Michigan Supreme Court 

# Order

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 fo r leave to appeal th e September 12, 2006 judgment of the Court of Appeals is cons idered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

W EAVER and K ELLY , JJ., would grant leave to appeal.

M ARKMAN , J., dissents and states as follows:

I would grant leave to app eal 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 entere d into a purchase agreement for property co ntingent on securing zoning for residential de velopment. Pulte applied to rezone the property, and the town ship approved. However, a referendum to defeat the rezoning was successful. Pulte then applied for a varian ce, which was denied, and subsequently brought su it 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 rule d that the agricultural zoning classification of the property constituted a “t aking” 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 The Court of Appeals, in an unpublished opinion per curiam, issued September 12, 2006 (Docket No . 259759), affirmed, but remanded for the trial court to_______________________________________ __ 2

enjoin zoning enforcement rath er than order rezoning. Judg e 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 plain tiff 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 c ontingency 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 financ ial expectations is disputab le. 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 pub lic good . . . .” K & K Constr, Inc v Dep‘t of Environmental Quality , 267 Mich App 523, 559 (2005).

If the zoning does not constitute a “taki ng,” the question become s whether the trial court overstepped its authority wh en it allowed the to wnship board to en ter 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 zoni ng ordinances. MCL 125.32 11; MCL 125.3305. There is nothing in the act that clearly addresses whet her a township board may unilaterally grant relief from a zoning ordi nance, 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 ordina nce. MCL 125.3202. By entering the consent judgment, the trial court arguably a llowed the townsh ip board to circumvent this statutory process.

The issue whether the trial court overstepped its author ity in allowing a consent judgment to be entered without the involve ment of the local zoning commission and to supersede a popular referendum rai ses an important separation of powers issue. The
issue whether the current zoni ng classification constitutes a “taking” raises an equally important question concerning th e standards that Michigan c ourts 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 Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

March 28, 2008

Clerk