EVERSDYK
v.
WYOMING CITY COUNCIL
Docket No. 95973.
Michigan Court of Appeals.
Decided March 8, 1988.Mika, Meyers, Beckett & Jones (by Douglas A. Donnell), for plaintiff.
Howard & Quinn, P.C. (by Michael B. Quinn), for defendant.
Before: G.R. McDONALD, P.J., and DOCTOROFF and R.E. ROBINSON,[*] JJ.
DOCTOROFF, J.
Plaintiff appeals as of right from the trial court's order that denied his motions for summary disposition on Count I of his complaint, MCR 2.116(C)(9) and (10), granted defendants' counter-motion for summary disposition on Count I, and granted his motion for summary disposition on Count II. We reverse.
This action arises out of plaintiff's proposed plat development of a sixteen-acre parcel of land in Wyoming, Michigan. The parcel of property is currently zoned by the City of Wyoming as R-2 single family residential. In the spring of 1986, the plaintiff submitted a preliminary plat plan to the Wyoming Planning Commission for development of the property as an R-2 single family residential development. The planning commission unanimously granted tentative approval of plaintiff's preliminary plat. The city council, contrary to the commission's recommendation, denied tentative approval of plaintiff's preliminary plat.
Plaintiff filed a complaint seeking a writ of mandamus in Count I that would require the city council to grant tentative approval of his preliminary subdivision plat and to enjoin the council from further interfering with the proposed use of the property. Plaintiff also sought a writ of mandamus in Count II requiring the Wyoming Chief Building Inspector to issue a building permit.
*67 Plaintiff then filed a motion for summary disposition, MCR 2.116(C)(9) and (10). Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(8). The court denied plaintiff's motion for summary disposition on Count I. Plaintiff's motion for summary disposition on Count II was granted and no appeal was taken.
On appeal, plaintiff argues that the trial court erred when it refused to issue a writ of mandamus compelling the Wyoming City Council to grant tentative approval of plaintiff's preliminary plat.
A motion for summary disposition based on GCR 1963, 117.2(2), now MCR 2.116(C)(9), requires a court to review only the pleadings, Durant v Stahlin, 375 Mich. 628; 135 NW2d 392 (1965), and when a material allegation is categorically denied, summary disposition under this section is improper. Pontiac School Dist v Bloomfield Twp, 417 Mich. 579, 585; 339 NW2d 465 (1983). In its answer to plaintiff's complaint, defendant denied all allegations that the plaintiff had complied with the requirements of the Michigan Subdivision Control Act. Thus, summary disposition under MCR 2.116(C)(9) was properly denied.
Upon the filing of a motion for summary disposition premised upon MCR 2.116(C)(10), no genuine issue of material fact, the court is required to review the entire record to determine whether the nonmoving party has presented facts to support the claim or defense. Consequently, the trial court must look beyond the pleadings and consider affidavits, depositions, and interrogatories. In reviewing this evidentiary record, the trial court must give the benefit of any reasonable doubt to the nonmoving party in deciding whether a genuine issue of material fact exists. Rizzo v Kretschmer, 389 Mich. 363, 371-372; 207 NW2d 316 (1973). Before judgment may be granted, the trial court *68 must be satisfied that it is impossible for the claim asserted to be supported by the evidence at trial. Huff v Ford Motor Co, 127 Mich. App. 287, 293; 338 NW2d 387 (1983).
In Carlson v City of Troy, 90 Mich. App. 543, 547; 282 NW2d 387 (1979), this Court stated the requirements for a writ of mandamus:
The requirements for issuance of mandamus are:
"`Plaintiffs must have a clear legal right to performance of the specific duty sought to be compelled; defendants must have the clear legal duty to perform such act; and it must be a ministerial act, one "where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." 38 CJ, p 598.' Toan v McGinn, 271 Mich. 28, 34; 260 N.W. 108 (1935). See also Kortering v Muskegon, 41 Mich. App. 153; 199 NW2d 660 (1972)."
This Court will not interfere with the granting of mandamus if there is evidence to support the trial court's findings. Absent abuse of discretion, the trial court's ruling will not be disturbed.
