Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 9, 2003
PITTSFIELD CHARTER TOWNSHIP,
Plaintiff-Appellee,
v No. 119590
WASHTENAW COUNTY,
Defendant-Appellant,
and
CITY OF ANN ARBOR,
Defendant.
____________________________________
BEFORE THE ENTIRE COURT
TAYLOR, J.
The question presented is whether defendant Washtenaw
County must comply with plaintiff Pittsfield Charter
Township’s zoning ordinance in the locating of the county’s
proposed homeless shelter. We hold that the county does not
need to comply with the township’s zoning ordinance and,
therefore, reverse the judgment of the Court of Appeals and
reinstate the summary-disposition order entered by the trial
court.
I
Washtenaw County owns property in Pittsfield Charter
Township that the township’s zoning ordinance has designated
as I-1 (limited industrial). With the financial participation
of the city of Ann Arbor, the county advertised a proposal to
construct a new homeless shelter, which it would own, on the
property. The I-1 district ordinance neither expressly nor
conditionally permits such a use.
Pittsfield Township took the position that the proposed
use violated its zoning ordinance and thus was impermissible
because the Township Zoning Act (TZA), MCL 125.271 et seq.,
and specifically MCL 125.271(1),1 gives its
1
MCL 125.271(1) reads:
The township board of an organized township in
this state may provide by zoning ordinance for the
regulation of land development and the
establishment of districts in the portions of the
township outside the limits of cities and villages
which regulate the use of land and structures; to
meet the needs of the state's citizens for food,
fiber, energy, and other natural resources, places
of residence, recreation, industry, trade, service,
and other uses of land; to insure that use of the
land shall be situated in appropriate locations and
relationships; to limit the inappropriate
overcrowding of land and congestion of population,
transportation systems, and other public
facilities; to facilitate adequate and efficient
provision for transportation systems, sewage
(continued...)
2
1
(...continued)
disposal, water, energy, education, recreation, and
other public service and facility requirements; and
to promote public health, safety, and welfare. For
these purposes, the township board may divide the
township into districts of such number, shape, and
area as it considers best suited to carry out this
act. The township board of an organized township
may use this act to provide by ordinance for the
regulation of land development and the
establishment of districts which apply only to land
areas and activities which are involved in a
special program to achieve specific land management
objectives and avert or solve specific land use
problems, including the regulation of land
development and the establishment of districts in
areas subject to damage from flooding or beach
erosion, and for that purpose may divide the
township into districts of a number, shape, and
area considered best suited to accomplish those
objectives. Ordinances regulating land development
may also be adopted designating or limiting the
location, the height, number of stories, and size
of dwellings, buildings, and structures that may be
erected or altered, including tents and trailer
coaches, and the specific uses for which dwellings,
buildings, and structures, including tents and
trailer coaches, may be erected or altered; the
area of yards, courts, and other open spaces, and
the sanitary, safety, and protective measures that
shall be required for the dwellings, buildings, and
structures, including tents and trailer coaches;
and the maximum number of families which may be
housed in buildings, dwellings, and structures,
including tents and trailer coaches, erected or
altered. The provisions shall be uniform for each
class of land or buildings, dwellings, and
structures, including tents and trailer coaches,
throughout each district, but the provisions in 1
district may differ from those in other districts.
A township board shall not regulate or control the
drilling, completion, or operation of oil or gas
wells, or other wells drilled for oil or gas
exploration purposes and shall not have
jurisdiction with reference to the issuance of
(continued...)
3
zoning priority that the county cannot ignore. The county,
however, asserted that, pursuant to the county commissioners
act (CCA), MCL 46.1 et seq., specifically MCL 46.11, county
boards of commissioners are not subject to the township zoning
ordinances when determining the site of, or prescribing the
time and manner of erecting, county buildings. MCL 46.11(b),
(d).2
The township filed a complaint in the Washtenaw Circuit
Court seeking a declaration that the county must comply with
the township’s zoning ordinance, and seeking to enjoin the
county from disregarding the zoning ordinance and proceeding
with the construction of the proposed homeless shelter. The
1
(...continued)
permits for the location, drilling, completion,
operation, or abandonment of those wells. The
jurisdiction relative to wells shall be vested
exclusively in the supervisor of wells of this
state, as provided in part 615 (Supervisor of
wells) of the natural resources and environmental
protection act, [MCL 324.61501 to 324.61527.]
