summary disposition, the trial court had to

provide the Committee the opportunity to amend, notwithstanding that it had already granted leave

to amend once before, unless the court determined that “amendment would not be justified.” See

MCR 2.116(I)(5); see also Yudashkin v Linzmeyer, 247 Mich App 642, 652; 637 NW2d 257 (2001)

(stating that when a “plaintiff’s amended complaint arises from the same conduct, transaction, or

occurrence as that of the original complaint, the fact that summary disposition was granted in favor

of these defendants does not preclude amendment”). The trial court’s decision to consider the

merits of the first motions, therefore, did not bar the Committee from seeking leave to amend its

complaint again to correct the defects that led to dismissal under MCR 2.116(C)(8). The

Committee merely chose not to amend. We conclude that whether the trial court should have

treated the amended complaint as by leave and whether it should have declined to address the first

motions for summary disposition are moot questions. See League of Women Voters of Mich, 506

Mich at 580-584.

7

Because we affirm on the basis that the trial court correctly declined to issue a writ of mandamus

because there was an alternative remedy (judicial review of the Council’s decision under the

Marshall Charter) and no legal right to have a referendum on an ordinance that included

appropriations, we need not address the thornier issue of whether Eubank’s certification of the

petitions was a ministerial task. See, e.g., Plunkett v Dep’t of Transp, 286 Mich App 168, 190;

779 NW2d 263 (2009) (declining to address remaining issues after finding the resolution of others

to be dispositive).

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the first place. See Sakorafos v Lyon Charter Twp, ___ Mich App ___, ___; ___ NW3d ___ (2023)

(Docket No. 362192); slip op at 5-6.

Standing refers to a party’s right initially to invoke a trial court’s power to adjudicate a

claimed injury in fact. Saugatuck Dunes Coastal Alliance v Saugatuck Twp, 509 Mich 561, 592;

983 NW2d 798 (2022). Our Supreme Court has stated that Michigan’s standing doctrine is a

prudential doctrine that recognizes that a litigant has standing whenever he or she has a valid cause

of action:

[A] litigant has standing whenever there is a legal cause of action. Further,

whenever a litigant meets the requirements of MCR 2.605, it is sufficient to

establish standing to seek a declaratory judgment. Where a cause of action is not

provided at law, then a court should, in its discretion, determine whether a litigant

has standing. A litigant may have standing in this context if the litigant has a special

injury or right, or substantial interest, that will be detrimentally affected in a manner

different from the citizenry at large or if the statutory scheme implies that the

Legislature intended to confer standing on the litigant. [Lansing Sch Ed Ass’n v

Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010) (footnotes omitted).]

MAEDA contends that the Committee cannot challenge Ordinance 2023-08 because it is a zoning

ordinance and the Zoning Enabling Act, MCL 125.3101 et seq., limits who can challenge a zoning

ordinance. Its argument misses the point and posture of the Committee’s action. As this Court

has explained, the Zoning Enabling Act governs who may appeal a zoning decision to a zoning

board or the circuit court. See Sakorafos, ___ Mich App at ___; slip op at 5-6. It does not govern

standing to assert direct challenges to a zoning ordinance. See id. The common-law standard

governs direct challenges like the challenge at issue here. Id.

Here, the petitioners formed the Committee and had it petition for a referendum on

Ordinance 2023-08. The City’s charter specifically provided standing to do just that. See Marshall

Charter, § 5.02. Once Eubank certified the petition as insufficient, the Committee had standing to

challenge the decision by Eubank and to challenge the City’s decisions to approve Eubank’s

decision through a writ of mandamus, see MCR 3.305(A)(2), because it had a “substantial and

distinct interest” in ensuring that its petition for a referendum was not improperly certified as

insufficient, see Lansing Sch Ed Ass’n, 487 Mich at 374. In short, the Committee had (and has)

standing.

B. THE COMMITTEE WAS NOT ENTITLED TO MANDAMUS RELIEF

As stated, the Committee’s mandamus request failed for at least two reasons: (1) the

existence of an alternative remedy; and (2) lack of a legal right to put the referendum on the ballot.

The writ of mandamus is an extraordinary form of relief. See Taxpayers for Mich

Constitutional Gov’t v State of Michigan, 508 Mich 48, 81; 972 NW2d 738 (2021). Its purpose is

to enforce duties the law created under circumstances in which the law has not created a specific

remedy, and justice requires one. See id., citing State Bd of Ed v Houghton Lake Comm Schs, 430

Mich 658, 666; 425 NW2d 80 (1988). As observed by our Supreme Court, mandamus has four

elements:

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To obtain this extraordinary remedy, the plaintiff bears the burden of showing that

(1) the plaintiff has a clear, legal right to performance of the specific duty sought,

(2) the defendant has a clear legal duty to perform, (3) the act is ministerial, and (4)

no other adequate legal or equitable remedy exists that might achieve the same

result. [Taxpayers for Mich Constitutional Gov’t, 508 Mich at 81-82 (quotation

marks and citation omitted).]

“A clear legal right is a right clearly founded in, or granted by, law; a right which is

inferable as a matter of law from uncontroverted facts regardless of the difficulty of the legal

question to be decided.” Attorney Gen v Bd of State Canvassers, 318 Mich App 242, 249; 896

NW2d 485 (2016). A clear legal duty is one that may be inferred as a matter of law from the

uncontroverted facts. Adams v Parole Bd, 340 Mich App 251, 260; 985 NW2d 881 (2022). “A

ministerial act is one in which the law prescribes and defines the duty to be performed with such

precision and certainty as to leave nothing to the exercise of discretion or judgment.” Id. (quotation

marks and citation omitted).

The trial court correctly concluded the Committee was not entitled to a writ of mandamus

because it did not have a clear, legal right to have a referendum on a Marshall ordinance containing

appropriations, see Marshall Charter § 5.01(b) (prohibiting referenda or ordinances containing

appropriations), and it had an adequate legal remedy, namely judicial review of the city council’s

decision, see Marshall Charter § 5.04(c) (explicitly providing that the city council’s final

determination as to the sufficiency of a petition is “subject to review by a court of competent

jurisdiction”). Although these are narrow grounds, to determine whether the Committee had a

legal right to have the referendum certified and included on the ballot, and to determine whether

other adequate legal or equitable remedies existed, we must examine the scope of the power of

referendum within the Marshall Charter.

