FILED JULY 15, 2010
S T A T E O F M I C H I G A N SUPREME COURT

JEFFREY HENDEE, MICHAEL HENDEE, LOUANN DEMOREST HENDEE, and VILLAGE POINTE DEVELOPMENT LLC, Plaintiffs-Appellees, v Nos. 137446 and 137447 PUTNAM TOWNSHIP, Defendant-Appellant.

BEFORE THE ENTIRE BENCH
W EAVER , J. In this zoning case, Putnam Township (1) denied plain tiffs’ request to rezone a 144-acre parcel from agricultural-open space (A -O) use to single-family, rural residential (R-1-B) use, (2) denied a request for a plan ned unit development (PUD) that would have permitted R-1-B development of the parcel and, (3) denied a use variance that would have permitted residential development of up to 95 lots. In light of these circumstances, we consider whether the trial court had jurisd iction to entertain a claim of exclusionary Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Marilyn Kelly Justices: Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway2 zoning and grant relief that would allow pl aintiffs to use the property for a 498-unit manufactured housing community (MHC). Plaintiffs’ exclusionary zoning claim wa s premised on the notion that because the township’s zoning map classified no appropr iate land for MHC use and the township’s master plan designated only unsuitable proper ty for that use, the township’s ordinance was facially invalid. The trial court agreed with plaintiffs and granted relief on the basis of a finding that the township had enga ged in exclusionary zoning and that MHC development was an appropriate use of plaintiffs’ property. On appeal, the Court of Appeals major ity affirmed in part. Concluding that plaintiffs had presented an apparently “fac ial” challenge to the constitutionality of the ordinance 1 because it did not in clude MHC development, 2 the majority also determined that plaintiffs had presented an “as applie d” challenge to the constitutionality of the ordinance. The majority found it unnecessa ry to determine whet her the exclusionary zoning claim presented a facial challenge and whether it wa s subject to the rule of finality, however, “holding that further township proceedi ngs would have been futile

1 The majority described it as a “facial ch allenge with ‘as app lied’ attributes or features, considering that execu tion of the ordinance scheme w ith respect to a recognized yet unapplied MHC district can go the i ssue of whether the township engaged in exclusionary zoning.” Hendee v Putnam Twp , unpublished opinion per curiam of the Court of Appeals, issued August 26, 2008 (Docket Nos. 270594 and 275469), p 6 n 6.

2 The partial dissent would have held that plaintiffs’ clai m was not ripe for judicial review. Id ., unpub op at 1 (D ONOFRIO , P.J., concurring in part and dissenting in part).3 assuming application of the rule.” 3 The as-applied challenge was not subject to finality and ripeness requirements because, in light of the township’s denial of plaintiffs’ applications to rezone the prop erty for a lower-density reside ntial use, it would have been futile for plaintiffs to apply fo r approval of a 498-unit MHC. We conclude that the trial court and the C ourt of Appeals major ity (1) erred to the extent that they held that the township zoning ordinance wa s facially invalid because it unconstitutionally excluded a la wful use (MHC) and (2) erre d by holding that the futility exception excused compliance with the finality rule and that the appropriate remedy was to enjoin the town ship from interfering with plaintiffs’ development of a 498-unit MHC. An ordinance is not facially invalid me rely because it does not authorize every conceivable lawful use, nor does a zoning authority’s denial of an application for residential rezoning at a proposed lower-den sity level automatically establish that it would be futile for the property owner to apply fo r a higher-density use, such as MHC rezoning or a variance allowing MHC use. Because plaintiffs never submitted an application to the township for MHC rezoning or for a use variance that permitted construction of an MHC, plaintiffs’ cl aim was not ripe for judicial review. 4
I. FACTS AND PROCEDURAL BACKGROUND Plaintiffs Jeffrey Hendee, Michael Hend ee, and Louann Demorest Hendee own a 144-acre tract of land, formerly used as a dairy farm, in defendant Putnam Township.

