Byrne v. State

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

O pinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED APRIL 18, 2001

NORMAN and ROSEMARY BYRNE,

DONALD and LEE NOLTE,

RICHARD and SUE BURTON,

BERNARD and MARGARET ROOKER,

ARTHUR and CONNIE VADEBONDOEUR,

DANIEL and JANE WHITE, GENE

McGANN, ROBERT and KATHY SCUDDER

and LIL VROMA, Individually,

Plaintiffs-Appellants,

v No. 116412

STATE OF MICHIGAN and

DEPARTMENT OF STATE POLICE,

Defendants-Appellees,

and

MOTOROLA COMMUNICATIONS AND

ELECTRONICS, INC.,

Intervening-Defendant-

Appellee.

________________________________

PER CURIAM

The plaintiffs sued to stop construction of a State

Police radio tower on a site near their homes. The circuit

court granted summary disposition in favor of the defendants

and the Court of Appeals affirmed. We likewise affirm. The

site of the tower was selected in a manner that accords with

the pertinent statute.

In the wake of studies done in the 1980s, the Legislature

concluded that the State Police radio communication system was

outdated and inadequate. The problems included aging and

unsafe towers, restricted access to radio frequencies, and

incomplete coverage of the state.

A long process led eventually to a 1994 contract with

Motorola Communications and Electronics, Inc., under which

Motorola would design and construct the “Michigan Public

Safety Communications System” (MPSCS ) for approximately $187

million. When complete, the system of 181 towers would

modernize communications for the State Police, and link law

enforcement agencies throughout the state.1 The system would

function as a whole, so that the location and height of

individual towers would depend, inter alia, on the location

and height of other towers.

The MPSCS is governed by 1996 PA 538, MCL 28.281 et seq.;

MSA 4.491 et seq. With regard to the selection of tower

sites, the act provides:

The system also will be available to certain other

agencies that are involved with law enforcement or public

safety. The Departments of Corrections, Natural Resources,

and Transportation have been mentioned in this regard.

In siting the buildings and equipment

necessary to implement the Michigan public safety

communications system, the director of the

department of state police shall locate the system,

a local unit of government with zoning authority

shall be notified of a site selected in their

jurisdiction and the requirements necessary for a

site. If the selected site does not comply with

zoning, the local unit shall have 30 days from the

date of notification to grant a special use permit

or propose an equivalent site. If the local unit

does not grant a special use permit within the 30

day period, or a proposed alternate site does not

meet the siting requirements, the department may

proceed with construction. [MCL 28.282(2); MSA

4.492(2).]

This case concerns a particular tower planned for a site

in Ada Township of Kent County. The tower is to be 475 feet

tall, and is to be located near Honey Creek Avenue and Three

Mile Road.2 In an opinion concerning this and two other law

suits challenging the same tower, the Court of Appeals set

forth the pertinent facts. Kent Co Aeronautics Bd v State

Police, 239 Mich App 563, 567-569; 609 NW2d 593 (2000).

On August 12, 1997, the State Police and

Motorola notified plaintiff Ada Township of their

intention to construct the communications tower at

the Honey Creek site. The notification advised Ada

Township that within thirty days it must either

issue a special use permit authorizing construction

of the tower at the selected site or, if Ada

Township opposed the site selected by the State

Police, it must propose an alternative site that

met “Equivalent Site Criteria” adopted by the State

Police.

This case arose at a time when the tower was in the

planning stages. However, we are advised that the tower was

completed in June 1998 and became fully operational in

September 1999. Motorola has supplied a photograph of the

completed tower.

On September 10, 1997, the Ada Township

Planning Commission held a special meeting at which

it tabled a recommendation of an alternative site

and approved a special use permit for the

construction of the MPSCS radio tower on the Honey

Creek site. The special use permit, however,

limited the permissible height of the tower to 175

feet, applied setback and other restrictions

contained in the township zoning ordinance, and

incorporated height restrictions contained in the

Kent County International Airport Zoning Ordinance.

On September 12, 1997, the State Police and

Motorola similarly notified Kent County of its

intention to construct a communications tower in

Ada Township, and advised the County that it had

thirty days to propose an equivalent site or grant

a special use permit, if the county believed that

the proposed tower did not comply with its zoning

ordinance. Kent County neither proposed an

alternative site nor issued a special use permit,

and instead advised the State Police that it must

apply for a permit to construct the tower.

In early December 1997, the State Police and

Motorola notified Ada Township and Kent County of

their intention to proceed with construction on the

Honey Creek site and began pre-construction

activity. Ada Township issued a stop-work order.