As a home rule city, the City had to include certain provisions in its charter. See

MCL 117.3. Other provisions were, however, merely permissible. The City could include—but

was not required to include—provisions for “initiative and referendum on all matters within the

scope of the powers of that city and the recall of city officials.” MCL 117.4i(g). The people of

Marshall chose to include provisions for a referendum in their charter. See Marshall Charter,

§ 5.01(b). The people, however, limited that power to reviewing ordinances other than certain

enumerated types of ordinances: “such power shall not extend to the annual operating budget or

capital programs, any emergency ordinance, or any ordinance relating to the appropriation of

money or levy of taxes.” Marshall Charter, § 5.01(b) (Emphasis added).

This limitation means that there is no right under the charter to a referendum on an

ordinance relating to appropriations. In this case, the Committee and the petitioners petitioned to

hold a referendum on Ordinance 2023-08, the zoning ordinance at issue. An ordinary zoning

ordinance could be subject to referendum. See Albright v Portage, 188 Mich App 342, 347-349;

470 NW2d 657 (1991) (holding that zoning ordinances are legislative acts—not administrative

acts—and are subject to referendum if the charter allows for referenda on ordinances). This

ordinance, however, included appropriations for “$40,000 for site plan review services and

$250,000 for building inspection services for the development of the proposed industrial project

on the properties identified and described under this ordinance.” So long as the ordinance

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contained these appropriations, the Committee and the petitioners lacked a legal right to a

referendum on the ordinance. See Marshall Charter, § 5.01(b). Without a clear, legal right to

certification of the referendum and its placement on the ballot, see id., the trial court had no

authority to issue a writ of mandamus. See Taxpayers for Mich Constitutional Gov’t, 508 Mich

at 81-82. The trial court correctly reached this conclusion.

In doing so, the trial court relied on our Supreme Court’s decision in MGM Grand Detroit

v Comm Coalition for Empowerment, Inc, 465 Mich 303; 633 NW2d 357 (2001). The trial court

relied on MGM Grand for the proposition that Eubank had the authority to determine whether

Ordinance 2023-08 was subject to referendum and whether plaintiffs had a right to have the issue

on the ballot. There, the Detroit city council passed an ordinance changing the zoning at a

particular site to allow operation of a casino. See id. at 311-312 (CAVANAGH, J., dissenting)

(reciting the facts). After the defendants in that case collected sufficient signatures to subject the

zoning ordinance to a referendum, the city council repealed the ordinance and passed a new zoning

ordinance that included an appropriation. See id. The defendants again collected sufficient

signatures to subject the zoning change to referendum, but the city clerk refused to certify it

because the ordinance was exempt from the power of referendum. See id. at 312. MGM sued for

a declaration that the petition was invalid, and the defendants filed a third-party complaint asking

the trial court to order the city clerk to certify the petition. See id. The trial court agreed that the

ordinance was not subject to referendum, granted MGM’s motion for summary disposition, and

denied the relief requested by the defendants. See id. at 312-313.

On appeal to our Supreme Court, the majority observed that Detroit’s charter specifically

excluded ordinances that included appropriations from the power of referendum, noted that the

ordinance at issue included an appropriation, and concluded that the ordinance was not subject to

the power of referendum. Id. at 304-305. In short, there was no clear right to have the referendum

placed on the ballot. See id. It therefore affirmed the trial court’s decision to grant MGM’s motion

for summary disposition. Id. at 305. Even though the majority’s analysis did not include an

assessment of the clerk’s authority, it nevertheless plainly held that the trial court correctly denied

the defendants’ request for a writ of mandamus to compel the city clerk to certify a petition to

subject an ordinance to referendum when the ordinance was not in fact subject to the power of

referendum. To the extent that the trial court in this case correctly determined that Ordinance

2023-08 was not subject to the power of referendum under the Marshall Charter, it did not err

when it relied on the decision in MGM Grand Detroit to conclude that it could not order Eubank

to certify a petition for referendum that was plainly contrary to the Marshall Charter without regard

to whether Eubank should have certified the sufficiency of the petition in the first place.8

The trial court also correctly concluded that the mandamus claim failed because of the

existence of another adequate legal remedy, namely, the ability to challenge the city council’s final

decision on certification in court. See Marshall Charter, § 5.04(b). A trial court may not issue a

8

The Committee also argues that the decision in MGM can be distinguished from the facts of this

case because, in its view, the Marshall Charter does not permit appropriations to be made by

ordinance. We address this issue below.

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writ of mandamus if the party requesting the writ has another adequate remedy. See Taxpayers

for Mich Constitutional Gov’t, 508 Mich at 81-82.

The Marshall Charter specified the manner for petitioning for a referendum on an ordinance

in the charter. See Marshall Charter, § 5.02. It also specified the signature requirements, form,

and manner for submitting the petition to the city clerk. See id., § 5.03(a), (b), (d). Once

submitted, the city clerk had a duty to review the petition within 20 days. The city clerk “shall

complete a certification as to its sufficiency, specifying if it is insufficient, the particulars wherein

it is defective and shall promptly send a copy of the certificate to the petitioner’s committee by

certified mail.” Marshall Charter, § 5.04. The Marshall Charter provided that a committee whose

petition has been certified as insufficient may request that the city council review the certification.

See Marshall Charter, § 5.04(b). In such cases, the city council “shall review the certificate at its

next meeting . . . and approve or disapprove it, and the council’s determination shall then be a final

determination as to the sufficiency of the petition.” Marshall Charter, § 5.04(b). But the charter

provided that the city council’s final determination was subject to judicial review:

A final determination as to the sufficiency of the petition shall be subject to review

by a court of competent jurisdiction. A final determination of insufficiency, even if

sustained upon court review, shall not prejudice the filing of a new petition for the

same purpose. [Marshall Charter, § 5.04(c).]

In other words, the charter explicitly provides a legal remedy to challenge the council’s final

determination regarding petition sufficiency: an appeal.

In other circumstances, we have traditionally concluded that the availability of a legal or

equitable remedy through the courts renders the fourth prong of a mandamus claim (i.e., no other

adequate legal or equitable remedy exists) unsatisfied. See, e.g., Hanlin v Saugatuck Twp, 299

Mich App 233, 248-249; 829 NW2d 335 (2013) (affirming trial court’s grant of summary

disposition on mandamus claim “because an action in the nature of quo warranto was available to

[the plaintiffs, so] they could not maintain a claim for mandamus . . . .”); Mich Ass’n of RR

Passengers v Southeastern Mich Transp Auth, 140 Mich App 111, 114-115; 362 NW2d 904 (1985)

(affirming trial court’s dismissal of a complaint for a writ of mandamus, due to an adequate legal

remedy, where the statute authorizing the defendant regional transit authority required the

authority to give public notice and hold hearings before making a final decision to change its rail

service and “[a]ny party aggrieved by [the authority’s] decision can appeal to the circuit court.”).

