Petition for Writ of Certiorari — Bevan v. Township of Brandon
Supreme Court brief1992
Ask Donna
What actually matters in this document.
Text
@i- 938 Supreme Court, U.S.
% FILED
a
DEC 6 1991
OFFICE OF THE Ciena
No.
In the Supreme Court of the United States
OCTOBER TERM, 1991
WILLIAM BEVAN AND WAVA BEVAN,
PETITIONERS,
V.
TOWNSHIP OF BRANDON, ET AL.,
RESPONDENTS.
PETITION FOR A WRIT OF CERTIORARI FROM
STATE OF MICHIGAN SUPREME COURT
PETITION FOR A WRIT OF CERTIORARI
COLLEEN V. RONAYNE
Counsel of Record For Petitioners
THOMAS J. RYAN, P.C.
2055 Orchard Lake Road
Sylvan Lake, Mich. 48320
(313) 334-9938
BOWNE OF DETROIT
610 W. CONGRESS - DETROIT, MICHIGAN 48226 - (313) 964-1330
If.
IT].
QUESTIONS PRESENTED
WHETHER THE SUPREME COURT OF MICHIGAN
IMPROPERLY INTERPRETED PLAINTIFFS’ TAK-
ING CLAIM UNDER THE FIFTH AND FOUR-
TEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION IN REVERSING THE MICHIGAN
COURT OF APPEALS AND THE TRIAL COURT
BELOW?
WHETHER THE LAND OWNER OF TWO SEPA-
RATE CONTIGUOUS LOTS IS DENIED THE USE OF
ONE OF THOSE, IE., IS ONE TAKEN BY THE OPER-
ATION OF DEFENDANT TOWNSHIP ZONING OR-
DINANCE AND PRIVATE ROAD ORDINANCE BY
RESTRICTING THE USE OF ONLY ONE PARCEL
AS A SINGLE FAMILY RESIDENTIAL SITE?
WHETHER THE MICHIGAN SUPREME COURT IM-
PROPERLY INTERPRETED AND APPLIED THE
BRANDON TOWNSHIP PRIVATE ROAD ORDI-
NANCE TO THE FACTS OF THIS CASE IN LIGHT
OF ESTABLISHED FEDERAL TAKING
JURISPRUDENCE?
ii
PARTIES TO THE PROCEEDINGS BELOW
The following parties were Plaintiffs-Appellees in the Michi-
gan Supreme Court: William Bevan and Wava Bevan, his wife.
Defendants-Appellants in the Michigan Supreme Court
were: Township of Brandon, a municipal corporation, and Town-
ship of Brandon Zoning Board of Appeals.
Two Amicus Curiae Briefs in the Michigan Supreme Court
were allowed to be filed one by John Bauckham and Lynda E.
Thomsen of Bauckham, Sparks, Rolfe & Thomsen, P.C. for the
Michigan Townships Association, and the other by Gerald A.
Fisher of Kohl, Secrest, Wardle, Lynch, Clark and Hampton filed
on behalf of the Michigan Municipal League, City of Auburn
Hills, City of Bloomfield Hills, Township of Bloomfield, City of
Farmington, City of Farmington Hills, Charter Township of
Independence, Charter Township of Oakland and Charter Town-
ship of West Bloomfield.
ili
TABLE OF CONTENTS
oh ey eG | hy)
PARTIES TO THE PROCEEDINGS BELOW .......
soso vnc cc vccesccccscccnce
pe yy |
ee eda ews re udussceshees ae
eas Le bog UN sess e's eA ewalvecees:
CONSTITUTIONAL AND STATUTORY PROVI-
eee ns clin svsise deers sees
ARGUMENT I
WHETHER THE SUPREME COURT OF
MICHIGAN IMPROPERLY INTERPRETED
PLAINTIFFS’ TAKING CLAIM UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS
OF THE UNITED STATES CONSTITUTION
IN REVERSING THE MICHIGAN COURT OF
APPEALS AND THE TRIAL COURT
TP There ces cuhvtbes bh erect creveces
iv
TABLE OF CONTENTS — (Continued)
Page
ARGUMENT II
WHETHER THE LAND OWNER OF TWO
SEPARATE CONTIGUOUS LOTS IS DENIED
THE USE OF ONE OF THOSE, IE., IS ONE
TAKEN BY THE OPERATION OF DEFEN-
DANT TOWNSHIP ZONING ORDINANCE
AND PRIVATE ROAD ORDINANCE BY RE-
STRICTING THE USE OF ONLY ONE PAR-
CEL AS A SINGLE FAMILY RESIDENTIAL
8 ROP rere rr thr Dre eere yn 11
ARGUMENT III
WHETHER THE MICHIGAN SUPREME
COURT IMPROPERLY INTERPRETED AND
APPLIED THE BRANDON TOWNSHIP PRI-
VATE ROAD ORDINANCE TO THE FACTS
OF THIS CASE IN LIGHT OF ESTABLISHED
FEDERAL TAKING JURISPRUDENCE....... 19
CREE» oN rdmedapunee Ceeanes bah shoe 0ea's. 21
APPENDICES:
Opinion of the Michigan Supreme Court in Bevan
v. Brandon Township, Docket No. 86358, decided
| RT Pee ee tt eee la
Opinion of the Michigan Court of Appeals dated
April 17, 1989, Docket No. 103711 .............. 23a
Opinion of the Trial Court before Honorable James
S. Thorburn, Sixth Circuit Court, State of Michi-
gan, Docket No. 86-323355-AA ................. 35a
Judgment of Trial Court by Honorable James S.
Thorburn, Sixth Circuit Court, State of Michigan,
Docket We. G-SZISSS-AA .. ccc cccccecsesecss 38a
Vv
TABLE OF CONTENTS — (Continued)
Page
Stipulation and Order as to Material Facts, Sixth
Circuit Court, State of Michigan, Docket No. 86-
SRR 6s etek wh ee eka Poorer tender 42a
Brandon Township Zoning Ordinance
SUNN SNS Sena tal ers ero, eg es 46a
Private Road Ordinance for Brandon Township
effective February 13, 1977 ...... 0... ccc ccc cece 50a
Trial Court Argument Transcript of August 20,
1987, before the Honorable James S. Thorburn,
Sixth Circuit Court, State of Michigan, Docket No.
SE TPs 6:0 5 0.54 boi vhs Cobdn oer on eewes 6la
vi
TABLE OF AUTHORITIES
CASES: Page
Agins v. Tiburon, 447 US 255, 260, 651, Ed 2d 106, 100
DOs Be te ae oa iS 5 eee oss Caen eee 6, 7, 13, 14
Electro Tech v. Campbell, 433 Mich 57; 429 NW 2d 625
(Orr i eer ee ye 9, 10, 11
First Lutheran Church v. Los Angeles County, 482 US 304,
96 L Ed 2d 250, 107, S Ct 2378 (1987) ......... 10, 13, 16
Hecht v. Niles Twp., 173 Mich App 453; 434 NW 2d 156
(RII ov 0's:0:0 5 0k-kwe ones eds aaa nashabnie et ss 4
Herrington v. County of Sonoma, 857 F 2d 567 (9th Cir
OOTY nnn 43 dense a ceva bale ee ee a eae de 8
Hodel v. Virginia Surface Mining and Reclamation Associ-
ation, Inc., 452 US 264, 295, 69 L Ed 2d 1, 28, 101 S Ct
YL . * PUN EDU b ery cE int Era: Oe Sex Part he ey laren 6
Kaiser Aetna v. United States, 444 US 164, 175, 62, L Ed
yp Bi oF eee OP er ee 13
Keystone Coal Association v. DeBenedictis, 480 US —___,
94 L Ed 2d 472, 488, 107 S Ct 1232 (1987) .. 12, 13, 14, 15
Krompf v. City of Sterling Heights, 391 Mich 139, 163, 215
ORE Oe Ee Ce ok ks ven ca ek ee eis aeeosaekernss 4,19
Lucas v. South Carolina Coastal Commission, cert.filed 9-
13-91, United States Supreme Court Docket No. 91-453 5
MacDonald, Summer & Frates v. County of Yolo, et al.,
477 US 340, 91 L Ed 2d 285, 294, 106 S Ct 2561 (1986) 7
McNeese v. Board of Education for School District 187,
Lahdkia, Illinois, 373 US 668, 671, 833 S Ct 1433, 10
Be Fe Pe eter ern a rn ee 8
Monroe v. Pape, 365 US 167, 183; 81 S Ct 473; 5 L Ed 2d
OED COR $5.9 5ekc eee eee 8
Nollan v. California Coastal Commission, 483 US 825, 97
L Ed 2d 677, 107, S Ct 3141 (1987) .............. 13, 15
Vii
TABLE OF AUTHORITIES — (Continued)
CASES: Page
Patsy v. Florida Board of Regents, 475 US 496, 512, 73 L
Ba 26 B7a, 365, IGE BCE Zest CIGSR) on vs vcccccss 7,8
Penn Central Transportation Co. v. New York City, 438
US 104, 57 L Ed 2d 631, 98 S Ct 2646
Sh weer r ia as mewn hornens sar 13, 14, 17, 19
Poirier v. Grand Blanc Township, 167 Mich App 770; 423
Pe ee Es in ek AR etter eknrn le cwees 10
San Diego Gas and Electric Co. v. San Diego, 450 US 621,
633, 67 L Ed 2d 551, 561, 101 S Ct 1287 (1981) .... 6
Williamson Planning Commission v. Hamilton Bank, 473
US 172, 191, 87 L Ed 2d 126, 141, 105 S Ct 3108
eee ct Cle ie aes Ce kev eda ewea eens 7,9
CONSTITUTIONS:
Michigan Constitution of 1963, Article 10, Section 2 .... 9, 12
United States Constitution, Fifth Amendment ...2, 5, 8, 12, 17
United States Constitution Fourteenth Amendment .... 2, 5, 8
FEDERAL STATUTES:
ee ci hn inh ees head ea eR 2
EE OES PEO P EERE TPE Tree e a ty ae ee DH
STATE STATUTES:
eR a) 8
MCL 560.01, et seg.; MSA 26.430(10), ef seg. ........ 17, 18
STATE COURT RULES:
«ee eee Pe re he PGA are 9
8 gf Beene irr or rrr ree eras ee rae 10
Vili
TABLE OF AUTHORITIES — (Continued)
OTHER AUTHORITY: Page
Brandon Township Private Road Ordinance
I re ee ne 15, 16, 19, 20
Brandon Township Private Road Ordinance,
a BY Ca ed sGoWk bes ces Ove 15, 16, 19, 20
Brandon Township Zoning Ordinance,
eed enue dues 18
Brandon Township Zoning Ordinance,
Te ee ve is cha be ic cbdaducccceks 15
l
In the Supreme Court of the United States
OCTOBER TERM, 199]
No.
WILLIAM BEVAN AND WAVA BEVAN,
PETITIONERS,
Vv.
TOWNSHIP OF BRANDON, ET AL..
RESPONDENTS.
PETITION FOR A WRIT OF CERTIORARI FROM
STATE OF MICHIGAN SUPREME COURT
PETITION FOR A WRIT OF CERTIORARI
William Bevan and Wava Bevan, his wife, respectfully re-
quest that this Court issue a Wnit of Certiorari to review the
Opinion of the State of Michigan Supreme Court in Bevan v.
Brandon Township, Docket No. 86358, decided September 9,
1991.
OPINIONS BELOW
The Opinion of the Michigan Supreme Court in Bevan v.
Brandon Township, Docket No. 86358, decided September 9,
1991, is reprinted in the Appendix (App.) p. la. The Opinion of
Patina ities aia
2
the Michigan Court of Appeals dated April 17, 1989, Docket No.
103711 is reprinted at App. p.28a. The Opinion of the Trial Court
before Honorable James S. Thorburn, Sixth Circuit Court, State
of Michigan, Docket No. 86-323355-AA is reprinted at App.
p.34a. The Judgment of Trial Court by Honorable James S.
Thorburn, Sixth Circuit Court, State of Michigan, Docket No.
86-323355-AA is reprinted at App. p.36a. The Stipulation and
Order as to Material Facts, Sixth Circuit Court, State of Michi-
gan, Docket No. 86-323355-AA is reprinted at App. p.40a. The
Brandon Township Zoning Ordinance Section 5.07 is reprinted at
App. p.44a. The Private Road Ordinance for Brandon Township
effective February 13, 1977, is reprinted at App. p.47a. The Trial
Court Argument Transcript of August 20, 1987, before the
Honorable James S. Thorburn, Sixth Circuit Court, State of
Michigan, Docket No. 86-323355-AA is reprinted at App. p.56a.
JURISDICTION
Petitioners brought this suit in the Sixth Judicial Circuit for
the State of Michigan invoking the Fifth and Fourteenth Amend-
ments to the United States Constitution and 42 USC 1983,
seeking temporary damages for the alleged temporary taking of
one lot of the Petitioners’ real property. The Trial Court and the
Court of Appeals upheld the Petitioners’ Petition and found that
indeed a temporary taking had been accomplished by the Respon-
dent Township. On the Township’s appeal, the Michigan Su-
preme Court on September 9, 1991, reversed the Court of
Appeals and the Trial Court below. The jurisdiction of this Court
is invoked under 28 USC Section 1257.
CONSTITUTIONAL AND
STATUTORY PROVISIONS PROVIDED
This case involves the Fifth Amendment to the Constitution
and the Fourteenth Amendment which provides in part:
...[N]or shall any person ... be deprived of life, liberty or
property, without due process of law; nor shall private prop-
erty be taken for public use without just compensation.
3
It also involves 42 USC 1983, which provides:
“Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any state or territory...
subjects or causes to be subject, any citizen of the United
States or other person within the jurisdiction thereof to the
depravation of any rights, privileges, or immunities secured
by the constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or proper proceed-
ing for redress ...”.
STATEMENT OF THE CASE
A. Nature of the Case
This matter was tried on Stipulated Facts by the Oakland
County Circuit Court. Honorable James S. Thorburn heard and
decided this matter by written Opinion dated August 31, 1987.
On September 23, 1987, the Judgment mirroring the Court’s
Opinion was entered.
The facts are basically simple. Mrs. Bevan purchased the two
(2) vacant parcels in Brandon Township. Both parcels are on
Hummer Lake in Brandon Township and the parcels are contigu-
ous. The parcels were purchased separately from two separate
sellers, one purchased in 1954 with deed taken in 1964 and the
other parcel purchased in 1964 with deed taken in 1970. The
parcels had separate tax identification numbers since before
Plaintiff purchased these parcels, and the parcels have separate
tax identification numbers today. Each parcel meets or exceeds all
area and lot regulations of the Brandon Township Zoning Ordi-
nance, as amended. Each parcel is zoned single family residential
and provides adequate area for a single family house to be
constructed.
Until the adoption of the Brandon Township Zoning Ordi-
nance in May of 1974 and the Brandon Township Private Road
Ordinance in February of 1977, Plaintiffs could construct a single
family residence on each parcel. Access to each parcel has been
Ee eT
4
by a twenty (20) foot easement of record which was contained in
Plaintiff's land contracts and warranty deeds. This easement is in
the shape of an inverted L with the foot of the L running the
width of the two (2) parcels. This easement was used by Plain-
tiffs predecessor in title and Plaintiffs. This easement, prior to
1974, would have provided acceptable access to these two (2)
parcels.
Plaintiffs went to Brandon Township to obtain two (2)
building permits, one for each parcel. Plaintiffs were told that
because of Brandon Township’s Zoning Ordinance and Private
Road Ordinance, Plaintiffs would be required to provide a private
road right-of-way of at least 66 feet in width to be allowed two
(2) building sites. Plaintiffs sought a variance from this regulation
of Brandon Township and Plaintiffs appeared before the Brandon
Township Zoning Board of Appeals on August 28, 1985. At that
hearing the Brandon Township Zoning Board of Appeals denied
Plaintiffs their request for variance and agreed with the Building
Official that only one (1) single family building permit would be
allowed. Plaintiffs sought to sell both parcels to the Department
of Natural Resources for the State of Michigan, and after that
failed, instituted the action below from which Defendants
appealed.
On April 17, 1989, the Court of Appeals citing Krompf v.
City of Sterling Heights, 391 Mich 139, 163; 215 NW 2d 179
(1974), and Hecht v. Nile Twp., 173 Mich App 453; 434 NW 2d
156 (1988) affirmed the Trial Court. The Court of Appeals held
the Township’s Private Road Ordinance, as applied to Plaintiff's
property, precluded its use for any purpose to which it is reasona-
bly adapted.
On February 28, 1990, the Michigan Supreme Court denied
the Application for Leave to Appeal and Defendants-Appeilants
filed a Motion for Reconsideration.
The Supreme Court of Michigan granted the Township’s
reconsideration of its Delayed Application for Leave to Appeai
5
and on September 9, 1991, the Michigan Supreme Court reversed
the Opinion of the Court of Appeals and Trial Court below.
B. Posture of the Case
The September 9, 1991, Opinion of the Michigan Supreme
Court resulted in the highest court in the State of Michigan
rendering a full and final Judgment on the merits of Petitioners’
case. Since the Michigan Supreme Court decided without dissent
against Petitioners herein, Petitioners have decided to file directly
to the United States Supreme Court on this Writ of Certiorari
believing that Opinion of the Michigan Supreme Court fails to
comply with Federal taking jurisprudence through the Fifth and
Fourteenth Amendments of the United States Constitution and
42 USC 1983, which provides:
“Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any state or terri-
tory ... subjects or causes to be subject, any citizen of the
United States or other person within the jurisdiction thereof
to the depravation of any rights, privileges, or immunities
secured by the constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or proper
proceeding for redress. . .”
REASONS FOR GRANTING THE WRIT
It is believed by Petitioners that this case is akin to a recent
matter granted for Certiorari by this Honorable Court, Lucas v.
South Carolina Coastal Commission, cert. filed 9-13-91, US.
