Pittsfield Charter Township v. Washtenaw County

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.

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...)

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.

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).

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

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.

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.

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.

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).

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

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:

* * *

(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

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).

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.

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

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

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

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

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.”

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).

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.”

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...)

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.

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.

Pittsfield Charter Township v. Washtenaw County

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