See also Hill v State, 382 Mich 398; 170 NW2d 18 (1969). Here, the charter explicitly provided

an appeal of the city council’s decision to a court of competent jurisdiction. Such an appeal is an

adequate legal (or equitable) remedy capable of reaching the same desired result. The Committee

did not pursue such an appeal. The trial court correctly concluded that this was a basis for

dismissing the mandamus claim.

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Either of these bases provided grounds for dismissing the Committee’s complaint for

mandamus. And either provides a basis for affirming. We need not analyze the issue of the scope

of Eubank’s legal duties and whether they were ministerial.9

IV. VALIDITY OF APPROPRIATIONS IN ORDINANCE 2023-08

The trial court did not err when it determined that the City could validly make an

appropriation by ordinance. This is a core aspect of the Committee’s claims. In substance, the

Committee argues that the City appropriations within Ordinance 2023-08 were invalid because (1)

the charter only allows appropriations by resolution, not by ordinance, and (2) Ordinance 2023-

08’s title did not identify appropriations as part of its purpose. If the appropriations were not part

of the ordinance, then Ordinance 2023-08 would be vulnerable to ballot referenda. We conclude

9

The Committee also argues that Eubank’s decision not to certify the ballot referendum was an

unconstitutional limitation on who can collect signatures for a petition to subject an ordinance to

a ballot referendum. Specifically, the Committee contends she interpreted the City’s charter to

require the members who formed the committee to petition for a referendum to be the only persons

who could collect signatures for the petition. The trial court refused to consider this purported

error. We also decline to reach this issue because our decision on mandamus renders it, for the

purposes of this appeal, moot. See Gleason v Kincaid, 323 Mich App 308, 314-315; 917 NW2d

685 (2018); see also Mich Republican Party v Donahue, ___ Mich App ___, ___; ___ NW3d ___

(2024) (Docket No. 364048); slip op at 2.

This Court decides actual cases and controversies; it does not entertain abstract questions

of law or decide cases that do not rest on existing facts or rights. Gleason v Kincaid, 323 Mich

App 308, 314-315; 917 NW2d 685 (2018). This Court will instead dismiss as moot appeals that

do not involve actual cases or for which it cannot grant relief. Id. For that reason, the party seeking

relief must establish that there is an actual case or controversy at every stage of the litigation. See

Lewis v Continental Bank Corp, 494 US 472, 477-478; 110 S Ct 1249; 108 L Ed 2d 400 (1990).

A court cannot redress an injury with a favorable decision if the decision would not affect the

rights of the litigants in the case before the court. Id. This Court may, however, review a moot

issue if it is publicly significant, likely to recur, and yet likely to evade judicial review. See Mich

Republican Party, ___ Mich App at ___; slip op at 2.

Because we conclude that the Committee was not entitled to have the referendum put on

the ballot, a declaration regarding the constitutionality of limiting who can collect petition

signatures for the ballot referendum based on their membership in the Committee, would have no

conceivable effect on the rights of the litigants—the City would still be entitled to have the petition

rejected as a matter of law. See Lewis, 494 US at 477-478. Nonetheless, to the extent that the City

or its officers interpret Section 5.02 of the Marshall Charter to limit petition signature gathering to

only members of a petitioners’ committee, the City should strongly consider whether such a

limitation on protected political speech is untethered from a valid government interest. See

Buckley v American Constitutional Law Foundation, Inc, 525 US 182, 186-187, 194-196; 119 S

Ct 636; 142 L Ed 2d 599 (1999) (holding that banning paid circulators or limiting the circulators

to registered voters amounts to a diminution in speech that is not justified by the government’s

interest in policing lawbreakers among petition circulators).

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that the trial court correctly interpreted the charter as allowing the City to pass appropriations by

ordinance and that Ordinance 2023-08 did not violate the charter’s title-ordinance rules.

This Court reviews de novo whether a party has standing to bring a claim. See MCNA Ins

Co, 326 Mich App at 743. This Court also reviews de novo the proper interpretation and

application of the City’s ordinances, Gmoser’s Septic Serv, LLC, 299 Mich App at 509, and

charter, Barrow, 301 Mich App at 411. This Court reviews a trial court’s decision whether to grant

a preliminary injunction for an abuse of discretion. Slis v Michigan, 332 Mich App 312, 335; 956

NW2d 569 (2020). The trial court abuses its discretion when its decision falls outside the range

of reasonable and principled outcomes. Id.

A. STANDING

As explained, the Committee and the petitioners had the right under the City’s charter to

challenge the city council’s decision to ordain an ordinance by petitioning for a referendum on the

ordinance. See Marshall Charter, § 5.02. Once the Committee submitted its petition, it had

standing to ensure that its petition was not wrongfully certified as insufficient. See Lansing Sch

Ed Ass’n, 487 Mich at 374. To that end, it had standing to challenge whether the city council could

lawfully include an appropriation in the ordinance that would exempt the ordinance from the power

of referendum. Put differently, after filing its petition, the Committee had a concrete and distinct

interest that gave it standing to contest the appropriation provisions to the extent that those

provisions affected the decision whether to certify its petition as insufficient. See id. The

Committee continues to have standing to challenge those provisions on appeal.

B. APPROPRIATIONS BY ORDINANCE AND RESOLUTION

The Marshall Charter does not explicitly prohibit passing appropriations by ordinance, like

those in Ordinance 2023-08, and it does not explicitly require or authorize them. It does, however,

explicitly contemplate appropriations by ordinance. See Marshall Charter, § 5.01(b).

The City’s charter provides that the City has “any and all powers, privileges and immunities

which home rule cities are or may hereafter be required or permitted to exercise . . . .” Marshall

Charter, § 1.03. The City’s charter further provides that it must be liberally construed in favor of

the City and states that “the specific mention of particular powers in the charter shall not be

construed as limiting in any way the general power stated in this article.” Marshall Charter, § 1.05.

The City’s charter vests all the City’s powers in the city council. See Marshall Charter,

§ 2.05. The city council had the power to adopt resolutions, ordinances, and technical codes as

provided under Article IV of the charter. See Marshall Charter, § 2.16. The City’s charter also

required the city council to adopt an annual budget as provided under Article IX. See Marshall

Charter, § 2.19.

Article IV of the City’s charter states that all “legislation of the city shall be by ordinance

or resolution.” Marshall Charter, § 4.01(a). The charter limits the use of resolutions to “matters

required or permitted by law, or this charter, and to matters pertaining to the internal concerns of

the city.” Marshall Charter, § 4.01(c). The charter further required the city council to act by

ordinance when “establishing a rule or regulation which provides for a penalty” or when

“amending or repealing an ordinance previously adopted, or when required by law or this charter.”