3 Id ., unpub op at 5-6 (majority opinion).

4 Paragon Props Co v City of Novi , 452 Mich 568, 576; 550 NW2d 772 (1996).4 The land is essentially undeve loped, consisting of flat la nds, hills, wetlands, and woods. The land was and is cu rrently zoned A-O, wh ich permits development as a farm or 10- acre single-family homes. The parties stipulat ed that the surrounding property to the east and south is zoned for agricultural use, th at the property to the west is zoned for agricultural and medium-acreage residential esta te use, and that the property is bordered on the west by a paved road and on the south by a gravel road. The township has no public water or sanitary-sewer service. Some years before the proceedings in th is case, the Hendees had stopped using the land as a dairy farm because it was unprofitable . In 2002, they atte mpted to sell the land, intending to use the pr oceeds to fund their re tirements, but they conc luded that they could not get an acceptable price for the land becau se the A-O zoning classification limited its development potential. Plaintiff Village Po inte Development LLC agreed to purchase and develop the land, contingent on the prop erty being rezoned fro m A-O to R-1-B. On August 29, 2002, the Hendees filed an application with th e Putnam Township Planning Commission to rezone their land fro m A-O to R-1-B. The township planning commission recommended denial of the rezoning application, but the Livingston County Planning Commission recommended approval with conditions, specific ally, that cluster or PUD development be considered to protect the parcel’s wetlands. On April 23, 2003, the Hendees filed an application with the township for approval of a 95-unit PUD and rezoning to R- 1-B. The township planning commission recommended denial of the application, and in May 2003 the county planning commission also recommended denial.5 Following these denial recommendations , the Putnam Township Board remanded the application to the townsh ip planning commission for specific findings of fact. The planning commission held a hearing and pr esented its findings supporting denial, supplemented by letters from the township’s community planner and consulting engineers, to the township board in December 2003. On December 17, 2003, the township board denied both the rezoning request and the application for the 95-unit PUD/R-1-B on the basis of the planning commission’s findings. The Hendees next applied to the townsh ip zoning board of appeals (ZBA) for a use variance to permit development of up to 95 one-acre residential lots on their land. Following hearings in Februa ry and March 2004, the ZBA de nied the Hendees’ variance request on March 22, 2004. Although it is unclear when it occurred, at some point during the application process concerning the 95-unit PUD/R-1-B, the Hendees filed a new application to rezone the property to permit MHC deve lopment. The Hendees withdrew that application, however, after the township informed them that it would not process a new application for an MHC while the 95-un it PUD application wa s still pending. On April 12, 2004, the Hend ees, together with the proposed buyer/developer, Village Pointe, filed a complain t against the township , alleging that the refusal to rezone the property from A-O zoning to allow MHC de velopment deprived plaintiffs of equal protection and substantive due process a nd constituted an unco nstitutional taking and6 further alleging that the township’s zoning wa s exclusionary, in violation of former MCL 125.297a, 5 because it excluded MHC zoning. Importantly, plaintiffs ab andoned the 95-unit PUD as “economically unfeasible.” Instead, they based their clai m for injunctive relief prohib iting enforcement of the A-O zoning of their property on their earlier (wit hdrawn) request to rezone the property for an MHC, 6 asking that the court enjo in the township from interfering with plaintiffs’ development of a 498-unit MHC. On May 5, 2006, after a nine-day bench trial during January and March 2006, the trial court found in plaintiffs’ favor on all claims and granted an injunction prohibiti ng the township from interferi ng with development of the MHC. The trial court also awarded costs and expert witness fees to plaintiffs. The township appealed and, in an un published, split decision, the Court of Appeals affirmed the trial court’s judgment enjoining the township from enforcing its A-O zoning and from interfering wi th plaintiffs’ MHC development. 7 The majority reversed in part with resp ect to the as-applied constitutio nal claims (equal protection, substantive due process, and ta king). Although the majority ruled that the claims were subject to the rule of finality but should not have been dism issed on that ground under the

5 MCL 125.297a was part of the former Township Zoning Ac t. 2006 PA 110 repealed that act and other z oning statutes and replaced th em with the Michigan Zoning Enabling Act, MCL 125.3101 et seq ., effective July 1, 2006 . MCL 125.3702(1). The Township Zoning Act, however, applie s to this case. MCL 125.3702(2).

