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### STATE OF MICHIGAN

COURT OF APPEALS

CHARLES MIRABELLA and JOANNE MIRABELLA,

Plaintiffs-Appellants, UNPUBLISHED June 9, 2015

v No. 320191 Alger Circuit Court TOWNSHIP OF AUTRAIN, AUTRAIN TOWNSHIP BOARD, and AUTRAIN TOWNSHIP PLANNING COMMISSION, LC No. 2012-007163-PZ

Defendants-Appellees, and

AMY GRAMM, DENNIS GRAMM, REGINA GRAMM, JOSEPH BUCK, AMY BUCK, REGINALD DYER, CAROLYN DYER, GREGORY GALUBA, THERESA GALUBA, JOHN MCGRAW, and DENISE MCGRAW,

Defendants.

Before: G LEICHER , P.J., and K. F. K ELLY and S ERVITTO , JJ.

P ER C URIAM

. Plaintiffs appeal as of right from an order granting defendant s summary disposition. 1 Finding no errors warranting r eversal, we affirm.

I. BASIC FACTS

On October 10, 2012, plaintiffs filed their complaint, seeking to enjoin defendants from enforcing August 13, 2012 amendments to the Township zoning ord inance, which permitted transient rentals in the area as a conditional use. Plaintiffs , who were residents of Florida, owned

1 The individual defendants, pla intiffs’ neighbors, were dismiss ed with prejudice by stipulation of the parties. The term “defenda nts” refers to d efendants-app ellees.-2- vacation property on 16 Mile Lake in AuTrain Township. The pro perty was located in the LS/R2 zoning district. Plaintiff clai med that they relied on the p revious zoning ordinance, which had prohibited transient rentals in the past. They claimed to have a vested property interest, entitling them to occupy their property “free from unreasonable interfere nces with their peaceable use and quiet enjoyment thereof.” Plaintiffs’ complaint alleged that d efendants did not demonstrate an overriding change of circumstance within the master plan to jus tify divesting them of their vested rights. The complaint sought to restrain defendant from holdin g a public hearing on applications for conditional use permits and to enforce the prior zoning ord inance.

Defendants acknowledged that there was a “bitter and long stan ding controversy involving short term rentals” i n the area. In fact, the Zoning Board of Appeals made a prior determination that the transient rentals were not legally conforming uses; this determination was affirmed by the circui t court in an earlie r lawsuit by order da ted August 5, 2010. Verhame et al v AuTrain Twp Zoning Bd of Appeals , 09-4948-AR. In that order, the cir cuit court reasoned:

What is clear to this Court is that from 1979 to the present, commercial activity of the nature of the Petitioners was prohibited in bot h the RP classification under the former c ounty ordinance and in the LS& R-2 classification of the current [zoning ordinance]. Simply put, an illegal non- conforming use cannot ripen into a legally conforming use on its own imaginati on or by the unilateral determination of a zoning administrator. . . .

Despite this order, neither the z oning administrator nor the to wnship took any action to enforce the ordinance.

Plaintiffs then filed a mandamus action to compel enforcement, which was pending when they filed the instant action. Mirabella v AuTrain Twp , Alger County Circuit Court Case 11- 7040-CE. In the meantime, the Township Planning Commission beg an working on a Master Plan. The Master Plan was a dopted on October 10, 2011 and reco mmended that the zoning ordinance be amended to clarify r egulations on transient rental s. The master plan provides that lakeshore and river areas in th e township “do not permit resort s, lodges, or bed and breakfasts, as a permitted use nor as a conditional use. There has been a lon g-standing controversy in the Sixteen Mile Lake area concerning resorts and lodges operating around the lake.” After noting the court cases and the continuing zoning prohibition on short- term rentals, the master plan states: “Should the Township wish to provide for alternative u ses in these areas, amendments to the Zoning Ordinance would be required.” Within the master pla n’s statements of goals and recommendations, the plan recommends amending the zoning ordina nces “to clarify regulations on transient rentals.” After review by the Central Upper Penin sula Planning and Development Commission (CUPPAD), the changes were adopted on August 13, 201 2. As a result of the amendment, the circuit court dismissed the mandamus action as m oot. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) (f ailure to sta te a claim) and (10) (no genuine issue of material fact), arguing that the amendment was presume d valid and that plaintiffs failed to allege that defendants’ actions were arbitrary and capriciou s. Defendants argued that the area was still deemed residential and had not been re-classified; in stead, anyone who hoped to become a renter would have to apply for a conditional use permi t, which was not automatic. Defendants argued that, contrary t o plaintiffs’ assertions, pla intiffs did not have a vested right to have the zoning remain exactly t he same as when they purchased their property.-3- Plaintiffs filed a competing motion for summary disposition, a rguing that they had a preexisting interest that could not be defeated by a subsequent amendment of the zoning ordinance. Plaintiffs claimed that they relied on a 50-year hi story as well as the circuit court’s decision in Verhame, that transient rentals were prohibited. They made numerous imp rovements to the cottage, hoping to continue to enjoy the character of th e property. Plaintiffs claimed that the zoning amendment was an attempt to manufacture a defense to the “pending litigation,” which was the mandamus action.

