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### STATE OF MICHIGAN

COURT OF APPEALS

MAYFIELD TOWNSHIP,

Plaintiff-Appellee, UNPUBLISHED May 24, 2016

v No. 323774 Lapeer Circuit Court DETROIT EDISON COMPANY, LC No. 12-045398-CZ

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and S AWYER and S TEPHENS , JJ.

P ER C URIAM

. Defendant, Detroit Edison Comp any, appeals as of right a judgm ent in the amount of $61,107 entered in favor of plaintiff, Mayfield Township, follo wing the circuit court’s determination that defendant wa s liable for payment of fees cha rged for fire runs. We affirm.

Plaintiff contracted with the city of Lapeer for fire protecti on services. Plaintiff adopted a fire protection ordinance charging owners of real or personal property a fee for certain types of fire runs. 1 On 25 occasions between September 22, 2010, and October 30, 2 012, plaintiff provided fire protection services for which it billed defendant and defendant refused to pay the charged fees. Plaintiff filed sui t and sought payment in the a mount of $60,250, plus interest.

After the trial court denied defendant’s motion for summary di sposition, the parties waived a formal trial and submitted a set of stipulated facts a nd exhibits to the circuit court. The court issued a written opinion ruling in favor of plaintiff. T he court found that each fire run at issue involved defendant’s personal property, and that on each occasion the Lapeer Fire Department (LFD) would notify defendant of the call and either secure the area or remain on the scene until defendant’s own personnel arrived to manage the sit uation. The trial court made three crucial findings based upon the parties’ stipulations. T hose findings were: that the actions taken by the LFD constituted attempts to protect defendant’s pe rsonal property; that the fire runs conferred a benefit on defendant, both in that the runs attempt ed to protect defendant’s personal

1 The ordinance authorized plaintiff to collect a fire run fee under four circumstances: (1) if a person allowed a fire to burn out of control; (2) if a person t urned in a false alarm; (3) if a person failed to maintain a fire alarm system and that failure resulte d in a false alarm; and (4) when plaintiff attempted to protect a property owner’s real or perso nal property.-2- property from damage and attempted to prevent defendant’s prope rty from damaging property owned by others; and that plain tiff was not required to calcula te the fee with mathematical precision, and that plaintiff’s pr ocedure of dividing the contr act price for fire protection by the number of fire runs in a year was reasonable. The trial court concluded that the fees charged for the fire runs were reasonable, and entered judgment in the amou nt of $61,107 in favor of plaintiff.

Defendant argues that the trial court erred in denying it summ ary disposition under MCR 2.116(C)(10). We disagree. We review de novo the trial court’ s decision on a motion for summary disposition. In reviewing the decision on a motion bro ught pursuant to MCR 2.116(C)(10), we must review the r ecord evidence and all reason able inferences drawn therefrom in a light most favorable to the nonmoving party, and decide wh ether a genuine issue of material fact exists. Trepanier v Nat’l Amusements, Inc , 250 Mich App 578, 582-583; 649 NW2d 754 (2002). We also review “de novo a trial court’s interpretation of an ordinance. The rules of statutory construction apply to ordinances.” Kircher v City of Ypsilanti , 269 Mich App 224, 228; 712 NW2d 738 (2005) (citations omitted). Whether a charge is atax or a fee is a question that we also review de novo. Saginaw Co v John Sexton Corp of Mich , 232 Mich App 202, 209; 591 NW2d 52 (1998).

A township has no inherent power s, but has only those limited powers conferred by the Michigan Constitution or the Legislature. Howell Twp v Rooto Corp , 258 Mich App 470, 475; 670 NW2d 713 (2003). A township is authorized by statute to pr ovide emergency fire service and to collect a fee for that service. MCL 41.806a provides, i n pertinent part:

The legislative body of a municipality providing emergency pol ice or fire service or the legislative bodi es of municipalities acting join tly to provide such a service pursuant to this act mayauthorize by ordinance the col lection of fees for the service.

A township may enact an ordinance that imposes a fee, but the fee cannot be a disguised tax. Const 1963, art 9, §31, commonly known as the Headlee Ame ndment, provides, in pertinent part:

Units of local government are hereby prohibited from levying a ny tax not authorized by law or charter when this section is ratified or f rom increasing the rate of an existing tax above tha t rate authorized by law or ch arter when this section is ratified, without the approval of a majority of the qualified electors of that unit of Local Gove rnment voting thereon.

