Opposition Brief — McDonald v. Wayne County Road Commission
Supreme Court brief1989
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Supreme Court, U.S,
FILE
No. 88-2125 ey D
PEt 1989
We . JOSEPH F.sS
In Ch j —-
Supreme Court of the Hnited States
@ctohber Term, 1989
LOYER EDUCATIONAL TRUST,
LARRY MCDONALD, TRUSTEE,
Vv. Petitioner,
WAYNE COUNTY ROAD COMMISSION, AND THE BOARD
OF WAYNE COUNTY ROAD COMMISSIONERS, GRACE R.
HAMPTON, CLAUDE DUKES AND HAROLD H. BONDY,
Individually, Jointly and Severally, now COUNTY OF WAYNE,
Successor in Interest,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF MICHIGAN
RESPONDENTS’ BRIEF IN OPPOSITION
— AND APPENDICES —
SAUL A. GREEN
Wayne County Corporation Counsel
LAMBRO NIFOROS (P 31909)
Assistant Corporation Counsel
600 Randolph, Second Floor
Detroit, Michigan 48226
(313) 224-5030
Counsel for Respondents
Interstate Brief & Record Company, a division of North American Graphics, Inc
1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230
OP a ee
BEST AVAILABLE COPY
l
COUNTER-QUESTIONS PRESENTED
&
MAY PETITIONER SEEK REVIEW OF ALLEGED CLAIMS
UNDER 42 U.S.C. § 1983 WHEN THERE HAS BEEN NO
CITATION TO THAT STATUTE IN THE CASE BEFORE
THE PETITION FOR CERTIORARI?
IT.
WHERE COUNTY ROAD COMMISSIONS ARE AUTHOR-
IZED TO PROMULGATE RULES REQUIRING COMMERCIAL
DEVELOPERS TO ADHERE TO DRIVEWAY CONSTRUC-
TION AND SAFETY STANDARDS, AND THE RULES ARE
WITHIN THE AUTHORITY CONFERRED BY THE LEGIS-
LATURE AND SATISFY THE PURPOSE OF ©CHE EMPOWER-
ING STATUTES, MAY THE RULES BE CHALLENGED AS
USURPING LEGISLATIVE AUTHORITY?
If.
WHEN DEVELOPERS ARE REQUIRED TO MEET TRAFFIC
SAFETY STANDARDS WHICH ARE TRIGGERED BY THE
VOLUME OF CONSUMER TRAFFIC THEY WILL GENER-
ATE, UNDER RULES APPLIED WITHOUT EXCEPTION,
CAN PETITIONER BE FOUND TO HAVE SUFFERED
DENIAL OF DUE PROCESS AND EQUAL PROTECTION
OF THE LAWS?
IV.
WHEN REGULATION IS REASONABLE AND CONSIS-
TENT WITH ASSURING PUBLIC SAFETY, CAN IT BEA
TAKING PROHIBITED BY THE CONSTITUTION?
lll
TABLE OF CONTENTS
PAGE
COUNTER-QUESTIONS PRESENTED ......... i
OS ays 8.8 | Vv
RESPONDENTS’ STATEMENT OF THE CASE .. ]
REASONS FOR DENYING THE WRIT:
I. ABSENT A TIMELY AND ADEQUATE CHAL-
LENGE TO THE VALIDITY OF A STATUTE OF A
STATE AS REPUGNANT TO THE U.S. CONSTI-
TUTION OR FEDERAL LAWS, JURISDICTION IS
NOT SHOWN, AND THERE ARE NO GROUNDS
ON WHICH TO GRANT CERTIORARI... .. 7
Il. IF A STATE COURT’S JUDGMENT RESTS ON
A STATE GROUND, THE UNITED STATES
SUPREME COURT HAS NO JURISDICTION TO
REVIEW THE CASE, AND CERTIORARI CAN-
Sg ee 10
MAY PETITIONER SEEK REVIEW OF ALLEGED
CLAIMS UNDER 42 U.S.C. § 1983 WHEN THERE
HAS BEEN NO CITATION TO THAT STATUTE
IN THE CASE BEFORE THE PETITION FOR
i ses kkk kk Ree a 8 1]
WHERE COUNTY ROAD COMMISSIONS ARE AU-
THORIZED TC PROMULGATE RULES REQUIRING
COMMERCIAL DEVELOPERS TO ADHERE TO
DRIVEWAY CONSTRUCTION AND SAFETY STAN-
DARDS, AND THE RULES ARE WITHIN THE
AUTHORITY CONFERRED BY THE LEGISLATURE
AND SATISFY THE PURPOSE OF THE EMPOWER-
ING STATUTE, MAY THE RULES BE CHALLENGED
AS USURPING LEGISLATIVE AUTHORITY? ..... 12
WHEN DEVELOPERS ARE REQUIRED TO MEET
TRAFFIC SAFETY STANDARDS WHICH ARE TRIG-
iv
PAGE
GERED BY THE VOLUME OF CONSUMER TRAFFIC
THEY WILL GENERATE, UNDER RULES APPLIED
WITHOUT EXCEPTION, CAN PETITIONER BE
FOUND TO HAVE SUFFERED DENIAL OF DUE PRO-
CESS AND EQUAL PROTECTION OF THE LAWS? 14
WHEN REGULATION IS REASONABLE AND CON-
SISTENT WITH ASSURING PUBLIC SAFETY,
CAN IT BE A TAKING PROHIBITED BY THE
COTTON gc eke ces eevee acess 16
@e ) at 9 | Serpe rer owen erga 18
APPENDICES:
Appendix A — RULES, STANDARDS AND PROCE-
Appendix B —
Appendix C —
Appendix D —
Appendix E —
DURES FOR DRIVEWAYS WITHIN
WAYNE COUNTY ROAD COMMIS-
SION RIGHT-OF-WAY
(1970, as amended|..........-. A-1
JUDGMENT ORDERING PLAINTIFF
TO INSTALL A DRIVEWAY AND
PASSING LANE — Bzovi v. Wayne
County Road Commission (Wayne
County Circuit Court Case No. 80-
028726-CZ; Detroit, Michigan)
pe Ey | | eer are B-1
PETITIONER’S POST HEARING/
TRIAL BRIEF [May 13, 1986] ..... C-l
EXCERPTED TRIAL TRANSCRIPT
(Pages 4-8: Petitioner’s Opening
Statement) [May 13, 1986] ...... D-1
EXCERPT FROM PETITIONER'S BRIEF
ON APPEAL (To State of Michigan
Court of Appeals)
ee 4 eee ee E-1
PAGE
Appendix F — EXCERPTFROM PETITIONER'S BRIEF
IN SUPPORT OF APPLICATION FOR
LEAVE TO APPEAL (To State of
Michigan Supreme Court)
Ue TE TPO i vba et as F-]
TABLE OF AUTHORITIES
UNITED STATES SUPREME COURT CASES:
Dewey v. Des Moines, 173 U.S. 193, 19 S.Ct. 379,
4.06. 00s eee eee eee 1]
District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206
ISIE 95a Fatpcdak oie Se ee ee 10
First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, California,
482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250
fey 4 MPO Mery men ter Spry eat mes Ja ay aac 16
Herb vy. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89
Lee: FOP eee) 3 fo eee 10, 11
Keystone Bituminous Coal Assn. v. De Benedictis,
480 U.S. _, 107 S.Ct. 1232, 94 L.Ed.2d 472
SEY civ ds ee Ae eee 17
MacDonald, Sommer & Frates v. County of Yolo,
477 U.S. —, 106 S.Ct. 2561, 91 L.Ed.2d 285
[ROD 6 end eed kane ee CeCe 18
Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31
Oe et ame ee ht 46) 17
National Cable Television Assoc. v. United States
and Federal Communications Comm’n., 415
U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370(1974) 12, 14
vl
PAGE
Nollan v. California Coastal Commission, 483
U.S. —,, 107 S.Ct. 3141, 97 L.Ed.2d 677
(1987) coal eas ae eee eae l4, 16
Penn Central Transportation Co. v. City of New
York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d
631 {1978}, reh. den. 439 U.S. 883 (1978) ..... 17
Pennell v. City of San Jose, 485 U.S. —, 108 S.Ct.
849 99 EB Se ISR cea ee eee 16
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
43 §.Ct. 198,67 LB. S23 (I9RE) oo 43s as53 7
Street v. New York, 394 U.S. 576, 89 S.Ct. 1354,
93 L.Ed. 3 57S 1 nk eee 10
Whitney v. California, 274 U.S. 357, 47 S.Ct. 641,
7h Led: 10S (SSF a ee ll
Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89
L.Ed. S96 (AS oi ce ie eee 10, 11
Williamson Planning Comm’n. v. Hamilton
Bank, 473 US. 172, 105 S.Ct. 3108, 87 L.Ed.2d
1296 11905) ota eee 18
STATE CASES:
Arrowhead Development Co. v. Livingston County
Road Comm'n., 413 Mich. 505, 322 NW.2d -
TO2 (2GBDY 6 ct ee ee eee 4,6,7, 14
Bzovi v. Board of Wayne County Road Commis-
sion, Wayne County Circuit Court Case
No. 80-028726-CZ (Judge Brennan, March 6,
BORE os. cea aaa kicale meals @ ale eee 6
Cryderman v. City of Birmingham, 171 Mich.
App. 15, 429 NW.2d 625 (1988) .......... 16, 17
Vli
PAGE
STATUTORY AND
CONSTITUTIONAL PROVISIONS:
ist ti... ree 710
BC tee. ee 89, 11
Driveways, Banners, Events and Parades Act,
M.C.L.A. 247.321 et seq.,
M.S.A. 9.140(21) et seg. ...... 4,6, /, 9 12, 15, 1
Michigan Vehicle Code,
M.C.L.A. 257.606,
A Gin ead koe ekk od beats 12
Mi
Subdivision Control Act,
M.C.L.A. 560.183 et seq.,
M.S.A.' 26.4301183) ef seg. 2. ..6...4.528. 46,7
Mich. Const. 1963, art. 7-§ 16 .......... Ae Gh
ok RO I, ok cht becuse )
ios CE ON FIV. kw ccc ki enetustice Y
OTHER AUTHORITIES:
Justice Brennan, State Constitutions and the
Protection of Individual Rights, 90 Harv.L.Rev.
dg: Pe ne een ALN ,) ae 10
Rules, Standards and Procedures for Driveways
Within Wayne County Road Commission Right-
of-Way (1970, as amended) ....... 6, 8, 9, 10, i2,
13, 14, 15, 16, 17
Weiner, FE, Wanna Make a Federal Case Out of It?,
im Was TP CREED wicca xd dua a Veen Sues 10
No. 88-2125
In Che
Supreme Court of the Hnited States
——__
@Mctober Term, 1589
N peanemmennne
LOYER EDUCATIONAL TRUST,
LARRY MCDONALD, TRUSTEE,
Vv. Petitioner,
WAYNE COUNTY ROAD COMMISSION, AND THE BOARD
OF WAYNE COUNTY ROAD COMMISSIONERS, GRACE R.
HAMPTON, CLAUDE DUKES AND HAROLD H. Bonpy,
Individually, Jointly and Severally, now COUNTY OF WAYNE,
Successor in Interest,
Respondents.
RESPONDENTS’ BRIEF IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF MICHIGAN
Respondents Wayne County Road Commission and
the Board of Wayne County Road Commissioners, and
individual Commissioners, now County of Wayne
Successor in Interest, respectfully request that this
Court deny the petition for writ OF certiorarl seeking
review of the Supreme Court of the State of Michigan
RESPONDENTS’ STATEMENT OF THE CASE
The original Respondents constituted the Wayne
County Road Commission. In 1982, Wayne County
adopted its home rule charter, and in 1984 the County
electorate eliminated the Wayne County Road Commis-
sion aS a separate entity and incorporated the road
authority within the Department of Public Services.
cere
2
Wayne County is the legal successor to the Wayne
County Road Commission as stipulated at trial.
Sometime prior to April, 1981, Petitioner began con-
struction for a commercial shopping strip on Sibley
Road in Brownstown Township in southwest Wayne
County, half a mile east of Telegraph Road, a state
trunkline. Sibley Road is a two-lane county road, one
lane eastbound, one westbound, with a posted speed
limit of 45 mph. The Loyer property consists of approxi-
mately 3'4 acres, with a 350-foot frontage on Sibley, on
the south side of the road. Surrounding property was
essentially undeveloped.
All construction by Petitioner was without a permit,
and application was made only after the building and
site were substantially completed. Petitioner applied for
a driveway permit on April 1, 1981, for approval of a
driveway upon the Sibley Road right-of-way. The Wayne
County Road Commission did not approve Petitioner’s
submitted plans, requesting additional data on some
points, and notifying Petitioner that it would be
required that Petitioner construct a passing lane oppo-
site the driveway to permit motorists to safely go
around Petitioner’s customers making left turns into
the shopping center.
Petitioner relocated the driveway from the Sibley
Road frontage to a private road to the west of the con-
struction property. The relocated driveway was also
constructed without a permit and without meeting
construction or safety standards, and was an attempt to
circumvent the necessity for a permit. A second permit
application was submitted on October 14, 1981, only
after Respondent contacted Loyer to do so.
The Road Commission notified Loyer on November
19 1981, that, among other things, the private road had
3
been unlawfully constructed without the requisite
permit, and whether or not the shopping center was
continued, the road must be reconstructed to meet
standards for a street or drive approach to a primary
road. Certain information requested by the Road Com-
mission earlier in April had still not been provided.
Probably the essential item was the continued require-
ment of a passing lane on the north side of Sibley, to
safely accommodate left-turning traffic into the private
road if it was to serve as driveway into the develop-
ment. The location of the second driveway to the west
of the first created additional problems and required
additional work of the developer to meet safety stan-
dards. Petitioner did not comply with any requirements.
Respondents did not issue a permit.
The commercial shopping strip Petitioner had pro-
posed to develop was a 24,000 square foot facility con-
taining a number of shops. Prior use of the land by the
same owner was for a garden center using a much
smaller building and generating a smaller volume of
consumer traffic.