Thereafter, Ada Township and the State Police

reached an agreement under which the State Police

would evaluate the feasibility of constructing the

tower at the alternative site previously tabled by

Ada Township. The agreement acknowledged that if

third-party litigation ensued to challenge

construction of the tower at the alternative site,

that the State Police would abandon the alternative

site and return to the Honey Creek site.

In fact, on January 7, 1998, a group of

citizens opposed to construction of the tower at

the alternative site filed suit seeking to require

the State Police to construct the tower at the

Honey Creek site. The State Police promptly

abandoned the alternative site and commenced

construction at the Honey Creek site.

Prior to construction, on December 12, 1997,

the Federal Aviation Administration concluded that

the proposed tower “would not be a hazard to air

navigation.” On January 13, 1998, the Michigan

Bureau of Aeronautics, to whom airspace reviews and

approvals had been delegated by the Michigan

Aeronautics Commission, issued a “Tall Structure

Permit” for the proposed tower, an indication that

its study found the tower would pose

“noninterference to air navigation.”

The plaintiffs are homeowners who live near the tower

site. Some live on land adjacent to the site. In a complaint

filed in circuit court, they sued the state of Michigan and

the State Police.

The complaint is organized in five counts. First, the

plaintiffs alleged that the statute governing the

communications system (1996 PA 538) is unconstitutionally

vague, and allows an arbitrary exercise of the discretion

granted to the State Police. Second, they asserted that the

State Police violated the Administrative Procedures Act3 by

not formally promulgating its “equivalent site criteria” as

rules under the APA. Third, the plaintiffs complained of the

defendants’ plan to build a tower that does not comply with

the height limit and other restrictions found in the special

use permit issued by Ada Township. Fourth, the plaintiffs

alleged that the proposed tower would be a nuisance. The

fifth count was a claim of inverse condemnation.

Motorola filed a motion to intervene, which the circuit

court later granted. It also filed a motion for summary

disposition. MCR 2.116(C)(8), (10). The state of Michigan

3
MCL 24.201 et seq.; MSA 3.560(101) et seq.

and the State Police likewise moved for summary disposition.

MCR 2.116(C)(4), (5), (7), (8), (10). After those motions

were filed, the plaintiffs moved for a preliminary injunction

to halt the project.

Before the motions were heard, the parties agreed that

the inverse condemnation claim was a matter for the Court of

Claims, and therefore should be dismissed without prejudice.

After hearing the motions for summary disposition and for

a preliminary injunction, the circuit court dismissed the

plaintiffs’ remaining claims with prejudice and denied the

request for an injunction.

The court ruled that the statute “is sufficiently

instructive to meet the requirements of constitutionality” and

that criteria for an equivalent site need not be promulgated

under the APA. The court declined to find the tower a

nuisance on the basis of its height, and said that the

township’s use permit did not govern the construction of the

tower.

In that regard, the court noted this Court’s decision in

Dearden v Detroit, 403 Mich 257; 264; 269 NW2d 139 (1978). In

Dearden, we held that legislative intent is the test for

whether a governmental unit is bound by a local zoning

ordinance.

In the present case, the circuit court said that the

language of MCL 28.282(2); MSA 4.492(2) demonstrated the

Legislature’s intent in this controversy. The court also

observed that this statutory language, enacted as 1996 PA 538,

was a legislative override of a 1996 Court of Appeals decision

in a case called Addison Twp v State Police (On Remand), 220

Mich App 550; 560 NW2d 67 (1996).4

The plaintiffs appealed, but the Court of Appeals

affirmed. The plaintiffs have now applied to this Court for

leave to appeal.

The plaintiffs raise several issues, but we will address

only one. With regard to the remaining issues--
--those

discussed at 239 Mich App 585-589 (and, by reference, 239 Mich

App 582-584)--
--we have examined the plaintiffs’ arguments and

find no reason to modify the analyses offered by the Court of

Appeals.

III

We write today in order to address a question of

4
1996 PA 538 was introduced into the Legislature (as

1996 Senate Bill 1209) after the Oakland Circuit Court

enjoined construction of a different MPSCS tower. The bill was

passed by the Legislature shortly before, and signed by the

Governor shortly after, the Court of Appeals affirmed the

injunction. Addison Twp at 560. This Court denied

applications for leave to appeal as moot “[i]n light of the

enactment of 1996 PA 538, and the fact that the defendants

have proceeded with construction of the tower on an

alternative site acceptable to the plaintiff . . . .” Addison

Twp v State Police, 456 Mich 910 (1997). Later, we observed

that Addison Twp had been effectively overruled by the

Legislature. Burt Twp v Dep’t of Natural Resources, 459 Mich

659, 664, n 3; 593 NW2d 534 (1999).

statutory interpretation, concerning 1996 PA 538, MCL 28.281

et seq.; MSA 4.491 et seq. Such questions are reviewed de

novo. Kent Co Deputy Sheriffs Ass’n v Kent Co Sheriff, 463

Mich 353, 357, n 8; 616 NW2d 677 (2000).

