Marposs Corp. v. City of Troy

Per Curiam:.

This is an action challenging defendant’s refusal to consent to a tax abatement under *159the Technology Park Development Act, MCL 207.701 et seq.) MSA 7.800(101), et seq.

Plaintiff sought to move its facilities from defendant, City of Troy, to a technology park in the City of Auburn Hills. The City of Auburn Hills offered plaintiff a tax abatement under the statute. However, under the statute, defendant’s consent was required before plaintiff could actually be granted the tax abatement. Defendant objected to the move and thereby blocked the abatement, though not the move.

Plaintiff sued, alleging that defendant waived its right to object (count i); that defendant abused its discretion in objecting (count n); that defendant’s objection conflicted with the legislative scheme (count iii); and that the objection violated the constitutional guarantee of equal protection (count iv).1 The trial court ruled for defendant on counts i and iv and for plaintiff on counts n and iii. The defendant appeals, and the plaintiff cross appeals. We reverse in part and affirm in part.

First, we agree with the trial court that defendant did not waive its right to object by initially referencing the wrong statute in its objection or by failing to file an amended objection within twenty days of its adoption. Imposing such a severe sanction for what is essentially a ministerial error is not supported by the language of the act.

The basic question raised in this appeal is whether the act gives the governmental unit from which the business is moving the absolute right to veto the granting of a tax exemption by the community setting up the technology park.

The preamble to the Technology Park Development Act states, among other things, that the act’s purpose is to “provide for the establishment of *160technology park districts in local governmental units; to provide certain facilities located in technology park districts an exemption from certain taxes; to levy and collect a specific tax upon the owners of certain facilities.” The act requires that the technology parks be of a certain size, that they be established in connection with an institution of higher learning, and that only one may be established in any one governmental unit. The act further provides that an application for a tax exemption "shall not” be approved by the receiving governmental unit "unless all of the following requirements are met.” MCL 207.710(2); MSA 7.800(110)(2). The only requirement at issue here is stated in subsection 10(2)(d):

Completion of the facility will not cause the transfer of employment of more than 20 full-time persons from 1 or more local governmental units or, if completion of the facility will cause the transfer of employment of more than 20 full-time persons from 1 or more local governmental units, the applicant has provided notification to the department and to each local governmental unit from which such employment is to be transferred and the notified local governmental unit has not objected by resolution within 30 days after receipt of notification of the transfer of employment. If a notified local governmental unit objects within 30 days after receipt of the notification, the application shall not be approved until the objection is waived by the objecting local governmental unit. If the local governmental unit objects, a copy of the resolution of objection showing reasons for the objection shall be filed within 20 days after adoption with the department. [Emphasis added.]

Defendant argues that the emphasized language gives it an absolute right to veto the tax exemption. Plaintiff contends that such a grant of abso*161lute power would render the statute unconstitutional and that, therefore, the statute must be interpreted to allow review of the reasons for defendant’s objection under an abuse of discretion standard in light of the goals of the statute. More specifically, plaintiff argues that because defendant did not object to the move on the basis of loss of jobs, its objection was an abuse of discretion and should not be allowed to block the tax abatement.

"There is no doubt that a legislative body may not delegate to another its lawmaking powers. It must promulgate, not abdicate.” Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956). "This is not to say, however, that a subordinate body or official may not be clothed with the authority to say when the law shall operate, or as to whom, or upon what occasion, provided, however, that the standards prescribed for guidance are as reasonably precise as the subject matter requires or permits.” Id.; see also Lansing School Dist v State Bd of Ed, 367 Mich 591, 596-598; 116 NW2d 866 (1962). Thus, where the Legislature "has set up sufficient standards for the guidance of the” body making the particular decision, there is no unconstitutional delegation of power. Id. at 598; see also Petrus v Dickinson Co Bd of Comm’rs, 184 Mich App 282, 294-295; 457 NW2d 359 (1990). On the other hand, where the deciding body is allowed to "change the State law to suit its own purposes” or is given "an unlimited number of choices” regarding when and how to apply the law, the delegation is unconstitutional because the deciding body is being, in effect, permitted to decide or alter policies of statewide concern. Arlan’s Dep’t Stores, Inc v Attorney General, 374 Mich 70, 77; 130 NW2d 892 (1964); see also Osius, supra at 697-701.