Supreme Court Docket No. 91-453. In the case at bar, the
Petitioners have alleged a temporary taking by the action of state
government or political subdivision. The forced joinder of these
two (2) separate parcels by government action provides no public
good, unduly burdens private individuals, interferes with their
reasonable economic expectations and takes valuable property
rights without commensurate temporary compensation. It is sub-
mitted by Petitioners that the action of the Michigan Supreme
Court in reversing the Decision of the Michigan Court of Appeals
6
and the Trial Court below does not comport with established
taking jurisprudence under the Fifth and Fourteenth Amend-
ments of the United States Constitution nor the privileges, rights
and immunities granted Petitioners under 42 USC 1983.
ARGUMENT
I WHETHER THE SUPREME COURT OF MICHIGAN
IMPROPERLY INTERPRETED PLAINTIFFS’ TAK-
ING CLAIM UNDER THE FIFTH AND FOUR-
TEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUTION IN REVERSING THE
MICHIGAN COURT OF APPEALS AND THE TRIAL
COURT BELOW
Federal Law.
The Defendants-Appellees and Amicus Counsel attempted
to portray the Plaintiffs as not having a “ripe” claim or having
failed to exhaust their administrative remedies. A look at the
significant cases of this Honorable Court will show the Plaintiffs
have met each test to succeed with their cause of action. In Agins:
“The landowners had not submitted a plan for development
of their property as the ordinances permit, there is as yet no
concrete controversy regarding the application of the specific
zoning provisions.”
Agins v. Tiburon, 447 US 255, 260, 65 L Ed 2d 106, 111, 100 S
Ct 2138 (1980). In the case at bar, the Plaintiffs applied for two
(2) building permits, one for each lot and were denied. In San
Diego Gas and Electric Co. v. San Diego, 450 US 621, 633 67 L
Ed 2d 551, 561, 101 S Ct 1287 (1981); the State Court could not
factually determine whether a taking had occurred leaving the
issue unresolved for the United States Supreme Court. In the
case at bar, the Trial Court has found a taking.
In Hodel v. Virginia Surface Mining and Reclamation Asso-
ciation, Inc., 452 US 264, 295, 69 L Ed 2d 1, 28, 101 S Ct 2352;
the United States Supreme Court was faced with:
7
“No concrete controversy concerning either application of
the Act to particular surface mining operations or its effect
on specific parcels of land.”
In the case at bar, the ordinances have clearly effected Petition-
ers’ land in specific and identifiable ways.
In Williamson Planning Commission v. Hamilton Bank, 473
US 172, 191, 87 L Ed 2d 126, 141, 105 S Ct 3108 (1985) the
landowner did not seek a variance from an administrative agency.
This Court held taking factors cannot be evaluated:
“.. until the administrative agency has arrived at a final,
definitive position regarding how it will apply the regulations
at issue to the particular land in question.”
In the case at bar, the Plaintiffs sought a variance from the
Township Zoning Board of Appeals and were denied. As a matter
of state law, such denial was a final decision. Plaintiffs then
sought Court review of that denial. The decision maker, the
Township Zoning Board of Appeals, has made its final decision,
the only review available was Circuit Court review.
In MacDonald, Summer & Frates v. County of Yolo, et al.,
477 US 340, 91 L Ed 2d 285, 294, 106 S Ct 2561 (1986), the
Supreme Court found as in Agins, and Williamson, this property
owner had failed to obtain:
“A final decision on the type and intensity of development
legally permitted on the subject property.”
In the case at bar, Plaintiffs have a final decision from the
Township Zoning Board of Appeals and that decision states how
the subject property is to be developed.
The Williamson case establishes the guidelines for finality
requirements and exhaustion of administrative remedies:
“The finality requirement is concerned with whether the
initial decision-maker has arrived at a definitive position on
the issue that inflicts an actual, concrete injury...” 473 US
172, 193, 87 L Ed 2d 126, 143, 105 S Ct 3108 (1985)
8
Williamson and Patsy v. Florida Board of Regents, 457 US
496, 512, 73 L Ed 2d 172, 185, 102 S Ct 2557 (1982) state the
law regarding a 42 USC 1983 claim as not requiring an exhaus-
tion of administrative or judicial procedures. The arguments of
Defendants-Appellees that Plaintiffs must exhaust administrative
procedures (which were done by Plaintiffs) or judicial procedures
(which were also done by Plaintiffs) do not represent the state of
the law for a party utilizing 42 USC 1983.
McNeese v. Board of Education, 373 US 668, 671; 83 S Ct
1433; 10 L Ed 2d 622 (1963) simply reiterated the status of
Federal law regarding 42 USC 1983. The landmark decision in
Monroe v. Pape, 365 US 167, 183; 81 S Ct 473; 5 L Ed 2d 492
(1961) cited by the Court of Appeals should end the inquiry
engaged by Defendants-Appellees as to the use of this Federal
statute. A Federal taking claim requires a final decision which
inflicts concrete harm upon the Plaintiff landowner. A final
decision requires at least (1) a rejected development plan, and
(2) a denial of a variance. Herrington v. County of Sonoma, 857
F 2d 567 (9th Cir. 1988), both occurred in the case at bar.
FINAL DECISION
The statute authorizing a Circuit Court Appeal from a
Zoning Board of Appeals Decision clearly does not mandate such
an appeal MCL 125.293a; MSA _ 5.2963(23a). The only
mandatory language “shall” involves the review of the case by the
appropnate Circuit Court. Defendants-Appellees confuse the re-
quirements for ordinary due process claims from Fifth and Four-
teenth Amendments taking claims. Under the Federal law, as
previously stated, the Plaintiffs-Appellants had received a fina!
decision by the Brandon Township Zoning Board of Appeals. This
comports with the Zoning Board of Appeals’ statute as cited,
being
“The decision of the Board of Appeals rendered pursuant to
Section 23, shall be final.”
This statute does allow an Appeal to the Circuit Court. That issue
is distinct from the challenge to an ordinance’s constitutionality
9
and, as correctly stated by the Court of Appeals, does not require
an Appeal from a Zoning Board of Appeals Decision to challenge
an ordinance.
The Plaintiffs-Appellants in this matter sued not only under
their Federal constitutional rights for a Federal taking, but also
under the Michigan State Constitution of 1963, Article X, Sec-
tion 2, for a State constitutional regulatory taking. This type of
challenge was accepted by the Michigan Supreme Court in
Electro Tech v. Campbell, 433 Mich 57; 429 NW 2d 625 (1989)
as a legitimate inverse condemnation action. As Michigan does
not have an inv rse condemnation statute, as did Tennessee in
Williamson, supra, the Plaintiffs utilized their Circuit Court suit
to challenge the Defendants’ decision and challenge Defendants’
ordinances. Under the mandatory joinder requirements of Michi-
gan Court Rules, MCR 2.203(a)(1), the Plaintiffs, in order to
assist the efficient administration of justice, to bring a full and
binding decision on this matter, sued under the various theories
known to them at the time, some being Federal and some being
State. In the case at bar, the Plaintiffs-Appellants did urge that
under the Michigan Constitution their property had been taken by
regulatory taking, did challenge under the Federal Constitution
the taking, did utilize a Federal statute regarding civil rights
violation, and did challenge the ordinance as not being reasonably
related to public health, safety or welfare, coupled with their
Appeal of the Zoning Board of Appeals’ Decision. Under Electro
Tech, supra, Plaintiffs have met or exceeded the criteria in
Michigan, which are:
“A property owner must first obtain a final decision from the
particular governmental entity that is alleged to have uncon-
Stitutionally taken his property and also attempt to obtain
just compensation through inverse condemnation.”
The fact is that the Trial Court recognized a Federal constitu-
tional taking and a Michigan constitutional taking by the award-
ing of attorney fees as damages for the temporary taking as cited
in the 42 USC 1983 and the Uniform Condemnation Procedure
Act. The Township argues that such procedure is not available for
10
inverse condemnation, but in fact the Trial Court recognized that,
as the Plaintiffs were only seeking temporary damages for the cost
and expense of litigation, such would be obtainable under the
Federal and Michigan Constitution as well. As the Plaintiffs were
allowed by court rule to file a Petition for Delayed Appeal, MCR
7.105(0), the Plaintiffs-Appellants under the compulsory joinder
statute and for the efficient administration of justice brought all
their claims to bear in one lawsuit to avoid possible inconsistent
rulings, duplicity of litigation, and promote the efficient adminis-
tration of justice. The Plaintiffs-Appellants did in fact contest in a
parallel fashion their Federal and State constitutional and statu-
tory rights being violated by the Appellee Township and most
certainly have complied with the requirements of this Honorable
Court and the Michigan Supreme Court relative to the Electro
Tech, supra, test.
The award of attorney fees was appropriate based under First
English Evangelical Lutheran Church of Glendale vs. County of
Los Angeles, 482 US 304; 107 S.Ct. 2378; 96 L. Ed 2d 250
(1987) and Poirier vs. Grand Blanc Township, 167 Mich App
770; 423 NW 2d 351 (1988). As is seen by the Trial Transcript in
the Appellants’ Index, Page 38A, the evidence of damages Plain-
tiffs- Appellants requested for in this case for the temporary taking
were the fees and costs associated with bringing the litigation
after the Zoning Board of Appeals’ Decision. It seems fully
appropriate and consistent with prior Federal and Michigan case
law that this Honorable Court finally rule in a definitive fashion
that temporary damages for regulatory takings are available to
Plaintiffs. The damages for temporary takings can be as numerous
and creative as counsel can articulate. However, in this matter the
value of the land was not requested because the Plaintiffs-
Appellants were asking for an injunction to prohibit the enforce-
ment of the ordinance to allow Plaintiffs to sell their other parcel
as a building site. Thus, the damages requested in this matter
were the costs and attorney fees associated with the action of the
Township which directly related to the denial of the variance and
creating the issue which brought Plaintiffs to seek a remedy
through judicial review.
1]
While it is understandable that the Township was concerned
about the “paying of attorney fees” in all litigation, the facts of
the case at bar reveal that the attorney fees were the only
damages requested and those damages were directly related to
action by the Township of Brandon.
Further, in view of the fact that the Plaintiffs-Appellants had
met the Electro Tech, supra, case tests before bringing a 42 USC
1983 cause, such attorney fees were appropriate under that theory
as well. It is respectfully submitted that the attorney fees continue
through this date and any award by this Honorable Court in favor
of Plaintiffs-Appellants should include not only the costs (includ-
ing attorney fees) associated with the Trial Court, but also all
appellate levels.
ARGUMENT
Ii WHETHER THE LAND OWNER OF TWO SEPA-
RATE CONTIGUOUS LOTS IS DENIED THE USE
OF ONE OF THOSE, JE., IS ONE TAKEN BY THE
OPERATION OF DEFENDANT TOWNSHIP ZON-
ING ORDINANCE AND PRIVATE ROAD ORDI-
NANCE BY RESTRICTING THE USE OF ONLY
ONE PARCEL AS A SINGLE FAMILY RESIDEN-
TIAL SITE.
The action of the Brandon Township Zoning Board of
Appeals and the Township of Brandon requiring Plaintiffs to seek
a variance to its Zoning Ordinance and Private Road Ordinance
and then denying a variance, mean the Plaintiffs may only use
their two (2) parcels for one building site. It has been agreed by
Stipulated Facts that each lot of Plaintiffs’ meets or exceeds all
zoning requirements, except the road frontage ordinance requiring
sixty-six (66) feet for a private road for more than one home.
Brandon Township Zoning Ordinance, Section 5.06 provides:
15.056 Sec. 5.06. ONE LOT, ONE BUILDING.
In Single-Family Residential Districts, only one (1)
principal building shall be placed on a lot of record with
FE
12
the exception of parcels of record which may be so
arranged or subdivided as to provide for one (1) or more
principal buildings when the land area allocated to each
building is equal to or greater than the lot area required
for the district and the building.”
The Plaintiffs may only place one principal building or house
on these two (2) lots because of the Defendants’ denial of a
variance. For years the Plaintiffs paid property taxes on two (2)
separate but contiguous parcels, zoned separately for single family
residential use. After the action by the Township and the Zoning
Board of Appeals, the Plaintiffs were left with two (2) parcels,
but only one building site. The Plaintiffs filed their Complaint in
Circuit Court seeking to set aside the denial of variance, challeng-
ing the ordinances as unconstitutional and seeking a court deter-
mination that the Township had “taken” their property without
just compensation. The Fifth (Sth) Amendment of the United
States Constitution provides:
“No person shall... be deprived of .. . property, without due
process of law; nor shall private property be taken for public
use without just compensation.”
and Article 10, Section 2 of the Michigan Constitution of 1963
provides:
“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 deter-
mined in proceedings in a court of record.”
The Plaintiffs were forced to sue in Circuit court for the “taking”
of their property by Defendant Township. The Circuit Judge and
Court of Appeals agreed with Plaintiffs and awarded them tempo-
rary damages and enjoined the enforcement of the Defendants’
Ordinance requiring a sixty-six (66) foot wide private road to
access Plaintiffs’ two (2) parcels.
In analyzing a “taking” claim, this Honorable Court has
held:
13
“Land use regulation can effect a taking if it ‘does not
substantially advance legitimate state interests or denies an
owner economically viable uses of his land.’ ”” Keystone Coal
Association v. DeBenedictis, 480 US ___, 94 L Ed 2d 472,
488 107 S Ct 1232 (1987). Agins v. Tiburon, 447 US 255,
260, 651 Ed 2d 106, 100 S Ct 2138 (1980).
In Agins:
“The determination that governmental action constitutes a
taking is in essence, a determination that the public at large,
rather than a single owner, must bear the burden of an
exercise of state power in the public interest... necessarily
requires a weighing of private and public interests.” Key-
stone, supra, at 493; Agins, supra, at 106.
The areas of inquiry for judicial examination of governmental
acts to decide a “taking” question are determined:
“By engaging in essentially ad hoc, factual inquiries that
have identified several factors — such as the economic
impact of the regulation, its interference with reasonable
investment backed expectations, and the character of the
government action — that have particular significance.”
Kaiser Aetna v. United States, 444 US 164, 175, 62 L Ed 2d
332, 100 S Ct 383 (1974), Keystone, supra, at 494.
To these inquiries are added the rulings in First Lutheran
Church v. Los Angeles County, 482 US 304, 96 L Ed 2d 250, 107
S Ct 2378 (1987); and Nollan v. California Coastal Commission,
483 US 825, 97 L Ed 2d 677, 107 S Ct 3141 (1987). In First
Lutheran, this Honorable Court held that a regulatory taking
could amount to a “taking” of property in the constitutional sense;
and a temporary regulatory taking would qualify as a “taking”
triggering the demands of the just compensation clause.
A) Denial of economically viable use of property: This first
prong of the Agins test has been violenced by Defendants-
Appellees’ treatment of the issue. The Plaintiffs contend and the
Trial Court and Court of Appeals agreed, these were two (2)
| esereenienemneenntill
14
separate parcels. The Stipulated Facts show the Plaintiffs pur-
chased the two (2) parcels at separate times. Thus, the Plaintiffs
contend the issue of the quantity of this property should be
determined as stipulated — two (2) separate parcels. Penn
Central Transportation Co. v. New York City, 438 US 104, 57 L
Ed 2d 631, 98 S Ct 2646 (1978) is distinguishable because Penn
Central was utilizing one parcel of property where Grand Central
Station was located. That one parcel was being utilized by Penn
Central as zoned. The controversy in Penn Central was not over
use as zoned, but a request for more intensive use by Penn
Central. Penn Central could have submitted a less intensive plan,
or sold its air rights to other parcels. In the case at bar, the
Plaintiffs may not use one complete parcel as zoned or transfer
their land rights to another parcel. The Plaintiffs may not build a
single family home on each parcel as zoned.
In Agins, supra, the area of inquiry also concerned one parcel
of property, five (5) acres, purchased by Plaintiffs. The issue was
amount of density on that one parcel of property. The Plaintiffs in
Agins could still utilize their whole parcel as zoned, the only
question was the number of single family homes to be placed on
the parcel. In neither Penn Central or Agins did the Plaintiffs ever
submit plans or revised plans to determine where the threshold of
a taking would occur. In the case at bar, the facts are quite
simple: two building permits were requested by Plaintiffs for two
lots.
Under Keystone rationale, the Petitioners contend they have
lost the full use of one parcel as zoned. The Plaintiffs lost the use
of one parcel through the Defendants’ ordinances which destroyed
their reasonable investment backed expectations. Had Plaintiffs
desired only one house to be built, they could have purchased only
one lot. Had Plaintiffs wanted to combine the two lots to one
building site, they had ample opportunity to do so. Under Key-
Stone, by looking at the nature of the property involved, the
Plaintiffs have been denied the economically viable use of one
separate parcel of property. Defendants-Appellees attempt to
lump both parcels together does not square with the facts of this
eine
15
case or the law of “taking”. Under Keystone, the land use
regulation took less than 2% of Plaintiff's coal. In the case at bar,
Defendants-Appellees’ regulation takes 100% use of one parcel as
zoned. Under Defendants-Appellees’ theory, Plaintiffs lose 50%
of Plaintiffs’ property. This under Keystone and Nollan still
amounts to a taking. In No/llan, this Honorable Court found the
requirement of a ten (10) foot easement to be a “taking” and
constitutionally impermissible. As successfully argued before the
Trial Court and Court of Appeals, the facts in the case at bar
exceed the “economic viability test” of Keystone and Nollan.
Keystone found no taking where only 2% of the property was
affected; Nollan found a taking where a ten (10) foot easement
was involved.
B) Substantially advanced legitimate state interests: The
Plaintiffs successfully argued before the Trial Court and Court of
Appeals the Township’s Private Road Ordinance was a zoning
ordinance and a police power ordinance. The Private Road
Ordinance is a zoning ordinance because the width of a private
road right-of-way, sixty-six (66) feet, was established in the
Zoning Ordinance; Brandon Township Zoning Ordinance
15.057.5. No where in the Zoning Ordinance is the term “private
road” defined or given any standard other than the sixty-six (66)
foot width. The Private Road Ordinance adopted by Brandon
Township in February, 1977, refers to the Brandon Township
Zoning Ordinance and provides the standards and definitions for
private roads.