6 Again, we note that plaintiffs never re -presented their app lication for a 498-unit MHC to the township for review after the township informed plaintiffs that it could not consider a new application while their 95-unit PUD appl ication was still pending.

7 Hendee , unpub op at 23-24.7 futility exception to that rule, it also concluded that t hose claims failed on the merits because the township “was advancing a legitim ate governmental inte rest in maintaining the A-O classification,” it was “not acting arbitr arily or capriciously,” and “all avenues of use, and thus economic feasibility, were not explored and negated.” 8 The majority affirmed the trial court’s ruling on plainti ffs’ exclusionary zoning claim, however. The majority found it unnecessary to decide whethe r it was a facial claim that was not subject to the rule of finality. Inst ead, “assuming the contrary, the futility exception applied; the claim was ripe for suit.” 9 The majority implied that plai ntiffs were free to pursue their exclusionary zoning claim because the ordi nance unconstitutionally excluded a lawful use (MHC). The majority reas oned that, in light of the town ship’s denial of plaintiffs’ request for far less intensive residentia l rezoning (the PUD) and use variance applications, it would have been fruitless fo r plaintiffs to seek MHC rezoning or a variance permitting MHC use of the property at the much higher density they proposed. Relying on Schwartz v City of Flint , 426 Mich 295, 329; 395 NW2d 678 (1986), the majority concluded that the use plaintiffs proposed was reasonable and affirmed the trial court’s order enjoining the to wnship from interfering with it. 10 The majority also affirmed the award of costs and e xpert witness fees to plaintiffs.

8 Id. at 23.

9 Id.

10 Id. at 18-20, 23-24.8 Judge D ONOFRIO concurred in part and dissented in part. He agreed that plaintiffs’ as-applied claims we re not ripe, but also thought th at the trial court’s ruling on the exclusionary zoning claim should be reve rsed because it was not ripe for judicial review and because plaintiffs had not established, pursuant to former MCL 125.297a, that a demonstrated need for MHCs existed in th e township, a question th at the majority had found unnecessary to decide because it belie ved the futility doctri ne rendered such analysis unnecessary. Defendant applied for leave to appeal, and we granted leave and requested that the parties brief the following issues: (1) whether a rule of finality or ripeness app lies to the plaintiffs’ exclusionary zoning claim, see Paragon Props Co v City of Novi , 452 Mich 568, 576 (1996); Warth v Seldin , 422 US 490, 508 n 18 [95 S Ct 2197; 45 L Ed 2d 343] (1975) (“[U ]sually the focus should be on a particular project.”); (2) if so, whether the Cour t of Appeals majority properly held that the defendant township’s previous denials of the plaintiffs’ applications to rezone their property for less intensive uses excused the finality requirement under the futility doctrine; (3) whether the trial court erred in granting injunctive relief prohibitin g the defendant township from interfering with the plaintiffs’ proposed use of their property for a manufactured housing community when the plaintiffs had never proposed that use to the township, see Schwartz v City of Flint , 426 Mich 295, 327- 328 (1986); (4) whether a claim that a zoning ordina nce unconstitutionally excludes a lawful use is properly anal yzed without regard to whether a demonstrated need for the use exists, as suggested by the Court of Appeals’ reliance on Kropf v Sterling Hts , 391 Mich 139, 155-156 [215 NW2d 179] (1974), or whether the enactment of 1978 PA 637, MCL 125.297a (now recodified in nearly identical langua ge as MCL 125.3207) superseded the analysis of Kropf on which the majority relie d; and (5) whether the trial court abused its discretion in awarding the plaintiffs their costs and expert witness fees. [11]

