Opposition Brief — Bevan v. Township of Brandon

§n the Supreme Court of the United States

OCTOBER TERM, 1991

WILLIAM BEVAN AND WAVA BEVAN,

PETITIONERS,

V.

TOWNSHIP OF BRANDON, ET AL..

RESPONDENT.

RESPONSE TO PETITION FOR A WRIT

OF CERTIORARI FROM STATE OF

MICHIGAN SUPREME COURT

RESPONSE TO PETITION FOR

A WRIT OF CERTIORARI

STUART B. COONEY

Counsel of Record For Respondent

RICHARD A. CAMPBELI

20 W. Washington, Ste. 1

Clarkston, Michigan 48346

(313) 625-0600

BOWNE OF DETROIT

610 W. CONGRESS - DETROIT, MICHIGAN 48226 - (313) 964-1330

i

QUESTIONS PRESENTED

RESPONDENT, BRANDON TOWNSHIP, WILL AD-

DRESS THE QUESTIONS PRESENTED BY PETITION-

ERS WITHOUT MODIFICATIONS.

TABLE OF CONTENTS

Page

CRUIESTIONS PRESENTED 2.2.66 00 cee cesewveneces

ee Ue oko oss ree coer ans il

py) Be we agg kf YO. re ere 1V

RESPONDENT'S STATEMENT OF THE CASE

A. MATURE Sie See Gee. Soke ak we sews: 2

B.. PASTURE OF Tie GAs: si ccc cis ee eews cs 3

REASONS FOR DENYING THE WRIT ........... 3

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

8 i | Ser PrererErie ters eer ay ie, 5

ARGUMENT II

WHETHER THE LAND OWNER OF TWO

SEPARATE CONTIGUOUS LOTS IS DENIED

THE USE OF ONE OF THOSE, L.E., 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

5 ey We re MPR ER Ame re Syn eee 9

il

TABLE OF CONTENTS — (Continued)

Page

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 !URISPRUDENCE....... 16

ch te le a rae a a aaa ae Ret 18

iV

TABLE OF AUTHORITIES

CASES: Page

Agins v City of Tiburon, 447 US 225, 260, 100 S Ct 2138,

oR 8 re ree +o, $4.53

Electro-Tech v H.F. Campbell Co., 433 Mich 57; 429 NW

pe Be, I errr ee yee ey ee re eee 8

First English Evangelical Lutheran Church of Glendale v

County of Los Angeles, 482 US 304, 107 S Ct 2378, 96 L

eet ee ee CRN og oe oa le ey ee Ok eee orden 9

Franchise Realty Interstate Corporation v Detroit, 368

PEIC 2ID, SER TOW Be Oe CAPOE) 5 ois nec ces ceeds. 13

Gackler v Yankee Springs Township, 427 Mich 562, 573-

Bip SPE Cee Oe UO iw 0b 0 eer eek tans hem ne. 13

Keystone Coal Association v DeBenedictis, 480 US 470,

107 S Ct 1232, 94 L Ed 2d 472 (1987) ........... 4, 9,13

Kropf v Sterling Heights, 391 Mich 139, 215 NW 2d 179

Go SR eae ay Te ee ree 6, 15, 16

Lucas v South Carolina Coastal Commission, cert. filed

9-13-91, US. Supreme Court, Docket No. 91-453.... 3,4

Mugler v Kansas, 123 US 623, 8 S Ct 273, 31 L Ed 205

2p DRO ER ete Seer tetenaty hy Leet ne Ry Emo eeereirg a 4

Nollan v California Coastal Commission, 483 US 825, 107

Sy Sid, ST L. BOBS G7? CAFE7) Us 6 cee ccc 516,13

Penn Central Transportation Co. v New York City, 438 US

104, 98 S Ct 2646, 57 L Ed 2d 631 (1978) ..4, 5, 11, 12, 13

Pennsylvania Coal Co. v Mahon, 260 US 393, 43 S Ct 158,

er Se ee a ee ce wee eee erence 4, 10

State Highway Commissioner v Englebrecht, 2 Mich App

PF CE SEE Ge CE CNP fb odin vs cc's a pd eae e ae ks 14

State Highway Commissioner v Snell, 8 Mich App 299,

SS ee OUT Ga cave Ks operator etanneus 14

Williamson County Regional Planning Commission v

Hamilton Bank, 473 US 172, 191, 105 S Ct 3108, 87 L

ee Fe ee er a es ea een beeen: 4,5, 6,8

Vv

TABLE OF AUTHORITIES — (Continued)