Assuming a valid police power purpose for the Private Road
Ordinance, this ordinance fails, as did the Nollan condition,
because the ends advanced are not furthered by the justification
for the prohibition. The Brandon Township Private Road Ordi-
nance provides:
30.024 Sec. 2.4. PRIVATE DRIVEWAY.
Private Driveway shall mean any piece of privately owned
and maintained property which is used for vehicular traffic,
16
but is not open or normally used by the public. (emphasis
added) (ord.no.42. eff.Feb.13,1977)
30.025 Sec. 2.5. PRIVATE ROAD.
Private Road shall mean a privately owned and maintained
road, allowing access to more than one residence or place of
business, which is normally open to the public and upon
which persons other than the owners located thereon may
also travel. The erection of such signs as, “Residents Only”,
or the like shall not be deemed to remove any roadway from
the requirements of this Ordinance where said roadway is
deemed to come within this Ordinance by the Supervisor of
the Brandon Township Building Department or his designee.
(Emphasis added) (ord. no.42 eff. Feb.13,1977)”
A private driveway may be in whatever condition or status a
person wishes to allow. It is when a second residence is added,
that a private driveway becomes a private road. Such classifica-
tion is not reasonably related to the ends it seeks because a private
driveway is a private driveway if not open or normally used by the
public.
A common private driveway for these two houses will con-
tinue to be a driveway for these houses only and will not
automatically become a private roadway because the key “nor-
mally used by the public” is not triggered. If the public does not
use a private driveway for one house; what transfers a common
private driveway for two houses into a road whether it be a public
or private road. If in fact this is a private road “normally open to
the public”:
“It is axiomatic that the Fifth Amendment’s just compensa-
tion provision is designated to bar government from forcing
some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a
whole.” First Lutheran, supra, at 226.
The fact remains the public will not traverse a private
driveway that dead ends into a lake, whether one or two houses be
17
at its end. The Defendant Township’s Ordinance is defective on
its face and as applied and does not relate to the ends it seeks.
This Honorable Court has recognized that
“The Fifth Amendment’s guarantee is designed to bar gov-
ernment from forcing some people alone to bear public
burdens which in all fairness and justice should be borne by
the public as a whole.
“Indeed, we have frequently observed that whether a partic-
ular restriction will be rendered invalid by the government’s
refusal to pay for any losses approximately caused by it
depends largely ‘upon the particular circumstances in that
’ 99
case’.” Citing Penn Central, supra, at 648.
The attempts by the Township to include the Michigan
Subdivision Control Act, MCL 560.01, et seg.; MSA
26.430(101), et seg., was not addressed by the Michigan Court of
Appeals or the Trial Court below. The Subdivision Control Act
does not apply in any event as there are only two parcels which
were created from a lot split by separate predecessors in title, not
five or more. This subdivision by deed is an appropriate and
recognized method of dividing property in the State of Michigan
and the split was acceded to and not objected to, by Brandon
Township for many many years. The fact that two separate tax
identification numbers were established by Brandon Township,
and that those parcels were given separate legal descriptions
coinciding with their separate tax identification numbers, indicate
that this was no mere imaginary “line” drawn between a vacant
acreage parcel, but in fact two separate and distinct parcels of
property.
The property owner in this matter has not sought to join the
parcels as one and in fact has resisted at the Township’s earliest
attempt to combine these parcels into one parcel. Further, as the
total property is only six acres, unless Plaintiffs were to seek
further splits, would the Michigan Subdivision Control Act be
considered. In view of the fact that the Plaintiffs attempted no lot
splits, and in fact that the parcels in question meet and exceed the
18
requisite Zoning Ordinance requirements, and the fact that Plain-
tiffs have treated them as separate parcels throughout the years,
indicate that there are in fact two parcels of property in this
matter. The cases cited by the Township to the Michigan
Supreme Court as to the assemblage of unplatted property only is
applicable where there are substandard lots which predate a
Zoning Ordinance, those lots do not meet the current Zoning
Ordinance requirements. In the case at bar, the two lots in
question meet or exceed the Township Zoning Ordinance require-
ments and plus they predate the adoption of the Zoning Ordi-
nance. In the case at bar, the Zoning Ordinance, as to lot size and
the lots themselves, are in harmony, as opposed to the case cited
by the Township wherein substandard minimally sized lots are
concerned. The Michigan Attorney General Opinion cited by the
Defendant Township further does not apply because the two
parcels in question were not parcels or tracts under the Subdivi-
sion Control Act. Further, the belief of the Defendant Township
that the assemblage requirement of the Michigan Plat Act is
applicable in this matter is erroneous for the reason that had the
Plaintiffs sought any further splits, the number of splits created to
date would be relevant under the Subdivision Control Act, or had
their predecessor in title considered any further splits on contigu-
Ous property, the splits for the Plaintiffs’ parcels in question would
be relevant. As we have neither of those situations in this matter,
the Attorney General’s Opinion is only relevant to show and
illustrate how one counts splits or divisions of land subject to the
Subdivision Control Act.
This litigation resulted from the direct action of the Brandon
Township Zoning Board of Appeals telling Plaintiffs-Appellants
that they could only have one building site instead of the two they
bargained for years before.
Because of the unique factual circumstances in the case at
bar, it will not open the floodgates to litigation as profferred by
Defendant Township. There is no question that the harms done to
the Bevans have been real and are caused directly by the action of
the Brandon Township Zoning Board of Appeals. Should other
19
future Plaintiffs be similarly treated by municipalities in this
State, it is hoped that this Honorable Court would find the relief
and remedies in this matter as awarded by the Trial Court and
Court of Appeals appropriate and sound policy for the State of
Michigan consistent with Federal Taking Jurisprudence.
ARGUMENT
Illi WHETHER THE MICHIGAN SUPREME COURT
IMPROPERLY INTERPRETED AND APPLIED
THE BRANDON TOWNSHIP PRIVATE ROAD
ORDINANCE TO THE FACTS OF THIS CASE IN
LIGHT OF ESTABLISHED FEDERAL TAKING
JURISPRUDENCE
As stated by this Court in Penn Central, supra, 648:
“Indeed we have frequently observed that whether a particu-
lar restriction will be rendered invalid by the government’s
refusal to pay for any losses approximately caused by it,
depends largely upon the particular circumstances in that
case.”
The Michigan Supreme Court now complains that the Court of
Appeals improperly interpreted Krompf vs. City of Sterling
Heights, 391 Mich 139, 163; 215 NW 2d 179 (1974), in failing to
pay proper deference to the validity of the Township’s ordinance.
The Michigan Supreme Court claims that no evidence was
introduced in the Stipulated Facts or at the Trial to show that the
Private Road Ordinance standard of a sixty-six (66) foot right-of-
way for a driveway serving two or more homes was a reasonable
standard.
In response, the Trial Court and Court of Appeals agreed
with Plaintiffs-Appellants’ factual position that this accessway
was nothing more than a driveway serving only two residences at
the end of a dead end driveway abutting a lake. As the Plaintiffs-
Appellants asked for an interpretation, the Trial Court finding
that this easement was 110 more than a private driveway for two
homes and did not become a private road under the very defini-
tions of the Private Road Ordinance of Brandon Township, can
20
hardly be seen as error or a surprise that the Court of Appeals
affirmed the Plaintiffs’ interpretation of the Defendants’ ordi-
nance. The Trial Court was impressed with the fact that it was
satisfied with the proposition that only two residential homes
would be using this driveway. It is the contention of the Plaintiffs
that any standards for building codes relative to driveways can be
met by them in this twenty (20) foot easement. By the very facts
of this case, the Township’s claimed surprise that no standard was
drawn by the Trial Judge is simply not the case. The Trial Judge
and the Court of Appeals did not rule upon facts concerning
three, four or five homes involved on one easement. The Decision
was specifically limited to these facts, that is, two homes on one
accessway easement. The Trial Court found and the Court of
Appeals affirmed that this easement was nothing more than a
private driveway, which could only possibly service two private
homes and not the general public.
It was also argued successfully to the Trial Court that the
alleged public health, safety and welfare difficulties to the Private
Road Ordinance were not the same under the Private Driveway
Ordinance. The Private Driveway Ordinance did not contain
standards, and thus could be impassable at certain times of the
year without concern to the Township because one residence was
involved. On its face, this does not make any sense because the
danger to the public is the same whether one house is involved or
two homes are involved. Thus, the ordinance was given its proper
validity, but because of its effects on the Plaintiffs’ two parcels in
question, was ruled invalid. This must be considered against the
back drop of Plaintiffs prior arguments and Stipulated Facts as to
what the actual effect of Defendant Township's regulation was
upon the Plaintiffs’ two parcels of property. The fact of the matter
is, as the Plaintiffs stated in their Complaint, Count V, as to the
Plaintiffs-Appellees two parcels of property, this Ordinance bore
no reasonable relationship to the public health, safety and general
welfare, and further, that there was a legitimate interpretive
dispute as to whether or not this accessway was a private driveway
serving two homes or a private road under the Township
ordinance.
21
Further, the Township failed to follow its own ordinance in
determining whether or not the drive would be normally used by
members of the public. It has been Plaintiffs’ contention through-
out that this driveway accessing two private homes and ending at
a lake would not become a private road under any circumstance
by the mere addition of the second house. Again, the facts in this
case are very specific, we are very specific, we are not concerned
about a larger parcel of property, we are concerned about an
access easement for only two parcels of contiguous property.
Plaintiffs-Appellants also argued that as this Private Road
Ordinance was a hybrid zoning public health and welfare ordi-
nance, that the prior existing easement should be considered a
prior non-conforming usage, which was not being expanded by the
Plaintiffs-Appellants, as the easement always served the two
properties and the two properties alone. It is the contention of
Plaintiffs-Appellants that the Trial Court and Court of Appeals
had adequate basis in the Stipulated Facts and the arguments of
counsel to be aware of the exact ramifications of the Township’s
Private Road Ordinance upon the Plaintiffs’ two parcels in ques-
tion. When looked in the light of the facts in this case and the
effect of the facts upon the property in question, no reasonable
court could determine any other rulings but the ones decided by
the Trial Court and Court of Appeals below.
CONCLUSION |
For the reasons stated herein, a Writ of Certiorari to the
United States Supreme Court from the Michigan Supreme Court
should be issued and the case set for plenary review.
COLLEEN V. RONAYNE
Counsel of Record for Petitioners
THOMAS J. RYAN, P.C.
2055 Orchard Lake Road
Sylvan Lake, Michigan 48320
(313) 334-9938
December 4, 199]
APPENDICES
la
Opinion of the Michigan Supreme Court
SYLLABUS
Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice Associate Justices
Michael F. Cavanagh Charles L. Levin
James H. Brickley
Patricia J. Boyle
Dorothy Comstock Riley
Robert P. Griffin
Conrad L. Mallett, Jr.
BEVAN v BRANDON TOWNSHIP
Docket No. 86358. Argued March 6, 1991 (Calendar No. 2).
Decided September 9, 1991.
William and Wava Bevan, owners of two adjoining parcels of
property in Brandon Township, accessible only by way of a
narrow easement over a neighbor’s land, brought an action in
the Oakland Circuit Court against the township, challenging
a zoning ordinance restricting the number of houses that may
be built on their property because of the nonconforming
private access road. Relief was sought on stipulated facts
under US Const Ams V and XIV, Const 1963, art 1, § 17
and art 10, § 2, and 42 USC 1983. The court, James S.
Thorburn, J., declared that the ordinance, as applied,
amounted to a temporary taking and enjoined its enforce-
ment. The Court of Appeals, Shepherd, P.J., and Murphy
and T. Gillespie, JJ., affirmed (Docket No. 103711). The
township appeals.
In an opinion by Justice Griffin, joined by Justices Levin,
Brickley, Riley, and Mallett, the Supreme Court held:
The township’s regulation, as applied to the plaintiffs’
property, does not amount to a regulatory taking without just
compensation.
1. Government taking of private property without just
compensation is prohibited by US Const, AM V and Const
2a
Opinion of the Michigan Supreme Court
1963, art 10, § 2. Zoning regulations may amount to a taking
if, as applied, they go too far in impairing a property owner’s
use of land. Generally, however, where a regulation promotes
the health, safety, morals, or general welfare, it has been
upheld even though it may adversely affect recognized prop-
erty interests.
2. The property in question in this case, although com-
prised of two separate contiguous parcels, is to be considered
as a whole for purposes of taking analysis. Its separate tax
numbers and deeds are not controlling in determining
whether enforcement of the ordinance would amount to a
taking.
3. A zoning ordinance is presumed valid, and the burden of
showing that there is no real or substantial relation to public
health, morals, safety, or general welfare is on the challenger.
In this case, the ordinance, on its face, is a legitimate
exercise of the township’s police power, providing for the
safety of its citizens. The plaintiffs offered no competent
evidence to overcome the presumption, to establish a vested
nonconforming use, or to demonstrate a denial of the eco-
nomically viable use of their property.
Chief Justice Cavanagh and Justice Boyle concurred in
the result only.
Reversed.
176 Mich App 452; 440 NW2d 31 (1989) reversed.
3a
Opinion of the Michigan Supreme Court
OPINION
Michigan Supreme Court
Lansing, Michigan 48909
: Associate Justices
Chief Justice Charles L. Levin
Michael F. Cavanagh James H. Brickley
Patricia J. Boyle
Dorothy Comstock Riley
Robert P. Griffin
Conrad L. Mallett, Jr.
Filed September 9, 1991
WILLIAM BEVAN and WAVA BEVAN,
Plaintiff-Appellees,
Vv
TOWNSHIP OF BRANDON, a municipal No. 86358
corporation, and TOWNSHIP OF
BRANDON BOARD OF APPEALS,
Defendants-Appellants,
BEFORE THE ENTIRE BENCH
GRIFFIN, J.
We must decide whether enforcement of a township ordi-
nance which restricts the use of plaintiffs’ land amounts in this
case to an unconstitutional “taking” without just compensation.
Plaintiffs own approximately six acres of undeveloped land which
does not front on a public road. Their predecessor in title had
divided the parcel into two continguous lots, each with its own tax
description, and the lots were sold separately to plaintiffs. The
only access to plaintiffs’ property is an easement 20 feet wide and
290 feet long across a neighbor’s land. Under township land-use
ordinances adopted after plaintiffs acquired title, the land is zoned
for single family homes, and one house may be built on the
property. Plaintiffs are restricted from building two or more
houses on the property unless access is made available over a road
with a right of way width of at least sixty-six feet.
4a
Opinion of the Michigan Supreme Court
Because the access regulation in question serves a legitimate
governmental interest and does not deny the owners economically
viable use of their land, we conclude that enforcement does not
effect an unconstitutional taking of plaintiffs’ property. Accord-
ingly, we reverse the decision of the Court of Appeals.
In the circuit court, the parties waived a trial and submitted
the case for decision upon stipulated facts. A copy of the state-
ment of stipulated facts, which was signed by the parties and
accepted by the circuit judge, is appended to this opinion.
It is undisputed that the easement providing the only access
to plaintiffs’ property does not meet the minimum width require-
ment of the township ordinance applicable to a private road which
serves two or more homes.! After their application for permits to
build two houses on the property was rejected, plaintiffs sought a
variance, or waiver of the requirement; however, it was denied on
August 28, 1985, by the board of zoning appeals. Thereafter, in
December 1986, plaintiffs commenced this lawsuit and com-
plained that, as applied, the township’s zoning scheme, and
particularly the private road ordinance, denied them use of one lot
in violation of the Fifth and Fourteenth Amendments of the
United States Constitution as well as art 1, § 17 and art 10. § 2 of
the Michigan Constitution. Plaintiffs sought relief under 42 USC
' Brandon Township Ordinance No. 42, adopted in 1977, includes the
following definition of a private road:
Ҥ2.5. Private Road. Private Road shall mean a privately owned and
maintained road, allowing access to more than one residence or place of
business, which is normally open to the public and upon which persons other
than the owners located thereon may also travel. The erection of such signs as,
“Residents Only,” or the like shall not be deemed to remove any roadway from
the requirements of this Ordinance... .”
Section 7.1 of the same ordinance requires that the right-of-way for such a
private road “shall be a minimum of sixty-six (66) in width.”
Sa
Opinion of the Michigan Supreme Court
1983, and they asked for a declaratory judgment holding the road
ordinance unconstitutional.
In a brief written opinion, the circuit judge ruled that
application of the road ordinance to plaintiffs’ property “consti-
tutes a regulatory taking and is confiscatory.” After pointing out
that plaintiffs had sought no compensation for a temporary taking,
the court enjoined enforcement of the ordinance and awarded
plaintiffs an attorney fee of $5,300.?
On appeal to the Court of Appeals, the decision of the lower
court was affirmed. 176 Mich App 452; 440 NW2d 31 (1989).
Reasoning that plaintiffs’ property is “unquestionably two sepa-
rate parcels,” and that plaintiffs’ easement “would be wide
enough to accommodate emergency equipment,” the panel con-
cluded that the road ordinance “as applied to [plaintiffs’] prop-
erty precludes its use for any purpose to which it is reasonably
adapted” and “constitutes a regulatory taking of one of plaintiffs’
two parcels.” Jd. at 464-465.
Thereafter, we granted leave to appeal. 436 Mich 881
(1990).
II
Both the Fifth Amendment of the United States Constitu-
tion? and art 10, § 2 of the Michigan Constitution’ prohibit
2 The judge cited 42 USC 1988, which provides that reasonable attorney
fees may be awarded to the prevailing party in a 42 USC 1983 action. The
amount of the fee was in accord with the stipulation of the parties
3 US Const, Am V, provides in part:
“No person shall... be deprived of . . . property, without due process of
law; nor shall private property be taken for public use, without just
compensation.”
The Fifth Amendment is applied to the States through the Fourteenth
Amendment. See, ¢.g., Penn Central Trans Co v New York City, 438 US 104; 98
S Ct 2646; 57 L Ed 2d 631 (1978).
* Mich Const 1963, art 10, & 2 provides in part:
6a
Opinion of the Michigan Supreme Court
governmental taking of private property without just compensa-
tion. In Armstrong v United States, 364 US 40, 49; 80 S Ct 1563;
4 L Ed 2d 1554 (1960), The United States Supreme Court stated
that, the
“Fifth Amendment’s guarantee ... [is] designed to bar Govern-
ment from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as
a whole.”