2
MCL 46.11 provides in pertinent parts that a county
board of commissioners may:
(b) Determine the site of, remove, or
designate a new site for a county building. The
exercise of the authority granted by this
subdivision is subject to any requirement of law
that the building be located at the county seat.
* * *
(d) Erect the necessary buildings for jails,
clerks’ offices, and other county buildings, and
prescribe the time and manner of erecting them.
4
complaint also named the city of Ann Arbor as a codefendant.3
The county filed a motion for summary disposition under
MCR 2.116(C)(8), asserting that, as a matter of law, it was
immune from the zoning requirements of the township.4 The
township filed a similar motion asserting the converse, that
the TZA gave it priority and that, accordingly, the county was
not immune. The circuit court, while denying the township’s
motion, granted the county’s motion on the basis that MCL
46.11 granted the county plenary authority to choose sites for
buildings and that the county was exempt from Pittsfield
Township’s zoning ordinances.
On appeal, the Court of Appeals reversed.5 The Court
outlined that the tests for determining exemptions from the
requirements of a township zoning ordinance were set out in
Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978), Burt
Twp v Dep’t of Natural Resources, 459 Mich 659, 669; 593 NW2d
3
At the same time, the township obtained an order to show
cause why a preliminary injunction should not issue. On June
16, 1998, a stipulation and order was entered whereby the
parties agreed that preliminary injunctive relief was not
required. Two subsequent orders extended the defendants’ time
to respond to the complaint.
4
The city of Ann Arbor concurred with the county’s motion
to the extent it requested confirmation of the county’s
authority to use the property in question for a homeless
shelter. Accordingly, we refer only to Washtenaw County as
defendant in our discussion.
5
246 Mich App 356; 633 NW2d 10 (2001).
5
534 (1999), and Byrne v Michigan, 463 Mich 652; 624 NW2d 906
(2001). It then characterized this case law as holding that,
to be exempt from the zoning ordinances, the statute granting
the county authority to site buildings must explicitly state
that it supersedes the zoning ordinance. As the Court
described it:
If the Legislature meant to say that the
county’s power to site and use its property is
plenary (not subject to, but exempt from, any legal
restrictions), the Legislature could have easily
and expressly said so. It did not, and we conclude
that it is neither permissible nor appropriate for
us to graft such a plenary gloss on this statutory
provision. [246 Mich App 362.]
The county appealed from this ruling and we granted leave to
appeal. 466 Mich 859 (2002).
II
This case is before us on a matter of statutory
interpretation. Because this is a matter of law, our review
is de novo. Robertson v DaimlerChrysler Corp, 465 Mich 732,
739; 641 NW2d 567 (2002).
III
We are called on to examine the two acts that are the
sources of township and county authority, the TZA and the CCA.
The TZA vests townships with broad authority to enact zoning
ordinances to regulate land development and to “insure that
the use of land shall be situated in appropriate locations and
6
relationships . . . .” MCL 125.271(1).6 The TZA further
directs townships to define zones “to meet the needs of the
state’s residents for . . . places of residence, recreation,
industry, trade, service, and other uses of land . . . .”
Id.; MCL 125.273.7 This authority given to the townships,
however, does not extend to the regulation or control of oil
or other wells that are under the jurisdiction of the
6
The statute is set out in n 1.
7
MCL 125.273 reads:
The zoning ordinance shall be based upon a
plan designed to promote the public health, safety,
and general welfare; to encourage the use of lands
in accordance with their character and
adaptability, and to limit the improper use of
land; to conserve natural resources and energy; to
meet the needs of the state’s residents for food,
fiber, and other natural resources, places of
residence, recreation, industry, trade, service,
and other uses of land; to insure that uses of the
land shall be situated in appropriate locations and
relationships; to avoid the overcrowding of
population; to provide adequate light and air; to
lessen congestion on the public roads and streets;
to reduce hazards to life and property; to
facilitate adequate provision for a system of
transportation, sewage disposal, safe and adequate
water supply, education, recreation, and other
public requirements; and to conserve the
expenditure of funds for public improvements and
services to conform with the most advantageous uses
of land, resources, and properties. The zoning
ordinance shall be made with reasonable
consideration, among other things, to the character
of each district; its peculiar suitability for
particular uses; the conservation of property
values and natural resources; and the general and
appropriate trend and character of land, building,
and population development.
