Order Michigan Supreme Court
Lansing, Michigan
March 28, 2008 Clifford W. Taylor,
Chief Justice
132315 Michael F. Cavanagh
Elizabeth A. Weaver
PULTE LAND COMPANY, L.L.C., and Marilyn Kelly
MARGARET BRECHTING, Maura D. Corrigan
Plaintiffs-Appellees, Robert P. Young, Jr.
v SC: 132315 Stephen J. Markman,
Justices
COA: 259759
Kent CC: 02-008377-CZ
ALPINE TOWNSHIP,
Defendant,
and
CHRIS BRECHTING,
Intervening Defendant-Appellant.
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On order of the Court, the application for leave to appeal the September 12, 2006
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
WEAVER and KELLY, JJ., would grant leave to appeal.
MARKMAN, J., dissents and states as follows:
I would grant leave to appeal to consider whether there was a “taking” of property
here and, if not, whether a zoning referendum is properly reversed by a consent judgment
entered without the involvement of the local zoning commission.
Plaintiffs Margaret Brechting and Pulte Land Company entered into a purchase
agreement for property contingent on securing zoning for residential development. Pulte
applied to rezone the property, and the township approved. However, a referendum to
defeat the rezoning was successful. Pulte then applied for a variance, which was denied,
and subsequently brought suit against the township.
The trial court approved a partial consent judgment in which the township agreed
not to oppose the relief sought by plaintiffs. The court ruled that the agricultural zoning
classification of the property constituted a “taking” and ordered a rezoning to residential
development. The Court of Appeals, in an unpublished opinion per curiam, issued
September 12, 2006 (Docket No. 259759), affirmed, but remanded for the trial court to
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enjoin zoning enforcement rather than order rezoning. Judge Schuette in a concurrence
raised concerns about the constitutionality of employing a consent judgment to override
the results of a referendum.
First, I would further consider whether the current zoning classification constitutes
a “taking.” Although plaintiff Brechting received no offers from farmers to purchase the
land, she never offered it for sale at the market price for its classification. In addition,
Pulte agreed to the removal of the rezoning contingency from the purchase agreement
with knowledge of its current zoning status. In fact, Pulte signed the amended purchase
agreement without the zoning contingency, after the referendum had defeated the
rezoning, and after the township had denied a use variance. The reasonableness of
Pulte’s investment and financial expectations is disputable. Moreover, the regulation
applied over a large area of land and hardly can be said to single out plaintiffs to “bear
the burden for the public good . . . .” K & K Constr, Inc v Dep‘t of Environmental
Quality, 267 Mich App 523, 559 (2005).
If the zoning does not constitute a “taking,” the question becomes whether the trial
court overstepped its authority when it allowed the township board to enter into a consent
judgment that superseded the referendum. The Michigan Zoning Enabling Act, MCL
125.3101 et seq. (formerly MCL 125.271 et seq. with regard to townships), provides for
the enactment and administration of zoning ordinances. The legislative body of a local
government, through the recommendations of its zoning commission, has the authority to
enact, amend, and enforce zoning ordinances. MCL 125.3211; MCL 125.3305. There is
nothing in the act that clearly addresses whether a township board may unilaterally grant
relief from a zoning ordinance, in particular after the same relief has earlier been reversed
by referendum and a use variance has been denied. An amendment of a zoning ordinance
is made in the same manner as the enactment of the original ordinance. MCL 125.3202.
By entering the consent judgment, the trial court arguably allowed the township board to
circumvent this statutory process.
The issue whether the trial court overstepped its authority in allowing a consent
judgment to be entered without the involvement of the local zoning commission and to
supersede a popular referendum raises an important separation of powers issue. The
issue whether the current zoning classification constitutes a “taking” raises an equally
important question concerning the standards that Michigan courts are prepared to apply in
assessing seemingly ordinary local zoning decisions. For these reasons, I would grant
leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 28, 2008 _________________________________________
p0325 Clerk