Share
Foster Swift Municipal Law News: MTA Edition
January 2011
No Exclusionary Zoning Where Township Once Had Land Use But That Use Is Not in the Township Due to City Annexation
The Court of Appeals rejected a claim that a township was excluding commercial uses where there are many commercial uses in the neighboring city and some of those uses were formerly in the township before the city annexed the land on which they exist. DF Land Development, LLC v Charter Twp of Ann Arbor, unpublished per curiam opinion of the Court of Appeals (Docket No. 291362, dec’d 7/13/02). The Court found no total exclusion, noting that there is a considerable amount of commercial uses within very close proximity to the township. The Court noted that much of the township has been annexed to the City of Ann Arbor, and there is much commercial land in what was formerly part of the township. Thus, there is ample commercial use "within close geographical proximity of everywhere in the township. Foster Swift attorney Thomas Meagher represented the Township.
Court Rejects Constitutional Challenges to Township’s Rezoning Denial
The Court of Appeals recently rejected a constitutional challenge to a township’s decision to deny a rezoning request. Chestnut Development, LLC v Twp of Marion, __ Mich App __ (unpublished decision of June 22, 2010). There, the Court agreed the township’s decision was not arbitrary since the township considered the following: (1) advice from its planning consultant, (2) the nature of the surrounding property, (3) the absence of sewer service, and (4) the notation in the county comprehensive plan that sewer should not be extended to property such as plaintiff’s. It also rejected the developer’s takings claim, since the developer did not show that it was completely deprived of all economically beneficial uses of the property. Namely, the plaintiff admitted that it did not pursue a Planned Unit Development (PUD) request under the SR (Suburban Residential) zoning scheme. Further, the plaintiff did not evaluate the potential for splitting the property for development, and it presented no evidence indicating that it could not use the property in some other economically viable manner or that the property was unmarketable for some use as zoned. Further, the plaintiff could not establish a valid takings claim because the plaintiff all but acknowledged that it could still sell the property at a profit, and it purchased the land with full knowledge of its zoning classification and poor soil. Foster Swift attorney Thomas Meagher represented the Township.
Michigan Supreme Court Rejects Exclusionary Zoning Claims Since Developer Did Not Seek Rezoning Or A Variance
The Michigan Supreme Court recently held that a township’s denial of an application for rezoning at a proposed lower-density level does not automatically establish that its exclusionary zoning challenge to the township’s ordinances is ripe, or that it would be futile for the developers to apply for a higher-density use. Hendee v Putnam Twp, 486 Mich 556, 560-61; 786 NW2d 521 (2010). There, the township denied a rezoning request for a 95-unit PUD. The developers then sued, claiming the township unlawfully excluded mobile home parks and sought permission to build a 498-unit mobile home park. The Supreme Court ruled that the claim was not ripe, siding with the township. The Court emphasized that the complaint is not ripe since the developers did not submit any rezoning request for a 498-unit mobile home park to the township. The Court rejected the claim that the futility exception to the ripeness doctrine should apply. The developers argued it would have been futile to seek permission to develop a 498-unit mobile home park because the township had already denied their rezoning request for the 95-unit PUD. But because they did not pursue an application for rezoning from for a mobile home park, they could not show that the futility doctrine applied. Foster Swift attorney Thomas Meagher successfully represented the Township.
MDEQ May Not Force A Township To Install A Public Sewer System Where Private System Fails And The Township Is Not The Cause of the Failure
The MDEQ lacks the power to require a township to install a sanitary sewer system where there is widespread failure of private septic systems resulting in contamination of lake waters. MDEQ v Twp of Worth ___ Mich App ___ (published decision of August 17, 2010). There, the MDEQ sued to compel the township to install a public sewer system when private systems failed. The trial court sided with the MDEQ, requiring the township to design, construct, and operate a sewer project to remedy the failing system and resulting discharges. The trial court also imposed a $60,000 fine and awarded attorney fees. The Court of Appeals reversed, ruling in the township’s favor. The Court interpreted the controlling statutes to impose liability on the "municipality" in which the discharge occurred only if the discharge occurred due to actions of the municipality. Since there was no evidence that the township was the source of the discharge as it did not operate the system, the township could not be penalized for the discharge.
The MDEQ has asked that the Michigan Supreme Court review the decision. So the last word may not have been heard on this one yet.