The Subdivision Control Act of 1967 (SCA), MCL 560.101 et seq.; MSA 26.430(101) et seq., requires municipalities to approve preliminary plats that conform to the standards set forth in the act. Specifically, § 106 of the SCA, MCL 560.106; MSA 26.430(106), requires municipalities to approve a subdivision plat which complies with the statutory requirements, providing:
No approving authority or agency having the power to approve or reject plats shall condition approval upon compliance with, or base a rejection upon, any requirement other than those included in section 105.
Section 105 of the SCA, MCL 560.105; MSA *69 26.430(105), defines the conditions for approval of a preliminary plat:
Approval of preliminary and final plats shall be conditioned upon compliance with:
(a) The provisions of this act.
(b) Any ordinance or published rules of a municipality or county adopted to carry out the provisions of this act.
By the provisions of § 106, a municipality cannot rely upon a reason not contained in § 105 to deny preliminary plat approval. This Court in Carlson, supra, p 552, expressly held:
Since § 106 of the statute limits the matters, or the subjects which may be a basis for rejection, the requirements for approval specified in defendant city's resolution must be within those specific matters delineated in § 105. [See MCL 560.112(2); MSA 26.430(112)(2).]
If the rejection is improper, an action for mandamus is available. Id.
In its resolution, the city council stated:
WHEREAS, the Wyoming City Council is presently proposing a resolution to the Wyoming Planning Commission to consider rezoning the subject property from its present R-2 Single Family Residential designation to an R-1 Single Family Residential designation which would be consistent with the 1984 South Wyoming Land Use Plan, present zoning of adjacent properties and Consistent with the desires and wishes of adjacent landowners and if the resolution to rezone the property from R-2 to R-1 is granted the plat, as it exists, may not meet the requirements of R-1 zoning under the Wyoming Code, and it further appears that the best interests of the developer and the citizens of the City of Wyoming will be resolved more appropriately *70 by first resolving the question of zoning of the subject property, and
WHEREAS, the Wyoming City Council is concerned that the Plat evidences serious deficiencies in the following areas:
1. The subject property contains extensive low, marshy area with no information having been received from the Michigan Department of Natural Resources as to whether it qualifies as a "wetlands" area.
2. The size and character of the retention basin has not been resolved; therefore, the size and configuration of Lots 4-8 cannot be approved.
3. The anticipated street grade of Beckie Drive at Ivanrest Avenue does not provide for adequate access to existing structures on adjoining properties not in the Plat.
NOW, THEREFORE, BE IT RESOLVED, that the City Council does hereby deny Preliminary Plat-Tentative Approval to the Moonlight # 1 Subdivision.
We shall first examine the city council's decision to consider rezoning of plaintiff's parcel from R-2 residential to R-1 residential as a reason for denying tentative plat approval.
At the time plaintiff submitted his preliminary plat for tentative approval, the subject property was zoned R-2 residential and is presently zoned as such. On June 16, 1986, the same day that the resolution set forth above denying tentative approval of the preliminary plat was adopted, the city council also adopted an additional resolution which requested the Wyoming Planning Commission to consider rezoning the subject property to R-1 residential so as to conform with the surrounding area, which is zoned R-1. Defendant's argument that proper rezoning is an implied precondition to the platting process is correct. See Oakland Court v York Twp, 128 Mich. App. 199; 339 NW2d 873 (1983). However, defendant's reliance on Oakland *71 Court in support of its position is misplaced. In Oakland Court, we were confronted with the situation where the developer's proposed plat failed to conform with existing zoning of the property. This Court did not establish the proposition that future rezoning considerations are a proper basis for denial of the preliminary plat.
Further, § 105 of the SCA does not include the possibility of rezoning as one of the permissible conditions upon which to base a rejection. Section 105(b) specifically states that approval of preliminary plats shall be conditioned upon compliance with "any ordinance or published rule of a municipality or county adopted to carry out the provisions of this act." The proposed zoning in the case at hand has not been adopted, and thus is an impermissible reason to reject plaintiff's preliminary plat.