On November 13, 1983, nearly two years after the
last plan submitted to Respondents, Loyer Educational
Trust filed suit for injunctive relief to require issuance
of a permit and asked $750,000 for lost profits, another
$750,000 in punitive damages for wrongful conduct,
and another $750,000 for violation of unspecified fed-
eral and state civil rights.
Testimony on Petitioner’s Show Cause for injunctive
relief was taken before Wayne County Circuit Judge
Paul Teranes on January 4, 1984; briefs were submitted
and oral arguments made on February 3, 1984. Peti-
tioner stipulated to Respondents’ facts, including that
the crux of the dispute was the passing lane on the
north side of Sibley. Petitioner further stipulated that
4
the passing lane was required by the Wayne County
Road Commission rules and standards and that the
passing lane was a safety feature of the rules. (Hearing
Transcript, January 4, 1984, at 5-6.) The Road Commis-
sion adopted the rules pursuant to the Driveways,
Banners, Events and Parades Act, M.C.L.A. 247.321 et
seq., M.S.A. 9.140(21) et seq. Petitioner relied exclu-
sively on Arrowhead Development Co. v. Livingston
County Road Comm'n., 413 Mich. 505, 322 NW.2d 702
(1982), a case construing the Subdivision Control Act,
M.C.L.A. 560.183 et seg., M.S.A. 26.430(183) et seq.
The pre-trial judge issued an oral decision the same day
refusing injunctive relief. He found no irrevocable
harm, and because of distinctions he saw between
Arrowhead and this case, stated he could not find a
probability of success on the merits.
At the oral argument before Judge Teranes, Respond-
ents asked Petitioner to mitigate the alleged damages
by posting a performance bond as did the Arrowhead
developer. Petitioner refused. The bond would have
allowed Petitioner to open his development and still
challenge Respondents’ authority. The bond could have
been posted as early as 1981 fixing the disputed
damages at $40,000.00 for the passing lane and other
work on the north side while the parties continued to
argue legal matters. The Road Commission also reiter-
ated an earlier offer to defer the passing lane construc-
tion for a year after the shopping center opened and it
was again refused.
On February 21, 1984, Petitioner filed a Claim of
Appeal from Judge Teranes’ decision without seeking
leave to appeal from an interlocutory order. The Court
of Appeals dismissed the appeal on the petition of the
Road Commission on May 16, 1984, but without preju-
=
dice to the filing of a delayed application for leave.
Petitioner did not seek leave to appeal.
The case proceeded to a bench trial before Judge
Richard Dunn in May, 1986. Petitioner presented testi-
mony of Mr. Loyer, who had served as contractor for
Petitioner: on construction costs, on communications
between the parties and for the claim that Petitioner
had been unfairly treated, compared to his “com-
petitor.” Petitioner also presented hypothetical and
speculative damages testimony of a real estate broker
who cited market value and rental incomes of four
neighboring shopping strip developments. Respondents’
witnesses were a traffic transportation engineer and a
design and mining engineer. They testified to construc-
tion costs, the permit application process, the driveway
construction rules and regulations, the necessity of a
passing lane, the traffic volume generated by commer-
cial developments, including projected left turns at
peak hours, and the failure of Petitioner to mitigate
damages.
The trial court received as exhibits all correspon-
dence between the parties including blueprints and
permit applications and responses, four real estate list-
ings by Petitioner’s witness, construction and perfor-
mance bond cost estimates prepared by each side for
the trial, Sibley Road traffic volume counts conducted
by Respondents in 1981 and 1983, and a copy of a
permit-file for the competitor project. This was the
Koza project which testimony showed had selected a
site north of Sibley which obviated any drain work, and
adjacent to a state highway intersection (I-75) to which
the State determined in 1983 to add lanes and signals.
The overlap of the State project undertaken with gen-
eral road funds meant Koza could not be required to
pay for a passing lane within the State’s work. Koza’s
6
performance bond was canceled. The court further took
judicial notice of another driveway permit dispute in
the case of Bzovi v. Board of Wayne County Road Com-
mission, Wayne County Circuit Court Case No. 80-
028726-CZ (Judge Brennan, March 6, 1981) in which
another Brownstown Township developer was ordered
to put in a passing lane. The Bzovi development was
under 9,000 square feet, and its passing lane perfor-
mance bond was tor $20,000.00.
Before the trial in Loyer, the parties had stipulated
that the Road Commission had adopted Rules, Stan-
dards and Procedures for Driveways Within Wayne
County Road Commission Right-of-Way in 1970, with
proper publication notices and public hearings as
required by the Driveway Act. (See Respondents’
Appendix A for the Rules.) (The Bzovi court order is
Respondents’ Appendix B.)
After four days of trial, the case was taken under
advisement. A seven-page opinion was issued on June
19, 1986, with findings of fact and conclusions of law.
Judgment for Respondents was entered July 1, 1986.
The trial court found that the rules and standards
adopted by the Respondents which required a passing
lane were authorized by the Driveway Act and that the
Act required Respondents not to issue a permit where a
developer refused to comply. The court held Arrowhead
did not govern this case and that the Driveway Act and
the Subdivision Control Act were different creatures.
The court further found no wrongful conduct by
Respondents and therefere no legal or equitable basis
on which to award damages.
Petitioner appealed to the Michigan Court of Appeals,
which affirmed the trial court. Petitioner then applied
for leave to the Michigan Supreme Court, which denied
7
leave to appeal and then later denied a petition for
reconsideration.
REASONS FOR DENYING THE WRIT
I.
ABSENT A TIMELY AND ADEQUATE CHALLENGE TO
THE VALIDITY OF A STATUTE OF A STATE AS REPUG-
NANT TO THE U.S. CONSTITUTION OR FEDERAL LAWS,
JURISDICTION IS NOT SHOWN, AND THERE ARE NO
GROUNDS ON WHICH TO GRANT CERTIORARI. |
Petitioner stated it invokes jurisdiction pursuant to
28 U.S.C. § 1257 “because a local administrative rule
was challenged as violating the U.S. Constitution and
the rule was upheld by the Michigan Courts.”
Throughout the state court proceedings, however,
Petitioner had urged its own particular construction
of a Michigan statute to fit within the reasoning
and holding of a Michigan Supreme Court case. Peti-
tioner urged the Driveway Act, M.C.L.A. 247.321 et
seq., M.S.A. 9.140(21) et seg., be construed in accor-
dance with the Court's reading of the Subdivision Con-
trol Act, M.C.L.A. 560.183 et seg., M.S.A. 26.430(183)
et seq., in Arrowhead Development Cop. v. Living-
ston County Road Comm'n., 413 Mich. 505, 322 NW.2d
702.
Petitioner had contended that the Driveway Act did
not authorize the Wayne County Road Commission to
promulgate rules requiring as a precondition for
issuance of a driveway construction permit, under cer-
tain circumstances, that commercial developers con-
struct a passing lane around left-turning traffic into the
driveways for their commercial development. In effect,
Petitioner only challenged that the local government's
8
rules were repugnant to the state statute and to state
decisional law.
It is true Petitioner’s original Complaint alleged in
Count III, § 2, that Respondents had “in violation of
both Michigan and Federal Civil Rights Act, deprived
(Petitioner| of certain rights as allowed by law.” Vague
generic rights are again alluded to in Petitioner’s prayer
for relief. (Petitioner’s Appendix L.)
There was subsequcntly a bench trial before then-
Chief Judge Dunn in May, 1986. Petitioner submitted as
its trial brief the same legal brief submitted to the pre-
trial judge who heard and denied Petitioner injunctive
relief in February, 1983. (Petitioner’s trial brief is here
submitted as Respondents’ Appendix C.) Petitioner’s
trial brief again challenged the Road Commission's
Rules as unauthorized by state law. There was again no
mention of 42 U.S.C. § 1983, and, no allegation of spe-
cific federal constitutional violations. Indeed, there
were not even unspecific federal allegations in this
pleading.
Petitioner’s opening statement on May 13, 1986
(Respondents’ Appendix D) also did not state any fed-
eral claims, specific or unspecific.
Petitioner’s closing argument on May 20, 1986 (repro-
duced in its entirety as Petitioner’s Appendix M) also
did not state any federal claims. Again the argument
was entirely state law. Petitioner argued its competitor
was more favorably treated, and that Loyer was there-
fore discriminated against, without mention of state or
federal grounds.
The trial court issued an opinion on June 19, 1986.
(Petitioner’s Appendix H.) The trial court’s decision was
necessarily on state law grounds finding Respondents’
rules establishing traffic safety standards were man-
9
dated by the Driveway Act and that the Rules were
reasonable and properly applied. The trial court found
no grounds for legal or equitable relief, concluding
“tlhe financial predicament that plaintiffs presently
may find themselves in is one largely of their own —
making.” (Petitioner’s Appendix at H-7.)
Subsequently, Petitioner filed an appeal as of right to
the Michigan Court of Appeals on May 11, 1989. Peti-
tioner’s appellate brief Table of Authorities does not
cite 42 U.S.C. § 1983, nor any federal case law.
(Respondents’ Appendix E.) For the first time, Petitioner
cited the Fifth and Fourteenth Amendments to the
United States Constitution. Petitioner spent less than
four pages of a nineteen-page appellate brief on its
newly raised and articulated federal claims. The Mich-
igan Court of Appeals affirmed the trial court’s finding
that the rules and procedures promulgated were well
within the authority conferred by the driveway statute
and satisfied the purpose of the Act, and that Respond-
ents’ requirements of Petitioner were consistent with
the rules. The Court of Appeals also found no taking
and no denial of equal protection, apparently under
either state or federal constitutions. (See Petitioner’s
Appendix at F-7, -8.)
In its subsequent Application for Leave to Appeal to
the Michigan Supreme Court dated June 7, 1988, Peti-
tioner expanded its federal authorities to include two
federal cases decided in 1987 and slightly lengthened its
federal claims arguments. (Respondents’ Appendix F;
see also Petitioner’s Appendix E.) Leave was denied
December 29, 1988, and Reconsideration was denied
March 29, 1989. See Petitioner’s Appendices D and B,
respectively. It is clear Petitioner was content to go to
trial arguing state law, and it was only after it lost that
it began to attempt to develop a federal claim in order
to get a second bite.
10
Respondents contend the Rules of the Road Commis-
sion are not a statute within the meaning of 28 U.S.C.
§ 1257. Respondents contend further that Petitioner
failed to timely and adequately raise and preserve any
specific federal claims. District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 484 n. 16, 103 S.Ct.
1303, 75 L.Ed.2d 206 (1983). See generally F. Weiner,
Wanna Make a Federal Case Out of It?, 48 A.B.A.J. 59
(1962). These are threshold elements which are Peti-
tioner’s burden to meet and demonstrate. Street v. New
York, 394 U.S. 576, 582, 89 S.Ct. 1354, 22 L.Ed.2d 572
(1969).
Il.
IF A STATE COURT’S JUDGMENT RESTS ON A STATE
GROUND, THE UNITED STATES SUPREME COURT HAS
NO JURISDICTION TO REVIEW THE CASE, AND CER-
TIORARI CANNOT BE GRANTED.
Even if this Court were to find Petitioner’s federal
claims were timely and adequately raised, and that
Petitioner had otherwise met jurisdictional require-
ments, jurisdiction is still not established if the state
court’s decision is based, in the alternative or other-
wise, on an adequate and independent nonfederal
ground. See, e.g., Williams v. Kaiser, 323 U.S. 471, 65
S.Ct. 363, 89 L.Ed. 398 (1945). See also Justice Brennan,
State Constituticns and the Protection of Individual
Rights, 90 Harv.L.Rev. 489 (1977).
Where the state court decision is on mixed state and
federal grounds, and the state court may even be argu-
ably wrong on the federal question, there is no Supreme
Court jurisdiction to review the case. Herb v. Pitcairn,
324 U.S. 117, 125-126, 65 S.Ct. 459, 89 L.Ed. 789 (1945).
The Court may inquire if the decision rests on an inde-
pendent and adequate state ground, but reference in the
1]
opinion to the federal question must be more than
broad generalization if the independence or adequacy of
the state ground may be overcome. Herb v. Pitcairn,
supra; Williams v. Kaiser, supra at 477-78.
Jurisdiction is not acquired by speculation as to other
grounds the state court might have chosen, or to find
“somewhere hidden in the record a question which, if
it had been raised, would have been of a federal
nature.” Whitney v. California, 274 U.S. 357, 362, 47
S.Ct. 641, 71 L.Ed. 1095 (1927); Dewey v. Des Moines,
173 US. 193, 199 19 S.Ct. 379, 43 L.Ed. 665 (1899).
MAY PETITIONER SEEK REVIEW OF ALLEGED
CLAIMS UNDER 42 U.S.C. § 1983 WHEN THERE HAS
BEEN NO CITATION TO THAT STATUTE IN THE
CASE BEFORE THE PETITION FOR CERTIORARI? .
Petitioner argues a state must entertain a claim under
42 U.S.C. § 1983.
Respondents cannot find mention of or citation to 42
U.S.C. § 1983 anywhere in the trial transcripts or in any
of Petitioner’s state court pleadings at any level. To
imply such a claim in retrospect at this stage would
encourage unending piecemeal litigation and appeals.
Respondents urge the petition be denied.
WHERE COUNTY ROAD COMMISSIONS ARE AUTHOR-
IZED TO PROMULGATE RULES REQUIRING COM-
MERCIAL DEVELOPERS TO ADHERE TO DRIVEWAY
CONSTRUCTION AND SAFETY STANDARDS, AND
THE RULES ARE WITHIN THE AUTHORITY CON-
FERRED BY THE LEGISLATURE AND SATISFY THE
PURPOSE OF THE EMPOWERING STATUTES, MAY
THE RULES BE CHALLENGED AS USURPING LEGIS-
LATIVE AUTHORITY?
Petitioner argues the conduct of Respondents con-
flicts with “pronouncements of this Court’s decisions.”