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Marshall Charter, § 4.01(d). Critically, unlike Section 4.01(c), Section 4.01(d) is not a limitation

on the city council’s authority. Although the charter required the city council to legislate by

ordinance when one of the criteria under Section 4.01(d) applied, the charter did not preclude it

from legislating by ordinance under circumstances when one of those criteria did not apply. Read

together, the City’s charter provided that legislation by ordinance was the default, whereas

legislating by resolution would be permissible only when one of the criteria stated under Marshall

Charter, § 4.01(c), applied. In short, nothing in Article IV prevented the city council from

legislating an appropriation by ordinance. It is worth noting that legislating by ordinance is a

significantly more cumbersome process than legislating by resolution. Compare Marshall Charter,

§ 4.01(b) (providing the process for legislating by resolution: a motion followed by a vote of the

council members present) with § 4.02 (providing the process for legislating by ordinance,

including written introduction, title requirements, notice by publication, public hearing, and vote).

On appeal, the Committee argues that Article IX of the charter bars appropriations by

ordinance. It does not. Article IX of the charter provides the City’s budgeting process. Article

IX requires various city officials to “submit to the city manager an itemized estimate of their

expenditures for the next fiscal year.” Marshall Charter, § 9.02. It then requires the city manager

to prepare an itemized budget with an estimate of the revenues for the coming fiscal year and the

city manager’s recommendations. See Marshall Charter, § 9.02. Section 9.05, the section on

which the Committee primarily relies, provides, “Not later than the first meeting of the council in

June, the council shall, by resolution, adopt all budgets for the next year and shall, in such

resolution, make an appropriation of the money needed for municipal purposes during the ensuing

fiscal year . . . .” Marshall Charter, § 9.05 (emphasis added). The charter further limits the city

council’s authority to spend money outside the budget process: “After the budget has been adopted,

no money shall be drawn from the treasury of the city nor shall any obligation for the expenditure

of money be incurred, except pursuant to the budget appropriation.” Marshall Charter, § 9.06.

The prohibition against drawing money from the treasury or incurring obligations, “except

pursuant to the budget appropriation,” does not prohibit the City from spending money on matters

not included in the budget. City governments routinely confront unanticipated circumstances that

sometimes result in unanticipated expenses which require them spend money on contingencies that

arise during the fiscal year. The limitation stated under Marshall Charter, § 9.06, most naturally

means that the city council must limit its draws and pay its debts within the parameters set by the

budget.

The Committee, however, disagrees and emphasizes the prohibition stated under Marshall

Charter, § 9.06. It argues Section 9.06 requires the City to make all appropriations for entire fiscal

year during the initial budgeting process. In other words, it maintains that the charter renders the

budget adopted in June of each year inviolate and prohibits any further appropriations throughout

the year. It then argues from that proposition that it necessarily follows that the city council lacked

the authority to include an appropriation by ordinance and that the trial court erred when it refused

to sever the appropriation from Ordinance 2023-08.

The Committee’s interpretation would require us to view the budgeting process in a silo

without considering the provisions that give the city council the ability to respond to changing

conditions throughout the fiscal year. It also requires us to map that narrow view onto the entirety

of the charter, ignoring conflicts it creates with other provisions within the charter. The charter,

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for example, authorizes the city council to “transfer any unencumbered appropriation balance, or

any portion thereof, from one department, fund, or agency to another,” with some exceptions,

during the fiscal year. See Marshall Charter, § 9.06. This power authorizes the city council to

appropriate funds for an unanticipated expense during the fiscal year by moving unused and

unencumbered funds between departments or agencies to cover the appropriation. See id. The

charter also allows the city council to act during the year to reduce appropriations when income is

less than was anticipated in the budget. See Marshall Charter, § 9.07.

Unlike the provisions for borrowing, which provide that the city council could exercise its

borrowing power by resolution or ordinance, see Marshall Charter, § 9.08, the city council could

not exercise its powers under Marshall Charter, §§ 9.06 and 9.07, by resolution. This is because

the city council was empowered to act by resolution only when “required or permitted by law, or

this charter,” or when the matter pertained “to the internal concerns of the city,” Marshall Charter,

§ 4.01(c), and Marshall Charter, §§ 9.06 and 9.07, do not include authority to act by resolution.

Accordingly, the city council can act in a manner consistent with Marshall Charter, §§ 9.06 and

9.07, through an ordinance.

The Committee reads the deliberate inclusion of the term ordinance as a permissible means

for borrowing under Marshall Charter, § 9.08, as proof that the authority to transfer funds under

Marshall Charter, § 9.06, must be done by resolution. Marshall Charter, § 9.06, makes no mention

of the method for performing the transfer, and Marshall Charter, §§ 4.01(c) and (d), establish that

the city council cannot act by resolution except in certain specified cases and may act by ordinance

even in the absence of a statement to that effect. The most logical interpretation for the decision

to include the power to act by resolution or ordinance in Marshall Charter, § 9.08, was to establish

that the city council had the power to act by resolution to borrow. The failure to include that

provision would have precluded the city council from acting by resolution under Marshall Charter,

§ 4.01(c). Contrary to the Committee’s position, it was not superfluous to state that the city council

had the authority to act by resolution or ordinance under Marshall Charter, § 9.08. See Robertson

v DaimlerChrysler Corp, 465 Mich 732, 748; 641 NW2d 567 (2002) (“[I]t is important to ensure

that words in a statute not be ignored, treated as surplusage, or rendered nugatory.”). Instead, this

section tends to support the concept that the charter contemplated that ordinances, the default (and

more cumbersome) mechanism for municipal legislation, would be a mechanism for

appropriations. Cf. Marshall Charter § 9.08, § 5.01(b).

The failure to include that the city council could act by ordinance cannot be understood to

imply that the city had no authority to act by ordinance. The city council had the authority to act

by ordinance under Marshall Charter, § 4.01(d), without the need to mention that power because

acting by ordinance is the city council’s default manner of legislating. Even assuming that the city

council could perform the appropriation changes stated under Marshall Charter §§ 9.06 and 9.07,

by resolution, nothing prevented the city council from acting by ordinance. Compare Marshall

Charter, § 4.01(c) and § 4.01(d). Moreover, the requirement to act by resolution stated in Marshall

Charter, § 9.05, by its own terms, applied only to the adoption of the initial budget for the coming

fiscal year; it did not prevent the city council from making any appropriation otherwise permitted

under the charter in an ordinance during the fiscal year.

