Erickson v. Department of Social Services

M. J. Kelly, P.J.

Plaintiffs initiated this action, seeking an injunction to restrain defendants from establishing a certain house- as a child caring institution pursuant to MCL 722.111 et seq.; MSA *47625.358(11) et seq. In a brief opinion accompanying its December 16, 1980, order imposing the requested permanent injunction, the trial court held that this statute did not permit "the licensing of state operated residental child caring facilities”. Thus, reasoned the court, a state run (as opposed to state licensed) facility could not partake of the benefits of § 16a(2) of the Township Rural Zoning Act, MCL 125.286a(2); MSA 5.2963(16a)(2), which makes "a state licensed residential facility” with six or less persons a "residential use” sufficient to meet local zoning restrictions. The defendants appeal as of right and argue that a state operated facility which must be "evaluated and approved” but not licensed, MCL 722.116; MSA 25.358(16), should be included within the zoning act’s definition of residential use the same as private licensed facilities.

The dispute herein involves three primary statutes. The first is MCL 722.115(1); MSA 25.358(15)(1) which imposes a licensing requirement on those persons or organizations desirous of opening a child care facility. In pertinent part, the statute provides:

"A person, partnership, firm, corporation, association, or nongovernmental organization shall not establish or maintain a child care organization, unless licensed or registered by the department. Application for a license or certificate of registration shall be made on forms provided, and in the manner prescribed, by the department. Before issuing or renewing a license, the department shall investigate the activities and proposed standards of care of the applicant and shall make an on-site visit of the proposed or established organization. If the department is satisfied as to the need for a child care organization, its financial stability, the good moral character of the applicant, and that the services and facili*477ties are conducive to the welfare of the children, the license shall be issued or renewed.”

The correlative requirements for state or local government operated child care centers differ from those imposed on private facilities. Specifically, under MCL 722.116; MSA 25.358(16), a state or local government facility must meet the following basic guidelines:

"Local and state government child care organizations similar to those nongovernmental organizations required to be licensed pursuant to this act shall be evaluated and approved at least once every 2 years, using this act and rules promulgated thereunder for similar nongovernmental organizations licensed under this act. A report of the evaluation shall be furnished to the funding body for each child care organization. Unless child care organizations are approved, or provisionally approved, as meeting the appropriate administrative rules, state funds shall not be appropriated for their continued operation.” (Emphasis added.)

The "licensed” requirement for private facilities and the "evaluated and approved” standard for local and state government run centers becomes critical in light of the state policy to establish small, noninstitutional facilities in residential areas. Inevitably, as was found, the state policy comes into conflict with local zoning ordinances which limit occupancy in a given area to single-family residences. To remedy this perceived conflict, the Legislature enacted the third statute, MCL 125.286a; MSA 5.2963(16a), which was designed to facilitate residential placement of persons in the state’s care, without encroaching on the right of local homeowners to enforce applicable restrictive covenants. See Malcolm v Shamie, *47895 Mich App 132; 290 NW2d 101 (1980). The statute provides:

"(2) In order to implement the policy of this state that persons in need of community residential care shall not be excluded by zoning from the benefits of normal residential surroundings, a state licensed residential facility providing supervision or care, or both, to 6 or less persons shall be considered a residential use of property for the purposes of zoning and a permitted use in all residential zones, including those zoned for single family dwellings, and shall not be subject to a special use or conditional use permit or procedure different from those required for other dwellings of similar density in the same zone.” (Emphasis added.)

It is alleged on appeal that evaluation and approval of government run facilities is so similar to the licensing procedure required of private institutions, that the special definition of residential use for "state licensed residential facilities]” applied equally to the instant center. Without guessing whether the state policy equates privately run and government run facilities, we cannot agree.