12
(Petition at 16.) In order to make that argument, Petitioner
misconstrues and mischaracterizes the nature of Respond-
ents’ authority and conduct. Petitioner argues “ {a]dminis-
trative agencies merely implement what the legislature
creates.” [Petition at 17] Petitioner cites National Cable
Television Assoc. v. United States and Federal Com-
munications Comm’n., 415 U.S. 336, 94 S.Ct. 1146, 39
L.Ed.2d 370 (1974) without much elaboration.
First, National Cable was not raised by Petitioner in
state court proceedings.
Second, Respondents’ conduct is fully authorized by
state law. The State Constitution states “|t|he legisla-
ture may provide the powers and duties of counties in
relation to highways.” Mich. Const. 1963, art. 7, § 16.
There is legislative provision, for example, for specific
delegation of police powers to local authorities for
control of traffic in the Michigan Vehicle Code.
M.C.L.A. 257.606, M.S.A. 9.2306. The constitutional
and legislative scheme to delegate local traffic safety to
local government is clear.
The Driveway Act was passed in 1969. It was for the
purpose of regulating driveways, banners, events and
parades upon and over highways, and to provide for
promulgation of rules, and to prescribe requirements for
the issuance of permits.
The state trial court (Petitioner’s Appendix H) and
the Michigan Court of Appeals (Petitioner’s Appendix F)
thoroughly analyzed the Driveway Act and found author-
ization for Respondents’ rules, and approval of the reg-
ulatory design. Respondents’ rules and standards are
reprinted as Respondents’ Appendix A.
The Rules (especially Figures 1 through 10) delineate
a spectrum of standards depending on the circum-
stances of a landowner (from single residential to com-
13
plex intersection corner multiple driveways), the nature
of proposed use of property, and the magnitude of traffic
problems generated by the specific proposed driveway.
There was considerable testimony at trial that traffic
counts on Sibley Road, in combination with the left
turns projected for peak hours for an operating shop-
ping development of the size and nature proposed by
Petitioner, more than warranted the requirement of a
passing lane for traffic safety.
Petitioner was required to pay for the passing lane on
the north side of Sibley because Petitioner created the
traffic hazard. Petitioner expected profits from a com-
mercial venture that depended for its success on con-
sumer traffic. Petitioner early agreed to provide a decel-
eration lane on the south side for right turns into the
development but exaggerated the north side passing
lane requirement out of all proportion. Petitioner was
not required to widen all of Sibley. The passing lane
(Figure 8, Respondents’ Appendix A, page A-24) was to
be 200 feet long with a 150-foot tapering triangular
shape (“tapers”) in each direction. No other develop-
ment could expect to enjoy the passing lane; the
nearest neighbor was a single-family dwelling slightly
northwest of the relocated driveway. Passing motorists
should not have to pay for Petitioner’s commercial
success with injuries and rear-end collisions, and being
forced into a drain culvert. Nor should public monies
be diverted from public projects to subsidize a private
venture. The north side improvements to the Emit
Street apron were necessitated by Petitioner’s relocation
of the drive. The drain enclosure requirement was
necessitated by Petitioner’s site selection. These facts
are amply supported by the record.
Third, Respondents’ rules are fully consistent with
federal law. Respondents’ rules served the governmental
14
purposes of the statute and are therefore a valid regula-
tion. Petitioner’s development created the problem and
would derive sole benefit from the resolution of the
problem. The condition on the permit of a passing lane
for large volume, traffic-generating, developments
serves the same purpose as prohibiting the development
altogether and is therefore a valid regulation of land
use. Nollan v. California Coastal Commission, 483 U.S.
__, 107 S.Ct. at 3148, 97 L.Ed.2d 677 (1987). The state
court in Loyer acted in harmony with Nollan.
National Cable involved licensing fees for commu-
nity antenna television systems. The court held a fee is
permissible when there is a benefit bestowed on the
applicant that is not shared by other members of soci-
ety. 415 US. at 341-42, 94 S.Ct. at 1149, 39 L.Ed.2d 370.
Petitioner cannot show that Respondents or the state
court acted contrary to National Cable or other federal
decisions.
WHEN DEVELOPERS ARE REQUIRED TO MEET
TRAFFIC SAFETY STANDARDS WHICH ARE TRIG-
GERED BY THE VOLUME OF CONSUMER TRAFFIC
THEY WILL GENERATE, UNDER RULES APPLIED
WITHOUT EXCEPTION, CAN PETITIONER BE
FOUND TO HAVE SUFFERED DENIAL OF DUE
PROCESS AND EQUAL PROTECTION OF THE
LAWS?
Petitioner argued in state court that the right-of-way
on the north side of Sibley was off-site to Petitioner’s
land, so the case might better fall within Arrowhead.
Petitioner now argues it is off-site so as to make the
required safety work unreasonable. In reality, the road
right-of-way extends from private property line to pri-
vate property line, and includes roadways, shoulders
and drainage ditches. The road right-of-way adjoins and
touches Petitioner’s property. A driveway, by its nature,
15
becomes a part of the road for the motoring public and
depends on the road right-of-way to fully and safely
complete its purpose of providing entry and exit. (See
Respondents’ Appendix A, Figure 8, page A-24.) The
Driveway Act describes itself as “regulating driveways,
banners, events and parades upon and over highways”
(emphasis added).
Petitioner has complained of unfair treatment, but in
actuality, Petitioner has asked for preferential treat-
ment. Respondents’ engineers testified no exception
was ever made under the Rules since their adoption.
Petitioner asked to be exempted from the safety mea-
sures required of others. It sought to circumvent the
permit application process. It chose a poor site and
committed to the site by expending monies before
ascertaining permit requirements. It dernands public
funds be used to provide safe passage to motorists
around the consumer traffic its commercial develop-
ment will generate.
Petitioner was given numerous meetings and hear-
ings. Political intervention was made on its behalt by a
local official. Petitioner consistently from 1981 refused
to post $40,000.00 construction bond or issue a letter
of credit (common construction contractor procedures
even when there is no dispute), then complained its
“competitor” Koza was allowed to open before it, in
1983. The Koza developer followed the procedure. The
Arrowhead developer also did. Petitioner would not.
Equa! protection of the laws is not violated when all
persons similarly situated are treated similarly.
Respondents’ rules, standards and procedures were
adopted and published over a decade before Petitioner
began to complain there were no standards. Respond-
ents’ rules may displease Petitioner but are not un-
16
reasonable. Respondents’ rules are rationally related to
a legitimate state interest. E.g., Pennell v. City of San
Jose, 485 U.S. —_, 108 S.Ct. 849, 859, 99 L.Ed.2d 1 (1988).
Protection of public welfare is a legitimate and rational
goal of traffic safety regulation. Id., 485 U.S. —, 108
S.Ct. at 858-59, 99 L.Ed.2d 1. See also Cryderman v. City
of Birmingham, 171 Mich. App. 15, 429 N.W.2d 625
(1988). In addition, the hardship to the owner should
not be self-created. Jd. at 21, 429 NW.2d 625.
WHEN REGULATION IS REASONABLE AND CONSIS-
TENT WITH ASSURING PUBLIC SAFETY, CAN IT BE
A TAKING PROHIBITED BY THE CONSTITUTION?
Petitioner argues there was a taking of its property.
Petitioner doesn’t reason, but rather concludes there
was a taking, citing First English Evangelical Lutheran
Church of Glendale v. County of Los Angeles, Califor-
nia, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987)
and Nollan v. California Coastal Commission, supra.
Petitioner insists there was a regulatory_taking which
deprived Loyer of all use of the property.
Petitioner claims this issue was “raised and briefed
throughout these proceedings.” Respondents can find
no mention and no briefing of Petitioner’s Question IV
in state court until appeal to the Michigan Court of
Appeals. (See Respondents’ Appendices C-E.)
Nollan was discussed earlier in this brief.
First Evangelical is a complex case. It involved an
ordinance which was found to have deprived the land-
owner of all beneficial use. There was testimony in
Loyer that Petitioner continued to use the southern
part of the property for the L. Loyer Construction Com-
pany headquarters, and was using the shopping strip
shell for storage for his construction business. It had
also formerly been used for a nursery business.
17
The Driveway Act and Respondents’ standards
required safety preconditions be met for issuance of a
permit. The Rules allowed issuance of a permit on a
performance bond. Petitioner refused the deferred con-
struction plan offered by Respondents.
Nothing prevented Petitioner from using the property
tor a different venture which would not generate as much
traffic. Certainly nothing did prevent Petitioner from
using the property to store construction materials and
equipment. Therefore, Petitioner was not denied all use.
Under both state and federal law, land use regulation
which precludes the most beneficial use may be jus-
tified where restriction is reasonably necessary to the
effectuation of a substantial public purpose. Cryderman
v. Birmingham, supra, 171 Mich. App. at 27, 429 NW2d
625, citing Penn Central Transportation Co. v. City of
New York, 438 U.S. 104, 129 98 S.Ct. 2646, 57 L.Ed.2d
631 (1978), reh. den. 439 U.S. 883 (1978).
Assuming Petitioner’s land use was regulated at all, it
is well settled that property use may be regulated. E.¢.,
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct.
158, 67 L.Ed. 322 (1922). Certainly if the regulation
goes “too tar,” it will be recognized as a taking. Id. at
415, 43 S.Ct. at 160, 67 L.Ed. 322. But a landowner has
an obligation in the use of his land not to injure the
community. Keystone Bituminous Coal Assn. v. De-
Benedictis, 480 U.S. __, 107 S.Ct. 1232, 1245, 94
L.Ed.2d 472 (1987). See also Mugler v. Kansas, 123 USS.
623, 665, 8 S.Ct. 273, 299, 31 L.Ed. 205 (1887). In fact,
the Supreme Court in Keystone determined that health
and safety regulation cannot constitute a taking. 480
U.S. at _, n.22, 107 S.Ct. at 124, n.22, 94 L.Ed.2d 472.
Finally, the Supreme Court has declined to review a
taking claim as long as the property owner had an
18
opportunity to obtain relief from the regulating
authority that would permit the development of the
property to go forward. MacDonald, Sommer & Frates
v. County of Yolo, 477 U.S. —, 106 S.Ct. 2561, 91
L.Ed.2d 285 (1986); Williamson Planning Comm'n. Vv.
Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87
L.Ed.2d 126 (1985).
CONCLUSION
For these reasons, the petition for a writ of certiorari
should be denied.
Respectfully submitted,
By: SAUL A. GREEN
Wayne County Corporation Counsel
/s/ LAMBRO NIFOROS { P31909)
Assistant Corporation Counsel
600 Randolph, Second Floor
Detroit, Michigan 48226
(313) 224-5030
Counsel for Respondents
DATED: July 27, 1989.
Aw
A-1
APPENDICES TO BRIEF IN OPPOSITION
RESPONDENTS’ APPENDIX A
RULES, STANDARDS AND PROCEDURES FOR DRIVEWAYS
WITHIN WAYNE COUNTY ROAD COMMISSION
RIGHT-OF-WAY
BOARD OF WAYNE COUNTY ROAD COMMISSIONERS
415 CLIFFORD DETROIT, MICH 48226
ADOPTED February 17, 1970
Revised as of April 1, 1981
The efficiency and safety of a road or street depends
to a large extent upon the amount and character of road-
side interference with the movement of through traffic.
Vehicles entering, leaving or crossing the roadway from
residences, businesses, shopping centers, restaurants
and other developments cause some of this interfer-
ence. To the extent that this friction can be reduced,
the highway user will benefit.
Accordingly, regulation and control of driveways are
necessary to provide efficient and safe operation and to
utilize the full potential of the highway investment.
Highway-fronting land owners have certain rights of ac-
cess consistent with their needs, and road users have cer-
tain rights to freedom of movement and safety. The Wayne
County Road Commission has the responsibility of regu-
lating and controlling the location, design and operation
of access to roads and streets under its jurisdiction.
PURPOSE
These Rules, Standards and Procedures set forth the
policy guidelines of the Wayne County Road Commis-
bi ;
A-2
sion concerning driveways and sets forth the basic
requirements for the design and construction of these
driveways.
The objectives of these Rules, Standards and Proce-
dures are:
1. To provide maximum protection and safety
for the public through the orderly control of
traffic entering and leaving roads or streets at
driveways.
2. To provide a uniform policy throughout the
County in the design and construction of
driveways.
DRIVEWAY PERMITS
GENERAL
Any person, organization or governmental unit
desiring to construct, reconstruct, relocate or resurface
a driveway within Wayne County Road Commission
right-of-way shall make application and secure a permit
before beginning construction. Platted street approaches
and crossovers in highway medians shall be governed
by the Board’s published Subdivision Rules and Regula-
tions. The acceptable applicants for driveway permits
are property owners or lessees, or a contractor em-
ployed by the property owner. However, the owner or
his agent and the contractor may be required to sign
the permit.
A revision in the manner of use of property abutting
a highway (viz; a change from residential to commer-
cial use or in the type of commercial operation) may
require alterations in the number, design and/or loca-
A-3
tion of driveways. The owner or such property shall
obtain a permit for and accomplish such driveway revi-
sions as are determined to be necessary by the Wayne
County Road Commission.
The applicant shall furnish all materials and bear all
costs of necessary construction, including tapers, widen-
ings, islands, pavement marking, signing, etc., within
Wayne County Road Commission right-of-way. Further,
it shall be the responsibility of the property owner or
lessee to maintain all driveways connecting the prop-
erty to the roadway, as well as those appurtenances set
forth in the permit as related requirements. Mainten-
ance of road widenings which become part of the main
roadway will not be the responsibility of the permit
holder.
The Wayne County Road Commission reserves the
right of inspection by its authorized representatives of
any driveway construction within the highway right-of-
way. The permit applicant shall reimburse the Wayne
County Road Commission for the services required for
the review and approval of plans, and for any on-the-job
inspectors which are required. In the event of failure to
comply with the terms and conditions of the permit or
if the property owner fails to obtain a permit, the
Wayne County Road Commission shall have the right
to take appropriate action as allowed in Act 200 of the
Public Acts of 1969. All costs incurred in corrective
action to comply with design standards, defective
workmanship and/or materials shall be borne by the
applicant.