11 Hendee v Putnam Twp , 483 Mich 983 (2009).9 II. STANDARDS OF REVIEW This Court reviews de novo issues of law

. 12 We review a trial court’s findings of for clear error. 13
III. ANALYSIS A. LEGISLATIVE ZONING POWER The zoning of land is an exerci se of a government’s police power. 14 For more than 80 years, courts have adhered to the analysis in Village of Euclid v Ambler Realty
Co

. 15 There, the United States Supreme Court recognized that th e pressures of competing land uses require the segregatio n of incompatible uses, consis tent with the public interest in protecting and preserving proper ty values. In accordance with Euclid , various zoning acts, including the former Town ship Zoning Act, MCL 125.271 et seq ., were adopted to establish procedures for Michigan governme ntal bodies to enact and enforce zoning ordinances. Pursuant to that statute, Putnam Township enacted a zoning ordinance and adopted a zoning map. 16 Legislative bodies such as the Pu tnam Township Board also have the authority to amend zoning maps by granting re zoning requests and special use permits.

12 See Odom v Wayne Co , 482 Mich 459, 467; 760 NW2d 217 (2008).

13 Henry v Dow Chem Co , 484 Mich 483, 495; 772 NW2d 301 (2009).

14 See Paragon , 452 Mich at 577.

15 Village of Euclid v Ambler Realty Co , 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926).

16 Former MCL 125.281; see Paragon , 452 Mich at 574; cf. MCL 125.3401.10 In addition, a landowner may seek a use varian ce to permit a use in a zoning district that otherwise would not be permitted. B. PLAINTIFFS’ REZONING REQUEST Plaintiffs’ land was zoned for agricultural use, which limited the development of single-family homes on plainti ffs’ property to 10-acre parcel s. Accordingly, plaintiffs initially filed a request to rezone their property from A-O to R-1-B. Upon the recommendation of the Livingston County Pla nning Commission, plaintiffs reformulated their request, seeking to proceed with a 95-unit PUD. After the township denied plaintiffs’ request for a 95-unit PUD, plaintiffs properly sought administrative relief by requesting a use variance from the ZBA to permit the 95- unit PUD. The ZBA denied plaintiffs’ varian ce request. At that point, plaintiffs had exhausted their administrative review obliga tions and could have sought judicial relief under the ripeness rule of Paragon Props Co v City of Novi , 452 Mich 568; 550 NW2d 772 (1996), as no other means of administra tive appeal or review was available to plaintiffs to permit development of a 95-unit PUD. However, after the township reached its final decision denying the 95-unit PUD, plaintiffs did not seek judicial review of th e ZBA’s denial of their request for a variance to develop a 95-unit PUD. Instead, they filed a complaint in the circuit court alleging that the township had wrongfully engaged in ex clusionary zoning by enacting an ordinance11 that did not, on its face, permit development of a 498-unit MHC on plaintiffs’ property. 17 Thus, the township was never a fforded an opportunity to review a rezoning request for a 498-unit MHC because the only applications be fore the township were the requests to rezone the property for residential development or development of a 95-unit PUD or for a use variance that would allow residential development. The township responded that it had reached a final decision only with respect to the rezoning request before it: the request for the 95-unit PUD. The township had no

