Order Michigan Supreme Court 

Lansing, Michigan 

March 28, 2008 Clifford W. Taylor,

 Chief Justice 

132315 Michael F. Cavanagh 

Elizabeth A. Weaver 

PULTE LAND COMPANY, L.L.C., and Marilyn Kelly 

MARGARET BRECHTING, Maura D. Corrigan 

Robert P. Young, Jr. Plaintiffs-Appellees, Stephen J. Markman, v SC: 132315 Justices COA: 259759 
 Kent CC: 02-008377-CZ 

ALPINE TOWNSHIP,

Defendant,
 and 

CHRIS BRECHTING,

Intervening Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the September 12, 2006 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

WEAVER and KELLY, JJ., would grant leave to appeal. 

MARKMAN, J., dissents and states as follows: 

I would grant leave to appeal to consider whether there was a “taking” of property 

here and, if not, whether a zoning referendum is properly reversed by a consent judgment 

entered without the involvement of the local zoning commission. 

Plaintiffs Margaret Brechting and Pulte Land Company entered into a purchase 

agreement for property contingent on securing zoning for residential development. Pulte 

applied to rezone the property, and the township approved. However, a referendum to 

defeat the rezoning was successful. Pulte then applied for a variance, which was denied, 

and subsequently brought suit against the township. 

The trial court approved a partial consent judgment in which the township agreed 

not to oppose the relief sought by plaintiffs. The court ruled that the agricultural zoning 

classification of the property constituted a “taking” and ordered a rezoning to residential 

development. The Court of Appeals, in an unpublished opinion per curiam, issued 

September 12, 2006 (Docket No. 259759), affirmed, but remanded for the trial court to 
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enjoin zoning enforcement rather than order rezoning. Judge Schuette in a concurrence 

raised concerns about the constitutionality of employing a consent judgment to override 

the results of a referendum. 

First, I would further consider whether the current zoning classification constitutes 

a “taking.” Although plaintiff Brechting received no offers from farmers to purchase the 

land, she never offered it for sale at the market price for its classification. In addition, 

Pulte agreed to the removal of the rezoning contingency from the purchase agreement 

with knowledge of its current zoning status. In fact, Pulte signed the amended purchase 

agreement without the zoning contingency, after the referendum had defeated the 

rezoning, and after the township had denied a use variance. The reasonableness of 

Pulte’s investment and financial expectations is disputable. Moreover, the regulation 

applied over a large area of land and hardly can be said to single out plaintiffs to “bear 

the burden for the public good . . . .” K & K Constr, Inc v Dep‘t of Environmental 

Quality, 267 Mich App 523, 559 (2005). 

If the zoning does not constitute a “taking,” the question becomes whether the trial 

court overstepped its authority when it allowed the township board to enter into a consent 

judgment that superseded the referendum. The Michigan Zoning Enabling Act, MCL 

125.3101 et seq. (formerly MCL 125.271 et seq. with regard to townships), provides for 

the enactment and administration of zoning ordinances. The legislative body of a local 

government, through the recommendations of its zoning commission, has the authority to 

enact, amend, and enforce zoning ordinances. MCL 125.3211; MCL 125.3305. There is 

nothing in the act that clearly addresses whether a township board may unilaterally grant 

relief from a zoning ordinance, in particular after the same relief has earlier been reversed 

by referendum and a use variance has been denied. An amendment of a zoning ordinance 

is made in the same manner as the enactment of the original ordinance. MCL 125.3202. 

By entering the consent judgment, the trial court arguably allowed the township board to 

circumvent this statutory process. 

The issue whether the trial court overstepped its authority in allowing a consent 

judgment to be entered without the involvement of the local zoning commission and to 

supersede a popular referendum raises an important separation of powers issue. The 

issue whether the current zoning classification constitutes a “taking” raises an equally 

important question concerning the standards that Michigan courts are prepared to apply in 

assessing seemingly ordinary local zoning decisions. For these reasons, I would grant 

leave to appeal. 

p0325 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

March 28, 2008 

Clerk