Applications should be submitted as early as pos-
sible. In the case of new commercial, industrial and
apartment developments, the Wayne County Road Com-
mission Engineer of Highway Design should be con-
tacted in the initial site planning stages so that a
~
A-4
preliminary access plan satisfactory to all! parties can be
established early in the development process. This
access plan will include satisfactory storm drainage
outlets, proper driveway locations and will consider the
relationship between parking and storage facilities and
other development in the vicinity, either on private
property or on public right-of-way. COUNTY ROAD
DRAINAGE FACILITIES MAY NOT BE USED TO DRAIN
STORM WATER FROM PRIVATE PROPERTY.
MAKING APPLICATION
Prior to applying for a permit for industrial, commer-
cial or apartment driveways, the site development plans
for the complete project must have the approval of the
Engineer of Highway Design.
All applications for industrial, commercial or apart-
ment driveways shall be submitted to the Engineer of
Streets, 415 Clifford, Detroit, Michigan 48226, phone
224-7600 (or as directed by the letter of plan approval).
The permit is fully executed and in force after the
plans are approved and the permit signed by the owner
or his agent, the contractor and the authorized repre-
sentative of the Board.
Applications for residential driveways should be sub-
mitted to the Board’s Airport Building 358, Middlebelt
Road, Romulus, Michigan, Phone 941-8500.
BOND
Bonds are required on all industrial, commercial and
apartment driveways to protect the Wayne County Road
Commission against the cost of completing construc-
tion or repairing deficiencies. Acceptable types of bonds
A-5
are cash, certified or cashier’s checks, and money orders
made payable to the Wayne County Road Commission.
CERTIFICATES OF INSURANCE
Certificates of insurance are required on all indus-
trial, commercial and apartment driveways to ensure
that claims for damage or personal injury can be met.
General liability insurance carried by an applicant or
contractor is acceptable.
FEES
Commercial, Industrial & Apartment Driveways
A non-returnable fixed permit fee to cover the cost of
processing the permit will be collected at the time
the permit is issued based on the Board’s current fee
schedule.
A plan review fee to recover the cost of plan review
will also be collected at the time the permit is issued.
The plan review fee will be proportionately higher if
deceleration and/or passing lanes are part of the drive-
way construction.
If the applicant requests driveway replacement or
reconstruction utilizing an existing curb drop, he will
still be required to pay the fixed permit fee for proces-
sing the permit, but will not be liable to a plan review
fee. )
Residential Drives
A permit is required and a non-returnable fixed
permit fee for permit processing will be collected at the
time the permit is issued based on the Board’s current
Fee Schedule. A plan review fee will not be charged.
A-6
Street Protection Permits are required when a drive
approach is constructed in connection with home
building operations. The permit fee will be in accor-
dance with the Board’s current Fee Schedule. A Perfor-
mance Bond will also be required in connection with
Street Protection Permits and Driveway Permits where
a curb cut or ditch enclosure is involved.
If the applicant requests driveway replacement or
reconstruction utilizing an existing curb drop, he will
still be required to pay the fixed permit fee for processing
the permit, but will not be liable to a plan review fee.
Miscellaneous Construction
A permit is required with fees in accordance with the
Board’s current Fee Schedule. A performance Bond may
also be required.
A permit and fee in accordance with the Board's cur-
rent Fee Schedule is required to place any type of hard
surface between the edge of pavement and the right-of-
way line. The actual cost of inspection will be charged
against the project and a separate deposit or perfor-
mance bond will be required to guarantee such costs.
Where the pavement is not curbed, provisions for a
curb or safety island as directed by the Board’s Engineer
must be provided by the owner. Approval to place hard
surfacing is not to be construed as permission to park
vehicles within the road right-of-way where such
parking may presently or in the future be prohibited sd
statute or by the posting of official signs.
A permit and fee in accordance with the Board’s cur-
rent Fee Schedule is required to excavate in the Board’s
right-of-way. The actual cost of inspection will also be re-
covered by the Board. A separate deposit will be required
to guarantee proper performance and inspection costs.
A-7
DEPOSITS
Commercial, Industrial & Apartment driveways
Should the proposed project involve road widenings
and/or the construction of enclosed storm drainage in
the road right-of-way, full time inspection will be
required. In this case, a deposit will be taken to cover
all direct inspection costs. The amount of the deposit
will be determined at the time of application based on
the size and scope of the project.
The Board will keep track of the actual inspection
costs incurred by it in connection with each project. In
the event the Board’s costs are less than the deposit, the
excess will be returned to the owner. In the event the
Board’s costs are greater than the deposit, the owner
will be billed for the deficiency. The Board’s objective is
to recover actual costs incurrec by it.
PLANS REQUIRED
All copies of driveway permit applications must be
accompanied by a plan clearly indicating the following:
1. Street name and address, highway pavement,
right-of-way and property lines, lot or parcel
number, highway appurtenances, medians (if
existing) and dimensions of same.
Ne
All buildings (proposed or existing) and all
appurtenances to any business conducted (gas
pumps, signs, canopies, etc.) and dimensions of
same.
3. Driveways to be constructed, proposed surfac-
ing, proposed drainage scheme and dimensions
including:
6.
A-8
width of driveway
radii of driveway returns, islands and other
points of curvature
driveway elevations
the approximate angle the driveway makes
with the highway centerline
proposed culvert or sewer grades with suffi-
cient elevations upstream and downstream
to show the extent of flow across the pro-
posed development and to the proposed
outlet
Drainage plan and outlet for all storm drainage
on the site. DRAINAGE FROM ADJACENT PARK-
ING OR STORAGE AREAS ON PRIVATE PROP-
ERTY MAY NOT BE DISCHARGED ONTO THE
HIGHWAY OR ITS APPURTENANCES.
Location of the driveways including dimen-
sions relating to:
a.
property lines and property lines extended
to the pavement
buildings and business appurtenances
reference dimension to nearest cross road or
street
North directional arrow.
The above requirements, when applicable, should be
incorporated with appropriate guidelines from the Typi-
cal Drawings 1 through 10 to form a complete plan for
permit application.
Proposed driveways shall be designed and constructed
in accordance with the Rules and Regulations of the
Wayne County Road Commission, the general guide-
A-9
lines contained herein and in accordance with the spe-
cific recommendations of the Board’s Engineer. Applica-
tions and plans for platted street approaches must meet
the minimum requirements shown in the published
Wayne County Road Commission Subdivision Rules
‘and Regulations.
WHERE TO APPLY
After plan approval has been obtained the permits
may be secured as listed below:
Residential Drives & Miscellaneous:
Airport Building 358, Middlebelt Road, Romulus,
Michigan; Phone 941-8500
Commercial, Industrial & Apartment Drives:
Engineer of Streets, 415 Clifford, Detroit, Michi-
gan 48226; Phone 224-7600
DESIGN REQUIREMENTS
For information regarding right-of-way requirements,
the property owner is referred to the updated Master
Plan for Right-of-Way adopted by the Board of Wayne
County Road Commissioners on December 24, 1969.
From it he shall determine the future right-of-way
requirements of the road or street abutting his property
before buildings, gas pumps and similar fixed objects
are located on the property. In the event that future
right-of-way width requirements are greater than
existing right-of-way widths, ali fixed objects should be
located far enough from such future right-of-way that
safe efficient traffic operation may be maintained on
A-10
the road or street, and functional operation of the abut-
ting property may continue unabated when such future
right-of-way is acquired for highway purposes.
BUFFER AREA
The space between the right-of-way line and the
pavement edge shall be utilized to provide a physical
barrier (buffer area) between highway vehicles and
pedestrians or other vehicles on private property, to
ensure that adequate sight distance will be available for
safe traffic operation, to provide clear delineation of
driveway openings, to facilitate proper drainage and to
accommodate suitable slopes for maintenance oper-
ations. The buffer area may be established by curb,
guardrail, guardposts, low shrubs or an equivalent
method adequate to prevent encroachment. Trees,
shrubs, ground cover or other landscape features within
the buffer area shall be removed or suitably adjusted to
provide the required sight distance.
DRIVEWAY LOCATION
Driveways shall be located so that no undue interfer-
ence with the free movement of normal highway traffic
will result. Driveways should be located as far from the
edge of the intersecting roadway as is possible. The
radius of a driveway should not encroach upon the
intersection radius of the roadway pavements.
Commercial, industrial and apartment driveways,
including their radii, shall be located entirely within
the permit applicant’s roadway frontage, which shall be
determined by the extension of the property lines to
the pavement edge.
NUMBER OF DRIVEWAYS
The number of driveways which will be permitted to
provide access to the roadway will be the minimum
number required to adequately serve the needs of the
land use.
The Wayne County Road Commission encourages
adjacent commercial property owners to consolidate
their driveways by using either a frontage road or a
joint driveway system.
The Wayne County Road Commission reserves the
right to deny driveway access when such construction
would result in unreasonable safety hazards.
SIGNING
The permit applicant at his expense shall provide,
erect and maintain all necessary signing (Stop, Keep
Right, Do Not Enter, etc.) and/or pavement markings
which the Board’s Engineer determines are required.
The plans shall indicate the signing and pavement
marking required, as specified above. All signing and/or
pavement marking shall conform with the Michigan
Manual of Uniform Traffic Control Devices.
PARKING AND STORAGE
It is the intent of the Board that commercial estab-
lishments of a “drive-in” nature (drive-in theaters,
drive-in banks, auto washes, etc.) should provide ade-
quate storage off highway rights-of-way for vehicles
waiting to be serviced since vehicle storage on highway
lanes or shoulders cannot be tolerated.
All driveways, except residential drives to uncurbed
pavements, shall be surfaced from the edge of the
traveled way to the right-of-way line with a material
which is equal to or better than the surface of the
traveled way which it joins. The Board’s Engineer shall
determine whether or not any specific material is equal
to or better than the surface of the traveled way.
The minimum surface requirements for each develop-
ment are as follows:
A.
ho
B
RESIDENTIAL DRIVEWAYS
The minimum surface requirement for residen
tial driveways to gravel roads shall be 6” of
compacted aggregate.
Residential driveways which meet a curbed
pavement shall be a minimum of one of the
following:
a. 6” unreinforced concrete
b. 6” deep strength asphalt
c. 6” compacted aggregate with a 2” Asphaltic
Concrete surface
Residential driveways to uncurbed hard surface
roads or streets may be surfaced as described in
Section A-2 but will terminate in line with the
backslope of the road ditch, and balance of
driveway shall be surfaced as described in Sec-
tion A-1 above.
COMMERCIAL, INDUSTRIAL
ty APARTMENT DRIVEWAYS
The minimum surface requirement for this
type driveway to a gravel road will be 10” of
to
A-13
compacted 3A aggregate surfaced with 2” of
compacted 22A aggregate.
The minimum surface requirement for this
type driveway to hard surface roads at develop-
ments which are considered heavy traffic
generators, or which are expected to carry
heavy loads, shall be either of the following:
a. 8” unreinforced concrete pavement
b. 9” Asphaltic Concrete base with 1'” of 31A
Asphaltic Concrete Wearing Course
The minimum surface requirement for this
type driveway to hard surface roads at develop-
ments which are considered medium or light
traffic generators shall be either of the following:
a. 7” unreinforced concrete pavement
b. 7” Asphaltic Concrete base with 1!” of 31A
Asphaltic Concrete Wearing Course
c. 10” compacted 3A aggregate with 2” of 31A
Asphaltic Concrete Wearing Course
The pavement section required for road widenings,
crossovers or taper sections shall be as directed by the
Board’s Engineer. Shoulder areas shall conform with
current Wayne County Road Commission Standards
and Specifications.
The shoulder area between adjacent commercial
driveways serving the same property which are less
than 200’ apart (centerline to centerline) must be paved
as directed by the Board’s Engineer.
A-14
DRAINAGE
It shall be the responsibility of the permit applicant
to ensure that highway drainage is not adversely
affected by proposed driveways.
Drainage from adjacent parking or storage areas on pri-
vate property may not be discharged onto the highway or
its appurtenances. All culverts, catch basins, drainage
ditches and other drainage structures required within the
highway right-of-way, including culverts under drive-
ways, shall be installed in accordance with Wayne
County Road Commission Standards and Specifications.
Headwalls above grade shall not be used at driveway
culverts. Sod, grouted rip-rap or other suitable material
shall be placed at all culvert ends to prevent erosion.
Headwalls may be required where grades permit.
MAINTENANCE
The permit holder will be responsible for the main-
tenance of all work constructed or placed in the road or
street right-of-way, except for widening lanes which are
incorporated into the main traveled roadway.
INSPECTION
All driveway construction shall be performed under
inspection by the Wayne County Road Commission.
The executed permit will provide the Department tele-
phone number to call for this service.
DRIVEWAY DIMENSIONS
Driveways must be designed to facilitate safe and
expeditious vehicle movements to and from the high-
A-15
way. Figures 1 through 10 provide guidelines which
shall be followed in the design and dimensioning of
driveways in preparing plans for permit application.
The permit applicant shall indicate on the plan the
driveway layout requested, including the number, type,
dimensions, location and spacing of driveways. The
Board’s Engineer may approve the requested layout or
may require changes so that the proposed layout will
accommodate the vehicles normally expected without
creating undue congestion or hazard on the highway.
The permit applicant shall provide a deceleration
lane and/or tapers as part of a commercial, industrial,
apartment driveway or other heavy traffic generators if
the Board’s Engineer determines that such deceleration
lane and/or tapers are required to minimize congestion
or hazard on the highway which may be caused by
vehicles using the applicant’s driveway. Typical dimen-
sions are shown in Figures 5 and 6.
The permit applicant shall provide a passing lane on
the side of the highway directly opposite a proposed
commercial, industrial, apartment driveway or other
heavy traffic generators when warranted in accordance
with the highway vehicle volume and anticipated peak
hour vehicle left turns from the highway as shown in
Figure 7. When other conditions such as horizontal and
vertical sight distance, traffic signal location and other
physical factors directly affect public safety, a passing
lane shall be required. Minimum dimensions for a
passing lane are shown in Figure 8.
