Burt Township v. Department of Natural Resources
Burt Township v. Department of Natural Resources
Opinion of the Court
Defendant Michigan Department of Natural Resources (dnr) appeals as of right the trial court order finding that it must comply with plaintiff Burt Township’s zoning ordinances in constructing a public access facility on the northwest shore of Burt Lake. Plaintiff cross appeals. We affirm.
In 1989, defendant obtained options on two lots on Burt Lake for the purpose of constructing a boat launch facility for public access. In a letter dated December 22, 1990, plaintiff’s zoning administrator, Stanley Parvanoff, noted that defendant’s proposed project had not been approved by the township and requested that defendant submit an application for the township’s review. Defendant informed Parvanoff that it did not need plaintiff’s approval of the project because defendant is a department of the State of Michigan.
On February 13, 1992, plaintiff filed a complaint requesting a declaratory judgment that the dnr is required to comply with its zoning ordinances. However, pursuant to a stipulation between the parties, the action was dismissed without prejudice on January 8, 1993, because defendant did not have sufficient funding to complete the project. Thereafter, defendant obtained funding for the boat launch and began construction without obtaining plaintiff’s approval. On September 30, 1996, plaintiff filed its complaint in the instant action, again seeking a declaratory judgment that defendant was required to comply with its zoning ordinances.
At a hearing on October 8, 1996, the parties presented arguments regarding whether defendant was subject to plaintiff’s zoning ordinances. On November 5, 1996, the trial court issued a written
Defendant appealed as of right. Plaintiff filed a cross appeal. Because funding for the boat launch will expire in September 1998, this Court granted defendant’s motion for an expedited appeal.
i
Defendant argues that the trial court erred in finding that its construction and operation of a public access facility was not exempt from local zoning ordinances. This issue presents a question of law. We review questions of law de novo. Schroeder v Detroit, 221 Mich App 364, 366; 561 NW2d 497 (1997).
The trial court relied on the Supreme Court’s decision in Dearden v Detroit, 403 Mich 257; 269 NW2d 139 (1978). In Dearden, the Michigan Department of Corrections sought to lease a building owned by the Archdiocese of Detroit as a neighborhood rehabilitation center. The area was zoned two-family residential. The Board of Zoning Appeals denied requests for a variance and permission to change the use of the property, and the Department of Corrections appealed. The issue on appeal was whether the Department of Corrections, a state agency, was subject to the local zoning ordinances of the City of Detroit. Id. at 260-261.
The Dearden Court held 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.” Id. at 264. The Court then compared the statutory provisions
Therefore, under Dearden, the appropriate analysis is to compare the statutes at issue and discern the legislative intent to determine whether the dnr is immune from plaintiff’s zoning ordinances. Accordingly, we must examine the texts of the Natural Resources and Environmental Protection Act (nrepa), MCL 324.101 et seq.) MSA 13A.101 et seq., and the
Under the trza, local units of government are given the authority to regulate land use. MCL 125.271(1); MSA 5.2963(1)(1) provides in part:
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 disposal, water, energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare. . . . 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 TRZA states that townships cannot regulate or control oil and gas wells. In addition, MCL 125.271(2); MSA 5.2963(1)(2) specifies that any ordinance adopted pursuant to the act is subject to the Electric Transmission Line Certification Act, MCL 460.561 et seq.; MSA 22.150(1) et seq. However, the trza does not specifically indicate whether the Legislature
We therefore turn to the nrepa to ascertain whether the Legislature intended to grant the dnr immunity from the provisions of local zoning ordinances. Defendant relies on three sections of the nrepa to support its claim. Section 503 provides in pertinent part, “The department shall . . . provide and develop facilities for outdoor recreation.” MCL 324.503(1); MSA 13A.503(1). The relevant portion of § 78105 states:
The department shall have the following powers and duties:
(a) To acquire, construct, and maintain harbors, channels, and facilities for vehicles in the navigable waters lying within the boundaries of the state of Michigan. [MCL 324.78105; MSA 13A.78105.]
Finally, § 78110 states:
The Michigan state waterways fund is created in the state treasury. The fund shall be administered by the state treasurer and shall be used by the department solely for the construction, operation, and maintenance of recreational boating facilities, the acquisition of property for the purposes of this part, and for the administration of this part. [MCL 324.78110(a); MSA 13A.78110(a).]