7
supervisor of wells pursuant to the Natural Resources and
Environmental Protection Act, MCL 324.101 et seq.,
particularly MCL 324.61501 et seq., or power lines that are
subject to the Electric Transmission Line Certification Act,
MCL 460.561 et seq.
The CCA, upon which the county relies, states at MCL
46.118 that counties can determine site selection and the time
and manner of erecting county buildings. However, there is
one limitation on this power. It is found in the second
sentence of MCL 46.11(b) and it limits the site-selection
authority by directing that the county cannot disregard any
requirement of law holding that a county building be located
at the county seat. These provisions are, of course,
potentially in tension with each other in their grants of
authority. It is our undertaking to establish the proper
priority between them.
IV
In adjudicating this matter, the Court of Appeals found
a conflict between the authority given to the townships and
the counties under the TZA and the CCA. It then resolved this
conflict by construing our holdings in Dearden, Burt Twp, and
Byrne to mean that there must be express indications in the
statute granting the county immunity from the township’s
8
The statute is set out, in part, in n 2.
8
zoning power before the county could be immune.
This Court articulated in Dearden, supra at 264, that in
resolving a conflict between units of government the
legislative intent, “where it can be discerned,” controls the
question whether a governmental unit is subject to the
provisions of another’s zoning ordinances.
In Burt Twp, supra at 669, we reiterated this approach
and cautioned that there are no “talismanic words” that convey
the Legislature’s intent to create immunity from local zoning.
Rather, the Legislature “need only use terms that convey its
clear intention that the grant of jurisdiction given is, in
fact, exclusive.” Id.
This Court has also conceded that discerning the
legislative intent regarding whether a government unit is
immune from the provisions of local zoning ordinances has
“proven difficult to apply.” Id. at 664 n 3. The insight of
this observation is made apparent when one looks at the
difficulties the Court of Appeals discussed here9 and which
eventuated in what is best described as an almost mechanistic
approach for determining priority. The panel essentially held
9
The Court of Appeals has obviously mellowed a bit on the
difficulties of discerning this intent. In an earlier opinion
on this topic, it described this undertaking as akin to
engaging in “a Hegelian dialectic.” Capital Region Airport
Auth v DeWitt Charter Twp, 236 Mich App 576, 583; 601 NW2d 141
(1999).
9
that if the county’s authority is not addressed explicitly by
the Legislature, the township ordinances prevail. As we have
attempted in the past to explain, the test is not this simple.
The analysis requires more than merely searching for words of
exclusion. Recently in Burt Twp we gave guidance to courts
searching for this intent, stating that the Legislature need
not “use any particular talismanic words to indicate its
intent.” Id. at 669. This may not, as we had hoped it would,
make the task easier, but, at least, it must mean that there
are no special words, the absence of which engenders a
specific outcome.
Nevertheless, whether easy or not, the question remains:
Where do we look to find the intent? The answer is that we
must look for guidance to the statutes themselves to see if
there are any textual indications that would convey the
Legislature’s intent on the issue of priority.
We believe that, closely read, the statutes here at issue
indicate that the higher priority is with the county. We draw
this first from the fact that in the CCA the Legislature
expressly stated only one limitation on the authority of the
county to site buildings. That limitation is that the county
cannot use the power that was given in MCL 46.11 to site
buildings if there is any other requirement of law that county
buildings be located at the county seat. This language became
10
part of the act in 1998, when the Legislature amended the
CCA.10 We believe this shows that the Legislature, by
explicitly turning its attention to limits on the county
siting power and deciding on only one limitation, must have
considered the issue of limits and intended no other
limitation. This conclusion is analogous to the discernment
of intent undertaken by this Court in Dearden. There we held
that the authority given to the state to site prisons gave
priority over local zoning ordinances on the basis of the
authorizing statute, MCL 791.204, which said that “the
department shall have exclusive jurisdiction over . . . penal
institutions . . . .” Dearden, supra at 265. From this we
found the intent of the Legislature, stating that we read this
language as “a clear expression of the Legislature’s intent to
vest the department with complete jurisdiction over the
10
1998 PA 97. Before the amendment of MCL 46.11, the
act’s similar subsections read:
(c) Determine the site of a county building.
