# Petition for Writ of Certiorari — Bevan v. Township of Brandon > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2157%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 502 U.S. 1060 ## 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: “§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... .” 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 co [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2157%3A1. Public record. Not legal advice.