As this Court has explained, speaking through Chief Justice
Riley in Electro-Tech, Inc v H F Campbell Co, 433 Mich 57, 68;
445 NW2d 61 (1989),
“a taking may occur where a governmental entity exercises its
power of eminent domain through formal condemnation proceed-
ings, see, e.g. Berman v Parker, 348 US 26; 75 S Ct 98; 99 L Ed
27 (1954) (Fifth Amendment taking), or where a governmental
entity exercises its police power through regulation which restricts
the use of property, see Pennsylvania Coal Co v Mahon, 260 US
393, 415; 43 S Ct 158; 67 L Ed 322 (1922) (this claim may be
framed as a Fifth Amendment taking or as a Fourteenth Amend-
ment ‘due process’ type taking).”
Zoning laws are a classic example of regulation that may
amount to a “taking,” if application “goes too far” in impairing a
property owner’s use of his land. Pennsylvania Coal Co, supra at
415. Generally speaking, however, zoning regulation has been
upheld where it promotes the health, safety, morals, or general
welfare even though the regulation may adversely affect
recognized property interests.5 As the United States Supreme
“Private property shall not be taken for public use without just compensa-
tion therefor being first made or secured in a manner prescribed by law.
Compensation shall be determined in proceedings in a court of record.”
5 See, e.g., Agins v Tiburon, 447 US 255; 100 S Ct 2138; 65 L Ed 2d 106
(1980); Penn Central, n 3 supra; Nectow v Cambridge, 277 US 183; 48 S Ct
447, 72 L Ed 842 (1928); Village of Euclid vy Ambler Realty Co, 272 US 365,
395; 47 S Ct 114; 71 L Ed 303 (1926); Gackler v Yankee Springs Twp, 427
Ta
Opinion of the Michigan Supreme Court
Court has explained, “Government hardly could go on if to some
extent values incident to property could not be diminished with-
Out paying for every such change in the general law.” Jd. at 413.
The Supreme Court has declared that “land-use regulation
does not effect a taking if it “ ‘substantially advance[s] legitimate
state interests’ and does not ‘den[y] an owner economically viable
use of his land.’” Nollan v California Coastal Comm, 483 US
825, 834-835; 107 S Ct 3141; 97 L Ed 2d 677 (1987), citing
Agins v Tiburon, 447 US 255; 100 S Ct 2138; 65 L Ed 2d 106
(1980). Although the Supreme Court has provided little guidance
regarding what it considers a legitimate state interest and the type
of connection required between that interest and the regulation,
Nollan, supra at 834, it has made clear that the question whether
a regulation denies the owner economically viable use of his land
requires at least a comparison of the value removed with the value
that remains. Keystone Bituminous Coal Ass'n v DeBenedictis,
480 US 470, 497; 107 S Ct 1232; 94 L Ed 2d 472 (1987).
As previously noted, a taking claim may be framed as a
violation of the Just Compensation Clause of the Fifth Amend-
ment or the Due Process Clause of the :‘ourteenth Amendment.
Alternatively, as Justice Brickley, dissenting, explained in
Electro-Tech, supra at 94, a claim may be based on a denial of
Mich 562; 398 NW2d 393 (1986); Kirk v Tyrone Twp, 398 Mich 429, 433; 247
NW2d 848 (1976); Kropf v Sterling Heights, 391 Mich 139, 158; 215 NW2d
179 (1974).
8a
Opinion of the Michigan Supreme Court
substantive due process where a plaintiff is deprived of property
rights “by irrational or arbitrary governmental action.”®
We note, preliminarily, that this case was not presented and
argued in the courts below as a substantive due process claim;’
the rulings of the courts below focus only on plaintiffs’ claim of a
regulatory taking. In any event, we note the absence of record
evidence to support a contention that enactment or enforcement
of the ordinance in this case was a “deliberate and arbitrary abuse
of power” aimed at these particular plaintiffs. Consequently, our
review focuses on the question whether the lower courts erred in
ruling that application of the challenged ordinance amounted to a
“taking” without just compensation of plaintiffs’ property.§
® Under this approach, it must be shown that a regulation is “clearly
arbitrary and unreasonable, having no substantial relation to the public health,
safety, morals, or general welfare.” Village of Euclid v Ambler Realty Co, n §
supra at 395.
As Justice Brickley explained in Electro-Tech at 94-95,
“In contrast to regulatory taking due process claim, ... [a] substantive due
process claim, ... ‘does not require proof that all use of the property has been
denied. ...’ Rather, ‘the deliberate and arbitrary abuse of government power
violates an individual's right to substantive due process.’ "’ (Citations omitted. )
See also /d. at 76, n 21.
_
7
It is not enough to note that [the petitioners] rely on the Due Process
Clause of the Fourteenth Amendment, for that Clause is the course of three
different kinds of constitutional protection. First, it incorporates specific protec-
tions defined in the Bill of Rights. ... Second, it contains a substantive
component, sometimes referred to as ‘substantive due process,’ which bars
certain arbitrary government actions ‘regardless of the fairness of the procedures
used to implement them.’ ... Third, it is a guarantee of fair procedure,
sometimes referred to as ‘procedural due process’: the State may noi execute,
imprison, or fine a defendant without giving him a fair trial, nor may it take
property without providing appropriate procedural safeguards.” Daniels v Wil-
liams, 474 US 327, 337; 106 S Ct 662; 88 L Ed 2d 662 (1986) (Stevens, J.,
concurring).”
8 We do not overlook that plaintiffs’ § 1983 claim falls short of compliance
with finality (mpeness) requirements laid down in Williamson Co Regional
Planning Comm v Hamilton Bank of Johnson City, 473 US 172; 105 S Ct 3108;
87 L Ed 2d 126 (1985), and applied by this Court in Electro-Tech, supra. In
9a
Opinion of the Michigan Supreme Court
However, before reaching that question, we must consider a
subissue: whether for purposes of a “taking” analysis the property
of plaintiffs is to be viewed as a whole, or as two separate lots.
Noting that the two lots were purchased at different times
and that each lot carried its own tax identification number, the
Court of Appeals viewed the property as “unquestionably two
separate parcels.” 176 Mich App 464. The panel reasoned that
one of the two lots had been “taken,” since plaintiffs were
permitted to build only one house on their land.
As a general rule, a person’s property should be considered as
a whole when deciding whether a regulatory taking has occurred.
| Rathkopf, Zoning and Planning, § 6.07(5), p 6-45.
Since the purposes of a taking analysis it is necessary to
compare the value “taken” with the value that remains, “one of
the critical questions is determining how to define the unit of
property ‘whose value is to furnish the denominator of the
fraction.’”’ Keystone, supra at 497.
addition to requiring that the “initial decisionmaker [arrive] at a definitive
position on the issue that inflicts an actual concrete injury,” 473 US 193, the
Williamson Court declared that
“if a State provides an adequate procedure for seeking just compensation, the
property owner cannot claim a violation of the Just Compensation Clause until it
has used the procedure and been denied just compensation.” Id. at 195
(emphasis added).
In this case, after plaintiffs’ request for a variance was denied by the
township's board of zoning appeals, plaintiffs had taken no action for sixteen
months when they filed this lawsuit. Although plaintiffs have included a state
inverse condemnation claim in this action, obviously, it cannot be said that they
“used the [state] procedure and been denied just compensation.” Accordingly,
consistent with Electro-Tech, plaintiffs’ § 1983 claim was not ripe for adjudica-
tion. Of course, this point is not dispositive since plaintiffs also claim violation of
the state constitution.
10a
Opinion of the Michigan Supreme Court
Specification of the appropriate unit of property under con-
sideration was at the heart of two significant United States
Supreme Court decisions dealing with the issue of regulatory
taking. Keystone, supra; and Penn Central Trans Co v New York
City, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978).
Contrary to the position taken in this case by the Court of
Appeals, the Supreme Court has declined to view an owner’s
property as divisible for purposes of a “taking” analysis. In Penn
Central, owners of the New York City’s Grand Central Terminal
challenged application of the city’s Landmarks Preservation Law
which prevented them from constructing a multistory office build-
ing atop an existing structure. Rejecting the owners’ argument
that the law deprived them of any gainful use of the airspace
above the terminal, and that regardless of the value of the
remainder of the property, the city had “taken” the airspace
thereby requiring just compensation, the Court observed:
“[T]he submission that appellants may-establish a ‘taking’
simply by showing that they have been denied the ability to
exploit a property interest that they heretofore had believed was
available for development is quite simply untenable . . . ‘Taking’
jurisprudence does not divide a single parcel into discrete seg-
ments and attempt to determine whether rights in a particular
segment have been entirely abrogated. In deciding whether a
particular governmental action has effected a taking, this Court
focuses rather both on the character of the action and on the
nature of the interference with mghts in the parcel as a
whole... .” 438 US 130-131.9 (Emphasis supplied. )
% See also Multnomah Co v Howell, 9 QR App 374, 379-380; 496 P2d 235
(1972) (“The reasonableness of a zoning ordinance must be tested by its effect
on the whole of the [landowner’s] contiguous property, not simply a portion
thereof.”’)
Cf. American Savings & Loan Ass'n v Marin Co, 653 F2d 364 (CA 9,
1981), where the court held that contiguity of lots under the same ownership
does not automatically create a single parcel for taking purposes. In that case,
the plaintiff's property was covered by two different zoning designations which
could divide it into discrete segments. The court suggested that the “whole
lla
Opinion of the Michigan Supreme Court
Additional guidance was provided in Keystone Coal Ass'n,
supra, where the Court explained that “‘[w]here an owner
possesses a full “bundle” of property rights, the destruction of one
“strand” of the bundle is not a taking because the aggregate must
be viewed in its entirety.” 480 US 497. Writing for the Court,
Justice Stevens explained:
“Many zoning ordinances place limits on the property
owner’s right to make profitable use of some segments of his
property. A requirement that a building occupy no more than a
specified percentage of the lot on which it is located could be
Characterized as a taking of the vacant area as readily as the
requirement that coal pillars be left in place. ... There is no basis
for treating the less than 2% of petitioners’ coal as a separate
parcel of property.” 480 US 498.
According to the Court, the “taking” analysis does not turn
on the state’s recognition of a separate estate within the owner’s
property, or whether state law allows the separate sale of a
segment of the property. /d. at 500. “It is clear,” wrote Justice
Stevens, “that our takings jurisprudence forecloses reliance on
such legalistic distinctions within a bundle of property rights.” Jd.
This Court has recognized that contiguous lots under the
same ownership are to be considered as a whole for purposes of
judging the reasonableness of zoning ordinances, despite the
owner’s division of the property into separate, identifiable lots. In
Korby v Redford Twp, 348 Mich 193; 82 NW2d 441 (1957), the
owners of numerous contiguous lots sought to enjoin enforcement
of a township zoning ordinance restricting use of the property to
single-family residences. The owners contended, inter alia, that
the ordinance was unreasonable because their lots were platted
twenty feet in width, and as such, were not wide enough for
single-family residences. This Court ruled that division of the
property, “is not a fact or circumstance which affects or detracts
parcel” approach enunciated in Penn Central is limited to cases where all of the
property is subject to the challenged zoning ordinance, as it is here.
12a
Opinion of the Michigan Supreme Court
from the reasonableness of the classification. If it were held to be
so, the result would be that it would be competent for landowners
to perpetually defeat future zoning restrictions by crisscrossing
their lands on a plat map with lines ostensibly dividing the same
into parcels so small that each would be unsuited to any foresee-
able use unless combined with others. The test of reasonableness
may not be distorted or thwarted by any such artificial device.”
348 Mich 198.!° (Emphasis added. )
In the case before us, it is noteworthy that the separate tax
numbers and deeds identifying the parcel as two lots were sought
by the plaintiffs’ predecessor in interest. Whether Michigan law
allows a property owner to divide his land into separate parcels is
not controlling for purposes of a taking analysis. Keystone Coal,
supra. “Artificial device [s],” such as tax identification numbers
and separate deeds — analogous to the plat lines in Korby — are
not controlling in determining whether enforcement of the ordi-
nance in this case would amount to a taking.!!
10 It is also observed that when the government directly condemns a
portion of a parcel of land for public use, the owner often seeks just compensa-
tion on the basis of diminution of value to his remaining land. In this regard,
property owners often assert that their remaining land, even if physically
separated from the portion taken, should be considered as one parcel. While the
owner is not entitled to recover for damage to separate and independent parcels
of land which he may happen to own in the same neighborhood, a parcel of land
is not considered separate and independent merely because it was bought at a
different time and separated by an imaginary line, or even that the parcels are
separated by a highway, street, or alley. 27 Am Jur 2d, Eminent Domain, § 315,
134-135. Nor does the fact that vacant, undeveloped land is “made up of a
number of government subdivisions or sections . . . alone prevent its being
treated as an entirety in the award of damages for a taking of part of it.” /d., §
317, p 139.
‘1 A zoning ordinance which requires the merger of contiguous substan-
dard lots for development purposes may be found unconstitutional if it results in
unlawful spot zoning. See SBS Builders vy Madison Heights, 389 Mich 323; 206
NW2d 437 (1973), where this Court struck down an ordinance necessitating the
merger which applied only to a minute portion of the city, and where it appeared
that the plaintiffs “may well be” the only persons affected by the ordinance.
l3a
Opinion of the Michigan Supreme Court
Accordingly, we decline to apply a taking analysis only to one
of plaintiffs’ lots and thereby “attempt to determine whether
rights in a particular segment have been entirely abrogated.” Penn
Central, supra at 130. Instead, we conclude that plaintiffs’ land,
and the full bundle of property rights associated with it, must be
viewed in its entirety.
IV
We turn now to the question whether enforcement of the
township’s ordinance amounts to an unconstitutional regulatory
taking. As already indicated, that inquiry requires us to consider
whether the challenged ordinance substantially advances a legiti-
mate governmental interest and whether it denies the owners
economically viable use of their land. Nollan, supra, 483 US
825.12
A
While all of the legitimate state interests that may justify
zoning have not been identified, the United States Supreme Court
has indicated “that a broad range of governmental purposes and
regulations satisfies these requirements.” Nollan v California
Coastal Comm, supra, at 834-835.
Meanwhile, the approach of this Court in passing on consti-
tutional challenges to zoning ordinances has been well estab-
lished. First of all, the validity of the ordinance is presumed.
In this case, the property in question consists of two contiguous lots under
the same ownership and subject to a single zoning scheme. No evidence of “spot
zoning” has been produced to show that plaintiffs’ particular property has been,
in effect, singled out and treated differently from all other property to accom-
plish a purpose that is being ignored elsewhere in the township.
12 It is significant that in this case the challenged regulation does not
require the property owner to transfer land to the government without compen-
sation. See Nollan v California Coastal Comm, supra. Rather, the ordinance
regulates the scope of development on property with limited access.
l4a
Opinion of the Michigan Supreme Court
Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179
(1974) .13 As we explained in Austin v Older, 283 Mich 667, 674;
278 NW2d 727 (1938):
“It is elementary that every intendment is in favor of the
constitutionality of an ordinance and plaintiff has the burden of
showing that it has no real or substantial relation to public health,
morals, safety or general welfare. Zoning ordinances are constitu-
tional in principle as a valid exercise of the police power.”
(Emphasis added.)
We elaborated on the plaintiffs burden in Kropf, supra,
where it was stated that a zoning ordinance is presumptively valid
“unless the constitutional objections thereto are supported by
competent evidence or appear on their face.’”’ 391 Mich. 156.
(Emphasis added. )
Brandon Township’s purpose in enacting the private road
ordinance and applying it to plaintiffs’ property is found in the
preamable of that ordinance:
“It is recognized that such standards are necessary because
of the need for road services adequate to provide year around
access by fire, police, and like emergency vehicles. It is further
recognized that if roads are not constructed in accordance with
certain minimum standards, such roads frequently become im-
passable .. . and otherwise pose a threat to the health, safety and
welfare of the residents located along the roadway, as well as
those other residents who would find use of the roadway essen-
tial.”” Ordinance No 42.
In support of the validity of the ordinance, the township
attorney explained the relation between the ordinance and the
governmental purpose.
“Your Honor, the Township in this kind of situation is
between a rock and a hard place.
13 See also Kirk v Tyrone, n 5 supra.
lSa
Opinion of the Michigan Supreme Court
““We’re charged with the maintenance and the welfare of our
citizens. We’ve decided based on our experience with private
roads that we have to be sure the people have passable access to
the property where fire equipment can get in, emergency equip-
ment can get in.
“This is a lake front parcel.. The first time that a piece of
emergency equipment can’t get in there when there’s a child
drowning or there’s a fire, the township will not only be criticized,
they'll probably be sued.
* * *
“But when there’s more than one dwelling involved, public
interest becomes involved. And there’s more than one dwelling
involved in this situation ....”
On its face, the township’s zoning ordinance is a legitimate
exercise of its police power to provide for the safety of its citizens
by requiring that access to residential property be of a width
which allows for the entry and exit of police cars, ambulances and
fire trucks.!14 The township legislatively determined that the
public interest requires a wider access where it must serve, and be
maintained by, two or more residences and is no longer under the
sole control of one landowner.
On the other hand, the Court of Appeals made its own
determination that the existing twenty-foot easement would be
wide enough to accommodate emergency equipment for two
single-family dwellings. Bevan, supra, 176 Mich App 464. In so
concluding, the panel erred. Although Kropf requires it, plaintiffs
provided no “competent evidence” to support such a determina-
tion. Certainly, a mere assertion by plaintiffs that the existing
easement is wide enough to accommodate emergency vehicles
14 The state has given defendant the authority to enact zoning ordinances
pertaining to roadway standards through the township rural zoning act. MCL
125.271; MSA 5.2963(1). See also People v Sell, 310 Mich 305, 315-316; 17
NW2d 193 (1945), for a detailed description of “police power.”
l6a
Opinion of the Michigan Supreme Court
does not, standing alone, overcome the presumption that the
legislatively determined sixty-six foot access width requirement
advances a legitimate governmental interesi.!5
Plaintiffs also complain that the ordinance was applied with-
out consideration of circumstances surrounding the property
before adoption of the ordinance—circumstances under which
plaintiffs had a right to construct two residences on the property.'®
Essentially, plaintiffs claim a vested nonconfcrming use for their
property.