In Burt Twp v Dep’t of Natural Resources, 459 Mich 659;

593 NW2d 534 (1999), suit was filed when the DNR began

constructing a boat launch on Burt Lake without the approval

of the township zoning board. Finding no legislative intent

to exempt the DNR from the township’s zoning ordinance, we

found that the project was subject to the ordinance. 459 Mich

671.

Our Burt Twp opinion was built on the earlier decision in

Dearden. There, the Archdiocese of Detroit leased a building

to the Department of Corrections for use as a neighborhood

center for housing inmates who would soon be released. The

Detroit Zoning Board of Appeals would not approve that use of

the property, however. This Court found that “the Legislature

intended to grant the Department of Corrections immunity from

local zoning ordinances when establishing state penal

institutions.” 403 Mich 267. The legislative intent was

found to be controlling because:

The common thread running through [earlier

decisions on this subject], although not clearly

stated in some, is an attempt to determine the

intent of the Legislature when deciding whether a

governmental unit is subject to a municipal zoning

ordinance. We hold today that the legislative

intent, where it can be discerned, is the test for

determining whether a governmental unit is immune

from the provisions of local zoning ordinances.

[403 Mich 264.]

We quoted that language in Burt Twp, reaffirming that

“legislative intent, where it can be discerned, is the test

for determining whether a governmental unit is immune from the

provisions of local zoning ordinances.” 459 Mich 663.

As indicated, MCL 28.282(2); MSA 4.492(2) provides the

following, with regard to the role of local zoning authorities

in the site-selection process:

In siting the buildings and equipment

necessary to implement the Michigan public safety

communications system, the director of the

department of state police shall locate the system,

a local unit of government with zoning authority

shall be notified of a site selected in their

jurisdiction and the requirements necessary for a

site. If the selected site does not comply with

zoning, the local unit shall have 30 days from the

date of notification to grant a special use permit

or propose an equivalent site. If the local unit

does not grant a special use permit within the 30

day period, or a proposed alternate site does not

meet the siting requirements, the department may

proceed with construction.

There can be no doubt of the correctness of the Court of

Appeals statement that “[t]he clear import of the

Legislature’s enactment of 1996 PA 538, which by its terms

grants the State Police responsibility for all matters

concerning construction of the new MPSCS , was to exempt the

State Police from local zoning ordinances so that the MPSCS

could effectively and efficiently be constructed.” 239 Mich

App 574.

As the Court of Appeals further observed, the Legislature

recognized, in the second sentence of MCL 28.282(2); MSA

4.492(2), that the State Police might select a site that is

incompatible with a local zoning ordinance. The Legislature

dealt directly with that possibility, requiring notification,

and giving the local unit of government the alternatives of

timely issuing a special use permit or proposing an equivalent

site. Finally, the Legislature specified the outcome if the

local unit and the State Police cannot resolve the situation,

authorizing the State Police to “proceed with construction” if

the local unit neither issues a timely special use permit nor

proposes an alternative that meets the siting requirements.

The language of the statute thus supports the Court of

Appeals conclusion:

[W]e read 1996 PA 538 as a clear expression of

the Legislature’s intent to vest the State Police

with complete authority over construction of the

communications tower, not subject to any other

legislative act, including zoning ordinances.

Indeed, if the State Police were subject to the

provisions in the township zoning ordinances, the

underlying purpose of the MPSCS could be effectively

thwarted by local government entities imposing

unreasonable restrictions to prohibit construction

of the towers in appropriate locations. A careful

reading of 1996 PA 538 evinces a contrary

legislative intent. [239 Mich App 575-576.]

For these reasons, we agree with the Court of Appeals

that the MPSCS project is not subject to local zoning

ordinances or use permits issued under those ordinances,

except as specifically provided in MCL 28.282(2); MSA

4.492(2). Accordingly, we affirm the judgments of the circuit

court and the Court of Appeals. MCR 7.302(F)(1).

CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,

concurred.

CAVANAGH and KELLY , JJ., concurred in the result only.

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