In Bolt v City of Lansing , 459 Mich 152; 587 NW2d 264 (1998), our Supreme Court observed that the determination wh ether a charge is a fee or a tax requires the consideration of several factors. The Court stated:

Generally, a “fee” is “exchanged for a service rendered or a be nefit conferred, and some reasonable relationship exists between the amount of the f ee and the value of the service or benefit.” A “tax,” on the other hand, is des igned to raise revenue. [ Id. at 161 (citations omitted).]-3- Plaintiff enacted a fire prot ection ordinance which provided f or the collection of a fire run fee under four conditions: (1) a llowing a fire to burn out of control; (2) turning in a false alarm; (3) failing to maintain an alarm system thereby resulting in a false alarm; and (4) if plaintiff attempted to protect real or per sonal property on a fire run. At issue in this case is the fourth condition.

Defendant argues that it was entitled to summary disposition a nd, thereafter, to judgment at trial, because no evidence showed that it benefitted from th e fire runs for which plaintiff imposed fees. Therefore, it argue s that the fees in fact const ituted an unlawful tax. We disagree.

Initially, we conclude that pl aintiff’s ordinance did not cons titute an unlawful tax. Fees for fire protection are authorized by MCL 41.806a and plaintiff ’s ordinance. The ordinance authorized the imposition of those fees only on those township residents who were served by the LFD and who received a benefit from that service. This arrange ment meets the definition of a fee as set out in Bolt , 459 Mich at 161. Defendant’s argument that the fees should n ot have been imposed because it received no benefit from the fire runs is a separate issue from whether the charges constituted a fee or a tax.

Defendant’s argument that it did not benefit from the fire run s for which it was charged and that the real beneficiaries were the persons whose property and lives the LFD was trying to protect is not supported by the record. Defendant seems to arg ue that it could not be charged for a fire run unless its equipment could be proven to have caused damage. Plaintiff’s ordinance contains no such requirement. In each of the 25 fire runs for which defendant was charged, defendant’s equipment (poles, power lines, transformers, etc.) was involved in some way. Thus, it is not erroneous to find that defendant received some benefi t in the protection of its own property. Further, the utility b enefited from the prevention o f damage to property adjacent to its poles and lines for which it coul d have been held liable. A ut ility such as defenda nt has a duty to exercise reasonable care to protect against foreseeable harm to others. Schultz v Consumers Power Co , 443 Mich 445, 451-452; 506 NW2d 175 (1993). It is foreseeabl e that fallen or otherwise damaged equipment could cause damage to the property of others. The trial court’s findings that damaged power lines and other equipment could cau se harm to property owned by others and that the presence of the LFD benefitted defendant in that the potential harm was controlled are not cl early erroneous.

Defendant also argues that the imposition of a fee in each inc ident at issue was unreasonable because no evidence showed that a breach of duty b y defendant caused the circumstances that necessitated the fire run. Defendant assert s that plaintiff’s arbitrary exercise of its statutory authority to im pose fees for fire runs renders the ordinance unreasonable. It further argues that the Michigan Public Service Commission (PSC ) regulates defendant’s operations, and a municipality cannot attempt to regulate defen dant by characterizing its efforts as a matter of local concern. We disagree.

The reasonableness of a municipa l ordinance is a question of l aw, Square Lake Condo Ass’n v Bloomfield Twp , 437 Mich 310, 317; 471 NW2d 321 (1991), which we review de no vo, Great Lakes Soc v Georgetown Charter Tp , 281 Mich App 396, 407; 761 NW2d 371 (2008).

In Square Lake Condo Ass’n , 437 Mich at 318, our Supr eme Court stated:-4- The reasonableness of an ordinance, while a question of law, de pends upon the particular facts of each case. The test for determining whethe r an ordinance is reasonable requires us to assess the existence of a rational re lationship between the exercise of police power and the public health, safety, mor als, or general welfare in a particular manner in a given case. [Citation omit ted.]

A person cannot be deprived of life, liberty, or property with out due process of law. US Const, Am V; Const 1963, art 1, § 17; Elba Twp v Gratiot Co Drain Comm’r , 493 Mich 265, 288; 831 NW2d 204 (2013). The due process guarantee limits arb itrary power, and must be construed liberally in favor of a citizen. Daugherty v Thomas , 174 Mich 371, 382; 140 NW 615 (1913).