As the trial court correctly noted, the City’s charter also specifically contemplates that the

city council may make appropriations in an ordinance. See Marshall Charter, § 5.01(b). If that

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were not the case, then there would be no need to exempt ordinances that contain appropriations

from the power of referendum. See Marshall Charter, § 5.01(b). It is the Committee’s preferred

interpretation that renders a part of the charter nugatory. See Robertson, 465 Mich at 748.

Because the City’s charter must be liberally construed in favor of the exercise of the City’s

powers, see Marshall Charter, § 1.05, and the charter does not contain any prohibition—direct or

implied—that the city council cannot make an appropriation by ordinance, the city council’s

decision to include an appropriation in Ordinance 2023-08 was not necessarily unlawful under the

charter. We therefore conclude that the trial court did not err when it concluded that the city

council could lawfully appropriate funds by ordinance.

C. TITLE-OBJECT AND SINGLE-SUBJECT RULES

The Committee also argues that the appropriation in Ordinance 2023-08 violated the

charter’s title-object rule. Though this presents a closer question, we conclude that the ordinance

substantially complied with the charter.

The charter provides, in relevant part, that “no ordinance shall contain more than one

subject, and the ordinance title must clearly express that subject.” Marshall Charter, § 4.02(a).

This limitation is substantially similar to the title-object clause in Michigan’s constitution. See

Const 1963, art 4, § 24 (“No law shall embrace more than one object, which shall be expressed in

its title.”). The purpose of such clauses is to “prevent the Legislature from passing laws not fully

understood, to ensure that both the legislators and the public have proper notice of legislative

content, and to prevent deceit and subterfuge.” Enbridge Energy, LP v Michigan, 332 Mich App

540, 545-546; 957 NW2d 53 (2020) (quotation marks and citation omitted). A challenge under a

title-object rule, such as that found in the City’s charter, can take two forms: (1) a title-body

challenge and (2) a multiple-object challenge. Id. The challenge at issue here takes both forms.

When reviewing a title-object challenge, this Court must make “all possible presumptions”

in favor of constitutionality and must construe the title “reasonably, not narrowly and with

unnecessary technicality.” Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441,

464; 208 NW2d 469 (1973). As this Court has explained, a title-object limitation is not intended

to restrict the Legislature’s power, it is intended to ensure that the Legislature gives fair notice of

the challenged provision:

A title-body challenge is an assertion that the body of an act exceeds the scope of

its title. However, the title of an act is not required to serve as an index to all of the

provisions of the act. The goal of the clause is notice, not restriction of legislation.

A title will only fail to give fair notice if the subject in the body is so diverse from

the subject in the title that they have no necessary connection. Even if not directly

mentioned in the title of the act, if the title comprehensively declares a general

object or purpose, a provision in the body is not beyond the scope of the act as long

as it is germane, auxiliary, or incidental to that general purpose. [Enbridge Energy,

LP, 332 Mich App at 546 (quotation marks and citations omitted).]

A multiple-object challenge looks at the body of the law to determine whether the act

embraces more than a single object. See Ray Twp v B&B’s Gun Club, 226 Mich App 724, 731;

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575 NW2d 63 (1997). An ordinance does not violate a title-object clause solely because it contains

more than one means of attaining its primary purpose. Id. Rather, a violation exists only when

“the law contains subjects so diverse that they have no necessary connection.” Id.

The Committee argues that Ordinance 2023-08 suffered both a title-object defect and a

multiple-object defect. The city council gave the following title to Ordinance 2023-08: “AN

ORDINANCE TO AMEND THE ZONING MAP OF THE CITY OF MARSHALL SO AS TO

CHANGE THE ZONING OF A PARCEL OF REAL PROPERTY, PARCEL #53-281-021-00,

FROM TOWNSHIP ZONING TO INDUSTRIAL AND MANUFACTURING COMPLEX (I-3).”

It is undisputed that the title did not mention appropriations. But, in the ordinance, the city council

not only amended the zoning map to change the zoning for the identified parcel, it also

appropriated “$40,000 for site plan review services and $250,000 for building inspection services

for the development of the proposed industrial project on the properties identified and described

under this ordinance.” The Committee maintains that the title of Ordinance 2023-08 did not

encompass these appropriations because a change in zoning bears no connection to an

appropriation for services related to a development project. It likewise argues that Ordinance

2023-08 also had multiple objects in violation of Marshall Charter, § 4.02(a), because an ordinance

change is one object, and a budget amendment is another object.

We conclude that the appropriations did not violate Section 4.02(a) of the Marshall Charter.

The city council did not state in its title that it was amending the zoning map in general; it provided

that it was amending its zoning map to change the zoning classification for a specific parcel, which

it identified, and stated that it was changing the zoning to a special category, I-3. It was well

publicized that the parcel identified in Ordinance 2023-08 was the parcel intended for the

development of Ford’s Blue Oval Battery Park. The City had also created the I-3 zoning

classification specifically for that parcel and to further the development intended for that parcel.

The title, for that reason, encompassed a significant zoning change involving a known and

controversial development project.

A provision in an ordinance that is germane, auxiliary, or incidental to the generally stated

purpose of the ordinance is not beyond the scope of the title. Enbridge Energy LP, 332 Mich App

at 546. Even a routine zoning change may encompass costs that would ordinarily be borne by the

agency charged with effecting the change. As such, the fact that Ordinance 2023-08 included

appropriations did not necessarily violate the object-title rule stated under Marshall Charter,

§ 4.02(a), simply because the city council chose to address the fiscal need accompanying the

zoning change in the zoning ordinance rather than in a separate ordinance.10 Additionally, because

of the nature of the zoning change at issue and the specified parcel to which it applied, an

appropriation to pay for costs associated with the later development contemplated by the zoning

10

Citing MCL 141.437(1), the Committee claims that all appropriations are always required to be

in the form of an amendment to the general appropriations. That statute requires a legislative body

to amend the general appropriations as soon as it becomes apparent that a deviation from the

original general appropriations act is necessary. There is no indication in the record that the

appropriation at issue caused a deviation in the general appropriations.