Defendant sets forth three other reasons upon which the rejection was based. As to the first reason, that "the subject property contains extensive low, marshy area with no information having been received from the Department of Natural Resources as to whether it qualifies as a `wetlands' area," plaintiff was correct in arguing that defendant's concern as to whether the subject property is considered wetland by the Michigan Department of Natural Resources is not a permissible ground for denying tentative approval under the Wyoming city ordinance.
Section 70.8(1)(a)(3) of the Wyoming Subdivision Regulations[1] requires that, after tentative approval *72 has been received from the city council for the preliminary plat, the plat must then be submitted to the DNR for review. Lack of DNR approval is not a valid basis for rejecting tentative approval of plaintiff's preliminary plat under MCL 560.105; MSA 26.430(105), nor is such rejection proper under the provisions of the Wyoming Subdivision Regulations.
The second reason advanced by the city council for its refusal to tentatively approve plaintiff's preliminary plat concerned "the size and character of the retention basin [which] has not been resolved." Defendant relies upon MCL 560.111(1); MSA 26.430(111)(1) as a proper basis for rejecting preliminary plat approval. This section provides:
Before making or submitting a final plat for approval, the proprietor shall make a preliminary plat and submit copies to authorities as provided in sections 111 to 119. A preliminary plat shall show the name, location and position of the subdivision and the subdivision plan and layout in sufficient detail on a topographic map to enable a determination of whether the subdivision meets requirements for lots, streets, roads, and highways including drainage and floodplains.
Again, by its provisions, § 70.8(1)(a)(1) of the ordinance contemplates approval by the city council before submission of the preliminary plat to the Kent County Drain Commission. Further, we read *73 § 111(1) as setting forth the requirements as to the contents of a preliminary report. The city council does not assert that plaintiff's preliminary plat was defective under § 111 of the SCA, which would give rise to a violation of § 111(1) of the act and thereby provide a permissible condition upon which to deny tentative approval under § 105 of the SCA. We conclude that the city council's second reason for denying tentative approval is not a permissible condition upon which to base a rejection pursuant to MCL 560.105; MSA 26.430(105).
As its third reason for denying tentative plat approval, the city council expressed a concern over "the anticipated street grade of Beckie Drive at Ivanrest Avenue [which] does not provide for adequate access to existing structures on adjoining properties not in the Plat." Defendant, again, relies upon MCL 560.111(1); MSA 26.430(111)(1) as a proper basis for rejecting preliminary plat approval. As indicated above, defendant's reliance upon § 111(1) of the act is misplaced.
A careful review of the record convinces us that the city council relied upon future rezoning as its main reason for denying plat approval. As indicated, MCL 560.105(b); MSA 26.430(105)(b) provides that approval of preliminary and final plats should be conditioned upon compliance with any ordinance or published rules of a municipality adopted to carry out the provisions of this act and authorizes a city to base a rejection only upon one of the enumerated conditions set forth in § 105. The possibility of future rezoning is not an "adopted ordinance" within the meaning of § 105. By its provisions, § 105 contemplates existing zoning. See Oakland Court, supra.
We therefore conclude that the court's denial of plaintiff's motion for summary disposition was improper. MCR 2.116(C)(10). Pursuant to this *74 Court's holding in Carlson, supra, p 552, the requirements for rejection specified in the defendant city council's resolution must be within the specific matters delineated in MCL 560.105; MSA 26.430(105). We therefore conclude that plaintiff has sustained his burden of establishing a clear, legal duty by defendant. See Carlson, supra, p 547; Burger King Corp v Detroit, 33 Mich. App. 382, 384; 189 NW2d 797 (1971).
Accordingly, we remand this matter to the trial court for the issuance of a writ of mandamus compelling the Wyoming City Council to grant preliminary plat approval.
Reversed and remanded.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment.
[1] Section 70.8(1)(a) of the ordinance states:
The proprietor, upon receiving tentative approval from the City Council, shall submit the Preliminary Plat to all authorities as required by the Subdivision Control Act, including, as appropriate, for approval or rejection:
(1) Kent County Drain Commission
(2) Michigan Department of State Highways and Transportation
(3) Michigan Department of Natural Resources
(4) Michigan Water Resources Commission
(5) Michigan Health Department
Including for informational purposes:
(6) Kent County Plat Board
(7) All public utilities serving the area
(8) The Superintendent of the School District serving the area.