CONSTITUTIONS: Page

Michigan Constitution of 1963, Article 10, Section 2.... 8

United States Constitution, Fifth Amendment.......... 4, 6

United States Constitution, Fourteenth Amendment .... 4, 6

FEDERAL STATUTES:

ie A TG ce 9 bee ee aa CEs rare eee 4,6, 8

STATE STATUTES:

te Rs) es 6, 7,8

MCL 560.01, et. seq.; MSA 26.430(10), et. seq. ....... 14

COURT RULES:

Rules 10.1(b) & (c) Rules of the Supreme Court of the

RN IE oda a dyson soy hey cee ae eae RENn 3

OTHER AUTHORITY:

Michigan Attorney General Opinion (OAG 77-78, No.

5361, p. 610 (9-12-78) ......

No.

Ju the Supreme Court of the United States

OCTOBER TERM, 199]

WILLIAM BEVAN AND WAVA BEVAN,

PETITIONERS.

V

TOWNSHIP OF BRANDON, FT AL..

RESPONDENT

RESPONSE TO PETITION FOR A WRIT

OF CERTIORARI FROM STATE OF

MICHIGAN SUPREME COURT

RESPONSE TO PETITION FOR

A WRIT OF CERTIORARI

The Township of Brandon, respectfully requests that this

Court deny Petitioners’ request to issue a Writ of Certiorari to

review the Opinion of the Supreme Court of the State of Michi-

gan in Bevan v Brandon Township, Docket No. 86358, decided

September 9, 199].

RESPONDENT'S STATEMENT OF THE CASE

A. Nature of the Case.

Defendant-Appellee acknowledges that Plaintiffs-Appel-

lants’ Statement of the case is consistent with the events below

with certain significant exceptions.

At page 3 of their Petition, Plaintiffs-Appellants state that

Mrs. Bevan purchased her two contiguous parcels at different

times from different sellers. The existence of separate sellers has

never before been indicated in the record of this case, and is

contrary to the sixth paragraph of the stipulated facts (Petition-

ers’ Appendix, p. 42a).

5

Also at page 3 of their Petition, Plaintiffs-Appellants state

that Plaintiffs could construct a single family residence on each

parcel. That is not consistent with the stipulated facts. The fourth

paragraph of the stipulated facts (Petitioners’ Appendix, p. 42a)

is limited to the requirements of the zoning ordinance. Plaintiffs

Appellants did not present evidence that their parcels could

comply with regulatory requirements outside the zoning

ordinance

In addition, Defendant-Appellee contests the statement (Pe-

tition, pp. 3 and 4) that each parcel was accessed by the casement

and the easement was used by Plaintiffs’ predecessor in title, and

Plaintiffs. The stipulated facts state that the easement is unim

proved (Petitioners’ Appendix, p. 43a). There is no evidence o!

record as to what, if any, use has been made of the easement, and

there is no record that the parcels were ever used separately

Defendant-Appellee objects to Plaintiffs-Appellants’ charac-

terization, on page 4 of the Petition, of the Township Zoning

Board of Appeals as agreeing with the Building Official that only

one building permit would be allowed. The Zoning Board of

Appeals was asked by Plaintiffs-Appellants to waive the width

requirement for their private road to enable Plaintiffs-Appellants

to request building permits for two sites. The waiver was denied

by the Zoning Board of Appeals as an action within its sole

discretion. No proofs were presented that the Building Official

was involved in the appeal process.

Plaintiffs-Appellants state incorrectly that the Court of Ap-

peals ruled that the Township’s ordinance precluded all reasona-

ble use of their property. The Court of Appeals ruled that

Plaintiffs’ land consisted of two separate parcels and that Defen-

dant-Appellee’s private road ordinance had destroyed the value of

one of those parcels. The Court of Appeal’s ruling only applied to

the parcel as artificially divided. The Michigan Supreme Court

reversed, holding that Plaintiffs-Appellants’ parcel could not be

separated for takings analysis. Plaintiffs-Appellants retain full use

of their residential parcel albeit limited in the number of possible

building sites.