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change would be within the range of expenses that the City would incur after making the zoning

change. An ordinance “may contain any provision which directly relates to, carries out, and

implements the principal object of the [ordinance].” See Livonia v Dep’t of Soc Servs, 423 Mich

466, 499; 378 NW2d 402 (1985). As the trial court observed in its earlier opinion and adopted in

its later opinion, the appropriation for the site plan review and for building inspections had a

necessary connection to the development that the City intended to support by implementing the

zoning change. Consequently, the appropriations did not violate the title-object clause and did not

constitute a second, distinct purpose not encompassed by the object identified in the title. See id.;

Ray Twp , 226 Mich App at 731.11

We conclude that the trial court did not err when it determined that Ordinance 2023-08 did

not violate Marshall Charter, § 402(a). We therefore affirm the trial court’s decision to dismiss

the Committee’s claims for injunctive and declaratory relief under MCR 2.116(C)(8). See Mettler

Walloon, LLC v Melrose Twp, 281 Mich App 184, 221 & n 6; 761 NW2d 293 (2008) (noting that

a claim for declaratory relief is actually a request for equitable relief that typically is cumulative

to a request for a writ of mandamus or injunctive relief). The trial court did not err when it

dismissed Counts I through III of the Committee’s amended complaint.

V. COMPLIANCE WITH THE CHARTER’S NOTICE REQUIREMENTS

The Committee argues that the trial court erred by dismissing Count V, a request for

declaratory relief that Ordinance 2023-08 was invalid for failing to comply with the charter’s

notice requirements. We conclude that the Committee has failed to establish that the trial court

erred when it dismissed this claim.12

11

The Committee maintains that the trial court applied the wrong standard, but the trial court

specifically acknowledged that the requirement would not be met “in the absence of a necessary

connection between a section of the ordinance and its subject.”

12

Again, the Committee had standing to raise this claim. As explained, the standing test stated

under the Zoning Enabling Act, on which MAEDA’s standing arguments rely, does not apply to a

direct claim. See Sakorafos, ___ Mich App at ___; slip op at 5-6. Direct challenges are governed

by the common-law standard. Id. Under the common-law standard, the Committee has standing

if it can establish that it has met the requirements of MCR 2.605 for declaratory relief or because

it established that it had a special injury or right, or substantial interest that will be detrimentally

affected in a manner different from the citizenry at large. See Mich Republican Party, ___ Mich

App at ___; slip op at 5.

MAEDA argues that the Committee cannot seek a declaration that Ordinance 2023-08 was

passed in violation of the City’s charter because it did not even exist when the city council passed

Ordinance 2023-08 and, for that reason, could not have suffered an injury. It is well settled that

an organization, such as the Committee, has the same standing that its members have to assert

claims. See Mich Citizens for Water Conservation v Nestle Waters North American, Inc, 479 Mich

280, 296; 737 NW2d 447 (2007), overruled not in relevant part by Lansing Schs Ed Ass’n, 487

Mich 349 (2010). MAEDA also argues that the Committee failed to state a claim for relief because

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The City’s charter provides that the City must give notice of a proposed ordinance before

holding a hearing to consider whether to pass the ordinance. The City’s charter states: “Following

introduction of any ordinance, the city clerk shall publish a summary of the proposed ordinance in

a local newspaper of general circulation in the city, together with a notice setting out the time and

place for a public hearing on the proposed ordinance.” Marshall Charter, § 4.02(b). The charter

further provides that the city council may not hold the public hearing on the proposed ordinance

“sooner than five (5) days after the publication.” Marshall Charter, § 4.02(b). Giving these words

their ordinary meaning, the City must publish at least one summary of the ordinance with a notice

of the date of the public hearing to consider the ordinance, and the hearing must not be sooner than

five days after the publication.

The Committee’s argument that the City did not properly notice the ordinance because it

started publishing its summary and notice on April 15, 2023—two days before the City introduced

the ordinance—fails because of the nature of the publication containing the notice. The newspaper

at issue, the Ad-visor and Chronicle, was a weekly publication. We, therefore, treat the publication

as having been published continuously every day through to the new issue date—April 22, 2023.

The City’s notice, therefore, was effectively published anew every day, which included the day

after Ordinance 2023-08 was introduced. See, e.g., Leffler v Armstrong, 4 Iowa 482 (1857) (stating

that a notice is published continuously from the first day the paper includes the notice until the

first issue without the notice); see also Hinchman v Barns, 21 Mich 556, 558 (1870) (stating that

publication means taking some act to put the paper before the public). Nothing in Marshall

Charter, § 4.02(b), prevented the City from making a continuous publication in order to ensure the

greatest possible notice to the public. See Petition of Boyd, 332 Mich 553, 559; 52 NW2d 216

(1952) (rejecting a notice challenge premised on publication of the required one notice a week for

two weeks on the ground that the notice appeared in two different newspapers because the statute

did not require that each notice be published in the same paper). The Committee’s argument

invites this Court to read a penalty into the charter for beginning a continuous publication before

the introduction of an ordinance. We decline such invitation. See Protecting Mich Taxpayers v

a claim for declaratory judgment is a form of relief that must be premised on an underlying cause

of action and the Committee did not have an underlying cause of action. More specifically, the

Committee pleaded its claims under Count IV and V as alternatives to its claim for a writ of

mandamus.

Although this Court has held that a request for declaratory relief is a remedy, not a claim,

see Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 221; 761 NW2d 293 (2008), our

Supreme Court has recognized that a party who has met the requirements stated under MCR

2.605(A)(1) has a cause of action. See Lansing Schs Ed Ass’n, 487 Mich at 377 n 26 (“Thus, the

teacher-plaintiffs seeking enforcement of MCL 380.1311a(1) must meet the requirements for some

other cause of action, such as a writ of mandamus under MCR 3.305 or a declaratory action under

MCR 2.605(A)(1).”); see also League of Women Voters of Mich, 506 Mich at 585-586 (stating that

the plaintiffs requested a declaratory judgment, which was a proper claim under MCR 2.605, but

plaintiffs failed to establish that there was an actual controversy under that court rule).

Accordingly, if the Committee established the elements for a declaratory action under MCR

2.605(A)(1), then it would be entitled to declaratory relief.

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Bd of State Canvassers, 324 Mich App 240, 250; 919 NW2d 677 (2018) (holding that this Court

cannot read a penalty into a law when none exists).

Our Supreme Court has held that, as long as the municipality actually published notice and

made postings, which served the purpose of providing notice to the general public, the fact that the

notice was not for the full time required would not invalidate the election on the resolution. See

Bay Co v Hand, 257 Mich 262, 268; 241 NW 256 (1932). Our Supreme Court has also held that

it will not invalidate a law when the municipality has substantially complied with the steps required

before holding a vote. Mich Pub Serv Co v Cheboygan, 324 Mich 309, 340; 37 NW2d 116 (1949).

