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.
I
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outdated and inadequate.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:
1
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.
2
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.
2
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.
3
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
4
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.
5
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
6
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.
II
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).
7
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).
IV
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
8
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
9
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,
10
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.
11