* * *
(e) Remove or designate a new site for a
county building required to be at the county seat,
if the new site is not outside the limits of the
village or city in which the county seat is
situated, and remove or designate a new site for a
county infirmary or medical care facility.
These subsections were replaced by MCL 46.11(b), set out in n
2.
11
state’s penal institutions, subject only to the constitutional
powers of the executive and the judiciary, and not subject in
any way to any other legislative act, such as the zoning
enabling act.” Id.
In response to this argument, which is properly
characterized as applying the doctrine of expressio unius est
exclusio alterius, the expression of one thing suggests the
exclusion of all others,11 the township counters that the same
approach applied to the TZA yields an outcome that gives the
township an equal claim to priority. It argues that the TZA
itself has two exemptions from township zoning power, certain
wells and electric transmission lines, and that this must mean
that, except for these, nothing else should be held to be
exempt from township zoning power. The township’s position
has some appeal certainly, but we believe that a thorough
analysis of the application of the doctrine to each statute
makes the township’s position less defensible than the
county’s.
While it is correct that the TZA does have exemptions to
disallow township zoning regulation or control of the
activities surrounding the siting of oil and gas wells or
electric transmission lines, in our view, the Legislature, in
11
Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 572 n 8;
592 NW2d 360 (1999).
12
creating these exemptions, was not concerned with the issue of
limits on township zoning power, but was merely engaged in
efforts to coordinate the later enacted Electric Transmission
Line Certification Act, even as the Legislature in 1943 had
attempted to reconcile the then new TZA12 with the power
created four years earlier for the supervisor of wells.13
Confirmation that mere coordination was the Legislature’s
goal, at least in 1995, can be discerned from the fact that
the Legislature expressly stated in the latest substantive
amendment of the TZA, 1995 PA 35,14 that unless the Electric
Transmission Line Certification Act was enacted that the
amendment to the TZA would not be effective.
Further, even if expressio unius est exclusio alterius
applied equally to benefit each party’s arguments, the
township’s argument, that each has a statute giving priority
over the other, would yield to the doctrine of last enactment.
Old Orchard by the Bay Assoc v Hamilton Mut Ins Co, 434 Mich
244, 257; 454 NW2d 73 (1990). That doctrine presumes that the
Legislature is aware of the existence of the law in effect at
12
1943 PA 184.
13
1939 PA 61.
14
The TZA was most recently amended, albeit
nonsubstantively, by 1996 PA 47, which merely updated the
statute number of the Natural Resources and Environmental
Protection Act.
13
the time of its enactments and recognizes that, since one
Legislature cannot bind the power of its successor, existing
statutory language cannot be a bar to further exceptions set
forth in subsequent, substantive enactments. See Malcolm v
East Detroit, 437 Mich 132; 139; 468 NW2d 479 (1991). In
relation to this case, the CCA was substantively amended in
1998, whereas the TZA has not been substantively amended
regarding this issue any time since then. Therefore, in the
effort to establish priority, the CCA, as the most recent
statement of the Legislature, prevails over the TZA.
Further, and perhaps most compellingly, the township’s
argument, that it also has an equally valid claim to
application of the doctrine of expressio unius est exclusio
alterius, is flawed because this approach would cause MCL
46.11(b) to be mere surplusage. The reason is that, as argued
by the township, MCL 46.11 would only give authority to the
county to site buildings as it desired as long as the
placement was in harmony with the township’s existing zoning
plan. Yet this very power was one the county, as well as any
other land user, already had before the enactment of MCL
46.11(b). To aver that MCL 46.11(b) simply reiterates a power
already possessed is to rob it of any meaning, that is, to
make it surplusage. This violates “the fundamental rule of
[statutory] construction that every word of a statute should
14
be given meaning and no word should be treated as surplusage
or rendered nugatory if at all possible.” Feld v Robert &
Charles Beauty Salon, 435 Mich 352, 364; 459 NW2d 279 (1990).