As we explained in Gackler v Yankee Springs Twp, 427
Mich 562, 573-574; 398 NW2d 393 (1986),
“A prior nonconforming use is a vested right to continue the
lawful use of real estate in the manner it was used prior to the
adoption of a zoning ordinance.’ A zoning ordinance cannot
operate to oust the property owner of his vested right even though
the ordinance is reasonable. ‘An ordinance requiring immediate
cessation of a nonconforming use may be held to be unconstitu-
tional because it brings about a deprivation of property rights out
of proportion to the public benefit obtained... .””
In order for a nonconforming use of land to vest, actual
construction on the site must have begun before the zoning
regulation is adopted. Application of a zoning ordinance does not
amount to a taking where the nonconforming use of the property
15 In a related argument, plaintiffs contend that the ordinance is unreason-
able because it defines a private road as one “open to the public” and the use of
plaintiffs’ easement by the public will be minimal. However, we note that the
operative language of the ordinance is whether access is provided to more than
one residence, and the ordinance specifically states that a private road may be
restricted in its use to residents only.
16 These circumstances are distinguishable from those cases where a
preexisting zoning ordinance was challenged by a landowner who purchased
property with knowledge of the restrictions and the Court denied relief. Johnson
v Robinson Twp, 420 Mich 115; 359 NW2d 526 (1984); Kropf, supra. However,
it does not follow that undeveloped land purchased when there was no regulation
will be free thereafter from compliance with all later restrictions on land use.
17a
Opinion of the Michigan Supreme Court
“rests solely within the owner’s contemplation.” Jd. at 578. In
Gackler, we ruled that
“[t]o establish a nonconforming use, ‘there must be work of a
“substantial character” done by way of preparation for an actual
use of the premises.’ The actual use which is nonconforming must
be apparent and manifested by a tangible change in the land, as
opposed to intended or contemplated by the property owner. In
this regard, preliminary operations such as ordering of plans,
surveying the land, and the removal of old buildings are insuffi-
cient to establish a nonconforming use. The test in each case is not
whether a little or a lot has been spent in reliance upon the past
zoning classifications, but, rather, ‘whether there has been any
tangible change in the land itself by excavation and construc-
tion.’ ’’ 427 Mich 574-575 (citations omitted, emphasis added) .!7
The township’s private road ordinance was enacted in 1977,
and plaintiffs did not apply for building permits until 1985, eight
years after the ordinance became effective. A review of the
record, including the statement of stipulated facts, makes clear
that plaintiffs have not borne the burden of showing that work of a
“substantial nature” toward construction of two residences had
taken place prior to adoption of the ordinance. Where building
permits have been applied for, but have not been issued, vested
rights are not acquired, even though significant sums may have
been expended by the applicant. Franchise Realty Interstate Corp
v Detroit, 368 Mich 276; 118 NW2d 258 (1962). Accordingly,
plaintiffs acquired no vested right to develop the property free of
the ordinance.
'7 See also City of Lansing v Dawley, 247 Mich 394; 225 NW 500 (1929):
Sandenburgh v Michigamme Oil Co, 249 Mich 372; 228 NW 707 (1930):
Bloomfield Twp v Beardslee, 349 Mich 296; 84 NW2d 537 (1957): Franchise
Realty Interstate Corp v Detroit, 368 Mich 276; 118 NW2d 258 (1962); Expert
Steel Co v City of Clawson, 368 Mich 619; 118 NW2d 815 (1962); Detroit
Edison Co v City of Wixom, 382 Mich 673; 172 NW2d 382 (1969); Dingeman
Advertising, inc v Algoma Twp, 393 Mich 89; 223 NW2d 689 (1974): Schubiner
v West Bloomfield Twp, 133 Mich App 490; 351 NW2d 214 (1984).
18a
Opinion of the Michigan Supreme Court
B
Whether a zoning ordinance deprives an owner of economi-
cally viable use of his property requires consideration of such
factors as the economic effect of the regulation and the extent of
its interference with reasonable investment-backed expectations.
Keystone, supra at 495.
The United States Supreme Court has ruled that a mere
diminution in property value which results from regulation does
not amount to a taking, Penn Central, supra, 438 US 131, and
that a property owner must prove that the value of his land has
been destroyed by the regulation or that he is precluded from
using the land as zoned.!®
This Court has stated:
“{A]n aggrieved property owner must show that if the
ordinance is enforced the consequent restrictions on his property
preclude its use for any purposes to which it is reasonably
adapted.” Kropf, supra, 391 Mich 162-163.!%
In the past, this Court has utilized two factors in determining
whether zoning regulation effects a taking. The owner must show
that the property is either unsuitable for use as zoned or unmar-
ketable as zoned. Kirk v Tyrone Twp, 398 Mich 429, 444; 247
NW2d 848 (1976).2° In Kirk, an owner whose land was zoned for
single family dwellings sought, and was denied, rezoning to a
classification that would permit development of a mobile home
park. He complained of unconstitutional confiscation, asserting
that the higher cost of developing his land for on-site homes
‘8 A comparison of values before and after a regulation becomes effective is
relevant in determining whether the regulation !s so onerous as to constitute a
“taking,” but is by no means conclusive. Goldblatt v Hempstead, 369 US 590, 82
S Ct 987; 8 L Ed 2d 130 (1962). See also Keystone, supra, 480 US 497
'® See also Gackler vy Yankee Springs Twp, supra.
20 Spanich v Livonia, 355 Mich 252; 94 NW2d 62 (1959); Brae Burn, Inc v
Bloomfield Hills, 350 Mich 425; 86 NW2d 166 (1957).
19a
Opinion of the Michigan Supreme Court
precluded its use as zoned. The Kirk Court noted a lack of
evidence that the land could not be developed with on-site homes
or that no market for single-family residences existed. Finding
that the zoning ordinance as applied did not effect a taking, this
Court explained:
“Although there is no doubt the subject land’s value as a
mobile home park exceeded its value as residential property, it
still was worth a great deal as zoned. A showing of confiscation
will not be justified by showing a disparity in value between uses.”
id. (Citations omitted.)
In the present case, plaintiffs’ property is zoned for single-
family dwellings, but the ordinance under challenge limits the
number of homes that may be built unless there is an access
right-of-way that is sixty-six feet wide. It is significant for pur-
poses of a taking analysis that plaintiffs are allowed, under the
ordinance, to build one home on their property. Accordingly,
plaintiffs have not demonstrated that the ordinance renders their
property unsuitable for use as zoned. The ordinance therefore
does not preclude plaintiffs’ use of the property “for any purposes
to which it is reasonably adapted.” Kropf, supra, 391 Mich 163.
Nor has it been shown that plaintiffs’ property would be
unmarketable if it were developed with a single residence in
accordance with the ordinance. Although the Court of Appeals
concluded that “plaintiffs’ attempts to sell the property have been
unsuccessful,” 176 Mich App 464, the record reflects only that
one attempt to sell to the Department of Natural Resources was
unsuccessful. No evidence was provided, and no factual findings
were made, concerning the extent of the effort or methods used in
attempting to sell the property. The record does not reflect the
price at which the property was offered, or the value of compara-
ble lands, or any other evidence that would justify a conclusion
that the property as zoned is unmarketable. Although there may
be a disparity between the value of the land with a single home as
compared to two homes, there is no record evidence of the extent
20a
Opinion of the Michigan Supreme Court
of that disparity. As we have said, “A showing of confiscation will
not be justified by showing a disparity in value between uses.”
Kirk, supra at 444; Brae Burn, Inc v Bloomfield Hills, 350 Mich
425, 433; 86 NW2d 166 (1957).
| V
Quite simply, in this case plaintiffs have not borne the
burden of proof in any respect with regard to their allegations that
a regulatory taking has occurred. The presumption of validity
attached to defendant’s ordinance remains undisturbed and there
has been no demonstration that plaintiffs have been denied the
economically viable use of their property. See Nollan, supra.
Accordingly, we hold that the township’s regulation, as
applied to plaintiffs’ property does not amount to a regulatory
taking without just compensation, and the decision of the Court of
Appeals is reversed.
/s/ Michael F. Cavanagh /s/ Robert P. Griffin
/s/ Patricia J. Boyle /s/ Conrad L. Mallett, Jr.
/s/ Dorothy Comstock Riley
/s/ Charles L. Levin
/s/ James H. Brickley
2la
Opinion of the Michigan Supreme Court
Appendix
Statement of Stipulated Facts
“Plaintiffs purchased this lakefront property in two parcels
by separate land contracts on September 20, 1954, and June 11,
1964 and took title in 1964 and 1970. Thereafter, Wave Bevan,
formerly Wava Warner, transferred title to herself and William
Bevan, her husband.
“Deeds creating the above transfers reserve an easement 20
feet wide from the nearest public highway to the parcel, and such
deeds predate the Zoning Ordinance and Private Road Ordi-
nance, hereafter discussed.
“The property does not have frontage on any public roadway.
The only access is the easement.
“In 1974, Brandon Township adopted its Zoning Ordi-
nance. .. . Other than those street frontage requirements, the
parcel, as divided, meets the Zoning Ordinance requirements for
two (2) buildable sites.
“In 1977, Brandon Township adopted a Private Road Ordi-
nance. That ordinance is Brandon Township Ordinance No.
eee
“At the time that Wava Bevan purchased the parcel, her
predecessor in interest had already divided the parcel, which
parcel is approximately six (6) acres, into two (2) tax
descriptions.
“The easement that exists for the purpose of serving the
parcel does not meet the minimum private road requirement as
set forth in Article VII, Section 7.1 of the Brandon Township
Private Road Ordinance. .. . The Bevans, seeking to obtain two
(2) building permits on their parcel, one (1) for each of the tax
descriptions, applied to the Township Board of Zoning Appeals
for a variance with regard to the road width (from the required
66’ to 20’, the amount they owned) so as to permit them to build
22a
Opinion of the Michigan Supreme Court
a private road on the parcel, which private road would then entitle
them to two (2) building permits. Section 2.5 of the Brandon
Township Private Road Ordinance requires a private road when
the roadway is going to service more than one (1) residence. The
variance would not be necessary if the Bevan’s [sic] sought to
build only one house because the Bevans would be entitled to one
permit, and could obtain that at any time.
“The Brandon Township Zoning Board of Appeals denied
the request for a variance with regard to the width requirement.
As a result of that denial this Complaint was filed. The first two
(2) Counts of the Complaint deal with the appeal, and a request
for delayed appeal from the action of the Zoning Board of
Appeals. The next three Counts of the Complaint deal with
‘Violation of Constitutional Rights,’ ‘Civil Rights Act’ and ‘De-
claratory Judgment: Township of Brandon’s Private Road Ordi-
nance as Unconstitutional.’
“Since the Board of Appeals action, the Bevans have tried
unsuccessfully to sell the property to the ~~ of Natural
Resources.
“The access easement is unimproved and there has been no
construction on the building sites. (See Minutes of Board of
Appeals, attached to Plaintiffs Complaint and accepted by
Defendant. )
“Bevans’ out of pocket damages to date are Five Thousand
One Hundred Twenty Five ($5,125,000) Dollars attorney fees,
costs of One Hundred Seventy ($170.00) Dollars for expert
witness fees, Fifty ($50.00) Dollars court costs, and Sixteen
($16.00) Dollars subpoena fees for a total of Five Thousand
Three Hundred Sixty One ($5,361.00) Dollars.” (Emphasis in
original. )
23a
Opinion of Court of Appeals
STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM BEVAN and WAVA BEVAN,
Plaintiffs-Appellees,
Vv .
April 17, 1989
TOWNSHIP OF BRANDON, a municipal No. 103711
corporation, and TOWNSHIP OF
BRANDON BOARD OF APPEALS,
Defendants-Appellants,
Before: Shepherd, P.J., and Murphy and T. Gillespie,* JJ.
MURPHY, J.
Defendants appeal as of right from a circuit court judgment
in plaintiffs’ favor permanently enjoining defendants from apply-
ing the township’s private road ordinance relative to plaintiffs’
property and awarding plaintiffs $5,300 in attorney fees. We
affirm.
The lower court decided this matter on the following stipu-
lated facts:
“Plaintiffs purchased this lakefront property in two
parcels by separate land contracts on September 20, 1954,
and June 11, 1964 and took title in 1964 and 1970. Thereaf-
ter, Wava Bevan, formerly Wava Warmer, transferred title to
herself and William Bevan, her husband.
“Deeds creating the above transfers reserve an easement
20 feet wide from the nearest public highway to the parcel,
and such deeds predate the Zoning Ordinance and Private
Road Ordinance, hereafter discussed.
* Circuit judge, sitting on the Court of Appeals by assignment.
24a
Opinion of Court of Appeals
“The property does not have frontage on any public
roadway. The only access is the easement.
“In 1974, Brandon Township adopted its Zoning Ordi-
nance. A copy of the relevant section of that ordinance
(Section 5.07 Required Street Frontage) is attached hereto
and incorporated herein. Other than those street frontage
requirements, the parcel, as divided, meets the Zoning Ordi-
nance requirements for two (2) buildable sites.
“In 1977, Brandon Township adopted a Private Road
Ordinance. That ordinance is Brandon Township Ordinance
No. 42, a copy of that ordinance is attached hereto and
incorporated herein.
“At the time that Wava Bevan purchased the parcel,
her predecessor in interest had already divided the parcel,
which parcel is approximately six (6) acres, into two (2) tax
descriptions.
“The easement that exists for the purpose of serving the
parcel does not meet the minimum private road requirement
as set forth in Article VII, Section 7.1 of the Brandon
Township Private Road Ordinance. (See attached) The
Bevans, seeking to obtain two (2) building permits on their
parcel, one (1) for each of the tax descriptions, applied to
the Township Board of Zoning Appeals for a variance with
regard to the road width (from the required 66’ to 20’, the
amount they owned) so as to permit them to build a private
road on the parcel, which private road would then entitle
them to two (2) building permits. Section 2.5 of the Brandon
Township Private Road Ordinance requires a private road
when the roadway is going to service more than one (1)
residence. The variance would not be necessary if the
Bevan’s sought to build only one house because the Bevans
would be entitled to one permit, and could obtain that at any
time.
25a
Opinion of Court of Appeals
“The Brandon Township Zoning Board of Appeals de-
nied the request for a variance with regard to the width
requirement. As a result of that denial this Complaint was
filed. The first two (2) Counts of the Complaint deal with
the appeal, and a request for delayed appeal from the action
of the Zoning Board of Appeals. The next three Counts of
the Complaint deal with ‘Violation of Constitutional Rights’,
‘Civil Rights Act’ and ‘Declaratory Judgment: Township of
Brandon’s Private Road Ordinance as Unconstitutional’.
“Since the Board of Appeals action, the Bevans have
tried unsuccessfully to sell the property to the Department of
Natural Resources.
“The access easement is unimproved and there has been
no construction on the building sites. (See Minutes of Board
of Appeals, attached to Plaintiffs Complaint and accepted
by Defendant.)
““Bevans’ out of pocket damages to date are Five Thou-
sand One Hundred Twenty Five ($5,125.00) Dollars attor-
ney fees, costs of One Hundred Seventy ($170.00) Dollars
for expert witness fees, Fifty ($50.00) Dollars court costs,
and Sixteen ($16.00) Dollars subpoend fees for a total of
Five Thousand Three Hundred Sixty One ($5,361.00)
Dollars.”
After brief oral argument by counsel, the court took the
matter under advisement and thereafter issued an opinion which
concluded that the enactment and enforcement of the ordinance
relative to plaintiffs’ property constituted a temporary, regulatory
taking of property without compensation, and that it was confisca-
tory. The court also noted the plaintiffs were not seeking any
compensation for the temporary taking of their property. How-
ever, the parties stipulated to reasonable attorney fees, if awarded,
as being $5,300. The court then awarded plaintiffs their attorney
fees as a proper incident to a 42 USC 1983 claim and under
26a
Opinion of Court of Appeals
Michigan’s Uniform Condemnation Procedures Act, MCL
213.66(2); MSA 8.265(16) (2).
Defendants’ first contend that the trial court erred in granting
relief under a federal statute when plaintiffs failed to exhaust all
of their state remedies. We disagree.
The township zoning board of appeals rendered its decision
on August 28, 1985, denying plaintiffs’ request for variance. A
decision by a board of appeals is final MCL 125.293a; MSA
5.2963 (23a). Moreover, that statute provides that a person having
an interest affected by the zoning ordinance may appeal ‘9 the
circuit court. Jd. Therefore, while plaintiffs’ could have immedi-
ately appealed to the circuit court, they were not required to do so
as a condition to filing their several count complaint. We also note
that plaintiffs never had to seek a variance in order to challenge
the zoning ordinance. Plaintiffs’ taking challenge is separate and
distinct from seeking a variance. A variance is simply an authori-
zation to a property owner to depart from the literal requirement
of zoning regulations in utilization of his property in cases in
which strict enforcement of the zoning regulations would cause
undue hardship. See, e.g., National Boatland, Inc v Farmington
Hills Zoning Bd of Appeals, 146 Mich App 380; 380 NW2d 472
(1985).
Defendants also argue that plaintiffs should not be allowed to
maintain a federal claim under 42 USC 1983 when they have
available remedy in a state court. However, a § 1983 claim may
be brought in a state court. See Maine v Thiboutot, 448 US 10-
11; 100 S Ct 2502; 65 L Ed 2d 555, 563 (1980). In addition, in
McNeese v Bd of Education for School District 187, Cahokia,
Illinois, 373 US 668; 83 S Ct 1433; 10 L Ed 2d 622 (1963), the
United States Supreme Court found that a person need not first
seek a remedy under state law before bringing a claim under
§ 1983. The Court, quoting Monroe v Pape, 365 US 167, 183; 81
S Ct 473; 5 L Ed 2d 492, 503, stated:
27a
Opinion of Court of Appeals
“It is no answer that the State has a law which if
enforced would give relief. The federal remedy is supplemen-
tary to the state remedy, and the latter need not be first
sought and refused before the federal! one is invoked.”
In this case, plaintiffs brought a claim for inverse condemna-
tion under both the US Const, Am V and XIV and Const 1963,
art 1, sec 17 and art 10, sec 2, as a basis of their § 1983 claim.
They were not precluded from bringing a claim under 42 USC
1983 though they did not first exhaust all possible state remedies.