Finally, Defendant-Appellee notes that the opinion of the

Michigan Supreme Court states that the Plaintiffs-Appellants’

easement is Only 290 feet long (Petitioners’, Appendix p. 3a)

This finding is not supported in the record, although Defendant-

Appellee submits that such measurement would be relevant for

public safety considerations

B. Posture of the Case.

Defendant-Appellee disputes Plaintiffs-Appellants’ presenta-

tion of the posture of the case and asserts that the decision of the

Michigan Supreme Court ts fay within the parameters of Fed-

eral Constitutional and Statutory law as interpreted by this Court

REASONS FOR DENYING THE WRIT

In accordance with Rules 10.1(b) and (c) of the Rules of

the Supreme Court of the United States, the Writ should be

denied in this matter because the Michigan Supreme Court’s

decision is fully consistent with the prior decisions of this Court

and there are no new issues to be settled.

Contrary to the representation by Plaintiffs-Appellants, this

case differs from Lucas v South Carolina Coastal Commission,

cert. filed September 13, 1991, U.S. Supreme Court Docket

4

No. 91-453. The regulation enforced by Brandon Township does

not result in a total prohibition on the use of Plaintiffs-Appellants’

property and the evidence submitted does not establish that any

diminution in value occurred.

The Lucas, supra decision was rendered by a sharply divided

South Carolina Supreme Court. The majority concluded that an

otherwise valid government regulation designed to prevent serious

public harm did not amount to a compensable taking even though

the landowner could no longer use any of the subject property for

its intended purpese. The Lucas Court relied heavily on Keystone

Coal Association v DeBenedictis, 480 US 470, 107 S Ct 1232, 94

L Ed 2d 472 (1987): and Mugler v Kansas, 123 US 623,8S Ct

273, 31 L Ed 205 (1887). The dissent in Lucas also relied on

Keystone, but argued that a conflict existed with the decision in

Pennsylvania Coal Co. v Mahon, 260 US 393, 43 S Ct 158, 67 L

Ed 322 (1922).

In the case at bar, the government regulation does not deny

the landowners the ability to use their entire property for its

intended purpose. This case is fully consistent with the principles

recited in Agins v City of Tiburon, 447 US 255, 260, 100 S Ct

2138, 651 L Ed 2d 106 (1980), Penn Central Transportation Co.

v New York City, 438 US 104, 98 S Ct 2646, 57 L Ed 2d 631

(1978), Williamson County Regional Planning Commission v

Hamilton Bank, 473 US 172, 191, 105 S Ct 3108, 87 L Ed 2d

126, (1985), and Keystone, supra. Consequently, there has been

no abuse of the requirements of the Fifth and Fourteenth Amend-

ments of the United States Constitution, nor the privileges, rights

and immunities recited in 42 USC 1983. This matter is not

appropriate for review by this Honorable Court and the Petition

for issuance of a writ should be denied.

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.

Plaintiffs-Appellants first argument involves their standing to

pursue federal constitutional and statutory remedies for the al-

leged taking of their property. The issue of “ripeness” was raised

in the case below, but Plaintiffs-Appellants’ reference to “failure

to exhaust administrative remedies” is a misleading oversimplifi-

caticn of the issue. Plaintiffs-Appellants failed to pursue judicial

procedures for inverse condemnation and ignored a statutorily

provided avenue of appeal from the decision of the Zoning Board

of Appeals. They did not, therefore, meet the requirement of

finality as set forth in Williamson, supra, 473 US at 186.

Although Petitioners have raised the finality question, the

decision of the Michigan Supreme Court actually rested on the

absence of a taking. The Court ruled as follows:

Because the access regulation in question serves a legitimate

governmental interest and does not deny the owners econom-

ically viable use of their land, we conclude that enforcement

does not effect an unconstitutional taking of plaintiffs’ prop-

erty. (Petitioners’ Appendix, p. 4a). (Emphasis added)

Consistent with the principle noted in Agins, supra, 447 US

at 260, Nollan v California Coastal Commission, 483 US 825,

834-835, 107 S Ct 3141, 97 L Ed 2d 677 (1987) and Penn

Central, supra, 438 US at 127, the Michigan Supreme Court

went on to conclude that the Brandon Township Zoning Ordi-

nance is a legitimate exercise of its police power ( Petitioners’

Appendix, p. 15a). Thereafter, the Court noted that Plaintiffs-

Appellants had not shown a diminution in value sufficient to meet

the standard of taking set forth in Penn Central, supra 438 US at

6

131 and the Michigan standard established in Kropf v Sterling

Heights, 391 Mich 139, 21S NW 2d 179 (1974) (Petitioners’

Appendix, p. 19a). Despite Plaintiffs-Appellants’ protests, it can-

not be disputed that their property remains as a valuable six acre

building site (as opposed to the two smaller contiguous building

sites).