The county’s position has no defect of this sort. Its
argument causes no portion of the TZA to be surplusage.
Accordingly, we decline for these reasons also to adopt the
township’s analysis of these statutes.
Moreover, it is significant to us that the language of
the TZA, on which the township relied, is less specific to the
particular matter at hand than was the language relied on in
Burt Twp, in which we determined that the Department of
Natural Resources’ boat-launch sites were subject to local
zoning. Burt Twp, supra at 671. In Burt Twp, we noted that
the TZA authorized a township to regulate land development to
facilitate “recreation” and that zoning plans were to be
designed to “conserve natural resources.” Id. at 665.
Further, we noted that under the township planning act, MCL
125.321 et seq., the township plan was to include
recommendations for, inter alia, “‘waterways and waterfront
developments.’” Id. at 666, quoting MCL 125.327(2)(b). These
topics—recreation, natural resources, waterways, and
waterfront development—suggested to us in Burt Twp that there
had been legislative consideration of the priority issue in
the area of recreational water access and usage and
15
accordingly led us to the conclusion that the township
authority was meant to have priority. In the present case,
however, when one reviews the mandates of the TZA, as relevant
to siting county buildings, the TZA yields only highly
generalized references to “places of residence,” “other uses
of land,” and “other public requirements . . . .” MCL
125.273. These seem to suggest no conclusion by the
Legislature that the location of county buildings of any kind
should be controlled by township zoning. Therefore, when
these TZA provisions are viewed alongside the structure of the
county power in MCL 46.11, the lack of focus on county
buildings in the TZA reinforces our view that the Legislature
in this circumstance intended that priority be given to the
county in siting its buildings.
We note also that the Court of Appeals made reference to
the County Zoning Act, MCL 125.201 et seq., and attempted, by
dovetailing it with the TZA, specifically MCL 125.298, to
buttress its analysis. This approach is less helpful than the
Court thought, however, because it failed to fully consider
that we are not dealing here with a decision taken pursuant to
the county’s zoning authority and thus the effort to analyze
this matter as implicating “a comprehensive statutory scheme”
is unpersuasive. 246 Mich App 367.
Finally, we also are mindful of the Dearden Court’s
16
policy analysis, which, while undoubtedly less implicated
here, still has relevance. The Dearden Court said:
[T]he zoning enabling act does not indicate
whether or not the Legislature intended to subject
the department to local zoning ordinances. We can
find no expression of a legislative intent in the
language of that act to subject the department’s
exclusive jurisdiction over the state’s penal
institutions, and its duty to coordinate and adjust
those institutions as an integral part of a
unified, general correctional system, to the many
and varied municipal zoning ordinances throughout
the state. If the department were subject to those
ordinances, the underlying policies of the general
correctional system could be effectively thwarted
by community after community prohibiting the
placement of certain penal institutions in
appropriate locations. A careful reading of the
statute establishing the department evidences a
contrary legislative intent. [Id. at 266-267.]
For these reasons, we reverse the decision of the Court
of Appeals and reinstate the circuit court’s order of summary
disposition.
Clifford W. Taylor
Maura D. Corrigan
Michael F. Cavanagh
Marilyn Kelly
Robert P. Young, Jr.
Stephen J. Markman
17
S T A T E O F M I C H I G A N
SUPREME COURT
PITTSFIELD CHARTER TOWNSHIP,
Plaintiff-Appellee,
v No. 119590
WASHTENAW COUNTY,
Defendant-Appellant,
and
CITY OF ANN ARBOR,
Defendant.
____________________________________
WEAVER, J. (concurring).