Defendants next contend that plaintiffs’ property was not
“taken” by the regulation because they were not deprived of all
reasonable use of the property considered as a whole. Defendant’s
contend that plaintiffs can still build one residence on their
property. We note that resolution of this issue requires a more
indepth analysis than the previous issues.
US Const, Am V, provides that private property shall not be
taken for public use without just compensation. Const 1963, art
10, sec 2, provides:
“Private property shall not be taken for public use
without just compensation therefor being first made or se-
cured in a manner prescribed by law. Compensation shall be
determined in proceedings in a court of record.”
| It is an established doctrine that, while property can be
regulated to some extent, if a regulation goes too far it will be
recognized as a taking. First English Evangelical Lutheran
Church of Glendale v County of Los Angeles, California, 482 US
; 107 S Ct 2378, 96 L Ed 2d 250, 264-265 (1987). Moreover,
where the government elects to discontinue regulations, compen-
sation for the “temporary” taking is payable. Jd, 96 L Ed 2d 266,
268. Michigan also recognizes that the application of zoning law
to a particular property can constitute a taking. Poirier v Grand
Blanc Twp, 167 Mich App 770, 773; 423 NW2d 351 (1988). In
addition, our Supreme Court in Smith v Village of Wood Creek
28a
Opinion of Court of Appeals
Farms, 371 Mich 127, 136; 123 NW2d 210 (1963), reiterated the
proposition that a zoning ordinance that renders property almost
worthless is unreasonable and confiscatory, and therefore illegal.
The United States Supreme Court has stated that the
application of a zoning ordinance to a particular property is a
taking if it does not substantially advance a legitimate state
interest and if it denies the owner economically viable use of his
land. Nollan v California Coastal Comm, 483 US __; 107SCt
3141; 97 L Ed 2d 677, 687 (1987); Agins v City of Tiburon, 447
US 250, 260; 100 S Ct 2138; 65 L Ed 2d 106, 112 (1980).
This Court in Bierman v Twp of Taymouth, 147 Mich App
449, 504; 383 NW2d 235 (1985), lv den 425 Mich 869 (1986), in
citing to the leading case authority in Michigan relative to
constitutional challenges of a zoning ordinance stated the
following:
“Our review of zoning cases, although de novo, is
conducted with the following guidelines in mind:
“This Court, however, is inclined to give considerable
weight to the findings of the trial judge in equity cases. This
is primarily because the trial judge is in a better position to
test the credibility of the witnesses by observing them in
court and hearing them testify than is an appellate court
which has no such opportunity. We do not ordinarily disturb
the findings of the trial judge in an equity case, unless, after
examination of the entire record, we reach the conclusion we
would have arrived at a different result had we been in the
position of the trial judge.’ Kropf v City of Sterling Heights,
391 Mich 139, 163; 215 NW2d 179 (1974), quoting -Chris-
tine Building Co v City of Troy, 367 Mich 508, 518; 116
NW2d 816 (1962).
“The appropriate standard for determining the constitu-
tional validity of a zoning ordinance set forth in Kropf,
EE
29a
Opinion of Court of Appeals
supra, was Outlined concisely in Kirk v Tyrone Twp, 398
Mich 429, 439-440; 247 NW2d 848 (1976), as follows:
“*The principles and tests to use to determine whether
the present zoning of plaintiffs’ property is valid was detailed
in Kropf.
““*The important principles require that for an ordinance
to be successfully challenged plaintiffs prove:
ee 6 66
[FJirst, that there is no reasonable governmental
interest being advanced by the present zoning classification
itself * * * or
“* “TS Jecondly, that an ordinance may be unreasonable
because of the purely arbitrary, capricious and unfounded
exclusion of other types of legitimate land use from the area
in question.” 391 Mich 139, 158.
‘The four rules for applying these principles were also
outlined in Kropf. They are:
ti “we
.
[T]he ordinance comes to us clothed with every
presumption of validity.’”’ 391 Mich 139, 162, quoting from
Brae Burn, Inc v Bloomfield Hills, 350 Mich 425; 86 NW2d
166 (1957).
*“*2. ““[{I]t is the burden of the party attacking to prove
affirmatively that the ordinance is an arbitrary and unreason-
able restriction upon the owner’s use of his property * * * It
must appear that the clause attacked is an arbitrary fiat, a
whimsical ipse dixit, and that there is no room for a legiti-
mate difference of opinion concerning its reasonableness.’ ”
391 Mich 139, 162, quoting Brae Burn, Inc.
***3. ““‘Michigan has adopted the view that to sustain
an attack on a zoning ordinance, an aggrieved property
owner must show that if the ordinance is enforced the
consequent restrictions on his property preclude its use for
30a
Opinion of Court of Appeals
any purposes to which it is reasonably adapted.’ ’’ 391 Mich
139, 162-163.
“4. “*This Court, however, is inclined to give consid-
erable weight to findings of the trial judge in equity cases.’ ”
391 Mich 139, 163, quoting Christine Building Co v City of
Troy, 367 Mich 508, 518; 116 NW2d 816 (1962).’” (Em-
phasis Added.)
For the purposes of analyzing this inverse condemnation or
confiscation case, we note that Kropf rules one, three and four
above are of particular importance.! Recently, another panel of
this Court in Hecht v Niles Township, 173 Mich App 453; 434
NW2d 156 (1988), interpreted the landmark Kropf case and
clarified that a substantive due process challenge to a zoning
ordinance requires a separate and distinct analysis from a confis-
cation challenge to a zoning ordinance. /d., p 458. This Court in
Hecht explained that:
“Many tnal courts and, indeed we believe, some panels
of this Court, have unfortunately misinterpreted these rules
and thus have mistakenly intertwined the standards applica-
ble to the different theories of relief, with the result that they
have held that a property owner must prove confiscation to
succeed in any challenge to a zoning ordinance. We believe
that a careful reading of Kropf, in particular the context from
which these rules were extrapolated, reveals what we per-
ceive as the proper application of the four rules:
“(1) That ‘Rule No. 1’ applies to all ordinances, re-
gardless of the theory under which a property owner makes a
challenge as to its consititutionality;
(2) That ‘Rule No. 2’ applies to a challenge to a
zoning ordinance which has as its basis the reasonable
relationship of land use regulation under the police power of
a government unit to public health, safety, morals, or general
welfare;
3la
Opinion of Court of Appeals
(3) That ‘Rule No. 3’ applies to a challenge to a
zoning ordinance which has as its basis a claim of
confiscation or wrongful taking under the Fifth or Fourteenth
Amendments;
“(4) That ‘Rule No. 4’ applies to an appellate court’s
review of a trial court’s findings regardless of the theory or
theories advanced.
** *
“Kropf continues to make apparent the fact that a
distinct analysis must be used where a claim is made that the
zoning ordinance results in confiscation of the plaintiff's land
without just compensation. After analyzing the plaintiffs’
substantive due process claim, the Court then separately
addressed the confiscation argument advanced by the
plaintiffs:
“*Turning now to the issue upon which plaintiffs
presented almost the totality of their proofs, we consider
whether, in this situation, plaintiffs’ property has been so
restricted as to amount to a confiscation of their property.
Michigan has adopted the view that to sustain an attack on a
zoning ordinance, an aggrieved property owner must show
that if the ordinance is enforced the consequent restrictions
on his property preclude its use for any purposes to which it
is reasonably adapted.’ Kropf, at 162-163 (citing Brae Burn,
Inc., at 434-435).
“It is from this statement that ‘Rule No. 3’ has been
taken.
“The view expressed in ‘Rule No. 3’ is originally found
in the landmark New York case of Arverne Bay Construction
Co v Thatcher, 278 NY 222; 15 NE2d 587 (1938), and was
discussed in the context of the plaintiffs assertion that a
New York City zoning ordinance constituted a confiscatory
taking of his property without just compensation. Further-
32a
Opinion of Court of Appeals
more, Brae Burn, Inc, supra, references the Arverne Bay case
in the context of its discussion of the confiscation argument
advanced by its plaintiff. See also 1 Anderson, American
Law of Zoning (3d ed), 3.27, p 169-170.
“We believe that the Kirk Court clearly understood and
properly applied this rule to situations where a plaintiff was
challenging the confiscatory nature of a zoning ordinance.
Kirk returned to the root of the rule as found in Kropf and
stated:
“In Kropf we required the property owner claiming
confiscation to prove that application of the existing ordi-
nance to his property would ‘‘preclude its use for any purpose
to which it is reasonable adapted.” 391 Mich 139, 163.’ Kirk,
supra, p 444.” Id., pp 459-460, 462-463.
Based on the foregoing, we ‘are required to apply Kropf rules one,
three and four to the facts of the case at bar.
Turning to rule one, that the ordinance is clothed with every
presumption of validity, the township attorney argued the
following:
“Your Honor, the Township in this kind of situation is
between a rock and a hard place.
“We're charged with the maintenance and the welfare
of our citizens. We’ve decided based on our experience with
private roads that we have to be sure the people have
passable access to the property where fire equipment can get
in, emergency equipment can get in.
“This is a lake front parcel. The first time that a piece of
emergency equipment can’t get in there when there’s a child
drowning or there’s a fire, the township will not only be
criticized, they’ll probably be sued.
33a
Opinion of Court of Appeals
“But when there’s more than one dwelling involved,
public interest becomes involved. And there’s more than one
dwelling involved in this situation and that’s why the town-
ship adopted this private road ordinance.”
We have no doubt that the challenged ordinance is clothed
with a presumption of validity. It attempts to deal with the health,
safety and welfare of the public. We do note, however, that
plaintiffs’ easement is twenty feet wide and this private drive
would only service two homes. Plaintiffs’ argued that there would
be limited use of this drive by the general public and that the
twenty-foot easement would be wide enough to accommodate
emergency equipment for the two single family dwellings.
As for rule three, plaintiffs must show that if the ordinance is
enforced the consequent restrictions on their property preclude its
use for any purposes to which it is reasonably adapted.
The stipulated facts reveal that enforcement of the ordinance
precludes plaintiffs from using one of their two parcels as it is
zoned, that is, for a single-family dwelling. Moreover, plaintiffs’
attempts to sell the property have been unsuccessful. Plaintiffs’
property is unquestionably two separate parcels which are taxes
separately and which are considered separate parcels by the
township The lower court noted that before enactment of the
1977 private road ordinance, plaintiffs could have lawfully built
two single-family dwellings on the parcels and that enforcement
of the ordinance constitutes a regulatory taking and is confisca-
tory. We agree. Our review of the record leads us to conclude that
plaintiffs have shown that the township’s private road ordinance
as applied to their property precludes it use for any purpose to
which it is reasonably adapted. Kropf, supra.
Finally, rule four requires that we give considerable weight to
the findings of the trial judge. We have done so in this case and
agree that the ordinance constitutes a regulatory taking of one of
plaintiffs’ two parcels. Therefore, the lower court’s permanently
enjoining defendant from enforcing its private road ordinance to
34a
Opinion of Court of Appeals
plaintiffs’ two parcels and the court’s award of attorney fees is
affirmed.
Affirmed. Plaintiffs may tax costs.
; /s/ William B. Murphy
/s/ John H. Shepherd
/s/ Tyrone Gillespie
(1) In light of recent U.S. Supreme Court pronouncements in
taking law, particularly Nollan, supra, and First English Evangeli-
cal, supra, we question the continuing viability of the Kropf rules
in analyzing cases involving taking issues. It appears that these
recent Supreme Court decisions might necessitate a reexamina-
tion of the Kropf rules to reflect this development in the law in
placing a greater burden on the governmental entity in regulating
private property. However, since we will conclude that the munic-
ipality cannot even satisfy the applicable Kropf rules, this does not
present the appropriate case to consider the impact of these
recent Supreme Court decisions on the Kropf rules.
35a
Opinion of Trial Court
STATE OF MICHIGAN
IN THE CIRCUIT COURT
FOR THE COUNTY OF OAKLAND
WILLIAM BEVAN and
Wava BEVAN, his wife,
Plaintiffs,
-VS-
No. 86-323355 AA
TOWNSHIP OF BRANDON, a
constitutional corporation,
and TOWNSHIP OF BRANDON
BOARD OF APPEALS,
Defendants.
OPINION
This matter is before the Court for entry of a judgment upon
stipulated facts. MCR 2.116(A). All parties have waived a trial
and evidentiary hearing.
Plaintiffs own adjacent lakefront parcels of land in Brandon
Township. The parcels were acquired separately in 1954 and
1964. The parcels are taxed separately by the defendant. Ingress
and egress is provided by a twenty foot easement.
On February 13, 1977, defendant enacted a Private Road
Ordinance the terms of which preclude construction of a resi-
dence on each parcel unless a sixty-six foot right-of-way or private
road provides access. Existence of the private road is a condition
precedent to defendant issuing a building permit.
Prior to enactment of the Private Road Ordinance, plaintiffs’
lots satisfied all lawful requirements of the defendant. Plaintiffs
could have sold the lots separately or built and sold two single
family dwellings. Enactment and enforcement of the ordinance
effectively prevents these two separate uses. This constitutes a
temporary, regulatory taking of property without compensation.
36a
Opinion of Trial Court
The applicable rule of law was announced by the United
States Supreme Court in the case of First English Evangelical
Lutheran Church of Glendale v County of Los Angeles, Califor-
nia, 55 USLW 4781, 4784-85.
We have recognized that a landowner is entitled to bring an
action in inverse condemnation as a result of “ ‘the self-
executing character of the constitutional provision with re-
spect to compensation. ...’” United States v Clarke, 445
U.S. 253, 257 (1980), quoting 6 P. Nichols, Eminent Do-
main §25.41 (3d rev. ed. 1972).
*_* * *
“[T ]emporary” takings which, as here, deny a landowner all
use of his property, are not different in kind from permanent
takings, for which the Constitution clearly requires compen-
sation, Cf. San Diego Gas & Electric Co., 450 U.S., at 657
(Brennan, J., dissenting) (“Nothing in the Just Compensa-
tion Clause suggests that ‘takings’ must be permanent and
irrevocable’’). It is axiomatic that the Fifth Amendment’s
just compensation provision is “designed to bar Government
from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the
public as a whole.” (Citations omitted).
Plaintiffs seek no compensation for the temporary taking, but
do seek reasonable attorney fees. Plaintiffs and defendant stipu-
lated that a reasonable attorney’s fee, if awarded, would be in the
amount of $5,300. The attorney’s fee being reasonable and neces-
Sary iS proper in this case. 42 USC 1988, see also MCL
213.66(2).
Accordingly, a judgment may enter finding that enforcement
of the Private Road Ordinance constitutes a regulatory taking and
is confiscatory. Defendant is permanently enjoined from applying
the Private Road Ordinance to the plaintiffs’ parcels. Plaintiffs are
awarded a reasonable attorney’s fee in the amount of $5,300.
37a
Judgment of Trial Court
STATE OF MICHIGAN
IN THE CIRCUIT COURT
FOR THE COUNTY OF OAKLAND
WILLIAM BEVAN and WAVA
BEVAN, his wife,
Plaintiffs,
Vs.
TOWNSHIP OF BRANDON, a
constitutional corporation,
and TOWNSHIP OF BRANDON
BOARD OF APPEALS,
Defendants.
No. 86-323355-AA
THOMAS J. RYAN, P.C. (P19808)
Attorney for Plaintiffs
2055 Orchard Lake Road
Pontiac, Michigan 48053
334-9938
RICHARD A. CAMPBELL (P11561)
Attorney for Defendants
20 W. Washington St., Ste. |
Clarkston, Michigan 48016
625-0600
DAVID J. NAVARRE (P25080)
Attorney for Defendants (Of Counsel)
30903 Northwestern Highway
P.O. Box 3040
Farmington Hills, Michigan 48333-0040
851-9500
HONORABLE JAMES S. THORBURN,
Circuit Judge (P21427)
38a
Judgment of Trial Court
JUDGMENT
At a session of said Court, held in the Court House in the
City of Pontiac, Oakland County, Michigan, on this
day of , 1987.
PRESENT: HONORABLE JAMES S. THORBURN,
Circuit Judge
This matter having come on for hearing, all parties being
represented by counsel, and the Court being fully advised in the
premises and having issued its written Opinion,
IT IS HEREBY ORDERED that the enforcement of the
Brandon Township Private Road Ordinance is a regulatory taking
regarding the subject property and is confiscatory.
Upon presentation, the Court will sign an order to this effect.
DATED: August 31, 1987.
JAMES S. THORBURN,
Circuit Judge
IT IS FURTHER ORDERED that Defendant, Township of
Brandon, is permanently enjoined from applying the Private Road
Ordinance to Plaintiffs’ parcels described as follows:
Land in the Township of Brandon, County of Oakland, and
State of Michigan, to-wit: Part of the SE % of Sec. 10,
T.SN., R.9E., described as beginning at a point distant N.
0°58’E. 1329.35 feet and S. 89°48’E. 1529.75 feet from the
S. “% corner, thence S. C°58’W. 150 feet, thence S.89°48’E.
1117.50 feet, thence N.0°24’E. along the Section line 150
feet, thence N. 89°48’W. 1116.10 feet to the point of
beginning,
39a
Judgment of Trial Court
Also an easement over and across a 20 foot strip of land the
center line of which is described as follows: Beginning at a
point on the north and south quarter section line distant
North 0°58’East 1256.62 feet from the south quarter section
corner, thence North 63°31’ East 139.68 feet to a Point;
thence South 89°48’East 1395.79 feet to a point 10 feet west
of the west line of the above described parcel of land; thence
South 0°58’West 290.0 feet to the end of said easement.
(Parcel 1 — Sidewell No. 03-10-476-001 )
Land in the Township of Brandon, County of Oakland, and
State of Michigan, to-wit: Beginning at a point distant north
O degrees 58 minutes east along the north and south quarter
Section line 1329.35 feet and south 89 degrees 48 minutes
east, 1529.75 feet and south 0 degrees 58 minutes west 150.0
feet from the south quarter section corner of said Section 10,
thence south 0 degrees 58 minutes west 150.0 feet; thence
south 89 degrees 48 minutes east, 1119.03 feet to a point on
the east line of Section 10, thence north 0 degrees 24
minutes east along the east section line 150.0 feet; thence
north 89 degrees 48 minutes west 1117.58 feet to the place of
beginning. ‘Subject to the rights of the public and of any
governmental unit in any part thereof taken, used or deeded
for street, road, or highway purposes.