The Michigan Supreme Court’s decision rendered the issue

of finality or ripeness moot. However, since Plaintiffs-Appellants

have raised the question in their first argument, Defendant-

Appellee will present its argument in opposition.

Plaintiffs-Appellants indicate the Michigan Supreme Court

decision is violative of the Fifth and Fourteenth Amendments to

the United States Constitution, but the thrust of their argument

primarily concerns their statutory claim under 42 USC 1983. The

rule for pursuing relief from a taking under 42 USC 1983 was set

forth in this Court’s decision in Williamson, supra, 473 US at

193. Clearly, before bringing a $1983 claim, a landowner must

pursue administrative action to a finality to determine if an actua/

concrete injury has occurred. Plaintiffs-Appellants persisted in

their applications for two building permits only until they had

been denied on a request for a variance by the Brandon Township

Zoning Board of Appeals. At that point, Plaintiffs-Appellants still

had not reached a final decision.

Michigan law provides for direct access to a judicial review

of the Zoning Board of Appeals action, not just for the purpose of

determining whether the Zoning Board of Appeal’s actions vio-

lated any of Plaintiffs-Appellants’ rights, but a procedure for

determining if the Zoning Board of Appeal’s decision should be

final. Section 23a of the Township Rural Zoning Act (MCL

125.293a, et. seq.; MSA 5.2963(23a)) provides:

(1) The decision of the board of appeals rendered pursuant

to section 23 shall be final. However, a person having an

interest affected by the zoning ordinance may appeal to the

circuit court. Upon appeal the circuit court shall review the

7

record and decision of the board of appeals to insure that the

decision:

(a) Complies with the constitution and laws of the

state.

(b) Is based upon proper procedure.

(c) Is supported by competent, material, and substan-

tial evidence on the record.

(d) Represents the reasonable exercise of discretion

granted by law to the board of appeals.

(2) If the court finds the record of the board of appeals

inadequate to make the review required by this section, or

that there is additional evidence which is material and with

good reason was not presented to the board of appeals, the

court shall order further proceedings before the board of

appeals on conditions which the court considers proper. The

board of appeals may modify its findings and decision as a

result of the new proceedings, or may affirm its original

decision. The supplementary record and decision shall be

filed with the court. (Emphasis added)

(3) As a result of the review required by this section, the

court may affirm, reverse, or modify the decision of the board

of appeals.

By this procedure, the Circuit Court can review the propriety

of the Zoning Board of Appeal’s action and remand the matter if

such action lacked proper basis. If the appeal procedure is used, it

is possible under subparagraph (2) of Section 23a that the Zoning

Board of Appeals could change its decision.

Plaintiffs-Appellants ignored this appellate procedure until

15 months after their appeal rights ended, arguably because it is

judicial rather than administrative. But such an argument places

form over substance. The appellate procedure under Section 23a

is designed to augment the decision of the Zoning Board of

Appeals and, as such, is a necessary step in arriving at a timely

final decision. Truly efficient administration of justice is secured

8

by following the procedures designed for the early and direct

resolution of disputes, not, as Plaintiffs-Appellants assert, by

suing under various Federal and State theores jong after their

rights have become stale. Plaintiffs-Appellants have, in essence,

attempted to leapfrog into Federal Constitutional relief without

first honoring the appropriate State procedures.

Even if Plaintiffs-Appellants were not required to appeal

under the terms of Section 23a, they failed to properly assert a

judicial remedy that also is a precondition to their Federal claims.