Although the City began publishing its notice on Ordinance 2023-08 before it introduced that

ordinance, the City effectively provided notice for more than the required time before the hearing

held to adopt it. Even if this were to amount to a technical violation as Committee alleges, it did

not deprive the public of notice and does not warrant invalidating Ordinance 2023-08. See Mich

Pub Serv Co, 324 Mich at 340; Bay Co, 257 Mich at 268.

The Committee complains that the summary published in the paper did not mention any

appropriations. Echoing its title-object argument, it maintains that the failure to mention the

appropriations in the summary rendered the notice improper. We disagree.

The Committee is correct that the City’s notice only referred to an ordinance to change the

zoning and provided information about the land to be affected along with a map of the area. The

notice did not mention any proposed appropriations. But the City’s charter does not specify what

a summary must include to constitute adequate notice. It merely provides that the City had to

publish a summary of the proposed ordinance. See Marshall Charter, § 4.02(b). A general

summary is sufficient when the law governing notice does not require more. See North Burns

Park Ass’n v Ann Arbor, 155 Mich App 686, 691; 400 NW2d 622 (1986). Here, the summary

clarified that the primary purpose of the ordinance was to change the zoning for a specific parcel

of property; that summary was adequate for purposes of noticing the public hearing. See id.

Acknowledging that the appropriations within the ordinance are central to this appeal, they are far

from the primary purpose of the ordinance. The critical issue was the rezoning, and the summary

adequately notified the public of that issue.

The early publication did not violate the City’s charter. The summary provided adequate

notice of the ordinance at issue. The trial court correctly dismissed this claim under MCR

2.116(C)(8).

VI. DID ORDINANCE 2023-08 VIOLATE AGREEMENTS WITH TOWNSHIP

The Committee has not established that the trial court erred when it dismissed its claim that

Ordinance 2023-08 violated the Master 425 Agreement. This relates to Count IV of the

Committee’s complaint. We conclude that although the trial court incorrectly concluded that the

Committee lacked standing, it nonetheless reached the right conclusion by dismissing its claim.

Again, we begin with standing. Here, the trial court incorrectly concluded that the

Committee lacked standing to seek a declaratory judgment related to the Master 425 Agreement.

To the extent that the Committee was attempting to sue under the Master 425 Agreement—an

agreement to which it was not a party—to compel the City to change its zoning, it would lack

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standing to enforce the agreement. See Bloomfield Estates Improvement Ass’n, Inc v Birmingham,

479 Mich 206, 212-213; 737 NW2d 670 (2007). See also Brunsell v Zeeland, 467 Mich 293, 296;

651 NW2d 388 (2002) (stating that incidental beneficiaries to a contract cannot sue to enforce it

under the third-party beneficiary statute). But that is not what the Committee was doing. Rather,

it sued for a declaration that Ordinance 2023-08 was void because the City did not have the

authority to pass Ordinance 2023-08 given that the City bargained away its authority to change the

zoning for parcels governed by the Master 425 Agreement. The Committee would have standing

to assert that claim for the same reasons that it had standing to sue for a declaration that Ordinance

2023-08 was void for failure to follow the charter’s notice provisions. See Washington Gas Energy

Servs, Inc v Dist of Columbia Pub Serv Comm, 893 A2d 981, 988-989 (DC, 2006); Town of Lima

v Robert Slocum Enterprises, Inc, 38 App Div 2d 503, 506; 331 NYS2d 51 (1972). Accordingly,

the trial court erred when it dismissed this claim for lack of standing. We nonetheless conclude

that the trial court reached the correct outcome.

The Committee’s claim fails on the merits for two reasons. First, under the Master 425

Agreement did not contract away its ability to zone property. Second, even if it did, Ordinance

2023-08 did not constitute a breach of the agreement.

The Legislature authorized municipalities to include provisions on the adoption of

ordinances in agreements such as the Master 425 Agreement. See MCL 124.26(c). But this

authority stops short of the municipality abandoning its core functions. A legislature can never

bargain away a core legislative or governmental function. See United States v Winstar Corp, 518

US 839, 888-889; 116 S Ct 2432; 135 L Ed 2d 964 (1996) (opinion by SOUTER, J.) (state is

precluded from bargaining away its police power). The power to enact zoning ordinances is a core

function of the City’s police power. See Landowners v South Regional Airport Agency, 977 NW2d

486 (Iowa, 2022) (holding that zoning is a core governmental function that cannot be bargained

away). The 425 Agreement did not amount to the City contracting away its ability to pass

ordinances.

Even assuming that the City had the authority to contract away its right to zone the property

at issue in the Master 425 Agreement, the existence of such an agreement does not render any

zoning ordinance involving property governed by that agreement void as a matter of law because

a city’s authority to pass ordinances does not depend on contractual agreements. See Grand Haven

v Grocer’s Co-op Dairy Co, 330 Mich 694, 696-698; 48 NW2d 362 (1951) (recognizing that a

home rule city’s authority to enact laws is subject only to state law and the city’s charter). Whether

the passage of an ordinance amounted to a breach of the Master 425 Agreement and what relief

would be appropriate would be a matter for the parties to resolve in a contract action. Yet, as

previously concluded, the Committee had standing to sue for a declaration that Ordinance 2023-

08 was void on other grounds. Because Ordinance 2023-08 was properly passed without regard

to whether the City breached the Master 425 Agreement by passing it, the Committee’s claim that

Ordinance 2023-08 was void failed as a matter of law.

In the Master 425 Agreement, the City and the Township agreed to create the JPC and

stated that the JPC “shall control all land usages for lands subject” to the Master 425 Agreement.

They further agreed that the JPC would conduct itself as provided in Schedule A. The parties

agreed that the JPC would administer all commercial and industrial lands regardless of location

using the City’s zoning and planning act, rather than the Township’s zoning act, and would follow

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the City’s procedures. The City and Township further agreed, in relevant part, that definitions for

commercial and industrial lands, would be governed by the definitions given those lands in the

City’s then current zoning ordinance. They provided in ¶ 3 that the definition would remain the

same for any land governed by the agreement, as least for purposes of the Master 425 Agreement,

notwithstanding the passage of an ordinance changing the definitions, unless both parties agreed

to the change.

The Committee focuses on the fact that the City and Township granted the JPC “control”

over usage. It suggests that the grant of control over usage gave the JPC final authority over zoning

classification. But we do not read the use of the word “control” so expansively as to deprive the

City of its right to change its own zoning ordinances. See LeRoux v Secretary of State, 465 Mich

594, 615-616; 640 NW2d 849 (2002) (restating the fundamental principle that one legislature

cannot bind a future legislature or limit its power to amend or repeal statutes). And the terms of

the Master 425 Agreement do not support that interpretation.