Also an easement over and across a 20 foot strip of land the
center line of which is described as follows: Beginning at a
point on the north and south quarter section line distant
North 0°58’ East 1256.62 feet from the south quarter section
corner, thence North 63°31’ East 139.68 feet to a Point;
thence South 89°48’East 1395.79 feet to a point 10 feet west
of the west line of the above described parcel of land; thence
South 0°58’West 290.0 feet to the end of said easement.
(Parcel 2 — Sidwell No. 03-10-476-002)
40a
Judgment of Trial Court
IT IS FURTHER ORDERED that Plaintiffs are awarded
an attorney fee in the amount of Five Thousand Three Hundred
Dollars ($5,300.00).
CIRCUIT JUDGE
APPROVED AS TO FORM:
RICHARD A. CAMPBELL
(P11561)
Attorney-for Defendants
DAVID J. NAVARRE
(P25080)
Attorney for Defendants
(Of Counsel)
4la
Statement of Stipulated Facts
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR
THE COUNTY OF OAKLAND
WILLIAM BEVAN and
WAVA BEVAN, his wife,
Plaintiffs,
vs Oakland County Circuit
TOWNSHIP OF BRANDON, a No. 86-323355-AA
constitutional corporation,
and TOWNSHIP OF BRANDON
BOARD OF APPEALS,
Defendants.
THOMAS J. RYAN (P19808)
Attorney for Plaintiffs
2055 Orchard Lake Road
Pontiac, MI 48053
334-9938
STUART B. COONEY (P25900)
RICHARD A. CAMPBELL (P11561)
Attorney for Defendants
20 W. Washington St., Ste. |
Clarkston, MI 48016
625-0600
HONORABLE JAMES S. THORBURN,
CIRCUIT JUDGE (P21427)
STIPULATION AND ORDER AS TO MATERIAL FACTS
IT IS HEREBY STIPULATED AND AGREED to by the
parties herein, that the following facts shall be taken as stipulated
and agreed to in the above-entitled cause.
42a
Statement of Stipulated Facts
STIPULATED FACTS
Plaintiffs purchased this lakefront property in two parcels by
separate land contracts on September 20, 1954, and June 11, 1964
and took title in 1964 and 1970. Thereafter, Wava Bevan, for-
merly Wava Warner, transferred title to herself and William
Bevan, her husband.
Deeds creating the above transfers reserve an easement 20
feet wide from the nearest public highway to the parcel, and such
deeds predate the Zoning Ordinance and Private Road Ordi-
nance, hereafter discussed.
The property does not have frontage on any public roadway.
The only access is the easement.
In 1974, Brandon Township adopted its Zoning Ordinance.
A copy of the relevant section of that ordinance (Section 5.07
Required Street Frontage) is attached hereto and incorporated
herein. Other than those street frontage requirements, the parcel,
as divided, meets the Zoning Ordinance requirements for two (2)
buildable sites.
In 1977, Brandon Township adopted a Private Road Ordi-
nance. That ordinance is Brandon Township Ordinance No. 42,
and a copy of that ordinance is attached hereto and incorporated
herein.
At the time that Wava Bevan purchased the parcel, her
predecessor in interest had already divided the parcel, which
parcel is approximately six (6) acres, into two (2) tax
descriptions.
The easement that exists for the purpose of serving the parcel
does not meet the minimum private road requirement as set forth
in Article VII, Section 7.1 of the Brandon Township Private Road
Ordinance. (See attached) The Bevans, seeking to obtain two (2)
building permits on their parcel, one (1) for each of the tax
descriptions, applied to the Township Board of Zoning Appeals
43a
Statement of Stipulated Facts
for a variance with regard to the road width (from the required
66’ to 20’, the amount they owned) so as to permit them to build
a private road on the parcel, which private road would then entitle
them to two (2) building permits. Section 2.5 of the Brandon
Township Private Road Ordinance requires a private road when
the roadway is going to service more than one (1) residence. The
variance would not be necessary if the Bevan’s sought to build
only one house because the Bevans would be entitled to one
permit, and could obtain that at any time.
The Brandon Township Zoning Board of Appeals denied the
request for a variance with regard to the width requirement. As a
result of that denial this Complaint was filed. The first two (2)
Counts of the Complaint deal with the appeal, and a requesi for
delayed appeal from the action of the Zoning Board of Appeals.
The next three Counts of the Complaint deal with, “Violation of
Constitutional Rights”, “Civil Rights Act” and “Declaratory
Judgment: Township of Brandon’s Private Road Ordinance as
Unconstitutional”.
Since the Board of Appeals action, the Bevans have tried
unsuccessfully to sell the property to the Department of Natural
Resources.
The access easement is unimproved and there has been no
construction on the building sites. (See Minutes of Board of
Appeals, attached to Plaintiffs Complaint and accepted by
Defendant. )
44a
Statement of Stipulated Facts
Bevans out of pocket damages to date are Five Thousand
One Hundred Twenty Five ($5,125.00) Dollars attorney fees,
costs of One Hundred Seventy ($170.00) Dollars for expert
witness fees, Fifty ($50.00) Dollars court costs, and Sixteen
($16.00) Dollars subpoena fees for a total of Five Thousand
Three Hundred Sixty One ($5,361.00) Dollars. :
THOMAS J. RYAN, P.C.
(P19808) RICHARD A. CAMPBELL
Attorney for Plaintiffs (P11561)
2055 Orchard Lake Road Attorney for Defendants
Pontiac, MI 48053 20 W. Washington St., Ste. |
334-9938 Clarkston, MI 48016
625-0600
DATED: AUGUST , 1987
IT IS SO ORDERED.
JAMES S. THORBURN,
CIRCUIT JUDGE
45a
Brandon Township Zoning Ordinance Section 5.07
15.055
(2)
15.056 Sec.
interrupted at not more than fifteen (15) percent of
its required length if necessary to provide for vehic-
ular access, except that the wall may be interrupted
at more than fifteen (15) percent of its required
length if necessary to provide for one (1) vehicular
access and egress lane. THE WALL MAY BE
OMITTED along the portion of parking and vehic-
ular-use area periphery which lies adjacent to a
protective screen wall or landscape buffer strip of
the type required in A and B above, and along the
portion of the parking and vehicular use area pe-
riphery which lies adjacent to a building on the
same lot as the parking area. A thirty-six (36) inch
high berm completely covered with live landscape
material may be substituted for the wall with Plan-
ning Commission approval.
Off-street parking areas shall have a minimum of
one (1) deciduous tree for every ten (10) parking
spaces. (ord. eff. May 6, 1974; amend. eff. Apr. 7,
1986)
5.06. ONE LOT, ONE BUILDING.
In Single-Family Residential Districts, only one
(1) principal building shall be placed on a lot of
record with the exception of parcels of record
which may be so arranged or subdivided as to
provide for one (1) or more principal buildings
when the land area allocated to each building is
equal to or greater than the lot area required for
the district and the building.
(ord. eff. May 6, 1974)
46a
Brandon Township Zoning Ordinance Section 5.07
15.057 Sec. 5.07. REQUIRED STREET FRONTAGE.
Any parcel of land which is to be occupied by a use
or building, other than an accessory use or building,
shall have frontage on and direct access to a public
street or private easement which meets one of the
following conditions:
1. A public street which has been accepted for mainte-
nance by the County Road Commission, or
2. A permanent and unobstructed private easement of
record at the County Register of Deeds where said
easement is constructed in accordance with the
Brandon Township Ordinance regulating the con-
struction of private roads, or
3. An access easement of record where said easement
had in fact been constructed and in use as a private
road prior to May 6, 1974; or
4. Frontage on a cul-de-sac in which case said road
frontage may be less than the minimum required by
Article XVIII, Schedule of Regulations, so long as
the cul-de-sac is constructed in accordance with
County or Township standards, and so long as the lot
width on said lots front building setback line is at
least the minimum as set forth in Article XVIII, or
47a
Brandon Township Zoning Ordinance Section 5.07
5. Frontage on a private drive, which drive may serve
no more than one single use, where said frontage is
at least equal to the minimum as set forth in Article
XVIII, Schedule of Regulations, and where said
drive has direct access to either a dedicated and
accepted County road or a road built in accordance
with the Brandon Township Ordinance regulating
the construction of private roads. In all of the cases
to which the subsection applies, the driveway shall
be at least sixty-six (66) feet wide to permit its
upgrading to a private road and it shall be owned in
fee simple by the same owner as the parcel which it
serves or it shall be an easement dedicated to use by
the public and recorded as such. Such driveway shall
also contain a restrictive covenant running to the
benefit of Brandon Township providing that such
driveway cannot be split off or sold separately from a
parcel which it serves, either as a fee parcel, or as an
easement dedicated to the use of the public. Further,
in no event shall driveway cross more than one
attendant parcel before it reaches either a dedicated
and accepted County road or a road built in accor-
dance with the Brandon Township Ordinance regu-
lating the construction of private roads. The area of
such driveway may be counted in computing the lot
size of the parcel which holds the fee, including
width and depth and other dimensions of such par-
cel, except that all setbacks and building lot lines
concerning such parcel shall be measured from the
easement frontage line, further, should such drive-
way at anytime serve more than one single use, then
and in that event such driveway must, before it can
be used for more than a single use, be constructed in
accordance with the Brandon Township Ordinance
regulating the construction of private roads.
eer ermal
48a
Brandon Township Zoning Ordinance Section 5.07
Nothing in this Section or any subsection hereof shall
be deemed to waive any requirement regarding lot size,
depth, width or any other dimension or other require-
ment whatsoever other than those requirements specifi-
cally set forth herein.
15.058 Sec. 5.08. PROHIBITED PARKING IN ALL RESI-
DENTIAL DISTRICTS.
1. Automotive vehicles or trailers of any kind without
current license plates shall not be parked or stored
on any residentially zoned property other than in
completely enclosed buildings.
2. Commercial highway trailers and trucks with a rated
capacity exceeding one (1) ton shall not be parked
or stored on any residentially zoned property other
than in completely enclosed buildings.
(ord. eff. May 6, 1974)
15.059 Sec. 5.09. AUTOMOBILE SERVICE STATIONS.
In order to regulate and control the problems of noise,
odor, light, fumes, vibration, dust, danger of fire and
explosion, and traffic congestion, which results from the
unrestricted and unregulated construction and operation
of automobile service stations, and to regulate and
control the adverse effects which these and other
problems incidental to the automobile service may
exercise upon adjacent and surrounding areas, the fol-
lowing additional regulations and requirements of this
Section. No station existing on the effective date of this
Ordinance shall be structurally altered so as to provide a
lesser degree of conformity with the provisions of this
Section than existed on the effective date of this Ordi-
nance.
49a
Brandon Township Zoning Ordinance Section 5.07
1. An automobile service station shall be located on a
lot having a frontage along the principal street of not
less than one hundred and forty (140) feet, and
having a minimum area of not less than fourteen
thousand (14,000) square feet.
2. An automobile service station building housing an
office and/or facilities for servicing, greasing and/or
washing motor vehicles shall be located not less than
forty (40) feet from any street lot line, and not less
than twenty-five (25) feet from any side or rear lot
lines adjoining a residentially zoned district.
30.000
30.010
30.020
30.021
50a
Brandon Township Private Road Ordinance
PRIVATE ROADS
BRANDON TOWNSHIP, MICHIGAN
ord. no. 42 eff. Feb. 13, 1977
Ordinance to control the construction of and set stan-
dards and specifications for private roads.
PREAMBLE
This Ordinance iS intended to provide minimum stan-
dards and specifications for private roads constructed in
the Township of Brandon, Oakland County, Michigan.
It is recognized that such standards are necessary be-
cause of the need for road services adequate to provide
year around access by fire, police, and like emergency
vehicles. It is further recognized that if roads are not
constructed in accordance with certain minimum stan-
dards, such roads frequently become impassable, and
vehicles which do try to use them during such periods of
impassability are likely to become stuck, find it impossi-
ble to gain access to the persons or structures located on
the roadway, block the roadway and otherwise pose a
threat to the health, safety and welfare of the residents
located along the roadway, as well as those other
residents who would find use of the roadway essential.
ARTICLE 1
SHORT TITLE
Sec: 1.1. TITLE. This Ordinance may be referred to as
the Brandon Township “Private Roads” Ordinance and
shall hereinafter be referred to as “this Ordinance”.
(ord. no. 42 eff. Feb. 13, 1977)
ARTICLE II
DEFINITIONS
Sec. 2.1. BOARD.
Board shall refer to the Brandon Township Board of
Trustees.
(ord. no. 42 eff. Feb. 13, 1977)
30.022
30.023
30.024
30.025
S5la
Brandon Township Private Road Ordinance
Sec. 2.2. OAKLAND COUNTY ROAD COMMIS-
SION.
Oakland County Road Commission shall refer to the
Board of County Road Commissioners, County of Oak-
land, State of Michigan.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 2.3. PERSON.
Person shall mean any individual, firm, association,
partnership, corporation, or any combination of any of
them.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 2.4. PRIVATE DRIVEWAY.
Private Driveway shall mean any piece of privately
owned and maintained property which is used for vehic-
ular traffic, but is not open or normally used by the
public.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 2.5. PRIVATE ROAD.
Private Road shall mean a privately owned and main-
tained road, allowing access to more than one residence
or place of business, which is normally open to the
public and upon which persons other than the owners
located thereon may also travel. The erection of such
signs as, “Residents Only”, or the like shall not be
deemed to remove any roadway from the requirements
of this Ordinance where said roadway is deemed to
come within this Ordinance by the Supervisor of the
Brandon Township Building Department or his desig-
nee.
(ord. no. 42 eff. Feb. 13, 1977)
30.026
30.027
_ 30.050
30.051
30.052
52a
Brandon Township Private Road Ordinance
Sec. 2.6. ROAD.
Road shall mean a thoroughfare which affords vehicular
traffic circulation and principal means of access to
abutting property, including avenue, place, way, drive,
lane, boulevard, highway, street and other thoroughfare,
except an alley or private driveway.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 2.7. STRUCTURE.
Structure shall mean any assembly of materials con-
structed or erected for occupancy or use which requires
permanent location on the ground or attachment to
something having such a permanent location.
(ord. no. 42 eff. Feb. 13, 1977)
ARTICLE III
PROHIBITIONS
Sec. 3.1. CONSTRUCTION OF PRIVATE ROADS.
No persons shall construct a private road within the
Township of Brandon except in accordance with the
standards as herein set forth.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 3.2. SALE OF PARCELS OF LAND.
No person shall sell any parcel of land within the
Township of Brandon unless said parcel of land fronts
on a public street which is dedicated to the public or
unless said parcel of land fronts on a private road which
road meets the standards as herein set forth, or unless
said contract, deed or other conveyance of sale contains
the following language:
“This parcel is not a buildable site for the reason that
said parcel does not front on an acceptable ingress
and egress in accordance with standards as set forth
by the Ordinance of the Township of Brandon.” _
(ord. no. 42 eff. Feb. 13, 1977)
30.053
30.080
30.081
53a
Brandon Township Private Road Ordinance
Sec. 3.3. BUILDING PERMITS.
No building permit shall be issued by the Brandon
Township Building Department or any official therein,
or any other official of the Township of Brandon for any
structure unless said structure fronts on a public street
or highway which is dedicated to the public, or unless
said structure fronts on a private road which road meets
the standards as herein set forth. Nothing in this section
shall be deemed to waive any of the frontage, depth, or
like requirements as set forth in the Township of Bran-
don Zoning Ordinance.
(ord. no. 42 eff. Feb. 13, 1977)
ARTICLE IV
NOTICE
Sec. 4.1. CONVEYANCE OF INTEREST IN LAND
ABUTTING PRIVATE ROAD.
At the time of the conveyance of any interest in any
parcel, and which parcel abuts a private road as herein
set forth, which conveyance shall be deemed to include
the acceptance of an offer to purchase, the grantor of
such interest shall advise the grantee that said parcel
abuts a private roadway, and that the maintenance,
care, and other responsibilities concerning said roadway
rest with the abutting land owners and are not the
responsibility of the Township of Brandon, the County
of Oakland, or the State of Michigan.
(ord. no. 42 eff. Feb. 13, 1977)
30.100
30.101
30.102
54a
Brandon Township Private Road Ordinance
ARTICLE V
PERMITS.
Sec. 5.1. PERMIT REQUIRED.
No construction shall begin on any private road until a
permit has been issued on forms provided for that
purpose by the Brandon Township Building Department
on proper application therefor and following compliance
with such requirements as are set forth in the
application.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 5.2. APPLICATION; FEE.
The Brandon Township Building Department may es-
tablish such requirements as it deems necessary in the
application for permits, but such requirements shall
contain at least the following:
A. A drawing to a scale of no less than one (1) inch
equals one hundred (100) feet which drawing has
been prepared by a registered civil engineer or a
registered land surveyor, as registered by the State of
Michigan, and which drawing shall show the exact
location of the roadway as proposed, including a
cross section of said roadway to its full width includ-
ing all ditches.
B. A drawing of all cul-de-sacs to be located along said
private roddway, which cul-de-sacs shall not be less
than one hundred twenty (120) feet in diameter in
residential areas and one hundred sixty (160) feet in
commercial or industrial areas.
C. An overall development plan for all contiguous land
in which the person has an interest of any nature.
D. The payment of a permit fee as established by the
Brandon Township Building Department and ap-
proved by the Brandon Township Board.
(ord. no. 42 eff. Feb. 13, 1977)
30.120
30.121
30.122
55a
Brandon Township Private Road Ordinance
ARTICLE VI
STANDARDS
Sec. 6.1. MINIMUM DESIGN STANDARDS.
The minimum design standards for any private roadway
constructed within the Township of Brandon shall be in
accordance with-the Oakland County Road Commis-
sion “Type C” roadway standards as of January 3, 1977.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 6.2. EXTENDING EXISTING PRIVATE
ROADS.
