Irish v. Treasurer of the State
Irish v. Treasurer of the State
Opinion of the Court
On May 22, 1985, Emmet Circuit Judge Nicholas J. Lambros entered an amended final judgment, changing the original final judgment which was entered by Judge Allan C. Miller on September 8, 1972, in this Michigan Environmental Protection Act case. The state agency defendants appeal as of right, alleging that the court erred in amending the final judgment.
Sometime prior to April, 1972, the Birchwood Farms Development Company (bfdc) commenced plans for the development of a residential housing project on 1,828 acres located in West Traverse Township, Emmet County, Michigan. As part of this development, bfdc contemplated approximately 858 single-family lots and 595 cluster housing units, and included roads, a golf course, a clubhouse, a tennis complex, and other related amenities. This appeal centers on four plats, Plat Nos. 1 through 4, and concerns the type of sewage disposal system which should be constructed at the Birchwood Farms project.
On April 1, 1972, a group of Harbor Springs landowners filed suit for equitable and declaratory relief against all the defendants except the Birch-wood Farms Golf and Country Club Property Owner’s Association under the Environmental Protection Act, MCL 691.1201 et seq.; MSA 14.528(201) et seq. The complaint alleged that the proposed residential project would endanger the air, water, and other natural resources of the area because among other things the developers planned to use individ
On September 29, 1972, bfdc filed a motion to alter or amend the final judgment or, in the alternative, for a new trial, bfdc sought a reduction of the fifteen percent escrow deposit requirement. On December 26, 1972, the court signed an order granting bfdc’s motion and ordered that bfdc would have to deposit only a maximum of $1,000 per lot into the escrow account.
The next amendment to the final judgment was made in 1976. Bfdc filed a motion to modify the final judgment requesting the court to allow it to build houses on forty percent of the lots on Plat Nos. 2 and 3 before a central sewage system was
The next amendment to the final judgment was made in 1978. On August 1, 1978, plaintiffs, intervening plaintiffs, bfdc, and state agency defendants stipulated to amend the final judgment. The stipulation provided that certain lots of Plat Nos. 1 through 3 were to be designated "groundwater sensitive lots,” and that only twenty-six more homes with on-site septic facilities would be allowed to be built on these lots. Single-family homes using individual on-site septic systems could be constructed on Plat Nos. 2, 4 and 5, or any subsequent plats, on lots 54 through 80 of Plat No. 1, and on lots 290 through 300 of Plat No. 3, until forty percent of the total number of such lots had been built upon.
On December 6, 1984, Birchwood Development Company, which had been substituted as a defen
On May 10, 1985, the amendment which led to the instant appeal was sought. On that date, all of the plaintiffs except Earl R. Larson, all of the intervening plaintiffs, and the Birchwood Development Company moved to have the court enter an order amending the final judgment in accordance with an agreement to amend the final judgment executed by the parties. The stipulation provided that the signatories had come up with an alternative to the central sewage system. This alternative was called the Collection and Treatment System. In the stipulation, the signatories agreed that this system satisfied the plaintiffs’ concern for groundwater contamination. The stipulation further set forth the proposed steps to be taken to implement the system. Essentially, the stipulation provided that the plaintiffs had to petition the court, and if the court found after a hearing that there was a "substantial likelihood” that degradation of the groundwater would result through continued development of the project, the court would order the installation of the system. It appears that as long as water was not found to be polluted, the Collection and Treatment System would not have to be built. The stipulation provided that all building restrictions imposed by the court upon Birch-wood Development Company in the final judgment
The state agency defendants opposed the motion by filing a response. They objected that the motion was not timely under MCR 2.611(B). They also objected that the procedure for implementing the Collection and Treatment System was impractical, since it required plaintiffs to petition the court to conduct a trial to determine whether water contamination was caused by the project. They argued that there was no assurance that the system would ever be constructed since the plaintiffs were not required to petition the court.
On May 22, 1985, despite the state agency defendants’ objections, the court granted the motion and entered an "Amended Final Judgment” in accordance with the stipulation. The state agency defendants appeal as of right.
On appeal Birchwood Development Company contends that the state agency defendants are not "aggrieved parties” entitled to appeal. We disagree.
A party to an action may appeal as of right
The state agency defendants are parties to the action since they were designated in the complaint as defendants. The question is whether they are "aggrieved” for purposes of MCR 7.203(A). The original final judgment authorized the state and local government agencies to enforce the terms of the judgment. Thus any future amendment to the judgment would ultimately affect the state agencies because they were charged with enforcing the original judgment.
Defendants’-appellants’ first issue on appeal is whether the May 10, 1985, motion to amend the final judgment was timely filed. They contend that a motion to amend a final judgment must be made pursuant to MCR 2.611(B), formerly GCR 1963, 527.5, which requires the motion to be filed within twenty-one days of judgment.
We are not persuaded that MCR 2.611(B) rules this case. It states: "A motion for a new trial made under this rule or a motion to alter or amend a judgment must be filed and served within 21 days after entry of the judgment.” In the instant case, however, the trial court retained jurisdiction in the judgment "for the purpose of entering such additional orders as may be required to implement the Judgment.” The trial court knew, because of
Defendants’-appellants’ last contention is that the trial court clearly erred in amending the final judgment. We agree.
During the original trial of this matter in 1972 the trial judge heard seven full days of testimony and had the benefit of authorities in civil engineering, epidemiology, traffic, geology, hydrogeology, microbiology, hydraulics and architecture. In contrast, before drastically amending the judgment, the new trial judge heard only oral argument and received a conclusory affidavit from the president of the development company.
Admittedly, after thirteen years the original judgment may have proven to have inaccurately predicted future conditions. However, because there is nothing in the record below to prove that a central sewage system should not now be built, we hesitate to lightly throw aside the careful findings of Judge Miller.
In equity cases, this Court reviews de novo, but will not reverse the trial court unless convinced that the court’s findings are clearly erroneous or that this Court would have reached a different result had it occupied the trial court’s position. Calvary Presbyterian Church v Presbytery of Lake Huron of the United Presbyterian Church in the United States of America, 148 Mich App 105, 109-110; 384 NW2d 92 (1986), lv den 425 Mich 863 (1986). We find that the trial court’s action in amending the final judgment without an evidentiary hearing was clearly erroneous and we remand for a hearing to determine if the proposed changes will sufficiently protect future buyers and
Reversed and remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.