Minimum and maximum dimensions for gasoline
service stations are shown in Figures 9 and 10. Angular
(60 degree minimum) and perpendicular driveways may
be used in pairs or combinations of each type.
A-16
Driveway openings at the curb or pavement edge
shall be a minimum distance of 10 feet from the side
road right-of-way line extended, and shall be a
minimum distance of 5 feet from the line between
abutting properties extended. These minimum dimen-
sions are shown in Figures 9 and 10 and they apply to
all commercial, industrial, apartment driveways and
other heavy traffic generators.
A-17
FIGURE 1
RESIDENTIAL DRIVEWAY
CURBED HIGHWAY (Primary)
y
‘
— ~_
| .
~
—
~~
’ os
———
———
a; a
a
f a“ >
A oO
’
oteums ee *
Q.
=
3°)
—<
iO
'@
A
ulyy
NOTE: FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS,
SEE PAGE 5, “PLANS REQUIRED.”
A-18
FIGURE 2
RESIDENTIAL DRIVEWAY
CURBED STREET (Local)
nN)
}
YIEMAPIS
ui] M-O-H
x
| NOTE:
FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS,
SEE PAGE 5, “PLANS REQUIRED.”
%
A-19
FIGURE 3
RESIDENTIAL DRIVEWAY
UNCURBED HIGHWAY OR STREET
~ 2
~ 1-0 i.
} ad I>
2 | is 2 4 o
a | OQ ( x.
© | 13 ES =
> | D 1o |< ‘a
= = i= - —
=i = _— eum - 4
mn i” yom i>
= ie |*
— ;oo
| 6
N y
S
width of pavement oS
|
eee —_—_—————_
| ‘
|
s La)
| & jS\e
| So i
= l2is
© j\2 1D
= | |<
| 3
<=
|
ei
4
PIG ‘‘UuIW QZ yyOua}) Waring '
Yd}IP JO adoys yORQ 40 do} |
ch
{ UIW
NOTE: FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS,
SEE PAGE 5, “PLANS REQUIRED.”
A-20
FIGURE 4
COMMERCIAL DRIVEWAY (Two-Way)
CURBED HIGHWAY
| I>
=| iS 2
et a } i?
| ae | =
| is | ISS
a 6 IS ||@
™ 5
ls
| J | ly
gaat ERE BOT |
| pymt. width |
|
| |
| |
| 8s | |
L 7
TK B |
Ne |
|
|
on a
— » lilo’
jon
= ==
=" | R15
I.
og a
14% ‘2,
Zz
>
| ——_
a=)
| |o
| |& | |
a
=
ie *]
=
> }
ig?)
4
ks
|
|
NOTE: FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS,
SEE PAGE 5, “PLANS REQUIRED.”
A-21
FIGURE 5
COMMERCIAL DRIVEWAY (Two-Way)
UNCURBED HIGHWAY
___ 25’ Min.
___R-O-Whline—. sf 40" Max. | le Mths BS
Sidewalk
19
\"\
(nm SS ee
Pavement Edge
. ._— —
x 5
@ Road
| pymt. width
culvert (Length = 100’ min., Dia. = 12” min.)
r
Pavement Edge ——
NOTE: FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS,
SEE PAGE 5, “PLANS REQUIRED.”
A-22
FIGURE 6
MAJOR COMMERCIAL, INDUSTRIAL
& APARTMENT DRIVEWAY (Two-Way)
UNCURBED HIGHWAY
Lo
Eee eee R-0-W Line ——
iii, 20’ ae Ss (Length = 290’ min., Dia. = 12’ min.) Sidewalk
ppar ee Curb ~» 4,.... Shoulder Line,
2 == f ___]s__ | DECELERATION LANE aly ~* i oe
“Pavement Edge, _50’_.f._90’___]2_-[___150” min. _ 2+ 50'_ J * CRoad
@
a, ee ee Ae OREM nn ene GAL ST
wo
Pavement Edge —~
pymt. width
NOTE: FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS,
SEE PAGE 5, “PLANS REQUIRED.”
2 Passenger Cars)
(1 Truck
PEAK HOUR LEFT TURNS
PASSENGER CARS PER HOUR
A-23
FIGURE 7
WARRANT FOR LEFT TURN PASSING LANE
(Based on Ultimate Development)
100 -»————
80-+4- .
0-1}
40
20 —
- U\ :
— pagginG LANE, NOT el
a a 7
0 2000 4000 6000 8000 10000
TWO-WAY, 24 HOUR VOLUME
A-24
FIGURE 8
PASSING LANE
(MINIMUM)
2
-
ro
oS
nine ans
} bene
Sidewalk —~ a, \
Shoulder Line~. | aan -
Pavement Edge—. ieee ee
__ €Road Sa ~ ae
a eee s|- E
—— ——__ i PASSING LANE J ) &
Shoulder Line“j5q° Curb” 125’ i.
RN i ase sc evceeniceceene 3 =
NOTE: FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS,
SEE PAGE 5, “PLANS REQUIRED.”
A-25
FIGURE 9
GASOLINE SERVICE STATION DRIVEWAYS
CURBED HIGHWAY
| | c D
2) | | 45
c | 1S IP a) t>
a} ip IC S|h=
=) | -
| 2 =| ‘iS
, em ®
gall
a ane
-_—
|pymt.width
|
ajgeieat * cp 1 Ul ]
mT
; =~ si -
on De id
= bp!
* on
S|
de Yo3| 30 30 30
{2h z max =, min max R-O-W Line
/ YO. 7) eH | | e Sidewalk
“d X \P KS
4 2 Curb
= 10 50 110 50 5’ min
_3 m max min max j ine
=
=
ht
NOTE: FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS,
SEE PAGE 5, “PLANS REQUIRED.”
A-26
FIGURE 10
GASOLINE SERVICE STATION DRIVEWAYS
UNCURBED HIGHWAY
5| po S| \o
° 2 |PjD> =< ‘
a) fy SF
ro) ~~ V ati 2
\ \ nr
$; ho id
1
tT ws > |
FS ome NT
L,
OE 4 ,
of
15)
yo4
A | ,
tok «(te .
| 1
y <
aA »
ei K
ae
| ~_— —
|| 4 ,
nN widtt a oe = os ,
_ > ee — ECU
2) Bh Bie = |) or 1 | ae a §) z
on z=
— ~~ f f f Fd i
NOTE: FOR SPECIFIC DETAILS ON DRIVEWAY REQUIREMENTS
SEE PAGE 5, “PLANS REQUIRED.”
if
|
|
B-]
RESPONDENTS’ APPENDIX B
JUDGMENT ORDERING PLAINTIFF TO INSTALL
A DRIVEWAY AND PASSING LANE
(State of Michigan — Circuit Court — County of Wayne)
(Session of February 6, 1981; Order Entered March 6, 1981)
(DANIEL BZOVI, Plaintiff, vs BOARD OF COUNTY ROAD
COMMISSIONERS OF THE COUNTY OF WAYNE, MICH-
IGAN, a public body corporate, Defendant — Civil
Action No. 80028726 CZ)
At a session of the Court held on the 6th day of February,
1981 in the City-County Building, Detroit, Michigan.
PRESENT: Honorable Thomas J. Brennan (P 11173),
Circuit Judge.
This matter having come on to be heard upon Plain-
tiffs Complaint and Petition for an Order to Show Cause,
and argument having been made, proofs being taken in
open Court, memoranda of authority being filed by the
respective parties to this action, and the Court having
made findings of fact and law in open Court, and the
Court being fully advised in the premises.
IT IS HEREBY ORDERED and adjudged that this Court
finds, as a matter of law, thatthe Defendant BOARD
acted in accordance with Act No. 200 of the Public Acts
of 1969, MCLA 247.321, et. seq., MSA 9.140(21), et. seq.,
in requiring the Plaintiff to provide a driveway to his
property and a passing lane and that the rules and regula-
tions adopted by the Defendant BOARD pursuant to the
aforesaid Statute, more particularly described as the
B-2
‘Rules, Standards, and Procedures for Driveways within
Wayne County Road Commission Right-of-Way”, adopted
in February, 1970, and revised on January 1, 1979, are
legally sufficient and are reasonable and proper, and the
said Plaintiff is hereby ordered to comply with the afore-
said Rules for the installation of his driveway and neces-
sary passing lane at the West Road property as shown in
these proceedings; and
IT IS FURTHER ORDERED and adjudged that the
Defendant BOARD OF WAYNE COUNTY ROAD COMMIS-
SIONERS proceeded in this action in accordance with its
Statutory duty to provide for the health, safety, and wel-
fare of the traveling public, and that the said illegal tem-
porary driveway installed without a permit from the
Plaintiff is improper in that it is unsafe and does not
comply with the aforesaid “Rules”; and
IT IS FURTHER ORDERED that the Court, having made
findings of the fact and rulings of law, directs the Plain-
tiff, DANIEL BZOVI, to proceed towards causing the con-
struction and installatio of the driveway into his
property, known as 22700 West Road, Trenton, Michigan
48183, being more particularly described as the part of
the SW 1/4 of Section 16, Brownstown Township, T4S,
RIOE, Wayne County, Michigan, together with the neces-
sary passing lane on the south side of West Road, in
accordance with the plans and specifications filed by the
Plaintiff with the Defendant BOARD and approved by
said Defendant BOARD on or about February |, 1980; and
IT IS FURTHER ORDERED and adjudged that the Plain-
tiff shall secure a permit from the Defendant BOARD, in
accordance with regular procedure, and pay ali necessary
fees required by Defendant BOARD, relative to the con-
struction of the drive approach to the above described
property and the passing lane in accordance with estab-
B-3
lished practice and post a restoration bond in the sum of
FIVE THOUSAND DOLLARS ($5,000.00) to assure the
cleanup of the work performed under the said Permit;
and
IT IS FURTHER ORDERED that the Plaintiff shall
assume and pay the entire cost of the driveway approach
into the aforesaid property and of the passing lane on the
south side of West Road opposite the above described
property, referred to hereinafter as the “PROTECT”; and
|The passing lane portion of the PROJECT shall be com-
pleted not later than June 1, 1982. The Plaintiff shall
deposit with the defendant an irrevocable bank letter
of credit payable to defendant in the amount of
$20,000.00 to guarantee completion of the passing lane
and ...|
iT IS FURTHER ORDERED that the Plaintiff shall
retain a reputable contractor to perform the work and
construction described as the PROJECT, said contractor
being acceptable to the Defendant, BOARD; and enter
into a contract to begin work on the PROJECT as soon as
weather permits and completed within 45 days after
Starting work on the project.
No costs assessed, a public question being involved.
/s/ THOMAS J. BRENNAN
CIRC IT JUDGE
(Certification Omitted)
C-1
RESPONDENTS’ APPENDIX C
PLAINTIFF’S POST HEARING BRIEF
(State of Michigan — Circuit Court — County of Wayne)
(LOYER EDUCATIONAL TRUST, LARRY MCDONALD,
TRUSTEE, Plaintiff, vs. WAYNE COUNTY ROAD COM-
MISSION, BROWNSTOWN TOWNSHIP, AND THE BOARD
OF WAYNE COUNTY ROAD COMMISSIONERS, GRACE R.
HAMPTON, CLAUDE DUKES, AND HAROLD H. BONDY,
individually, jointly and severally, Defendants — C.A.
No. 83 334 841 CZ; HONORABLE PAUL S. TERNAS)
STATEMENT OF THE CASE
Plaintiff is seeking relief by Writ of Mandamus or
Injunctive Relief to compel the Wayne County Road
Commission to issue permits to allow LOYER EDUCA-
TIONAL TRUST to tap into certain utilities in the Sibley
Road right of way and to allow plaintiff to open its strip
shopping center on Sibley Road without the interference
of the County in blocking or barricading the driveway,
which will service its commercial development.
STATEMENT OF FACTS
Plaintiff, LOYER EDUCATIONAL TRUST, applied for
permits from Brownstown Township to construct a strip
shopping center on Sibley Road, between Telegraph Road
and I-75. Sibley Road right of way is owned and main-
tained by the Wayne County Road Commission. The
commercial development by the Trust was begun and
construction commenced. The construction proceeded
according to architect's drawings and plans which had
previously been submitted to all of the Planning Com-
C-2
missions and different governmental agencies for
approval and which had been approved. After applying
for a permit to the Wayne County Road Commission for
construction of a driveway which would access Sibley
Road a two lane highway having a speed limit of 45
miles per hour, the plaintiff was denied a permit to con-
nect to utilities under the Sibley Road Right of Way and
to construct its driveway. The Wayne County Road Com-
mission refused plaintiff's request for a permit for one
major reason: Plaintiff did not agree to provide any
improvements in the Sibley Road right of way and in
more particular install a passing lane on the opposite
side of the Sibley Road right of way from the commercial
development. Plaintiff attempted on numerous occa-
sions to meet with the Wayne County Road Commission
to submit viable alternative plans to construct a safe
driveway, however, the Road Commission consistently
refused to allow the permit and theretore, the tapping of
the utilities and opening of the Shoppin, Center due to
the passing lane requirement. The construction of a
passing lane and re-routing or enclosure of a county
drain made this requirement impossible to comply with
in light of the total cost of the shopping center. Plaintiff
is without legal remedy in this case unless the Court
takes action. Why this Court must order Injunctive
Relief or Writ of Mandamus to assist the LOYER EDUCA-
TIONAL TRUST is based on facts as presented at a
hearing which included the following: That there would
have to be an inordinate amount of time to rebuild the
structure which was almost completed in the event it
burned. There would have to be new leases drawn and
the possibility of loss of these leases exists because of
time passing. There is no way to measure actual money
damages, even though many money damages have been
sustained to this point. The future money damages will
be hard to calculate. There was testimony that there is
C-3
constant vandalism and necessity for fire protection at
the building. There was testimony that competition by
way of other developments moving into the area makes
time of the essence in order to allow the Loyer Educa-
tional Trust to compete fairly with the other develop-
ments in the area. There was testimony that the
negative impact by way of an image of a[n] uncompleted
project detracts from the appearance of the area and the
general psychological impact of trying to provide an
exceptionally high quality shopping center in the area.