In footnote 8 to its opinion (Petitioners’ Appendix, p. 8a),

the Michigan Supreme Court recognized that Plaintiffs-Appel-

lants’ 42 USC 1983 claim fell short of the requirements of finality

because Plantiffs-Appellants did not seek compensation under

State procedures for inverse condemnation. Although Plaintiffs-

Appellants assert in their Petition that they did imply an inverse

condemnation theory in their Complaint, they did not pursue it

(Petition, p. 9). They offered no proofs of any diminution of the

value of their property. Instead, they relied entirely on their

theory that the loss of one possible building site constituted a total

destruction of the value of all of their property rights. Although

the Trial Court and Court of Appeals accepted this theory, the

Michigan Supreme Court properly rejected it, and affirmed the

principles of Williamson, supra, as followed in the Michigan case

of Electro-Tech v H.F. Campbell Co., 433 Mich 57, 429 NW2d

625 (1989) (Petitioners’ Appendix, pp. 8a and 9a, Footnote 8).

Notwithstanding their failure to proceed timely and properly,

Plaintiffs-Appellants insist that their Complaint was sufficient due

to their claim of a taking under the Michigan Constitution of

1963, Art. X, Section 2, which impliedly is recognized as an

inverse condemnation action. Having failed to offer proofs, Plain-

tiffs-Appellants attempt to create a case of inverse condemnation

by stating (Petition, p. 9) that since the Trial Court found a

taking there must have been a taking. The Michigan Supreme

Court ruled that the Trial Court and the Court of Appeals were in

error because they considered only the loss of the expectation of

two building sites. Clearly, a taking means the loss of significant

9

value to the landowner, rather than just one aspect of potential

future development.

In the closing paragraphs of Argument I, Plaintiffs-Appel-

lants ask that this Honorable Court “finally rule in a definitive

fashion that temporary damages for regulatory takings are availa-

ble to Plaintiffs” (Petition, p. 10). Such a ruling has already been

made in First English Evangelical Lutheran Church of Glendale v

County of Los Angeles, 482 US 304; 107 S Ct 2378 96 L Ed 2d

250; (1987). Plaintiffs-Appellants lost this case because the

regulation applied to their land was determined to be a legitimate

governmental action, with no evidence of destruction of Plaintiffs-

Appellants’ reasonable investment backed expectations. Key-

stone, supra. There are no compensable damages.

ARGUMENT

Il. WHETHER THE LAND OWNER OF TWO SEPA-

RATE CONTIGUOUS LOTS IS DENIED THE USE

OF ONE OF THOSE, LE., IS ONE TAKEN BY THE

OPERATION OF DEFENDANT TOWNSHIP’S ZON-

ING ORDINANCE AND PRIVATE ROAD ORDI-

NANCE BY RESTRICTING THE USE OF ONLY

ONE PARCEL AS A SINGLE FAMILY RESIDEN-

TIAL SITE.

Plaintiffs-Appellants’ statement of their second issue (re-

cited above) presupposes the existance of a condition that legally

doesn’t exist — separate but contiguous parcels. Because of

inadequate road access, Plaintiffs-Appellants’ land is restricted to

one six acre building site instead of their desired two smaller

contiguous sites. Plaintiffs-Appellants throughout the history of

this case have maintained that since their predecessor in title

created two smaller acreage descriptions for this parcel that the

land was somehow physically divided. As a result of this division,

Plaintiffs-Appellants argue that Brandon Township’s ordinance

has destroyed one entire parcel. The facts of the case, as stipu-

lated by the parties, do not support this theory. Moreover, the

10

Michigan Supreme Court concluded, on the basis of unanimous

precedent, that the separation of parcels by nothing more than a

tax description is insufficient to treat such parcels as independent

entities for a taking analysis (Petitioners’ Appendix, p. 13a).

Factually, Plaintiffs-Appellants are bound by the sixth and

eleventh paragraphs of the stipulated facts (Petitioners’ Appen-

dix pp. 42a and 43a). The sixth paragraph notes that the parcel in

question was six acres in size and Wava Bevan’s predecessor in

title had divided the parcel into two tax descriptions. Paragraph

eleven informs us that the easement serving the parcel is unim-

proved and there has been no construction on the claimed

building sites.