To determine whether the act provides adequate standards to survive constitutional scrutiny,

*162"[f]irst, the act in question must be read as a whole; the provision in question must be construed with reference to the entire act. Next, the standard should be as reasonably precise as the subject matter requires or permits. Third, if possible, the statute must be construed as being valid, that is, it must be construed as conferring administrative, not legislative, power and as giving discretionary, not arbitrary, authority. Last, the statute must satisfy due process requirements.” [Petrus, supra at 294 (quoting Attorney General v Public Service Comm, 161 Mich App 506, 510; 411 NW2d 469 [1987]).]

However, the Legislature must not be denied "the ability to set forth standards that are flexible and practicable.” Id. We conclude that, under these standards, the statute is unconstitutional.2

Reading the statute as a whole, it is clear that its goal is to promote the establishment of technology parks where certain industries will be concentrated and accessible to institutions of higher learning. The statute attempts to make concessions to the communities that will lose more than twenty jobs when employers relocate to these parks by allowing them to object to the incentives offered to encourage the move, i.e., by allowing them to object to the tax abatements. The statute attempts to satisfy due process requirements by providing for notice and a statement of reasons.

However, the statute provides no indication of what reasons are valid grounds for objecting. In other words, a community losing more than twenty jobs may object or not, in its sole discretion. There are no guidelines provided to determine, once more than twenty jobs are involved, whether objections should or should not be filed. *163There are no guidelines for deciding, once an objection is filed, whether an objection is reasonable and should be sustained. Defendant’s position that it is granted absolute discretion by the statute is therefore not at all irrational. The problem is that, as discussed above, such an absolute grant of discretion is unconstitutional because the statute then "becomes an open door to favoritism and discrimination.” See Osius, supra at 700.

We cannot agree that constitutionally sufficient standards may be gleaned from the provision allowing for objections.3 We also cannot agree that defendant’s objections would have been sufficient if they had had any relationship to job loss. That is because, since only communities suffering a loss of more than twenty jobs may object, there are always going to be some jobs lost. However, the statute is silent regarding how to determine whether an objection based on lost jobs is valid. For example, the statute does not specify whether there must be some kind of relationship between population and jobs lost or whether some other standard must be met before an objection based on lost jobs is valid. The statute is also silent regarding whether job loss is the only valid reason for objecting. We therefore find that it is an unconstitutional delegation of power.

Going one step further, we also note that if sufficient standards could be gleaned from the statute as a whole, then we would find that defen*164dant abused its discretion in objecting to the move. Defendant offered the following reasons for its objection:

The City of Auburn Hills need not give inducements for economic development because it is not a city in a state of economic decline; and
Tax abatements diminish revenues to Oakland County government which must then be supported by other taxpayers in other cities, villages and townships, some of which are in a state of decline; and
The City Council of the City of Troy concludes that it chooses not to grant tax abatements within the City of Troy and therefore it chooses not to act upon requests which indirectly grant tax abate-ments outside the City of Troy in prospering communities.

As discussed before, we find from the preamble and the legislative history that the purpose of the act is not to revitalize economically depressed areas but rather to encourage the development of high-tech industry and interaction between that industry and institutions of higher learning, and also to attempt to secure long-term prosperity for the state. Because the reasons for defendant’s objections do not relate to the purposes of the act, they constitute an abuse of discretion and would be insufficient to block the tax abatement offered to plaintiff.

Affirmed in part and reversed in part.

A claim under the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. (count v), was dismissed by stipulation.

We express no opinion regarding the constitutionality of other statutes not before us.

The cases cited by plaintiff are distinguishable because the issue there was whether the Legislature had indeed delegated the power to decide whether a tax abatement would be granted. Compare Lexington Townhouses Cooperative v City of Warren, 32 Mich App 523, 526; 189 NW2d 138 (1971) (issue was whether municipality had power to determine whether to grant a tax exemption once it found certain facts to be true); see also Colonial Townhouse Cooperative, Inc v Lansing, 25 Mich App 24, 26; 181 NW2d 2 (1970) (same issue). Here, there is no question that the power to decide has been delegated. The question is whether any limits have been imposed.