There was testimony that leases already have been
broken. Testimony by L. Loyer indicated that construc-
tion on the building should be completed while the
water and the soil is still frozen to mitigate a cost factor
in tapping into the utilities, apparently digging deeply
into the soil to tap into these utilities would be easier in
the winter time when the soil was frozen and the water
was not present to cause hardship. There have been
many maintenance problems including the frozen roof
drains and broken roof drains for the last 2 winters
because of no heat in the building. The cost to the Trust
is prohibitive and testimony, though not agreed upon, set
the cost for the right of way improvements at
$150,000.00 when the cost of the entire project is
$500,000.00 to $550,000.00. The Loyer Educational
Trust is, therefore, at the mercy of this Court’s injunctive
relief in order to get the facility opened and leased out to
mitigate it’s actual money damages, in view of the fac-
tors considered here as showing that the legal remedy is
inadequate. Time is of the essence here and it is impos-
sible to calculate the harm caused by delay in terms of
actual money damages where a competitor opens before
the Trust.
Ca
ISSUE:
DOES THE WAYNE COUNTY ROAD COMMISSION HAVE
THE AUTHORITY TO COMPEL THE INSTALLATION OF
ANY RIGHT OF WAY IMPROVEMENTS, AND IN PARTIC-
ULAR A PASSING LANE ON THE OPPOSITE SIDE OF THE
HIGHWAY FROM THE COMMERCIAL DEVELOPMENT BY
THE COMMERCIAL DEVELOPER, LOYER EDUCATIONAL
TRUST?
Answer: Absolutely not.
The Michigan Supreme Court dealt with a similar
issue to the instant case in Arrowhead Development
Company v Livingston County Road Commission, 413
Michigan 505, 322 Northwestern Reporter 2nd series
702. In Arrowhead, a subdivision developer brought an
action to vacate a portion of a subdivision plat and
sought to prevent the County Road Commission from
enforcing an agreement between the parties that would
require the developer to regrade portions of road outside
of the development in order to make required intersec-
tion with the County Road safer for automobile traffic.
The Michigan Supreme Court held in favor of the devel-
oper in Arrowhead Development Company, the Court
held:
“While under § 183(1)(b) the commission could
have required that Arrowhead layout Navajo Trail
in a way which would locate it’s intersection
with Chilson Road at a safe distance from the
hazardous site obstruction, it was not free, under
color of § 183, to require repairs to be made on
Chilson Road at the expense of the subdivider as
a condition of approval of a plat in which the
Navajo Trail — Chilson Intersection was laid out
in the manner posing a traffic hazard. That is par-
C-5
ticularly so since the plat as submitted called for
a cul-de-sac terminating Navajo Trail at Chilson
Road, but the commission required Arrowhead to
eleminate the cul-de-sac and open Navaho Trail,
creating the concededly dangerous intersection.
“Although § 183 does not itself contain an
explicit restriction on the Commission’s
authority to require offsite road improvements,
the fact that it does not contain an explicit or
fairly compiled grant of such authority suggests
that none was intended by the legislature, espe-
cially since $§ 105 and 106 specifically delineate
the requirements the commission may make of
subdividers. We conclude that § 183 does not
authorize the action of the Commission in this
case.
“We are fortified in the conclusion that § 183
does not empower the commission to impose
upon the appellant the duty to sustain the costs
of the offsite road improvements in this case by
the fact that nowhere does there exist any statu-
tory provision to finding suitable standards gov-
erning cost allocation of offsite improvements.
Apart from the constitutionality of the proposed
exaction in this case, a question we neither reach
nor decide, it is clear that it would be imper-
missable to impose the entire costs of an offsite
improvement on a single subdivision developer
where other persons or property would be specifi-
cally benefited. The absence of a statutory provi-
sion establishing standards and procedures for
such apportionment is indicative of a legislative
assumption that the responsibilities of the subdi-
vision developer do not extend beyond the borders
C-6
of the subdivision itself unless explicity imposed
by the legislature.” Arrowhead Development
Company v Livingston County Road Commis-
sion, NW2d 709 (1982).
In the Arrowhead Case the position of the Livingston
County Road Commission was set forth on page 708 of
the opinion:
“The Commission realized primarily upon the
emphasized subsection ({1)}(b) of § 183 as justifying
it's demand that Arrowhead sustain the costs of
repairs to Chilson Road. In it’s brief, the Commis-
sion declares that, ‘(t)}he Statute (Section 183({1)(b)
expressly authorizes the County Road Commis-
sion to condition approval of a plat upon certain
exactions to insure the safety of those entering
existing county roads from a proposed subdivision
street’. Footnote 10 Appellee’s Brief page 9 While
we think the Appel!ant claims more for the lan-
guage of subsection (1}(b) than is there to be
found, Footnote 11 ‘Subsection b authorizes the
County Road Commission to require adequate
provision for traffic safety in laying out drives
which enter County Roads’. (Emphasis added.)
Arguably that is something less than ‘insuring
the safety of those entering the existing county
roads.’ There is still other reason to conclude that
in defining the powers of a Road Commission
who impose requirements upon developers as
conditions for approval of proposed plats, the leg-
islature did not intend to permit the action
demanded in this case.”
In Arrowhead the State Supreme Court in reading the
Act setting forth the statutory authority of the Road
Commission came to the conclusion that the Road Com-
C-7
mission could not compel a subdivision developer as a
condition precedent to approval of the plat to make sub-
stantial improvements in the County Road System and
in Footnote 11, the opinion argues that “adequate provi-
sion for traffic safety in laying out drives which enter
County Roads” is something less than insuring safety of
those entering the existing county roads.
In the Loyer case, we are dealing with a driveway situ-
ation and not a subdivision development. The County
has forbidden approval of a permit to open the facility
and begin to conduct business based on the driveway
statute. The legislature enacted Act 200, 1969 Pg 382,
Driveways, Banners and Parades, an act to regulate drive-
ways, banners and parades upon and over highways. MSA
9.140(21) Definitions sets forth the definition of a
driveway. “\a) Driveway means a driveway, lane, road or
other way providing vehicular access to or from the
highway from or to property adjoining the highway, but
does not mean a city or village street or other highway
covered by the provision of Act 288 of Public Acts being
Sections 560.101 to 560.293 of the Compiled Laws of
1948. (|b) highway means a state trunkline highway or a
county road including the entire nght of way (c) highway
authority means Department of State Highways in the
case of state trunkline highways and the Board of
County Road Commissioners in the case of county
roads.” The Act goes on to indicate that permits for
driveways shall be granted in conformity with rules pro-
mulgated by the Highway Authority in Section 9.140(24)
as follows:
“Rules sha!l prescribe reasonable standards for
the design and location of driveways and may
require that driveways shall be hard surfaced. The
provisions of this section shall not be deemed to
C-8
deny reasonable access to a nonlimited access
highway.”
Additionally, § 9.140(25) indicates as follows:
“The boards of county road commissioners may
adopt by reference the rules, in whole or in part,
of the Department of State Highway or may adopt
its own rules after a public hearing of which
Notice has been given by publication at least
twice in a newspaper circulated in the county not
more than thirty days nor less than seven days
prior to the hearing.”
The Wayne County Road Commissioners did promul-
gate certain rules which have been updated and which
were attached to the Road Commission’s Prehearing
Brief called Rules Standards and Procedures for Drive-
ways Within Wayne County Road Commission Right of
Way. Within these rules includes the provision that the
developer of certain parcels must include a passing lane
in the right of way as part of its application for obtaining
a permit to open its driveway to the public highway.It is
this type of unreasonable requirement that is set forth in
the Rules and Standards which the Michigan Supreme
Court addressed itself to in Arrowhead Development
Company v Livingston County. The Michigan Supreme
Court on Page 709 said:
——
“These are not costs historically imposable upon
the subdivision developer. They are met by taxa-
tion and special assessments to benefit individ-
uals and properties. Similarly, the regrading of a
county road adjacent to a new subdivision devel-
opment, in order to safely accomodate traffic
generated by the new community, is a public
obligation. A legislative intention to impose such
a burden upon a nearby private developer would
C-9
be a notable departure from the historic manner
of funding alterations to public property, and we
think it would have made such an intention
explicit.
We hold that the Commission exceeded its lim-
ited statutory powers in conditioning the plat
approval upon Arrowhead’s agreement to pay for
the off-site county road improvement. Conse-
quently, the judgment of the Court of Appeals is
reversed.”
It is clear from this holding by the Michigan Supreme
Court that the statutory authority of the County Road
Commission does not extend to torcing developer to pay
for off-site road improvements which are clearly within
the jurisdiction and duty as statutorily imposed on the
County Road Commission.
Since the decision in Arrowhead Development Com-
pany the Michigan Court of Appeals has further defined
this situation in the case of Charter Township of
Harrison v Calisi, 121 Mich App 777, In Calisi, the
defendants, the Calisi’s, wanted to open a restaurant and
nightclub facility on Jefferson Avenue in Harrison Town-
ship, Macomb County, and applied to the Township for
approval of a planned expansion and improvement of
their establishment. Several meetings were held by the
Township Planning Commission in reviewing the site
plan submitted by defendants and the Commission con-
ditioned its approval on a requirement that the defend-
ants construct a deceleration or a bypass lane at the
entrance of their establishment so that cars waiting to
turn into the restaurant parking lot would not stall
through traffic. This bypass lane was not constructed. In
July of 1980, the plaintiff, township, brought suit in the
Macomb County Circuit Court to compel defendants to
C-10
construct the bypass lane. Plaintiff claims that the
bypass lane was ordered by the Planning Commission in
accordance with the Zoning Ordinance, that defendants
through their attorney agreed to install the bypass in
that defendants have failed to comply with the condition
for issuance of the building permit and with their
promise. The defendants responded to the Complaint by
denying that the plaintiff had legal authority to impose a
site review requirement and further denied that the
Township had authority to require off site improvements
as a condition for granting a building permit. [he Court
on Page 784 defined the issue of the case:
“The issue that ultimately must be decided in
this case is whether the condition imposed by the
Township was a valid exercise of its discretion. In
other words, was plaintiff permitted to require, as
a condition of approving a building permit, that
defendants build an off-site improvement — a
bypass lane within the street right of way?”
The Court held on Page 785:
“Analyzing both the County Road Law, MCL
224.1 et seq. MSA 9.101 et seq. and the Michigan
Subdivision Control Act of 1967, MCL 560.101 et
seq. MSA 26.430 (101) et seq. the Court found
that neither Act authorized the Road Commis-
sion to impose the duty of payment for off-site
road improvements, besides finding no explicit
authority within the statutes to impose such an
obligation, the Court further held that consid-
ering the Acts as a whole in the light of history
and common sense no such extraordinary powers
should be implied. Analysing the Township Rules
Zoning Act and the Township Planning Act and
their obvious relationship to the Acts considered
C-1]
in Arrowhead Development Company v
Livingston County Road Commission, we find
no explicit grant to the Townships nor to their
Zoning or Planning commissions to condition
building permits on off site improvements. Nei-
ther do we see, considering the acts as a whole in
light of such history and common sense, that
such authority should be implied.”
The Court went on to say:
“By finding that the plaintiff was without
authority to impose the requirements that it
attempted, we necessarily must find that its the-
ories for enforcing such requirements must fail.”
Calisi, PP 787 and 788.
The Court of Appeals also set forth a quotation from
the Arrowhead Development Company case which they
relied upon:
“The Commission relies heavily on the argument
that the need to level the obstructing hill on
Chilson Road is caused by the existence of the
subdivision as such as a problem solely attribu-
table to Arrowhead, consequently it is argued
that Arrowhecd must pay_the elimination. The
same argument can be made however to justify
the cost of police and fire protection, traffic sig-
nals, public school facilities, public lighting, road
widening and all other public services made nec-
essary by the existence of a new residential com-
munity. These are not costs historically imposed
upon the subdivision developer. They are met by
taxation and special assessments to benefit indi-
viduals and properties. Similarly, the regrading of
the county road adjacent to a new subdivision
development, in order to safely accommodate
C-12
traffic generated by the new community, is a
public obligation. A legislative intention to
impose such a burden upon a nearby private
developer would be a notable departure from the
historic manner of funding alterations to public
property and we think it would have made such
an intention explicit.” Calisi P 786
The position of LOYER EDUCATIONAL TRUST is not
dissimilar to those as set forth in Arrowhead and Calisi.
Loyer is basing its case on the fact that no authority
exists for the Road Commission to compel the off-site
road improvements notwithstanding that the section the
Road Commission is relying on is the authority to pro-
mulgate rules under the Driveway Act. The Supreme
Court already addressed that Driveway Act in the Arrow-
head case in the footnote and gave it little importance in
light of the historic implications in reading the Act in
its entirety. For this reason, this Court must follow the
Arrowhead and Calisi cases and order the County Road
Commission to issue permits to Loyer to open his
driveway and tap into the utilities.
An issue was never raised suggesting that Loyer would
not comply fully with all reasonable requirements as set
forth by the County Engineers in tapping utilities
making connections of the driveway to the right of way.
Therefore, on the issue of law, the County is in violation
of the law and as such this Court is empowered to
compel them to stop interferring with Loyer’s operation
and development and to issue a building permit in the
usual and proper manner.
Arrowhead sets out a clearly delineated path:
“While there is no dispute that the Legislature
has imposed this duty on counties, we are unable
to find any basis to conclude that the statute
C-13
either explicitly or implicitly authorizes the com-
mission to discharge that duty by imposing the
costs of county road improvements upon the
developers of nearby subdivisions. To the con-
trary, the provision of the county road law which
imposes this affirmative duty upon the road com-
mission, M.C.L. § 224.1 et seq.; M.S.A. § 9.101 et
seq., specifically provides that the permissible
methods of financing county road improvement
are borrowing and taxation. Nowhere in the
statute is there to be found authorization for
exacting the cost of a county road improvement
from a subdivision developer, and we think none
can be fairly implied.” Arrowhead p 706
The Supreme Court's ruling could not be clearer. It fol-
lows that this court's course of action based on the facts
and law should be equally clear: Order the Road Com-
mission to stop interfering with the Trust’s permit and
opening of the shopping center.