There is, therefore, no evidence, but for the fact that a tax

description was placed on record prior to Plaintiffs-Appellants’

purchase, that the land is divided in any way. Moreover, nothing

was done by Plaintiffs-Appellants prior to the implementation of

Defendant-Appellee’s ordinance to indicate any use of the parcels

as separate entities.' Plaintiffs-Appellants did not argue below

that the Brandon Township ordinance was an invalid exercise of

the Police Power (Petitioners’ Appendix, p. 8a). This case is

nothing more than a typical dispute between the requirement that

government provide for the common good, and a_land-

owner's desire to use his or her property to the greatest personal

advantage. Since the government generally represents the inter-

ests of the public, the individual must accept some limitation to

the unfettered use of his or her property. As Justice Holmes

observed in Pennsylvania Coal Co. v Mahon, 260 US 393, 413, 43

S Ct 158, 67 L Ed 2d 322 (1922):

! Plaintiffs-Appellants’ Petition indicates for the first time that Mrs. Bevan

acquired the property from separate sellers. Although this assertion is contrary to

the record below, it has no bearing on the result. The Bevan’s property was

described out of a single parce! and remains in an unimproved condition under

single ownership

11

Government hardly could go on if, to some extent, values

incident to property could not be diminished without paying

for every such change in the general law.

The Michigan Supreme Court, unlike the Trial Court and

Court of Appeals before it, examined the totality of Plaintiffs-

Appellants’ property. Citing Penn Central, supra, 438 US at 130,

the Court observed (Petitioners’ Appendix p. 10a):

... the Supreme Court has declined to view an owner’s

property as divisible for purposes of a “taking” analysis.

Thereafter, the Court quoted directly:

The 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 untena-

ble... ‘Taking’ jurisprudence does not divide a single parce!

into discrete segments 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 rights in the parcel as a whole...” 438 US 130-13]

(Emphasis supplied)

Plaintiffs-Appellants attempt to distinguish Penn Central,

supra by arguing that the issue therein involved only one parcel of

property. However, the pertinent issue in Penn Central is the

landowner’s desire, based on mere expectation, to further develop

its property, without regard to the legitimate interest of the public.

Likewise, Plaintiffs-Appellants belief that they would someday

build two houses on their property does not entitle them to

compensation when the legitimate public interest requires that

they only build one house.

The Plaintiffs-Appellants still have their six acre residential

parcel, and they made no showing that such a site had no

economic viability for residential purposes. This is not a situation

12

where the government actually intruded on the land and left a

permanently altered condition as in Nollan, supra.

Actually, if Plaintiffs-Appellants’ taking theory is accepted,

they could be in a position to receive a windfall. If Brandon

Township is forced to compensate the Plaintiffs-Appellants for

the total loss of one building site, the Plaintiffs-Appellants could

later sell the full six acre parcel and again realize the incremental

added value of the taken small parcel within the resulting large

parcel. No theory of “just compensation” could contemplate that

a landowner receive more than the value of his or her land at the

expense of the public.

Plaintiffs-Appellants also attempt to distinguish this case

from the fact situation in Agins, supra. Again, Plaintiffs-Appel-

lants rely on their tax descriptions and claim they owned multiple

parcels while Agins purportedly dealt with a single parcel (Peti-

tion, p. 14). Surprisingly, Plaintiffs-Appellants appear to be

presenting Defendant-Appellee’s case when they note that the

Agins parcel was five acres (Bevans have six acres); the Plaintiffs

in’ Agins could still utilize their whole parcel as zoned (Bevans

have lost no land and the entire six acres remains zoned for

residential purposes); the only question in Agins was the number

or density of single family homes to be placed on the parcel

(precisely the dispute for the Bevans).

Finally, Plaintiffs-Appellants claim that although the land-

owners in Penn Central and Agins were unsuccessful, the Bevans

should prevail because they asked for two building permits eight

years after the zoning ordinance was implemented. To suggest

that a simple request for building permits, without any other

action on the land, somehow vests property rights in the land-

owner is directly contrary to Michigan law. As noted in the

Michigan Supreme Court’s Opinion (Petitioners’ Appendix,

pp. 16a and 17a):

In order for a nonconforming use of land to ves:, actual

construction on the site must have begun before the zoning

regulation is adopted. Application of a zoning ordinance does

13

not amount to a taking where the nonconforming use of the

property rests solely within the owner’s contemplation (citing

Gackler v Yankee Springs Township, 427 Mich 562, 573-

574; 398 NW2d 393 (1986)). Also Franchise Realty Inter-

state Corp. v Detroit, 368 Mich 276; 118 NW2d 258 (1962).

