MICHIGAN REAL PROPERTY REVIEW STATE BAR OF MICHIGAN Vol. 5, No. 5 October, 1978 Chairman: Allen E. Priestley Editor: George J. Siedel, III Graduate School of Business Administration The University of Michigan CONTENTS Zoning Litigation: Approaches and Freparation Techniques by Stephen A. Bromberg Mechanic’s Lien Update ll O by Robert S. Bolton The Legislative Scene 2O by Joseph H. Hollander Case Briefs 22 by Nicholas Batch Chairman’s Report 26 by Allen E. Priestley Section News Section Committees 3O When I hear a man talk of unalterable law, the effect it produces upon me is to convince me that he is an unalterable fool. Sidney Smith O October, 1978 - Page 2 ZONING LITIGATION: APPROACHES AND PREPARATION TECHNIQUES Stephen A. Bromberg Bromberg, Robinson, Shapero & Cohn The subject matter of zoning litigation is unusually broad. Inasmuch as "each zoning case must be determined upon its own facts and circumstances," SenefskY v Huntington Woods, 307 Mich 728, 737 (1943), there are, of necessity, as many approaches to the trial of zoning matters as there are cases. Accordingly, this article will be highly subjective and largely reflect the opinions and experiences of the author. Further, this article is not intended to be definitive, but rather to set forth certain ideas which, hopefully, will prove helpful. The perspective will be that of representation by the attorney of the individual property owner or developer in opposition to the municipality, but the concepts deriving therefrom should be of interest regardless of the party represented. In approaching litigation, background factors must be reviewed carefully in order to adopt the proper approaches. These factors are procedural, political and legal. The first examination should be the precise procedural context. Litigation may result from the refusal of a municipality to grant a building or use permit, its refusal to grant site plan approval, its refusal to grant rezoning or the rezoning of specific property over the protest of the property owner. Zoning litigation can also arise from the refusal of a Zoning Board of Appeals ("ZBA") to grant a variance or special exception, or from claims of specific ordinance violations, or from the presence of nuisances under ordinance provisions, or non-conforming uses, as well as many other circumstances. The remedies available in each of these circumstances will vary with the facts of the particular case, as will be detailed below. The importance of the political context cannot be overemphasized. For example, in dealing with site plan matters it is important to remember that the Planning Commission, which may in the particular community be designated to deal therewith, is normally appointed by the municipal Council and that the Council (which may also deal therewith) consists of elected officials. When rezoning questions are present, these elected Council members will be involved. In dealing with appeals froul ZBAJ one must note that the members thereof are normally appointed by the Council. Therefore, in these circumstances one is always dealing with either publicly elected or appointed officials. They are, thus, responsive to political pressures, which are not normally a factor in other litigation. The presence of homeowners groups exercising whatever clout they might have therefore has direct bearing on the type of action taken. The question may well be asked why this political factor is important in litigation, since it appears to be of more importance in representa- tion of clients at the level of municipal action. However, if one is to understand the motivation of the municipality and its representatives and the parameters within which they are acting in the litigation, understanding of the political situation is vital. Thus, for example, since the City Attorney is normally appointed by the municipal Council or Board, he will be definitely attuned to their positions in relation to the litigation. As a result, if an attorney is attempting to have a mobile home project approved and a majority of the Council members were elected on a October, 1978 - Page political platform in opposition to mobile home parks, no meaningful settlement negotiations with the City Attorney are likely. On the other hand, if it is determined that the issues involved in the litigation are not a major political football in the municipality, settlement negotiations may, in fact, be possible. In handling these political problems, the attorney must have a public relations sense. Since many zoning suits are of intense public concern, they are often reflected in newspaper articles and television news programs. Thus, a determination must be made as to the manner in which the media are to be treated in the litigation. Our approach has generally been to avoid newspaper reporters and television cameramen to the extent possible, since we find that statements are often misquoted or taken out of context with the opposite effect of that originally intended. However, in this area, as in other zoning