I concur with the majority’s result, but find its
reliance on a small host of statutory-construction tools
unhelpful and unnecessary. The majority’s use of these tools
to search for “textual indications” to resolve the conflict
between the statutes at issue is remarkable in its failure to
analyze the text of the statutes. In my view, the plain text
of the county commissioners act (CCA) clearly conveys the
Legislature’s intent to grant county boards of commissioners
exclusive jurisdiction over site selection for and
construction of county buildings.1
MCL 46.11 of the CCA provides in pertinent part that
county boards of commissioners may:
(b) Determine the site of, remove, or
designate a new site for a county building.
* * *
(d) Erect the necessary buildings for jails,
clerks’ offices, and other county buildings, and
prescribe the time and manner of erecting them.
On the other hand, the Township Zoning Act (TZA), MCL 125.271
et seq., vests townships with broad authority to enact zoning
ordinances to regulate land development and “to insure that
the use of land shall be situated in appropriate locations and
relationships . . . .” MCL 125.271(1), cf. MCL 125.273.
Anticipated or not by the Legislature, county-commission
authority over site selection for, and the time and manner of
erecting, county buildings as stated by MCL 46.11 conflicts
with the township’s statutory authority over both the process
and substance of township zoning.
Three powers vested by the Legislature in county
1
As this Court held in Dearden v Detroit, 403 Mich 257,
264; 269 NW2d 139 (1978), the legislative intent, “where it
can be discerned,” controls the question whether a
governmental unit is subject to the provisions of another’s
zoning ordinances. In Burt Twp v Dep’t of Natural Resources,
459 Mich 659, 669; 593 NW2d 534 (1999), we held that the
Legislature “need only use terms that convey its clear
intention that the grant of jurisdiction given is, in fact,
exclusive.”
2
commissions through MCL 46.11 are relevant to and decisive of
this case. MCL 46.11 provides that county boards may
“determine the site of,” “prescribe the time . . . of
erecting,” and “prescribe the . . . manner of erecting” county
buildings. Because county commissions have had this express
statutory authority over site selection and the time and
manner of erecting county buildings since the CCA was first
enacted in 1851, the majority’s application of the last
enactment doctrine is unpersuasive.2
“Determine” and “prescribe” convey the scope of county
commission authority over the development of county buildings
(i.e., site selection and the time and manner of
construction). To “determine” is to “set limits to; bound;
define” or to “settle (a dispute, question, etc.)
conclusively; decide.” Webster’s New World Dictionary (3d
College ed). To “prescribe” is “to write beforehand . . . to
set down as a rule or direction; order; ordain; direct.” Id.
2
The majority suggests that MCL 46.11 was “substantively
amended in 1998,” ante at 15, but fails to explain how the
1998 amendments were relevant to the powers county commissions
have held since 1851. Further, the doctrine of last enactment
seems an odd choice in resolving this case because the
doctrine is most often argued to support the implied repeal of
one law by a later enacted law. Not even the county argues
that the CCA repealed any portion of the TZA. Perhaps that is
because repeals by implication are not favored. Washtenaw Co
Rd Comm’rs v Pub Service Comm, 349 Mich 663, 680; 85 NW2d 134
(1957).
3
While the CCA does not include the words “exclusive
jurisdiction” in reference to county-commission authority over
site selection for and construction of county buildings, this
Court has emphasized that such “talismanic words” are
unnecessary to convey the Legislature’s intent to create
immunity from local zoning. Burt, supra at 669.
Where, as here, a county board seeks to site a county
building in a township zoning district where the commission’s
intended use for the building is not permitted, the
commission’s power to “determine the site of” a county
building conflicts with the township’s authority to create
zoning districts that exclude defined land uses. MCL 46.11,
125.271(1). Moreover, the authority to “prescribe the time
. . . of erecting” county buildings affects the township’s
process for reviewing site plans. More critically, in my
view, the authority to “prescribe the . . . manner of
erecting” county buildings overrides a township’s control
through the enactment of ordinances of the physical details of
erecting buildings.3
3
MCL 125.271(1) provides that “[o]rdinances regulating
land development may also be adopted designating or limiting
the location, height, number of stories, and size of
dwellings, buildings, and structures [that] may be erected or
altered; the area of yards, courts, and other open spaces, and
sanitary, safety, and protective measures that shall be
required for the dwellings, buildings, and structures . . .
erected or altered.”