The use of the word “shall” in a statute connotes a mandatory duty or requirement. Hadfield v Oakland Co Drain Comm’r, 218 Mich App 351, 357; 554 NW2d 43 (1996). Defendant contends that the use of the word “shall” in the sections quoted above manifests the Legislature’s intent that the dnr provide public boating access facilities free of any constraints imposed by local zoning ordinances.
However, more recent case law suggests that such general language is insufficient to establish that an entity has exclusive jurisdiction. See Addison Twp v Dep’t of State Police (On Remand), 220 Mich App 550; 560 NW2d 67 (1996); Lutheran High School Ass’n v Farmington Hills, 146 Mich App 641; 381 NW2d 417 (1985); Cody Park Ass’n v Royal Oak School Dist, 116 Mich App 103; 321 NW2d 855 (1982). In Lutheran High School Ass’n and Cody Park Ass’n, this Court held that the School Code
We conclude that the analyses in Addison Twp, Lutheran High School Ass’n, and Cody Park Ass’n adhere more faithfully to the rule enunciated in Dear-den than that of Marquette Co. Accordingly, we must reject defendant’s claim. The passages of the nrepa cited by defendant do not show a clear legislative intent that the dnr’s activities be exempt from local zoning ordinances. See Lutheran High School Ass’n, supra. Furthermore, defendant has cited no portion of the NREPA that indicates a legislative intent to nullify the effect of any other statute that interferes with the dnr’s jurisdiction over the natural resources of the state. In the absence of any evidence that the Legislature intended to give the dnr exclusive jurisdiction over its subject matter, we cannot find it immune from local zoning ordinances.
Defendant also relies on the state constitution, which provides, “The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people.” Const 1963, art 4, § 52. However, the constitution does not single out any particular entity
Finally, defendant argues that if it is not immune from local zoning requirements, the Legislature’s intent that the state provide sites for outdoor recreation and access to state waters would be thwarted because communities could enact local ordinances prohibiting the construction of the necessary facilities. We disagree. An ordinance that has the effect of totally prohibiting a particular land use within a township is impermissible in the absence of special circumstances. MCL 125.297a; MSA 5.2963(27a); English v Augusta Twp, 204 Mich App 33, 37; 514 NW2d 172 (1994). A zoning ordinance may not totally exclude a lawful land use where (1) there is a demonstrated need for the land use in the township or surrounding area, and (2) the use is appropriate for the location. Id. at 37-38. Accordingly, defendant will have recourse if a township attempts to engage in exclusionary zoning.
n
On cross appeal, plaintiff argues that the trial court has the jurisdiction to determine the rights and liabilities of the parties. We conclude that we do not have
Affirmed. No taxable costs pursuant to MCR 7.219, a question of public policy being involved.
MCL 380.1 et seq.] MSA 15.4001 et seq.
Dissenting Opinion
([dissenting). I respectfully dissent.
While I agree with the majority that our task is to discern and implement the Legislature’s intent, I do not agree that the Legislature intended the Department of Natural Resources’ mandate to provide and develop facilities for outdoor recreation, its power to buy or condemn land for this purpose, and its power to acquire and construct facilities for vessels in the navigable waters within this state to be subject to and dependent on local zoning decisions.
While neither the Township Rural Zoning Act (trza), MCL 125.271 et seq.) MSA 5.2963 et seq., nor the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq.) MSA 13A.101 et seq., expressly addresses the question whether the dnr’s implementation of the nrepa is subject to local zoning ordinances, the nrepa sets forth a comprehensive legislative scheme addressing the protection, conservation, and development of the natural resources of this state. The dnr is granted “the power and jurisdiction over the management, control, and disposition of all land under the public domain, except for those lands under the public domain that are managed by other state agencies to carry out their
While the nrepa contemplates that there will be opportunities for cooperation between the DNR and local units of government, MCL 324.78106; MSA 13A.78106, the nrepa does not reflect an intent that the dnr’s implementation of its purpose be subject to or dependent on local cooperation. The navigable waters within this state belong to all the citizens of this state, Collins v Gerhardt, 237 Mich 38; 211 NW 115 (1926), and the Legislature has granted the DNR the power to construct facilities for vessels in those waters. The grant of the authority to acquire or condemn land in the name of the people of this state and to develop facilities for recreation and navigation, using money within a state fund, is inconsistent with the view that a local unit of government can control public access through local zoning. I would reverse.
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