In denying plaintiffs’ motion for summary disposition and gran ting defendants’ motion, the trial court noted that an ordinance is presumed valid and t hat “no landowner has a vested right in a continuance of a par ticular type of zoning,” and thu s rejected plaintiffs’ vested right theory. The court found there was no evidence “to suggest that the zoning ordinance is unreasonable or arbitrary” and th ere had been “no allegation th at there was any wrongdoing in the process.” Additionally, it found no evidence to suggest th e amendment was done in defense against any claim. Plainti ffs now appeal as of right.

II. STANDARD OF REVIEW

A trial court’s ruling on a summary disposition motion is revi ewed de novo. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999).

A MCR 2.116(C)(8) motion tests the legal sufficiency of the pl eadings. Bailey v Schaaf

, 494 Mich 595, 603; 835 NW2d 413 (2013). Such a motion is decid ed on the pleadings alone without the support or opposition of affidavits. Gorman v American Honda Motor Co, Inc , 302 Mich App 113, 131; 839 NW2d 223 (2013). Given this posture, th e court must “accept as true all factual allegations supporting the claim, and any reasonabl e inferences or conclusions that might be drawn from those facts.” Gorman , 302 Mich App at 131. However, “only factual allegations, not legal conclusions, are to be taken as true” un der MCR 2.116(C)(8). Davis v Detroit , 269 Mich App 376, 379 n 1; 711 NW2d 462 (2006). “[T]he mere statement of a pleader's conclusions, unsupporte d by allegations of fact, will not suffice to state a cause of action.” ETT Ambulance Serv Corp v Rockford Ambulance

, Inc , 204 Mich App 392, 395; 516 NW2d 498 (1994).

MCR 2.116(C)(10) provides that where “there is no genuine issu e as to any material fact, . . . the moving party is entitled to judgment or partial judgment as a matter of law.” Because such a motion tests the factual sufficiency of the comp laint, this Court considers the affidavits, pleadings, depositions, admissions, and other evide nce submitted by the parties in the light most favorable to the party opposing the motion. Maiden , 461 Mich at 120. When giving the benefit of reasonable doubt to the opposing party, if an is sue upon which reasonable minds might differ is evident, a genui ne issue of material fact exist s. Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996).

III. ANALYSIS

On appeal, plaintiffs argue that there was no need to clarify the regulation of transient rentals because they were never permitted under the zoning ordi nance. They argue that their substantive due process rights we re violated because their vest ed property intere st was destroyed.-4- They further argue that the amendment is unenforceable because it was enacted to create a defense to the mandamus action. We disagree.

“Procedural due process serves as a limitation on governmental action and requires a government to institute safeguards in proceedings that might re sult in a deprivation of life, liberty, or property.” Mettler Walloon, LLC v Melrose Twp , 281 Mich App 184, 213; 761 NW2d 293 (2008). It requires that a party receive “notice of the na ture of the proceedings and an opportunity to be heard by an impartial decision maker at a mea ningful time and in a meaningful manner.” Id . at 214. In contrast, “[t]o sustain a substantive due process claim against municipal actors, the governmental conduct must be so arbitrary and capri cious as to shock the conscience.” Id . at 198.

Generally, zoning ordinances f ollow a master plan, MCL 125.320 3(1), and “a master plan serves as a general guide to futu re development and is a factor in determining the reasonableness of a particular zoning classification.” Inverness Mobile Home Community, Ltd v Bedford Twp

, 263 Mich App 241, 248-249; 687 NW2d 869 (2004) (citations omitt ed) (referencing the Township Rural Zoning Act). Here, the master plan noted the co ntentious nature of the rentals around 16 Mile Lake and included as a goal addressing the issue . Plaintiffs have not rebutted these facts nor shown that they are insufficient to guide zonin g decisions in the township. Further, the actions taken by the township did not rezone the p roperty, but only allowed a new conditional use, which required its own permitting procedure. 2 Plaintiffs admit that they contested these changes at the public hearings. They have fail ed to show any violation of procedural due process.

Plaintiffs next argue that the township’s action was a violati on of substantive due process because it destroyed a vested party interest. However, plainti ffs fail to show or cite any actual zoning ordinance that was changed; the property remains under t he same zoning classification. We reject plaintiffs’ reliance on Lansing v Dawley , 247 Mich 394; 225 NW 500 (1929). Plaintiffs do not allege that the y hold a valid building permit . The additions to the building that they cite merely upgraded the amenities of a residential cabin, which was not impacted by the zoning classification and was done shortly after buying the cab in in 2009 and thus well before the current controversy. Their reliance on the circuit court r uling from 2010 is unpersuasive because that case merely determined the rights of the parties u nder the existing zoning ordinance and did not grant plaintiffs any part icular use in their land.

We also find unpersuasive plaintiffs’ reliance on Keating Int’l Corp v Orion Twp , 395 Mich 539; 236 NW2d 409 (1975). It cannot be said that the town ship’s conduct demonstrated “bad faith and unjustified delay” because the township began th e master plan process on September 15, 2011, while plaintiffs’ mandamus action was not i nitiated until October 11, 2011, and the present case was not filed by plaintiffs until October 10, 2012. We note that the

2 Even if the result was a change in zoning, “[n]o owner has a v ested right in the continuance of a zoning once established.” Lamb v City of Monroe , 358 Mich 136, 147; 99 NW2d 566 (1959).-5- mandamus action was dismissed as moot shortly after the present action was filed and plaintiffs did not appeal from that decision.

Affirmed.

/s/ Elizabeth L. Gleicher /s/ Kirsten Frank Kelly /s/ Deborah A. Servitto