17 A facial challenge is one in which the complainant alle ges that the very existence of a zoning ordinance or decision adversely affects an d infringes upon the property values of the rights of all land owners within the go verned community. Paragon , 452 Mich at 576. Specifically, plai ntiffs alleged that because there was no provision for MHC zoning in the township’s zoning ordinan ce, the ordinance wrongfully precluded all landowners from using their la nd for MHCs. Consequently, in making a facial challenge, plaintiffs mu st establish that there is no set of circumstances in which the ordinance would be valid. Warshak v United States , 532 F3d 521, 5 29 (CA 6, 2008). In this regard, plaintiffs sought to frame th eir complaint as a faci al claim challenging the constitutionality of the to wnship’s ordinance on the basis that the ordinance wrongfully denies all property owners the right to de velop their land for MHC use and is therefore exclusionary. An as-applied challenge is one in which th e complainant alleges that the individual landowner suffers from a specific and identifia ble injury as a resu lt of the township’s zoning ordinance or decision. Paragon , 452 Mich 576. An as-applied challenge is always subject to the rule of finality—the requirement that the governing body has made a definitive decision such th at an identifiable injury can be shown. An as-applied challenge is not ripe for judicial review un til the complainant can es tablish that a final decision injures a complainant. Id. at 576-577. By contrast, th e rule of finality does not apply to true facial challenges because such challenges attack the very existence of the ordinance or decision. Id. at 577. We agree with the Court of Appeals majority that this case “reflects a facial challenge with ‘as applied’ attributes or features, considering that execution of the ordinance scheme with re spect to a recognized yet unapplied MHC district can go to th e issue of whether the township engaged in exclusionary zoning.” Hendee , unpub op at 6 n 6. We disagree, however, with its conclusion that, under these circumstances, plaintiffs were excused fro m complying with the finality requirement.12 rezoning request pertaining to development if a 498-unit MHC upon which to make any decision, much less a final decision appealable in the circuit court. Accordingly, the trial court had no authority to review plainti ffs’ complaint alleging that the township’s ordinance was a facially invalid exercise in exclusionary zoning because the ordinance did not permit plaintiffs to develop an MHC. We conclude that the trial court erred by deciding plaintiffs’ exclusionary zoning claim because plaintiffs did not first submit a request to rezone their property for MHC use. The township could not even consider, much less render a final decision with regard to, the proposed 498-unit MHC use because it had no such application before it.
C. PARAGON PROPS CO v CITY OF NOVI Under Paragon , a plaintiff’s complaint is not ri pe for judicial review until the zoning authority has reached a final decisi on and the plaintiff has exhausted every administrative appeal. Without a final deci sion from the zoning authority, a plaintiff cannot demonstrate that the zoning ordina nce or decision specifically injured the plaintiff.
In Paragon , this Court addressed whether the Novi City Council’s denial of plaintiff Paragon Properties Company’s request to rezone its property was a final decision appealable in the circuit court. Paragon owned a 75-acre vacant tract of land that was zoned for large-lot, single-family residentia l use. The property in Novi, Michigan, abutted an active gravel pit operation to the west, and the land north of the property was zoned for industrial use. To the east of th e Paragon tract, the un developed property was13 zoned for residential use, and to the west , the property was developed for mobile-home

use. Paragon applied to the planning board of th e city of Novi to rezone the property from single-family residential to mobile-home use. Both th e planning board and the Novi City Council denied Paragon’s request. Para gon then filed a complaint in the Oakland Circuit Court, alleging that the property had no economic va lue as zoned for residential use because of adjacent industrial uses and poor drainage conditio ns. Paragon argued that the highest and best use of the property would be for mobile- home use and thus the city’s denial of its rezoning request unc onstitutionally deprived Pa ragon of its property, in violation of the Due Process Clause. The city moved for summary disposition, arguing that because Paragon had failed to first seek a use variance , Paragon had not obtained a final decision regarding the permissible uses of the proper ty under the Novi ordinance. The trial court denied the motion, concluding that Paragon had exhauste d all its administrative remedies because the case concerned a request fo r rezoning, not a request for a use variance. Thereafter, the trial court held that the zoning ordinanc e as applied to Paragon’s property was an unconstitutional taking and entere d a judgment against the city. 18