areas, the exception may prove the rule. Therefore, you may desire to marshal public support through carefully ~ritten statements submitted to reporters with the understanding that all of these statements are to be printed. In any event, care must be taken to avoid being "burned." The legislative legal background involves three zoning enabling acts: (i) The City-Village Zoning Act, MCLA 125.581 et seq., (2) The Township Rural Zoning Act, MCLA 125.271 et seq., and (3) The County Rural Zoning Enablin~ Act, MCLA 125.201 et seg. The County and Township Act provisions "trackv’ each other in that you will find that many of the provisions in each of the acts are exactly the same and located in the same positions within each legislative framework. Although the City-Village Act is much shorter and does not "track" the other two acts, many of the most relevant provisions contain the same language as in the other two acts. Thus, in construing language in one of these acts it is important to examine the others to determine whether authorities are present which will aid in the construction process. It should be noted that the City-Village Act also contains special provisions, most particularly ~n relation to ZBAs and the processing of appeals therefrom. Legisla~ tion is pending at the time of writing of this article which should have the effect of clarifying a number of previously unclear areas under these acts. The local ordinances are often vital in determination of zoning litigation. Zoning ordinances will, in many instances, have a number of interrelating provisions. Thus, it is most important to review the entire ordinance, determine the structure thereof and analyse all provisions which may affect the pending litigation. In many cases it will be found that different provisions in the same ordinance either qualify each other, or have apparently conflicting effects. Thus, good advantage can be taken of a complete perspective of the local ordinances involved. The Michigan case law in the area of the validity of zoning ordinances and efforts to effect rezoning has been most interesting during the past twenty years. The Michigan Courts have taken, or appeared to have taken, successively conflicting positions. Thus, a superficial review is instructive. Initially, Brae B~rn~ Inc... v Bloomfield Hills, B50 Mich 425, hB2 (1957), in a well-reasoned decision by Justice Smith, adopted the concept that, "the (zoning) ordinance comes to us clothed with every presumption of validity." Therefore, it was concluded that it was "the burden of the party attacking to prove affirmatively that the ordinance is an arbitrary and unreasonable restriction upon the owner’s use of his property." Brae Burn, supra, October, 1978 - Page 4 Beginning in 1971 the Michigan Court of Appeals developed the so-called "favored or preferred use" doctrine in Bristo~ v City of Woodhaven, 35 Mich App 205 (1971). This doctrine was to the effect that "where a proposed use has acquired a ’favored’ status (such as mobile home parks) and is appropriate for a given site, the presumed validity of a restrictive local ordinance fades and the burden shifts to the municipality to justify its exclusion." Bristow, supra, 212. Therefore, "it is now the municipality’s burden to present competent evidence to support exclusionary ordinances." Bristow, supra, 213. Succeeding Court of Appeals cases adopted and applied this approach. Simmons v Royal Oak, 38 Mich App 496 (1972) (applying the doctrine to multiple dwellings)° However, in Kropf v Sterling Heights, 391 Mich 139 (1974), in which multiple dwelling use was approved in the Court of Appeals based upon the "favored use" approach, the Supreme Court~ in the majority opinion of Chief Justice Kavanagh, totally rejected Bristow and its progeny, overruled the entire favored use doctrine and reinstated the Brae Burn concepts. Thus, according to the Kropf majority, in the event that the zoning itself is "reasonable" it will be upheld and the burden of proof is on the party attacking the ordinance° In Kropf Justice Levin wrote a well-known concurring opinion in which he adopted the position that while the legislative body of the municipality, in adopting the overall zoning ordinance for the entirety thereof, was exercising legislative powers, when that body dealt with individual property and decided matters concerning such property on individual grounds, these proceedings were quasi-Judicial and thus administrative and not legislative. From thms it was concluded that the essential question in these matters was changed "from whether the use permitted by present zoning is reasonable to whether the proposed use is reasonable." Kropf, supra, 171. Thus, again the burden of proof could shift to the municipality to sustain its position in circumstances in which a proposed use is reasonable. The "Levin doctrine" was adopted in Sabo v Monroe Township, 394 Mich 531 (1975), Nickola v Grand Blanc Township, 394 Mich 589 (1975) and Smookler v Wheatfield Township, 394 Mich 574 (1975).