Respectfully submitted,
M. Gary Holland P23197
Attomey for Plaintiff
23394 Goddard Road
Taylor, Michigan 48180
Dated: May —_, 1986.
D-1
RESPONDENTS’ APPENDIX D
EXCERPTED TRIAL TRANSCRIPT
(State of Michigan — Circuit Court — County of Wayne)
(LOYER EDUCATIONAL TRUST, LARRY MCDONALD,
TRUSTEE, Plaintiff, -vs- WAYNE COUNTY ROAD COM-
MISSION, and BOARD OF WAYNE COUNTY ROAD COM-
MISSIONERS, GRACE R. HAMPTON, CLAUDE DUKES and
HAROLD H. BONDY, Individually and Severally, Defend-
ants — Case No. 83-334841-CZ)
PROCEEDINGS HAD in the above-entitled cause,
before the HONORABLE RICHARD D. DUNN, Judge,
Third Judicial Circuit, at Courtroom 1401 City-County
Building, Detroit, Wayne County, Michigan, on Wed-
nesday, May 13, 1986.
APPEARANCES: M. GARY HOLLAND, Esq.,
On behalf of the Plaintiff.
LAMBRO NIFOROS, Esq.,
On behalf of the Defendant.
+ +
(4) *** THE COURT: Do you want to make an
opening statement?
MS. NIFOROS: We would keep it brief, perhaps.
MR. HOLLAND: Okay.
THE COURT: All right.
MR. HOLLAND: Your Honor, Plaintiff’s position in
this case is that the Loyer Educational Trust is devel-
oping a shopping concern, a strip-shopping center on
Sibley, between Telegraph and I-75,
THE COURT: Who is Loyer Educational Trust?
D-2
MR. HOLLAND: Your Honor, that was an educational
trust that was setup by Mr. Loyer for his children. And
over the course the last 20 years or so, certain amounts
of money have been deposited in that trust.
His children are now grown, and they expended (5)
monies on their education. And now they have com-
pleted their educations and there were certain sums left
in the trust that were then invested for them in building
this shopping center. And that is how the trust become
the Plaintiff in this case.
THE COURT: All right.
MR. HOLLAND: The trust applied to Brownstown
Township for a permit to develop the shopping concern
and got certain proofs from the DNR and the township.
They began construction and they built a shell of a
building. And at that time they requested a permit to
open their driveway at the shopping center site, also to
tap into the water line which was on the opposite side of
Sibley. They were denied a permit unless they met cer-
tain requirements.
And among these requirements by the Wayne County
Road Commission were that they either enclose or move
the Van Cliff drain which was on the north side of
Sibley. That they pave an intersection for a private road
at which is called Emit, E-M-I-T. That Loyer Construc-
tion Company moved there driveway to line up with
Emit. And the Loyer driveway is on the south side of
Sibley Road. And additionally the fourth requirement
was to put a passing lane on the north side of Sibley
from the shopping center development.
The trust had expended certain amounts of money to
(6) build this project. And at the time the requirements
were made by the Wayne County Road Commission,
they objected to them saying these were unreasonable
requirements and that they weren’t, the Road Commis-
D-3
sion had no authority to compel them to muck out this
ditch or move it and to put this passing lane in the
right-of-way.
Several different driveway designs were negotiated
with the Road Commission to try to lessen any traffic
hazard. None of these negotiations amounted to a settle-
ment of the case.
Loyer Educational Trust then filed a lawsuit
requesting injunctive relief, which was denied. And the
case has now come to trial because the project has been
setting vacant for these three or four years, because they
could not open up because the road commission had
threatened to barricade their driveway had they opened
up without putting a passing lane on the right-of-way.
It is the Plaintiff's position that they are not required
to put in right-of-way improvements such as a passing
lane.
It is also the Plaintiff's position that the Road Com-
mission was making a requirement to move the Van
Cliff drain, which that is under the jurisdiction of the
Drain Commission. And they made that a part of their
permit.
And that was — some of this was admitted in (7) testi-
mony that was taken prior to today before Judge Teranes
in the injunctive hearing. I would like to, just briefly, my
case will be the presenting of Mr. Loyer, the contractor
who was the father of the children in the Loyer Educa-
tional Trust who was hired to do the work.
He was the contractor hired by the trust to put up the
building and do the work. Also, I will have a real estate
person here as my second witness to testify as to the
amount of damages that the Loyer Trust lost as a result
of this building not being opened, as a result of no
permit being issued.
D-4
Your Honor, originally there was an issue in this case
of Loyer not being able to tap into the water because the
water was on the opposite side of Sibley.
Since the change in the administration at the Wayne
County Road Commission that issue has been resolved
in that even though it was part of our complaint origi-
nally, the Wayne County Road Commission under the
new administration allowed Mr. Loyer to tunnel or bore
underneath Sibley Road and tap into the water so he has
fire protection at the building. However this did happen
approximately two, two and a half years after the prob-
lems began.
THE COURT: Are there fire hydrants there?
(8) MR.HOLLAND: Yes, Your Honor.
And we are requesting that this Court make a finding
that the Wayne County Road Commission had no authority
to require the Loyer Educational Trust to put these
improvements in the right-of-way specifically the passing
lane.
Secondly, we are requesting damages in an amount to be
testified to by the real estate man for the fact they have
lost use of this building for the 3-4 years it has been vacant.
Thank you, your Honor.
E-]
RESPONDENTS’ APPENDIX E
EXCERPT FROM PETITIONER'S BRIEF ON APPEAL
TO THE MICHIGAN COURT OF APPEALS
(State of Michigan —- Circuit Court — County of Wayne)
(LOYER EDUCATIONAL TRUST, LARRY MCDONALD,
TRUSTEE, Plaintiff/Appellant, vs. WAYNE COUNTY
ROAD COMMISSION, BROWNSTOWN TOWNSHIP, AND
THE BOARD OF WAYNE COUNTY ROAD COMMIS-
SIONERS, GRACE R. HAMPTON, CLAUDE DUKES, and
HAROLD H. BONDY, individually, jointly and severally,
now County of Wayne, its successor in interest,
Defendants/Appellees — Court of Appeals No. 93959;
APPEAL FROM WAYNE COUNTY CIRCUIT COURT,
No. 83334841CZ)
TABLE OF CONTENTS
[Original |
PAGE NO.
Tobie of Canes ..oo VN a ee eee ii
Table of Seatuates. «inns ces 0553554 te ee eee ii
Table of Articles and Amendments of the United
States and Michigan Constitutions ............ il
Issues:
I THE WAYNE COUNTY ROAD COMMISSION
MAY NOT, AS A PRECONDITION TO
GRANTING A DRIVEWAY PERMIT, COMPEL A
PRIVATE DEVELOPER TO INSTALL OFF-SITE
ROAD IMPROVEMENTS TO A COUNTY
OWNED AND MAINTAINED ROAD. ....... 4
E-2
| Original |
PAGE NO.
II THE ACTION BY THE WAYNE COUNTY
ROAD COMMISSION IN DENYING THE
PERMIT FOR LOYER EDUCATIONAL TRUST
CONSTITUTED A TAKING OF PRIVATE PROP-
ERTY FOR PUBLIC AND/OR PRIVATE PUR-
POSES WITHOUT ADEQUATE COMPEN-
SATRIRG. 4 ciunep take ek een eee eee 13
III THE ACTION BY THE WAYNE COUNTY
ROAD COMMISSION CONSTITUTED DIS-
CRIMINATION AND A DENIAL OF EQUAL
PROTECTION TO LOYER EDUCATIONAL
TRI eo re oc kck cc wes eee 15
Seatemoent of Pacts... occ snk en |
Argument:
lomeee © on cox ces ere ee. Lente 4-12
foeue TE gc dav 4d wt Kak eee ee eee 13-14
fonege TEE ng i knann bk Oe Oe ee ee eee 15-16
COMCTAOIONL oo kk o 6s.0ub ck eee ee ee 17-18
Rolie’... ook ic xadcnanta dt eee 19
TABLE OF CASES
Arrowhead Development Co. v Livingston County
Road Comm’n., 413 Mich 505, 322 NW2d, 702
IDG E) 6 :anskvcuk eeu seen es 4,5, 6, 8, 9, 10, 11, 17, 18
Charter Township of Harrison v Calisi, 121 Mich
App 777, 329 NW2d 488 (1982) ............ 10, 11, 17
Soper v Ridgemoor Country Club, 275 Mich 129
166 NW 615 (IDSGh sens ass otha eee 13
E-3
[Original |
PAGE NO.
TABLE OF STATUTES
General Highway Law, Act 283, 1909 as amended.
Mich. Comp~Laws. Ann. § 224.21; Mich. Stat.
MS AEE heer encan ee 5, 8, 11, 17
Driveways, Banners and Parades, Act 200, 1969,
p. 382, imd. eff. Aug. 6; Mich. Comp. Laws. Ann
§ 247.234; Mich. Stat. Ann. § 9.140(24) .. 7, 11, 17, 18
Subdivision Control Act, Act 288, 1967, p. 589, eff.
Jan. 1, 1968; Mich. Comp. Laws Ann. § 560.183;
Mich. Stat. Ann. § 26.430(183) ..... 5,8,9, 11, 17, 18
Township Rural Zoning Act, Act 184, 1943, p. 264;
eff July 30; Mich. Comp. Laws Ann. § 125.286, et.
seq.; Mich. Stat. Ann. § 5.2963, et. seq. . 10, 11, 17, 18
TABLE OF ARTICLES AND AMENDMENTS OF
UNITED STATES AND MICHIGAN CONSTITUTIONS
Amendment V of the United States Constitution 13, 16
Amendment XIV of the United States Constitution... 16
Article X, Section 2, Michigan Constitution ...... 13
ISSUE II
THE ACTION BY THE WAYNE COUNTY ROAD COMMIS-
SION IN DENYING THE PERMIT FOR LOYER CONSTI-
TUTED A TAKING OF PRIVATE PROPERTY FOR PUBLIC
AND/OR PRIVATE PURPOSES WITHOUT ADEQUATE
COMPENSATION.
The Michigan Constitution Article X, Section 2:
“Eminent Domain; Compensation. Section 2 —
Private Property shall not be taken for public use
E-4
without just compensation therefor being first
made or secured in a manner prescribed by law.
Compensation shall be determined in proceed-
ings in a Court of Record.”
It is clear by the Michigan Constitution, Article X,
Section 2, Title I, Fundamental Law, that private prop-
erty can only be taken for public purpose by paying ade-
quate compensation therefor and the clear implication
in this Section of the Constitution and the holdings in
cases in the State of Michigan indicate that private prop-
erty may not be taken at all for private purposes. This
principle was clearly stated in the case of Soper v
Ridgemoor Country Club, 275 Mich 129, 266 NW 415
(1936).
The principles of constitutionality are also set forth in
the Constitution of the United States. Amendment V of
the Constitution of the United States which states:
“Rights of persons charged with crimes; guar-
antee of life, liberty and property. No person shall
be held to answer for a capital, or otherwise infa-
mous crime, unless on a presentment of indict-
ment of a Grand Jury, except in cases arising in
the land or naval forces or in the malitia, when in
actual service in time of a war or public danger;
nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be
a witness against himself, nor be deprived of life,
liberty, or property, without due process of law;
nor shall private property be taken for public use,
without just compensation.” United States Con-
stitution Amendment V.
E-5
The testimony at the trial in this matter was clear.
The taking of LOYER’s property was the act of denying
him a permit unless he complied with the demand by
the Wayne County Road Commission to put in improve-
ments that they were not authorized to request of him.
Since the Wayne County Road Commission had
authority to grant or deny permits, they used their color
ot authority to deny the opportunity for LOYER to open
the Sibley Plaza. This constituted the taking of the
LOYER property. Additionally, the testimony is replete
with references that allowed a competitor located just
down the street from LOYER to open his business while
not imposing the same requirements on that competitor.
(See portion of Transcript Attachment B)
The damages requested by Loyer Educational Trust at
the Trial were uncontested. LOYER suffered loss of rents
which were established by expert testimony and not
rebutted. Additionally, Loyer presented uncontroverted
testimony of the discriminatory practices of the Wayne
County Road Commission in granting a driveway permit
and sharing the cost of improvements with a competitor
of LOYER in the same vicinity as the Sibley Shopping
Plaza. LOYER asks that this Court summarily dispose of
the issue of damages by awarding its request of damages
in the amount of $872,000.00 plus costs, interest and
attorney fees so wrongfully sustained.
ISSUE III
THE ACTION BY THE WAYNE COUNTY ROAD COMMIS-
SION CONSTITUTED DISCRIMINATION AND A DENIAL
OF EQUAL PROTECTION TO LOYER EDUCATIONAL
TRUST.
It is clear that the Wayne County Road Commission
can require a developer to do certain things to put in his
E-6
driveway. The Driveway Act would lead a reasonable
person to believe that a driveway is a driveway and not a
major highway improvement project. The Act sets forth
those things necessary to make a driveway meet the road
surface, i.e. paving of aprons on the shoulder, design and
location, requirements for hard surface and any neces-
sary culverts under the driveway to connect into the
drainage system are the items to be considered.
The expansive interpretation that the County seeks to
place on Thé Driveway Act is illegal, illogical and
impermissible. The delegation of authority to which the
Wayne County Road Commission aspires by the many
requirements that they have promulgated under The
Driveway Act are impermissible in view of the fact that
they have no clearly defined standard or plan for
financing road improvements and none was set forth by
the legislature.
The discriminatory practice gives rise to the question
of damages. In this case, the Engineer for the Wayne
County Road Commission was asked to define how the
treatment of LOYER differed from the treatment of the
competitor down the street. This questioning is set forth
in Attachment B hereto. Additionally, LOYER’s counsel
asked the question of Mr. Richardson, the County Engi-
neer, at Page 291, Line 24 of the Transcript:
“Q. Do you have some kind of policy or
standard drawn up at the old Wayne
County Road Commission that would
decide who has to pay what and when:
“A. No.