18 As noted earlier, we stated in Paragon that as-applied challenges are distinct from facial challenges: Although the police power allows the government to regulate land use, the Fifth Amendment requires that compensation be paid if a government regulation unreasonably shifts social costs to an individual or individuals. Village of Euclid , [272 US] at 387. A claim for compensation14 On appeal, the Court of Appeals reversed the trial court, holding that Paragon’s claim was not ripe for judicial review beca use Paragon had neither so ught a variance nor brought an inverse condemnation action. 19 Citing the United States Supreme Court’s opinion in Williamson Co Regional Planning Comm v Hamilto n Bank of Johnson City , 20 as well as this Court’s express adoption of Williamson in Electro-Tech, Inc v H F Campbell Co , 21 we observed in

may allege that an ordinance is confisca tory “as applied” or “on its face.” A facial challenge alleges that th e mere existence and threatened enforcement of the ordinance materia lly and adversely affects values and curtails opportunities of all property regulated in the market. Id at 395. An “as applied” challenge alleges a present infringement or denial of a specific right or of a particular injury in process of actual execution. Id

. A challenge to the validity of a zoning ordinance “as applied,” whether analyzed under 42 USC 1983 as a denial of equal protection, as a deprivation of due process under the Four teenth Amendment, or as a taking under the Just Compensation Clause of the Fifth Amendment, is subject to the rule of finality. [ Paragon , 452 Mich at 576, citing Lake Angelo Assoc v White Lake Twp , 198 Mich App 65, 70; 498 NW2d 1 (1993), citing Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City , 473 US 172, 186; 105 S Ct 3108; 87 L Ed 2d 126 (1985).] As discussed, however, it does not follow that every ostensibly “facial” challenge is exempt from the rule of finality. Rather the court must look to the substance of the claim and the factual matrix in which it is presente d to determine whether the claim is one that is exempt from Paragon ’s rule of finality.

19 Paragon Props Co v City of Novi , 206 Mich App 74, 76; 520 NW2d 344 (1994).

20 Williamson , n 17 supra . 21 Electro-Tech, Inc v H F Campbell Co , 433 Mich 57, 81- 91; 445 NW2d 61 (1989).15 Paragon the importance of requiring finality in land-use-regulation disputes. 22 In Williamson , a property owner received tempor ary approval from the planning commission to develop a residential subdiv ision. When the commission subsequently amended its ordinance, there by denying the property owner hi s preferred use, the owner sued in federal district court, alleging th at the ordinance amounted to an unconstitutional taking of his property. The United States Supreme Court di sagreed, holding that because the landowner had failed to first seek altern ative relief by requesting a land use variance, the landowner’s claim was not ripe for judicial review. 23 Consistently with Williamson , we held in Paragon that judicial review in zoning cases is not available until the zoning authority has rendered a final decision. 24 Thus, because Paragon had not first sought a use variance, it ha d not established that its claim was ripe for judicial review: The City of Novi’s denial of Pa ragon’s rezoning request is not a final decision because, absent a re quest for a variance, there is no information regarding the potential uses of the property that might have been permitted, nor, therefore, is ther e information regard ing the extent of the injury Paragon may have suffered as a result of the ordinance. While the city council’s denial of rezoning is certainly a decision, it is not a final decision under Electro-Tech because had Pa ragon petitioned for a land use variance, Paragon might have been elig ible for alternative relief from the provisions of the ordinance. [ Paragon , 452 Mich at 580.]