The City and Township agreed to give the JPC control, but also agreed that the JPC had to

apply the City’s zoning act and procedures for commercial and industrial lands. Nothing within

those procedures, or for that matter, the Master 425 Agreement, prevented the City from amending

its zoning map to change a classification. The JPC had to accept any changes to the applicable

zoning stated in the City’s act as a matter of course, unless the change affected a definition.

Enforcing the newly modified zoning ordinance did not diminish the JPC’s control over usage—

it still had the authority to control usage consistent with the amended zoning ordinances. Given

the language of the Master 425 Agreement, the City had every right to change zoning classification

for a particular area and the JPC had to accept that change. Additionally, as the City correctly

notes, the City’s zoning ordinances reserved the right to amend the zoning act on its own motion

and the JPC would, in that event, have a purely advisory role. See Marshall Zoning Ordinance,

§ 7.1. Consequently, even if the Committee had standing to assert a breach of the Master 425

Agreement, its claim would fail as a matter of law.

The trial court did not err when it dismissed the Committee’s claim under MCR

2.116(C)(8). See Bailey v Antrim Co, 341 Mich App 411, 420; 990 NW2d 372 (2022) (stating that

this Court will affirm if the trial court reached the right result, even if for the wrong reason). The

trial court did not err when it dismissed Count IV of the Committee’s complaint.

VII. JURISDICTION OVER THE CROSS-APPEAL

We lack jurisdiction to rule on MEDC and MSF’s cross-appeal even if we were to limit the

scope of the cross-appeal to the issue of the trial court’s decision on intervention. This Court

reviews de novo whether it has jurisdiction to consider an appeal. Chen v Wayne State Univ, 284

Mich App 172, 191; 771 NW2d 820 (2009). Whether this Court has jurisdiction is always within

the scope of this Court’s review. Id.

The Michigan Constitution authorizes the Legislature to establish by law this Court’s

jurisdiction. See id. at 191-192. The Legislature has granted our Supreme Court broad authority

to promulgate rules that establish whether and when this Court has jurisdiction to consider an

appeal as of right or by leave granted. Id. at 192. Accordingly, the court rules generally govern

this Court’s jurisdiction. Id.

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This Court has jurisdiction of an appeal of right filed by an “aggrieved party.”

MCR 7.203(A). Here, the Committee was a party, and it was aggrieved by the trial court’s decision

to dismiss its claims. See Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 290-291; 715

NW2d 846 (2006). Because the order dismissing the Committee’s claim was a final order under

MCR 7.202(6)(a), this Court had jurisdiction to hear the Committee’s appeal as an appeal of right

under MCR 7.203(A). The court rules further provide that, “[w]hen an appeal of right is filed or

the court grants leave to appeal, any appellee may file a cross appeal.” MCR 7.207(1). An appellee

is a “party against whom an appeal is taken and who has an interest adverse to setting aside the

judgment” and “any nonappellant party to a suit, whether involved in the appeal or not.” 4 CJS,

Appeal and Error, § 334; see also Black’s Law Dictionary (9th ed) (defining “appellee” to be a

“party against whom an appeal is taken and whose role is to respond to that appeal, usu[ally]

seeking affirmance of the lower court’s decision”).

The genesis of the cross-appeal, however, was the trial court’s order denying intervention,

dated August 27, 2023. Because the trial court denied their motion to intervene, they were never

parties to the substance of the suit. Only aggrieved parties have an appeal of right under MCR

7.203(A). See also League of Women Voters of Mich, 506 Mich 561, 579; 957 NW2d 731 (2020)

(noting that only a party has standing to appeal, but granting the Legislature’s request for leave to

intervene and thereby giving it appellate standing). Further, only a party can be an appellee with

a right to cross-appeal a decision under MCR 7.207(A)(1). See also Costa v Comm Emergency

Med Servs, Inc, 263 Mich App 572, 583-584; 689 NW2d 712 (2004) (stating that MCR 7.207

allows any appellee to cross-appeal whenever an appellant has either filed an appeal of right or has

been granted leave to appeal), aff’d 475 Mich 403 (2006). Accordingly, we do not have

jurisdiction over an appeal of right or a cross-appeal of right by MEDC or MSF because neither

were parties to the lower court case.

If they wished to challenge the trial court’s decision, then they had to apply for leave to

appeal that decision under MCR 7.203(B)(1) (giving this Court authority to grant leave to appeal

from a judgment or order of the circuit court that is not a final judgment appealable of right).

Additionally, they had to file the application within 21 days of the entry of the order about which

they now complain. See MCR 7.205(A)(1)(a). The time limit applicable to an application for

leave to appeal is jurisdictional. See MCR 7.205(A); Chen, 284 Mich App at 192. The trial court

entered its order denying the motion to intervene by the Development Corporation and the

Strategic Fund on August 7, 2023. But MEDC and MSF did not apply for leave to appeal at any

point and only filed their claim of cross-appeal on February 26, 2024.

We are also barred from treating the claim of cross-appeal as a delayed application for

leave to appeal, because MEDC and MSF filed it more than six months after the trial court entered

the order denying leave to intervene. See MCR 7.205(A)(4)(a); see also MCR 1.108(3) (stating

that, if a period of time is measured by months, then the last day of the period is the same day of

the month as the day on which the period began). We, therefore, lack the discretion to allow the

MEDC and MSF to appeal by delayed leave. See Chen, 284 Mich App at 199 & n 8 (recognizing

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that this Court cannot even grant a delayed application for leave when the time limit has passed).

For these reasons we dismiss the MEDC and MSF’s cross-appeal for lack of jurisdiction.13

We affirm.

/s/ Thomas C. Cameron

/s/ Noah P. Hood

/s/ Adrienne N. Young

13

We decline the Committee’s request to find that MEDC and MSF’s appeal is a vexatious appeal

and impose sanctions. Although this Court has the inherent authority to sanction a vexatious

appeal on its own motion, a party may not request such a sanction unless it complies with the

requirements stated under MCR 7.211(C)(8). See MCR 7.216(C)(1). MCR 7.211(C)(8) provides

that a party requesting such sanctions must move for the sanctions. It further provides that a

request contained in a brief on appeal does not constitute a motion. MCR 7.211(C)(8) (“A request

that is contained in any other pleading, including a brief filed under MCR 7.212, will not constitute

a motion under this rule.”). We decline to consider the request for sanctions as it was improperly

raised. See Bonkowski v Allstate Ins Co, 281 Mich App 154, 181-182; 761 NW2d 784 (2008).

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