“Q. And pretty much it is left to the staff mem-
bers as they see a situation; is that not
correct?
E-7
“A. In this situation it was a staff deter-
mination.
“Q. Okay. But there are not standards?
“A. No what?
“Q. For payment for allocation of payment are
there?
“A. There is a history of how we do business.
“Q. Okay. Now, do you — where did the money
come to do the portion of the paving that
Mr. Koza did not pay for?
“A. At the Racco (sic Racho) Road intersection?
“Q. Yes.
“A We widened the Racco (sic Racho) Road
intersection with the use of Act 51 funds.
It is clear from this answer that the Wayne County
Road Commission chose to charge the individual devel-
opers an arbitrary and capricious amount. For instance,
LOYER estimated his costs of improvements unlawfully
required by the Wayne County Road Commission at over
ONE HUNDRED THOUSAND ($100,000.00) DOLLARS.
The Road Commission estimated LOYER’s cost at FORTY
THOUSAND ($40,000.00) DOLLARS to FORTY-FIVE
THOUSAND ($45,000.00) DOLLARS. The estimate of
the improvement to the competitor for a passing lane
was SIXTEEN THOUSAND ($16,000.00) DOLLARS with
an actual payment of SIX THOUSAND ($6,000.00) DOL-
LARS. Wayne County Road Commission has no defin-
able standards for applying the proration of costs for any
type of improvement. Therefore, in the application of
any Act they may be endeavoring to come within, the
County Road Commission shows a clear discrimination
E-8
toward LOYER. This type of application of a non-
standard is violative both of the County Road Law and
the Michigan Constitution and the United States Con-
stitution, Amendent V and XIV, in violation of the “due
process clause” and “equal protection clause”.
++ *
F-]
RESPONDENTS’ APPENDIX F
EXCERPT FROM PETITIONER'S BRIEF IN SUPPORT
OF APPLICATION FOR LEAVE TO APPEAL
TO THE MICHIGAN SUPREME COURT
(State of Michigan — Supreme Court)
{(LOYER EDUCATIONAL TRUST, LARRY MCDONALD,
TRUSTEE, Plaintiff/Appellant, vs. WAYNE COUNTY
ROAD COMMISSION, BROWNSTOWN TOWNSHIP, AND
THE BOARD OF WAYNE COUNTY ROAD COMMIS-
SIONERS, GRACE R. HAMPTON, CLAUDE DUKES, and
HAROLD H. BONDY, individually, jointly and severally,
now County of Wayne, its successor in interest,
Defendants/Appellees — Supreme Court No. ___; Court
of Appeals No. 93959; Wayne County Circuit Court
No. 83334841 CZ)
TABLE OF CONTENTS
[Original |
PAGE NO.
I il
LL ii
Table of Articles and Amendments of the United
States and Michigan Constitutions ............ ii
Issues:
I THE WAYNE COUNTY ROAD COMMISSION
MAY NOT, AS A PRECONDITION TO
GRANTING A DRIVEWAY PERMIT, COMPEL A
PRIVATE DEVELOPER TO INSTALL OFF-SITE
ROAD IMPROVEMENTS TO A COUNTY
OWNED AND MAINTAINED ROAD. ....... 5
[Original |
PAGE NO.
II THE ACTION BY THE WAYNE COUNTY
ROAD COMMISSION IN DENYING THE
PERMIT FOR LOYER EDUCATIONAL TRUST
CONSTITUTED A TAKING OF PRIVATE PROP-
ERTY FOR PUBLIC AND/OR PRIVATE PUR-
POSES WITHOUT ADEQUATE COMPEN-
SRT 55s no code ie dee eis bees 14
III THE ACTION BY THE WAYNE COUNTY
ROAD COMMISSION CONSTITUTED DIS-
CRIMINATION AND A DENIAL OF EQUAL
PROTECTION TO LOYER EDUCATIONAL
5. 7 he Ah we irae err e ter gi rena iy
IV THE COURT OF APPEALS CLEARLY ERRED IN
A FACTUAL MISSTATEMENT. 2. 0sc evens
Application for Leave to Appeal ................. l
ens oe ee eek hari eaee ]
Argument:
aE PRA Ob renner at ee ear ee Ree ae 5-10
ERR ee geera iy aah See ta ond am See aa Ea pa FE 11-12
Se ee a ae Re ge ee ee 12
Bee eee en ser a a area eee 14-17
OE Te Oe er oe oat ae ee aa ee ka 17-18
ED ee ray eek een ee ee 19-20
Ce ee re eae nena eae ie 21-23
ee Oe oe aie cae eee oe 24
TABLE OF CASES
Arrowhead Development Co. v Livingston County
Road Comm’n., 413 Mich 505. 322 NW2d, 702
SSPE Sack akeK eens 4,5, 8, 9, 10, 11, 12, 13, 21, 22, 23
F-3
| Original |
PAGE NO
Charter Township of Harrison v Calisi, 121 Mich
App 777, 329 NW2d 488 (1982) ..... 4,22, 21, 22, 23
Soper v Ridgemoor Country Club, 275 Mich 129
PO UD PEN sce hoes cn bee eeu enedes 14
First English Evangelical Lutheran Church of
Glendale v County of Los Angeles, California, 96
LED 2? BAe. ZOO IGT SY ons wien ce scans 15
Nollan v California Coastal Commission, 107 S.
Ct. 3141 (1987) 000... cece cece cece ccc cceeeeees 15
Poirer v Grand Blanc Township, et. al, Lawyers
WOOREIY TD, TTT oo io se kv ode ves ecne es 15
TABLE OF STATUTES
General Highway Law, Act 283, 1909 as amended.
Mich. Comp. Laws. Ann. § 224.21; Mich. Stat.
TR Ee oc tka ene een ae ead es 5, 8, 11, 17
Driveways, Banners and Parades, Act 200, 1969,
p. 382, imd. eff. Aug. 6; Mich. Comp. Laws Ann.
§ 247.234; Mich. Stat. Ann. § 9.140(24) ... 3, 4, 8, 10,
ee 3 Py
Subdivision Control Act, Act 288, 1967, p. 589, eff.
Jan. 1, 1968; Mich. Comp. Laws Ann. § 560.183;
Mich. Stat. Ann. § 26.430(183) ........ 4,5, 9, 10, 22
Township Rural Zoning Act, Act 184, 1943, p. 264;
eff July 30; Mich. Comp. Laws Ann. § 125.286, et.
seq.; Mich. Stat. Ann. § 5.2963, et. seq. ..... ae Se |
12, 22
F-4
{Original |
PAGE NO.
TABLE OF ARTICLES AND AMENDMENTS OF
UNITED STATES AND MICHIGAN CONSTITUTIONS
Amendment V of the United States Constitution . 18
Amendment XIV of the United States Constitution .. 18
Article X, Section 2, Michigan Constitution ...... 18
ISSUE II
THE ACTION BY THE WAYNE COUNTY ROAD COMMIS-
SION IN DENYING THE PERMIT FOR LOYER CONSTI-
TUTED A TAKING OF PRIVATE PROPERTY FOR PUBLIC
AND/OR PRIVATE PURPOSES WITHOUT ADEQUATE
COMPENSATION.
The Michigan Constitution Article X, Section 2:
“Eminent Domain; Compensation. Section 2 —
Private Property shall not be taken for public use
without just compensation therefor being first
made or secured in a manner prescribed by law.
Compensation shall be determined in proceed-
ings in a Court of Record.”
It is clear by the Michigan Constitution, Article X,
Section 2, Title I, Fundamental Law, that private prop-
erty can only be taken for public purpose by paying ade-
quate compensation therefor and the clear implication
in this Section of the Constitution and the holdings in
cases in the State of Michigan indicate that private prop-
erty may not be taken at all for private purposes. This
principle was clearly stated in the case of Soper v
Ridgemoor Country Club, 275 Mich 129, 266 NW 415
(1936).
F-5
The principles of constitutionality are also set forth in
the Constitution of the United States. Amendment V of
the Constitution of the United States which states:
“Rights of persons charged with crimes; guar-
antee of life, liberty and property. No person shall
be held to answer for a capital, or otherwise infa-
mous crime, unless on a presentment of indict-
ment of a Grand Jury, except in cases arising in
the land or naval forces or in the malitia, when in
actual service in time of a war or public danger;
nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be
a witness against himself, nor be deprived of life,
liberty, or property, without due process of law;
nor shall private property be taken for public use,
without just compensation.” United States Con-
stitution Amendment V.
The testimony at the trial in this matter was clear.
The taking of LOYER’s property was the act of denying it
a permit unless he complied with the demand by the
Wayne County Road Commission to put in improve-
ments that the County was not authorized to request of
him. Since the Wayne County Road Commission had
authority to grant or deny permits, they used their color
of authority to deny the opportunity for LOYER to open
the Sibley Plaza. This constituted the taking of the
LOYER property. Additionally, the testimony is replete
with references that allowed a competitor located just
down the street from LOYER to open his business while
not imposing the same requirements on that competitor.
(See portion of Transcript Attachment B)
The damages requested by Loyer Educational Trust at
the Trial were uncontested. LOYER suffered loss of rents
F-6
which were established by expert testimony and not
rebutted. Additionally, Loyer presented uncontroverted
testimony of the discriminatory practices of the Wayne
County Road Commission in granting a driveway permit
and sharing the cost of improvements with a competitor
of LOYER in the same vicinity as the Sibley Shopping
Plaza, without any standard for payment having been
established.
Recently the United States Supreme Court handed
down its decision in a series of cases wherein regulation
by a governmental agency constituted a taking tor which
compensation is required.
These cases are: First English Evangelical Lutheran
Church of Glendale v County of Los Angeles,
California, 96 LE2d 250, 107 S. Ct. 2378 (1987) and
Nollan, v California Coastal Commission, 107 S. Ct.
3141 (1987), and they bolster the argument already set
forth in Plaintiff/Appellant’s Brief regarding the taking of
Plaintiff/Appellant’s property and the necessity of
compensating Plaintiff/Appellant for that taking even
though it may only be a temporary taking.
The Michigan Court of Appeals applied the law in the
case of Poirer v Grand Blanc Township, et al, Lawyers
Weekly No. MA-5779 and determined there was a tempo-
rary taking requiring compensation.
It must be pointed out that these cases dealt primarily
with zoning issues, however the Constitutions of Mich-
igan and The United States apply to all laws, not just
zoning issues where there has been a taking without ade-
quate compensation.
Once the Trial Court and Court of Appeals found that
the action by Wayne County Road Commission was
proper, they summarily dismissed Loyer’s argument that
F-7
the action constituted a taking without adequate
compensation.
The Court of Appeals also summarily dismissed the
“Due Process” argument and “Equal Protection” argu-
ment “finding no disparite treatment.”
The fact of the matter remains that Loyer has been
unable to open its Shopping Center and damages
continue.
ISSUE III
THE ACTION BY THE WAYNE COUNTY ROAD COMMIS-
SION CONSTITUTED DISCRIMINATION AND A DENIAL
OF EQUAL PROTECTION TO LOYER EDUCATIONAL
TRUST.
It is clear that the Wayne County Road Commission
can require a developer to do certain things to put in his
driveway. The Driveway Act would lead a reasonable
person to believe that a driveway is a driveway and not a
major highway improvement project. The Act sets forth
those things necessary to make a driveway meet the road
surface, i.e. paving of aprons on the shoulder, design and
location, requirements for hard surface and any neces-
sary culverts under the driveway to connect into the
drainage system.
The expansive interpretation that the County seeks to
place on The Driveway Act is illegal, illogical and
impermissible. The delegation of authority to which the
Wayne County Road Commission aspires by the many
requirements that they have promulgated under The
Driveway Act are impermissible in view of the fact that
they have no clearly defined standard or plan for
financing road improvements and none was set forth by
the legislature.
F-8
The discriminatory practice gives rise to the question
of damages. In this case, the Engineer for the Wayne
County Road Commission was asked to define how the
treatment of LOYER differed from the treatment of the
competitor down the street. This questioning is set forth
in Attachment B hereto. Additionally, LOYER’s counsel
asked the question of Mr. Richardson, the County Engi-
neer, at Page 291, Line 24 of the Transcript:
“Q. Do you have some kind of policy or
standard drawn up at the old Wayne
County Road Commission that would
decide who has to pay what and when:
“A. No.
“Q. And pretty much it is left to the staff mem-
bers as they see a situation; is that not
correct?
“A. In this situation it was a staff deter-
mination.
“Q. Okay. But there are not standards?
“A. No what?
“Q. For payment for allocation of payment are
there?
“A. There is a history of how we do business.
“Q. Okay. Now, do you — where did the money
come to do the portion of the paving that
Mr. Koza did not pay for?
“A. At the Racco (sic Racho) Road intersection?
“Q. Yes.
“A We widened the Racco (sic Racho) Road
intersection with the use of Act 51 funds.
F-9
It is clear from this answer that the Wayne County
Road Commission chose to charge the individual devel-
opers an arbitrary and capricious amount. For instance,
LOYER estimated his costs of improvements unlawfully
required by the Wayne County Road Commission at over
ONE HUNDRED THOUSAND ($100,000.00) DOLLARS.
The Road Commission estimated LOYER’s cost at FORTY
THOUSAND ($40,000.00) DOLLARS to FORTY-FIVE
THOUSAND ($45,000.00) DOLLARS. The estimate of
the improvement to the competitor for a passing lane
was SIXTEEN THOUSAND ($16,000.00) DOLLARS with
an actual payment of SIX THOUSAND ($6,000.00) DOL-
LARS. Wayne County Road Commission has no defin-
able standards for applying the proration of costs for any
type of improvement. Therefore, in the application of
any Act they may be endeavoring to come within, the
County Road Commission shows a clear discrimination
toward LOYER. This type of application of a non-
standard is violative both of the County Road Law and
the Michigan Constitution and the United States Con-
stitution, Amendent V and XIV, in violation of the “due
process clause” and “equal protection clause”.
+ +
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.