4
In circumstances such as those presented, the county
commission’s site-selection authority and its authority to
prescribe the time and manner of erecting county buildings is
diminished if the county board must comply with a township’s
zoning districts just as the township’s authority to establish
zoning districts is diminished if the county commission need
not comply with township zoning districts when determining a
site for a county building. In light of the conflict, either
the township or the county must relinquish some statutory
authority.4 In this dispute, I would hold that the combined
effect of the power to “determine the site” and the powers to
“prescribe the time and manner of erecting” county buildings
conveys a clear legislative intent to convey exclusive
jurisdiction over the siting and construction of county
buildings to county commissions.5
4
Therefore, the surplusage argument that the majority
finds so compelling is of small assistance in determining
which party prevails.
5
The authority of county boards pursuant to MCL 46.11 is
distinguishable from that of the Department of Natural
Resources (DNR) as expressed in the Natural Resources and
Environmental Protection Act (NREPA), MCL 324.101 et seq. The
NREPA vests the DNR with the authority to construct public
boat launches. In Burt Twp, supra, this Court concluded that
while the NREPA gave the DNR the “‘power and jurisdiction’ to
manage land within its control,” such authority was “not the
same as granting it exclusive jurisdiction,” id. at 669-670
(emphasis in original), reasoning that “the fact that the DNR
is mandated to create recreational facilities on public land
it manages and controls does not indicate a legislative intent
(continued...)
5
Further, the majority reads more than can be justified
into the 1998 amendments of MCL 46.11 regarding a limitation
of county-commission authority over buildings required by law
to be at a county seat. Any modification of the county-seat
limitation on a county board’s site-selection authority does
not, as suggested by the majority, show that the Legislature
“must have considered the issue of limits [on commission
authority over county buildings] and intended no other
limitation.” Ante at 12. Such reasoning is sheer speculation
and especially unconvincing because a county-seat limitation
on site selection for certain county buildings appears
consistently to have been included in the CCA.6
The Court of Appeals panel suggested this conclusion and
interpretation of MCL 46.11 would impermissibly “graft . . .
plenary gloss on this statutory provision,” 246 Mich App 356,
5
(...continued)
that the DNR may do so in contravention of local zoning
ordinances.” Id. at 670.
6
As noted by the majority, before 1998, MCL 46.11(e)
provided: “Remove or designate a new site for a county
building required to be at the county seat, if the new site is
not outside the limits of the village or city in which the
county seat is situated . . . .” (Emphasis added.)
Similarly, 1851 PA 156, § 11, ¶ 5, provided that the county
commission may “remove or designate a new site for any county
buildings required to be at the county seats, when such
removal shall not exceed the limits of the village or city at
which the county seat is situated as previously located.”
(Emphasis added.) The actual text of these incarnations of
the county-seat limitation do not appear significantly
different from the limitation as it is currently drafted.
6
362; 633 NW2d 10 (2001). I disagree by noting that the powers
vested in county commissions over county buildings are
conveyed in terms analogous to those by which the Legislature
vested control over the state’s penal system in the Department
of Corrections.7 In Dearden, the Department of Corrections’
enabling statute expressed the Legislature’s “intent to vest
the [Department of Corrections] with complete jurisdiction
over the state’s penal institutions . . . .” Dearden, supra
at 265. The language of the department’s enabling statute
vested the department with “‘exclusive jurisdiction over . . .
penal institutions . . . .’” Id., quoting MCL 791.204.
Moreover, the Legislature expressly authorized the department
to provide for the “‘unified development’” of penal
institutions “‘so that each shall form an integral part of a
general system.’” Id. at 266, quoting MCL 791.202.
For these reasons, I concur in the result of the majority
opinion.
Elizabeth A. Weaver
7
It is worth noting that, contrary to the majority’s
suggestion, the majority’s construction of the county seat
site selection limitation is in no way “analogous to the
discernment of intent undertaken by this Court in Dearden.”
Ante at 12. Dearden focused on the text of the statute to
discern the Legislature’s intent; the majority fails to
consider the text of the statute.
7