In Charter Twp of Pittsfield v City of Saline, 103 Mich App 99, 104-105; 302 NW2d 608 (1981), we referred to the traditional rules or statutory construction:

"[I]f the statute is unambiguous on its face, we will avoid further interpretation or construction of its terms. Detroit v Redford Twp, 253 Mich 453; 235 NW 217 (1931). However, if ambiguity exists, it is our duty to give effect to the intention of the Legislature in enacting the statute. Melia v Employment Security Comm, 346 Mich 544; 78 NW2d 273 (1956). To resolve a perceived ambiguity, a court will look to the object of the statute, the evil or mischief which it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute’s purpose. Bennetts v *479State Employees Retirement Board, 95 Mich App 616; 291 NW2d 147 (1980), Stover v Retirement Board of St Clair Shores, 78 Mich App 409; 260 NW2d 112 (1977). Also, ambiguous statutes will be interpreted as a whole and construed so as to give effect to each provision and to produce an harmonious and consistent result. In re Petition of State Highway Comm v Miller, 78 Mich App 336; 259 NW2d 877 (1977). Further, specific words in a given statute will be assigned their ordinary meaning unless a different interpretation is indicated. Oshtemo Twp v Kalamazoo, 77 Mich App 33, 39; 257 NW2d 260 (1977), MCL 8.3a; MSA 2.212(1).”

Applying the above rules, we note that the term "license” is not ambiguous on its face. See People v Henderson, 391 Mich 612, 616; 218 NW2d 2 (1974). ("A license is the permission by competent authority to do an act which, without such permission, would be illegal.”) Further, it is apparent from a comparison of the language in MCL 722.115(1); MSA 25.358(15X1) and MCL 722.116; MSA 25.358(16) that the effect of acquiring a license to operate a privately run child care center differs substantially from the procurement of state approval for a government run center. In the former case, a license is an absolute prerequisite to operate a child care facility. Although a state or local government run facility is subject to the same rules of operation as its private counterpart, including criminal penalties for failure to comply with such standards, MCL 722.125; MSA 25.358(25), the state’s formal approval of the facility does not constitute a similar prerequisite to operation. In fact, the language of MCL 722.116; MSA 25.358(16) discloses that the state’s only recourse against unapproved government run facilities, which are not otherwise subject to the criminal penalties noted above, is to withhold state funds. Thus, absent a finding that the statutory *480terms "licensed” and "approved” are interchangeable or ambiguous, we are prohibited from further construction of these terms. Charter Twp of Pitts-field, supra.

Our ultimate inquiry is whether the phrase "state licensed residential facility” in MCL 125.286a(2); MSA 5.2963(16a)(2) is elastic enough to encompass "licensed” private facilities and "approved” government centers. We conclude that the unambiguous and exclusive reference to licensed facilities in this statute does not permit a conclusion that "approved” government run facilities can be included in the definition of residential use. In this regard, we note that nowhere in the entire statute is the term "approved” or a similar term applied. Subsection 1 of the statute provides the following definition of state licensed residential facility:

"As used in this section 'state licensed residential facility’ means a structure constructed for residential purposes that is licensed by the state pursuant to Act No. 287 of the Public Acts of 1972, as amended, being sections 331.681 to 331.694 of the Michigan Compiled Laws, or Act No. 116 of the Public Acts of 1973, as amended, being sections 722.111 to 722.128 of the Michigan Compiled Laws, which provides resident services for 6 or less persons under 24-hour supervision or care for persons in need of that supervision or care.”

We have already concluded that a state "approved” child care institution differs from one which acquires a license. This provision’s reference to MCL 331.681; MSA 16.610(1) through MCL 331.694; MSA 16.610(14), since repealed, 1979 PA 218, and replaced by the new Adult Foster Care Facility Licensing Act, MCL 400.701 et seq.; MSA 16.610(51) et seq., provides further support for a more limited application of the statute’s terms. *481Under the new act, all institutions, whether governmental or nongovernmental, are required to be licensed by the Department of Social Services. MCL 400.713(1); MSA 16.610(63)(1). Also, the department is directed to operate within the special licensing restrictions imposed by MCL 125.286a; MSA 5.2963(16a) regarding the number of facilities which may be licensed in a specified area and notice of the proposed home to local authorities. MCL 400.716(3); MSA 16.610(66X3). As evidenced by the more detailed licensing provisions of the Adult Foster Care Facility Licensing Act, the Legislature could have provided for specific licensing of both private and governmental child care institutions. Because the Legislature saw fit not to license government institutions, we are compelled to hold that the definition of residential use in MCL 125.286a(2); MSA 5.2963(16a)(2) applies only to those institutions in fact licensed.

Accordingly, we affirm the decision of the trial court and add that the Legislature is free to redirect this decision by statutory amendment if it believes that our interpretation is contrary to the act’s intent.

Affirmed.

R. M. Daniels, J., concurred.