The federal and state constitutions guarantee equal protection of the law. US Const, Am XIV; Const 1963, art 1, § 2. The equal protection guarantee se rves to protect a person against intentional and arbitrary discri mination, whether that discrimi nation is expressed in the language of a statute or the execution thereof. Village of Willowbrook v Olech , 528 US 562, 564; 120 S Ct 1073; 145 L Ed 2d 1060 (2000).

Defendant does not argue that pl aintiff did not have the statu tory authority to enact the fire protection ordinance; rathe r, defendant asserts that plain tiff’s arbitrary exercise of the authority as applied to defendant renders the ordinance unreaso nable because the fire runs for which defendant was charged did not benefit defendant. Defenda nt also argues that because the PSC regulates defendant’s operations, MCL 460.6, 2 plaintiff’s ordinance compelling defendant to pay for fire runs is invalid. Defendant notes that in City of Taylor v Detroit Edison Co , 475 Mich 109; 715 NW2d 28 (2006), our Supreme Court concluded that an ordinance that was incongruent with PSC rules was invalid. Id . at 123-124. Defendant reasons that because the imposition of fees on defendant could affect defendant’s rates, the ordinance as applied must be deemed invalid. Finally, defendant argues that because it was billed for runs in which its property was not protected, it wa s deprived of due process and equal protection.

Defendant’s arguments are without merit. These arguments are premised on defendant’s position that it was improperly billed for the fire runs at iss ue because it did not receive a benefit from those runs, in part because it did not cause the incidents that gave rise to the fire runs. The statutory authority for the loca l ordinance does not impose a f ault-finding requirement. Plaintiff’s ordinance does not include a fault requirement eith er. There is a rational basis for imposing a fee on beneficiaries such as defendant. As indicate d earlier, the trial court did not clearly err in finding that defe ndant did benefit from the fire runs, and for that reason defendant has not shown that the or dinance is unreasonable.

MCL 460.6 does not shield defendant from fees for beneficial s ervices. Defendant correctly notes that its operations are regulated by the PSC, M CL 460.6(1), but defendant is incorrect that no aspect of its operations can be subject to mu nicipal ordinance. Neither MCL

2 MCL 460.6(1) states that the PSC has the “power and jurisdicti on to regulate all rates, fares, fees, charges, services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction, of public utilities.”-5- 460.6 nor City of Taylor supports this argument. Plaintiff’s ordinance does not regula te defendant’s operations in the manner described by MCL 460.6. D efendant is not exempt from every statute or rule other thanthose administered by the PSC.

Finally, the charges imposed by plaintiff do not deprive defen dant of due process or equal protection because, as indicated e arlier, defendant derived a b enefit from the fire runs for which it was billed. Plaintiff did not act in an arbitrary manner ag ainst defendant. Defendant is treated the same as other beneficiaries.

Finally, defendant argues that plaintiff’s ordinance does not authorize the imposition of a fee on a party who receives no benefit from a fire run. Defend ant contends that the fire runs were not made to protect or to a ttempt to protect defendant’s p roperty. This argument is simply a restatement of defendant’s other issues. As indicated previo usly, the trial court did not clearly err in finding that the LFD was attempting to protect defendant ’s equipment in each fire run at issue; therefore, the terms of t he ordinance authorized the imp osition of a fee.

In Kircher , this Court stated:

Fees charged by a municipality m ust be reasonably proportionat e to the direct and indirect costs of pr oviding the service for which th e fee is charged. Merrilli v St Clair Shores , 355 Mich 575, 583, 58 8; 96 NW2d 144 (1959). Such a fee is presumed reasonable unle ss it is facially or evidently s o “wholly out of proportion to the expense involved” that it “must be held to be a mere guise or subterfuge to obtain the increased revenue.” Id . at 584, quoting Vernor v Secretary of State , 179 Mich 157, 168, 170; 146 NW 338 (1914). [ Kircher , 269 Mich App at 231-232.]

A court must presume that the amount of the fee is reasonable, unless otherwise established by the law itself or evidence presented. Graham v Kochville Twp , 236 Mich App 141, 154-155; 599 NW2d 793 (1999) (citation omitted).

The trial court found that the f ees charged by plaintiff were reasonable. Defendant’s argument that the fees were unreasonable is based on its positi on that it did not receive any benefit from the fire runs, but as already indicated, the trial court did not clearly err in finding that defendant received a benefit from each fire run. Defendan t has not overcome the presumption that the f ees were reasonable.

Affirmed.

/s/ Amy Ronayne Krause /s/ David H. Sawyer /s/ Cynthia Diane Stephens