Plaintiffs-Appellants further argue under Keystone, supra,

that the limiting of their property from two building sites to one

building site destroyed their reasonable investment backed expec-

tations (Petition, p. 13). In making this argument, Plaintiffs-

Appellants disregard the fact that pursuant to this Court’s ruling,

neither of the landowners in Agins nor Penn Central were able to

develop their property in accordance with their expectations.

Plaintiffs-Appellants overlook this Court’s clear mandate in Key-

stone, supra that the Court must evaluate the impact of the

regulation on the value of the property as a whole. 480 US at 494.

In their Petition, Plaintiffs-Appellants assert that a standard

for compensabie takings exists when the landowner’s interest is

affected by more than 2% (Petition, p. 15). Furthermore, Plain-

tiffs-Appellants believe Nollan, supra is relevant to this issue

because the taking therein involved a relatively small easement of

only 10 feet in width. Plaintiffs-Appellants’ purpose is seemingly

to establish a quantitative takings standard. However, Plaintiffs-

Appellants again ignore the fact that Nollan involved an actual

intrusion onto the landowner’s property. Plaintiffs-Appellants

have not experienced an intrusion and, contrary to their protests,

they have not suffered a 50% nor a 100% loss of their property

(Petition, p. 15). Plaintiffs-Appellants forget that where there ts

no physical occupation, a regulatory taking analysis must concen-

trate on value, not the thing itself. Plaintiffs-Appellants still own a

six acre parcel of residential land, nothing less. Moreover, this

question has already been addressed by this Court and, even if

there is a diminution of value, the established rule remains that a

set percentage analysis is not appropriate. Penn Central, supra,

438 US at 104.

The “one owner, one parcel” concept is not new to Michigan

law. When unplatted adjoining parcels are joined under one

14

ownership they create an “assemblage” or unity of ownership

resulting in one continuous area or acreage of land. Such assem-

blage is thereafter considered a single parcel. The Michigan

Attorney General has also interpreted the Michigan Subdivision

Control Act, MCLA 560.01, et. seq., MSA 26.430(101), et. seq.,

specifically as to unplatted contiguous parcels. The Subdivision

Control Act of 1967 defines “parcel” or “tract” as:

A continuous area or acreage of land which can be described

as provided for in this act. (Emphasis added)

At question 7 of the Attorney General’s Opinion (OAG, 77-78,

No. 5361, p. 610 (September 12, 1978)) is the following:

When a proprietor by deed or deeds acquires title to adjacent

unplatted parcels of land, he has created an assemblage, i.e.

he has united in one uniform ownership a “contiguous area

or acreage of land”. The resulting unplatted assemblage of

land must thereafter be considered as a single parcel for

purposes of ascertaining whether any subsequent division or

partition is an act of “subdivision”.

Footnoted to the above was the following with citations to State

Highway Commissioner v Englebrecht, 2 Mich App 572; 140

NW2d 760 (1966) and State Highway Commissioner v Snell.

8 Mich App 299; 154 NW2d 631 (1967);

A parcel or tract of land made up of more than one lot that

are (sic) contiguous having a uniformity of ownership and

use is considered as a single parcel for the purpose of

determining diminution of its value when only a portion of

the parcel or tract is acquired by eminent domain proceed-

ings. These lots are not to be considered as separate and

independent parcels merely because they were purchased at

different times and are separated by an imaginary line.

In our case, we have two parcels with an “imaginary line”

between. Plaintiffs are aggrieved because they cannot build two

houses, one on either side of the imaginary line, instead of one

15

house on the one contiguous six acre parcel that they themselves

created.

The Michigan Supreme Court, although it did not cite the

Subdivision Control Act in this case merely affirmed what was

already established in Michigan. The cases referenced above

succinctly state that the Act’s definition of a “parcel” for “tak-

ings” analysis is applicable.

Additional, long established, Michigan law does not support

Plaintiffs-Appellants’ case. The Michigan Supreme Court cited

Kropf, supra, 391 Mich at 163 (Petitioners’ Appendix, p. 18a):

An aggrieved property owner must show that if the ordinance

is enforced the consequent restrictions on his property pre-

clude its use for any purposes to which it is reasonably

adapted.