In those cases where the applicant seeks to extend an
existing private road, such extension shall be granted
only if the existing private road is brought up to the
standards as set forth in this Ordinance for private roads
within Brandon Township. All of such standards as set
forth herein shall be deemed to apply to both the
proposed extension, and the existing roadway. Further,
such applicant shall obtain consents from all of those
persons who own any interest in the existing right-of-
way, or have the right of access to their property
therefrom, which consent shall be in writing and shall
be filed with the Township contemporaneously with the
filing of the application for permit hereunder. Such
consent shall provide, (1) that consenting party con-
sents to the extension of the roadway pursuant to the
application, and (2) that the consenting party consents
to the upgrading of their existing roadway to the stan-
dards as set forth herein, and, where applicable, will
agree to deed such easements or rights-of-way as are
necessary to create the width and like requirements as
set forth herein. The Township Zoning Board of Ap-
peals shall not vary this requirement as it concerns
consents.
(ord. no. 42 eff. Feb. 13, 1977; amend. by ord. no. 60
eff. Nov. 14, 1981)
30.123
30.140
30.141
30.142
30.143
56a
Brandon Township Private Road Ordinance
Sec. 6.3. EASEMENTS.
The proposed private roadway hall contain easements
for all utilities, both present and proposed future, as
may be necessary for providing public services to the
property. Such provision may be general in nature, that
is providing that utilities may be placed under the
roadway in any and each and every location, or such
provision may be specific in nature, so long as the
specific provision meets the requirements as set forth by
Brandon Township Building Department.
(ord. no. 42 eff. Feb. 13, 1977; amend. by ord. no. 60
eff. Nov. 14, 1981)
ARTICLE VII
RIGHT-OF-WAY
Sec. 7.1. MINIMUM WIDTH.
All rights-of-way shall be a minimum of sixty-six (66)
feet in width.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 7.2. DEDICATION.
All rights-of-way shall be dedicated to the adjoining
property owner who gains access of said right-of-way. If
a parcel adjoining said right-of-way is not to be served
by said right-of-way, then the land dedicating such
right-of-way shall specifically provide for that exclusion,
and said adjoining property owner shall not share in the
ownership of the nght-of-way.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 7.3. RECORDATION.
All rights-of-way created hereunder shall be recorded
as such with the Oakland County Register of Deeds.
(ord. no. 42 eff. Feb. 13, 1977)
30.160
30.180
30.181
30.182
57a
Brandon Township Private Road Ordinance
ARTICLE VIII
NAMING
Sec. 8.1. APPROVAL OF NAME; NAME SIGNS
AND POSTS.
All private roads created hereunder shall be named,
with said name to be approved by the Brandon Town-
ship Board and Oakland County Road Commission. All
required name signs and sign posts shall be erected by
the Oakland County Road Commission at the expense
of the applicant.
(ord. no. 42 eff. Feb. 13, 1977)
ARTICLE IX
APPEALS
Sec. 9.1. APPEAL TO BOARD OF ZONING
APPEALS.
Any decision by the Supervisor of the Brandon Town-
ship Building Department or his designee may be ap-
pealed to the Brandon Township Board of Zoning
Appeals which may grant a modification of any require-
ment of this Ordinance where no good purpose would
be served by compliance therewith.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 9.2. CONSIDERING APPEALS.
In considering appeals hereunder, the Brandon Town-
ship Board of Zoning Appeals shall be charged the
interpretation of the language of this Ordinance and the
implementation of this Ordinance in accordance with
the requirements of the other ordinances of Brandon
Township which relate to any aspect of the areas
governed by this Ordinance.
(ord. no. 42 eff. Feb. 13, 1977)
58a
Brandon Township Private Road Ordinance
30.183 Sec. 9.3. COUNTY ROAD COMMISSION
STANDARDS.
In no event shall the Brandon Township Board of
Zoning Appeals vary the road width requirements or
the minimum construction requirements as set forth in
the Oakland County Road Commission Standards for
Type C roadways.
(ord. no. 42 eff. Feb. 13, 1977)
30.184 Sec. 9.4. ROADS NOT MEETING STANDARDS
OF ORDINANCE.
In those instances where a permit is being sought for
the construction of a structure on an existing private
roadway, which private roadway does not meet the
standards as herein set forth, the Township Board shall,
wherever possible and practical, require that said pri-
vate roadway be brought up to the standards as herein
set forth. However, in those instances where extreme
hardship or practical difficulties are such as to render
‘the improvement of the private roadway unfeasible, the
Township Board may direct the Township Building
Department to issue building permits on said existing
private roadways.
(ord. no. 42 eff. Feb. 13, 1977)
30.185 Sec. 9.5. APPEALS TO COUNTY CIRCUIT
COURT.
Appeals from decisions of the Brandon Township Board
of Zoning Appeals shall be made to the Oakland
County Circuit Court.
(ord. no. 42 eff. Feb. 13, 1977)
30.210
30.211
30.212
30.230
59a
Brandon Township Private Road Ordinance
ARTICLE X
VIOLATIONS
Sec. 10.1. INJUNCTIVE RELIEF.
Brandon Township may, by direction of any of its
Officials, seek to restrain the violation hereof by the
issuance of ex parte, temporary and permanent injunc-
tive orders restraining the violation hereof.
(ord. no. 42 eff. Feb. 13, 1977)
Sec. 10.2. PENALTY.
In addition to the injunctive relief as above set forth,
the Brandon Township Building Department, or any
other agency of the Township of Brandon, may seek
prosecution for violations hereof which violations shall
be punished by a fine of up to Five Hundred and 00/100
($500.00) Dollars, and/or imprisonment in the Oak-
land County Jail for a period of ninety (90) days, or
both fine and imprisonment as the Court may direct.
(ord. no. 42 eff. Feb. 13, 1977)
ARTICLE XI
SEVERABILITY
Sec. 11.1. SEVERABILITY. Should any clause,
phrase, or other portion of this Ordinance be found to
be invalid for any reason whatsoever, such invalidity
shall not affect the remaining portions of this Ordinance
in any respect but this Ordinance shall be otherwise
deemed to be enforceable.
(ord. no. 4%*eff. Feb. 13, 1977)
30.240
60a
Brandon Township Private Road Ordinance
ARTICLE XII
EFFECTIVE DATE
Sec. 12.1. ADOPTION; EFFECTIVE DATE. This
Ordinance was adopted by the Brandon Township
Board on the 3rd day of January, 1977, and shall take
effect thirty (30) days after publication thereof in
accordance with Michigan Statute.
Adopted: January 3, 1977
Effective: February 13, 1977
6la
Trial Argument Transcript
August 20, 1987
Pontiac, Michigan
** *
THE CLERK: Calling William Bevan v Township of
Brandon, 86-323-355 AA.
THE COURT: Approach the bench, gentlemen.
MR. RYAN: May it please the Court, Tom Ryan, appear-
ing on behalf of Mr. William Bevan, Your Honor.
MR. CAMPBELL: Richard A. Campbell on behalf of
Brandon Township.
MR. NAVARRE: Your Honor, I am Dave Navarre, of the
firm of Kohn, Secrest, Wardle, Lynch, Clark & Hampton. We are
of counsel to the defendant Township.
MR. RYAN: Your Honor, the Court is well aware of the
facts. We appreciate the Court taking the time io hear this
matter.
There are two separate parcels of property, Your Honor,
owned by the Bevans. They purchased those parcels prior to the
enactment of the present zoning orders in Brandon Township, for
the —
THE COURT: The Court is quite familiar with the facts.
MR. RYAN: Yes, Your Honor.
THE COURT: We've been over those several times.
MR. RYAN: I'll go right into my argument, Your Honor.
We believe, first of all, that as to statutory interpretation
question, that this driveway that the township insists is a private
road does not meet their definition of a private road.
A private road, which is taken from Michigan Statutes MCL
257.44 provides, Your Honor, that a private road is a privately
62a
Trial Argument Transcript
owned and operated and maintained road, allowing access to more
than one residence or place of business.
If the Statute stopped there, Your Honor, the township
would have a valid point.
However, the Statute and ordinance continues, “which is
normally open to the public and upon which persons other than
the owners located may travel.
Your Honor, this road dead ends into a lake. It is a twenty
foot easement, it is a private driveway serving only two parcels of
property upon which the easement runs to.
Private driveway is also in the Statute, Your Honor, I won’t
belabor that point.
If the Court feels further that there’s a statutory question,
that we believe the private road ordinance, Your Honor, as
mentioned by the Zoning Ordinance, is a non-conforming use.
We only have twenty feet of easement, Your Honor. The private
road ordinance is mentioned in the zoning ordinance; it’s a hybrid
ordinance if you will. The township indicates that it’s only a
public — or a police power ordinance.
We contend that because it’s mentioned in the zoning
ordinance and later enacted, Your Honor, that it is, in fact, a
zoning ordinance and the court could simply find it’s a noncon-
forming use, a prior nonconforming use of record; therefore the
private road ordinance does not apply.
If the Court feels the private road ordinance does apply to
this piece of property, we contend that it is unconstitutional for
the following reasons, Your Honor. It takes property for public
purpose without just compensation being paid. That is the Fifth
Amendment of the United States Constitution, Your Honor.
Now the courts have stated, and there’s three new cases
which the Court has read, the Nolan case, the First Lutheran case
and the Keystone case.
63a
Trial Argument Transcript
And the Nolan case, Your Honor, that was a ten foot
easement the State of California wanted along the beach. The
Court said that there must be a substantial interest, legitimate
State interest between the purpose served and the ordinance.
Now in this case, Your Honor, the purpose of the road
ordinance is to provide for passable roads in Brandon Township. If
it’s a public road, that is certainly a laudable and proper goal.
However, Your Honor, the reason why we cannot provide a
private road under their ordinance is we only have twenty feet of
property, not the sixty-six feet of right-of-way that they require.
Now we believe, and this is the worse case scenario for the
Township, Your Honor, because we don’t have just one parcel, we
have only two. We don’t have fifteen being served by private road
or three or four, we have only two parcels, Your Honor, which are
residential parcels.
Now a sixty-six foot right-of-way, a right-of-way can do a lot
of things, Your Honor, but a right-of-way doesn’t necessarily
mean that it will be a passable road, right-of-ways contain all
kinds of things: They contain easement for drainage, for utilities,
for telephone, for whatever. This is only a twenty-foot driveway
we have, Your Honor.
Therefore, we contend that the twenty foot should be suffi-
cient, since was of record and the right-of-way ordinance, the
sixty-six feet required, does not substantially advance the state
interest; that is having passable roads.
Your Honor, we next come to the fact was it a taking. We
contend there was a taking of property. There’s the Keystone
case, which says that the Court must look to the particular facts
of these cases and decide them necessarily on an ad hoc basis,
looking at the impact of the regulations on the property.
In the Keystone case, Your Honor, the State of Pennsylvania
provided that fifty percent of all the substrata under public
64a
Trial Argument Transcript
buildings, schools, lakes and private residences couldn’t be used
for coal mining. The coal company said you’re taking fifty percent
of our property without compensation.
The Court looked at the property interest and found in that
case that in fact only two percent of the coal of this coal company
was being taken.
Therefore, you have to look at the particular property interest
being taken, Your Honor.
And in this case the township has said you can have only one
buildable site on two proper building locations. We’re not seeking
to change the zoning, we’re not seeking to overburden the zoning;
we're seeking to use the zoning as properly found. The only reason
we can’t do it is because we cannot provide the proper right-of-
way for those two parcels.
Now, Your Honor, any way you want to look at it, under the
Keystone case, either you say well, Mr. Ryan, the Bevans own two
parcels, if they can’t use one, that’s a fifty percent diminution of
taking, or fifty percent of their property they can’t use as a
building site.
Or you could say, Your Honor, that they bought these
parcels as separate parcels. One they bought in °S3, and one they
bought in °63; paid taxes on two separate parcels for all those
years.
If they wanted to consolidate those parcels, Your Honor,
they could have done so. That’s a private concern. But the
township is saying no and you must consolidate these parcels, you
must give up these building sites and put only one building site
there.
And, Your Honor, we contend that that is a taking of
property. If it’s for a public purpose, they have not been compen-
sated for that parcel.
65a
Trial Argument Transcript
Now, under the remedy, what remedy do we seek, Your
Honor?
We would like, and this is the First Lutheran case which
states, Your Honor, that from now on a regulatory taking is a
taking of property. Heretofore, the U S Supreme Court, it is
discussed in the case, said that they’d never had a proper case
before them to determine whether or not a regulatory taking was
the taking of property, as opposed to condemnation or what have
you.
In a regulatory taking, Your Honor, the government regula-
tion in essence takes all or substantially all of the parcel, or use of
that parcel of property from the property owner. First English
says, Your Honor, without going into the facts of the matter, Your
Honor, it says that if there’s a regulatory taking, that the land-
owner, if they’re successful in challenging the ordinance, are
entitled to damages for either temporary taking, they’re entitled to
compensatory damages.
Before the First English case, Your Honor, the —
THE COURT: You don’t have any evidence in this case of
damage, other than —
MR. RYAN: Right. We stipulated to what their damages
THE COURT: The attorney fees.
MR. RYAN: Yes, that’s correct, Your Honor. And the
court costs that are included in the figure.
Your Honor, the First English case stands for the proposition
that you (number one), if you take by regulation, then you must
pay damages; and (number two), that even if it’s a temporary
taking, that is if one sued the governement says well, all right, we
lost the case, we'll give you whatever. For that time period
whatever your damages were for that time period, whether it be
fair rental or whatever, in this case we have stipulated they would
66a
Trial Argument Transcript
be only attorney fees and court costs; that you’re entitled to those
damages. And that is new law, Your Honor.
Basically, the township is trying to foist upon us a public
purpose. If it in fact is a public purpose, Your Honor, then the
public at large must share the costs. It is an unnecessary and
onerous burden for my people to assume that they have to —
THE COURT: What about a public purpose for fire
protection?
MR. RYAN: Your Honor, there’s nothing that says that a
fire — we have to provide a passable roadway for this property, we
understand that, a passable driveway.
Your Honor, if a fire truck can’t use the twenty feet which —
THE COURT: In other words, to get rid of that argument,
your theory is all you have to do is conform to whatever the
building code is.
MR. RYAN: That’s correct, Your Honor.
There’s another way of enforcing that, Your Honor. The
township has other ways to do that, which are reasonably tailored
to meet that problem. We cannot provide sixty-six foot right-of-
way, we never will be able to.
If the township is so concerned about the sixty-six feet right-
of-way for these two parcels, then they can condemn the parcel,
Your Honor, they can condemn the adjoining property parcel, pay
the just compensation and the burden will be paid for by all of the
township residents of Brandon Township.
Also, Your Honor, and lastly, the 1983 attorney fees, we
have alleged and believe we have proven a Fifth Amendment
taking of our property. If we do that, Your Honor, it is done by
ordinance, under color of ordinance by a public entity, that is the
township and we are entitled under 1983 to attorney fees.
67a
Trial Argument Transcript
Now the case cited, the Westland case, which was cited by
brother counsel, Your Honor, is not a taking case, is not an
amendment case, it is not a First Amendment or Fifth Amend-
ment case, it only alleged due process of law violations.
Thank you.
Mk. CAMPBELL: Your Honor, the Township in this kind
of situation is between a rock and a hard place.
We’re charged with the maintenance and the welfare of our
citizens. We’ve decided based on our experience with private
roads that we have to be sure the people have passable access to
the property where fire equipment can get in, emergency equip-
ment can get in.
This is a lake front parcel. The first time that a piece of
emergency equipment can’t get in there when there’s a child
drowning or there’s a fire, the township will not only be criticized,
they'll probably be sued.
THE COURT: What do you do with the other nine hun-
dred ninety-eight where you have nothing but a driveway?
MR. CAMPBELL: Your Honor —
THE COURT: You have the same problem, don’t you?
MR. CAMPBELL: Not necessarily.
THE COURT: You have to run hoses an extra two hun-
dred feet.
MR. CAMPBELL: In this instance of course it’s more
than two hundred feet.
But when there’s more than one dwelling involved, public
interest becomes involved. And there’s more than one dwelling
involved in this situation and that’s why the township adopted this
private road ordinance.
68a
Trial Argument Transcript
Now there are two ordinances at issue, Judge, there’s the
private road ordinance, and this is a private road ordinance case,
that’s what this is. I mean it has nothing to do with the township
going in there and using the parcels or telling them they can’t use
the parcels.
THE COURT: I understand that. And as I read the
ordinance, it may be a reasonable ordinance under certain fact
circumstances.
But the issue is it as applied to this parcel of land?
MR. CAMPBELL: I agree with that, Your Honor, I
absolutely agree with that. And I think that the remedy that’s
available to the plaintiff in this case is an appeal to the Board of
Appeals decision.
Now they've chose not to file this lawsuit for some fifteen
months, which was their decision. And I think that the remedy
that is available to them and to this court, and the proper remedy
that’s available, would be the granting of their petition under
Count One in their complaint, which is for delayed appeal from
the Court of Appeals decisions and then the Court can review
that decision. And if the Court feels that the Board of Appeals
was unreasonable, or should have acted otherwise, you can give
such relief as your feel is proper.
I think that that’s the case they have. I think that’s that case
for all of the 1933 cases, a reasonable state remedy. And that
remedy is an appeal from the act of the Zoning Board of Appeals.
And if there’s a reasonable state remedy, there’s no 1983
case.
And I agree that under some fact situations this sort of thing
may not be valid. But we certainly have the power to adopt it, we
certainly have the power to enforce it, and that’s what we've done
in this case.
69a
Trial Argument Transcript
As it concerns the allegation that we have an obligation to
condemn land and build private roads, we don’t build roads in
subdivisions, we don’t have anything to do with the construction
of roads. When a developer comes in and wants to develop a
subdivision, Judge, whether it be two lots or a hundred, it’s his
responsibility to build the road. It’s his responsibility to put in the
improvements.
THE COURT: Let me ask you this, so you could condemn
this under any number of statutes, but particularly under the
Zoning Enabling Act you could condemn this, could you not?
MR. RYAN: Well, the Zoning Enabling Act, I don’t think
we could condemn it without some public purpose involved,
except perhaps under the —
THE COURT: Wel
This text is long and has been trimmed here. Open the source document for the complete record.
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.