Pittsfield Charter Township v. Washtenaw County
Pittsfield Charter Township v. Washtenaw County
Opinion of the Court
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,
i
Washtenaw County owns property in Pittsfield Charter Township that the township’s zoning ordinance has designated as i-l (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-l 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),
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.
On appeal, the Court of Appeals reversed.
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.]
We granted the county leave to appeal. 466 Mich 859 (2002).
n
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).
HI
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
The CCA, upon which the county relies, states at MCL 46. II
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 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.
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
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,
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 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 tza
Further, even if expressio unius est exclusio alteráis 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 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 alteráis, is flawed because this approach would cause MCL 46.11(b) to be mere surplusage.
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, nat
We note also that the Court of Appeals made reference to the County Zoning Act, MCL 125.201 ei 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:
*716 [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.
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 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 nmnber, 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*705 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 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.]
MCL 46.11 provides in pertinerit 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.
*706 * ■!■- *
(d) Erect the necessary buildings for jails, clerks’ offices,. and other county buildings, and prescribe the time and manner of erecting them.
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.
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.
246 Mich App 356; 633 NW2d 10 (2001).
The statute is set out in n 1.
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.
The statute is set out, in part, in n 2.
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 Aiiport Auth v DeWitt Charter Twp, 236 Mich App 576, 583; 601 NW2d 141 (1999).
1998 PA 97. Before the amendment of MCL 46.11, the act’s similar subsections read:
(c) Determine the site of a county building.
* :I: **
(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.
Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 572 n 8; 592 NW2d 360 (1999).
1943 PA 184.
1939 PA 61.
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.
Concurring Opinion
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.
(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 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
“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. 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”
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.
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, 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
For these reasons, I concur in the result of the majority opinion.
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,
The majority suggests that MCL 46.11 was “substantively amended in 1998,” ante at 713, 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).
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.”
Therefore, the surplusage argument that the majority finds so compelling is of small assistance in determining which party prevails.
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
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.
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 711. Dearden focused on the text of the statute to discern the Legislature’s intent; the majority fails to consider the text of the statute.
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