Because Plaintiffs-Appellants chose to rely exclusively on the tax

descriptions for their property, they failed to produce any evi-

dence as to its value as regulated. Accordingly, the Michigan

Supreme Court ruled that Plaintiffs-Appellants had failed to meet

the necessary State standard. (Petitioners’ Appendix, p. 19a).

The application of both State and Federal law by the

Michigan Supreme Court in this case has been consistent with

established precedent. Such precedent is clear and unambiguous

on the question of the identity of property rights, to-wit: takings

analysis requires evaluation of the landowner’s property as a

whole, not in individual segments and not based on various

expectations. No valid purpose will be served by granting Plain-

tiffs-Appellants’ petition to merely affirm that which ts already

the established law.

16

Ill. WHETHER THE MICHIGAN SUPREME COURT

IMPROPERLY INTERPRETED AND APPLIED

THE BRANDON TOWNSHIP PRIVATE ROAD OR-

DINANCE TO THE FACTS OF THIS CASE IN

LIGHT OF ESTABLISHED FEDERAL TAKING

JURISPRUDENCE.

In their third issue, Plaintiffs-Appellants, as they did in the

lower Courts, overlook the fact that they offered absolutely no

evidence to prove that the Brandon Township Private Road

Ordinance was not a proper legislative enactment. Plaintiffs-

Appellants maintain that simply because they don’t believe that

the ordinance is appropriate in their situation, further evidence is

unnecessary (Petition, p. 15).

It is not the duty of Brandon Township to prove that its

legislative pronouncements are valid. It is the duty of the com-

plaining landowner to prove that they are not valid. Kropf. supra,

391 Mich at 163.

The Michigan Supreme Court examined the preamble to the

Brandon Township ordinance and distinguished a valid govern-

mental purpose (Petitioners’ Appendix, p. I4a, full text at

p. 50a).

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 accor-

dance with certain minimum standards, such roads fre-

quently become impassable ... and otherwise pose a threat

to the health, safety and welfare of the residents located

along the roadway, as well as those other residents who

would find use of the roadway essential. Ordinance No. 42.

17

Unlike the Trial Court and the Court of Appeals, the Michigan

Sup-eme Court recognized that nublic interest becomes involved

when more than one family must rely on the road without regard

to the usage by the public in general. The Court stated (Petition-

ers’ Appendix, p. 15a):

The Township legislatively determined that the public inter-

est 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. (Emphasis added)

The Michigan Supreme Court went on to note that the Court of

Appeals erred when it substituted its “two residences” standard

for the legislative standard set in the ordinance (Petitioners’

Appendix, p. 16a)”. Thereafter by way of a footnote, the Court

observed:

In a related argument, plaintiffs contend that the ordinance

is unreasonable 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. (Emphasis added) (Petitioners’ Ap-

pendix, p. 16a, Footnote 15).

Quite simply, by raising this issue, Plaintiffs-Appellants are try-

ing, as they did below, to have this Court substitute its opinion for

the factual determinations made by the legislative body for

Brandon Township. In the absence of a finding that such legisla-

tive enactment is constitutionally infirm the granting of their

request would go against separation of powers principles that have

been in effect for 200 years. Defendant-Appellee respectfully

prays that this Honorable Court decline such an opportunity.

2 Defendant-Appellee asserts that it is inappropriate to encourage judicial

interference with proper legislative function. The Court of Appeals conducted no

independent inquiry into the reasoning behind the roadway standard and simply

chose a different number to effectuate its opinion

18

CONCLUSION

Plaintiffs-Appellants have failed to present any compelling

reason why their Petition should be granted. The decision of the

Michigan Supreme Court is based on its determination of the true

nature of Plaintiffs-Appellants’ property. As such, the decision is

well reasoned and consistent with the precedents established by

this Court. Unlike other matters pending before this Court, upon

which Plaintiffs-Appellants rely, there is no conflict within this

case as to the nature or applicability of the Federal law. Defen-

dant-Appellee respectfully requests that the Petition be denied.

STUART B. COONEY

Counsel of Record for Respondent

RICHARD A. CAMPBELL

20 W. Washington, Ste. |

Clarkston, Michigan 48346

(313) 625-0600

December 27, 199]