22 Paragon , 452 Mich at 577-578.

23 Williamson , 473 US at 193-194.

24 Paragon , 452 Mich at 576-577.16 D. APPLICATION OF PARAGON As there was no decision regarding plainti ffs’ proposed use of the property for a 498-unit MHC, plaintiffs’ complaint did no t allege that any final decision by the township precluded plaintiffs from making MH C use of their property. MHC use was contemplated by the township’s master plan, t hough not yet specifica lly zoned for in the township. Plaintiffs’ failure to seek rezoning of thei r property for MHC development denied the township any opport unity to assess plaintiffs’ MHC proposal and arrive at a definitive decision from which the court could determine whether plaintiffs had sustained any actual or concrete injury. Consequently, plaintiffs have not exhausted their administrative remedies, the township has rendered no final decisi on, and plaintiffs’ exclusionary zoning claim is not ripe for judicial review. As this case can be resolved on this narrower ground, we need not and do not address the substance of plaintiffs’ exclusionary zoning claim. Whereas the Paragon Court held that Paragon’s failu re to obtain a final decision from the Novi Zoning Board of Appeals precl uded Paragon from seeking judicial review, in the case now before us, plaintiffs’ claim fo r relief is not only not ripe for review, it is nonexistent. Simply put, plaintiffs’ failure to submit an application to rezone its property to permit an MHC effectively denied the town ship any opportunity to consider whether that alternative use of the land would be acceptable. As Judge D ONOFRIO observed, it also deprived the township of any opportunity to consider whether its ordinance failed to accommodate a lawful use for which a demons trated need existed within either the17 township or the surrounding area. 25 In the absence of an e xpress prohibition of a lawful land use within the ordinance itself, 26 the issue of the ordinance’s exclusionary effect, or the absence of it, will not be ripe for consid eration by the courts until the township has been afforded the opp ortunity to make that determination. In response, plaintiffs argue that it woul d have been futile to seek permission to develop a 498-unit MHC because the township had already denied its rezoning request for a less intensive use—the 95- unit PUD. The Court of Appe als majority agreed, noting that under the futility doctrine, a court will not require parties to exhaust all administrative remedies. 27 If a plaintiff can show that it would be futile to first exhaust

25 Hendee , unpub op at 8 (D ONOFRIO , P.J., concurring in part and dissenting in part). See former MCL 125.297a, which provided: A zoning ordinance or zoning decisi on shall not have the effect of totally prohibiting the esta blishment of a land use w ithin a township in the presence of a demonstrated need fo r that land use w ithin either the township or surrounding ar ea within the state, unl ess there is no location within the town ship where the use may be appropriately located, or the use is unlawful. A comparable provision, MCL 125.3207, app ears in the Michigan Zoning Enabling Act.

26 As previously noted, the township’s master plan contemplates MHC use. The master plan currently projects that MHCs wi ll be located on land ad jacent to the village of Pinckney, which has the only available public water and sewer. Plai ntiffs alleged that the land designated was unsu itable for MHC use, but, by failing to apply for MHC rezoning, they denied the township any opportunity to cons ider that claim.

27 The majority observed: [T]his Court has stated that it wi ll not require parties to undertake vain and useless acts, an d where it is clear that further administrative proceedings would be an ex ercise in futility and noth ing more than a formal step on the way to the courthouse, reso rt to the administrative body is not18 all administrative appeals, because it can be established that the zoning authority’s decision would remain the same on appeal, c ourts have held that the futility doctrine excuses the requirement of ripeness. As the United States Court of Appeal s for the Sixth Circuit explained in Bannum , Inc v City of Louisville , 958 F2d 1354, 1362-1363 (CA 6, 1992): We do not want to encourage litigation that is likely to be solved by further administrative action and we do not want to put ba rriers to litigation in front of litigants when it is obvious that the process down the administrative road would be a waste of time and money. . . . . . . [However,] [f]or the exception to be available to an aggrieved landowner, the landowner must have submitted at least one “meaningful application” for a variance from th e challenged zoning regulations. Kinzli v. City of Santa Cruz , 818 F.2d 1449, 1454 -55 (9th Cir. 1987), cert. denied , 484 U.S. 1043, 108 S.Ct.775 , 98 L.Ed.2d 861(1988). Because plaintiffs have not ev en made at least one unsucce ssful meaningful application for a rezoning request to change the zoning from AO to MHC, so as to permit their proposed 498-unit MHC, plainti ffs have not established that the futility doctrine applies. Relying on the discussion of the requirement of finality in the context of a taking claim in Paragon , 452 Mich at 578-579, plaintiffs, the trial court, and the Court of Appeals majority appear to have proceeded on the assumption that Paragon ’s ripeness and finality rules can never appl y to an ostensibly “facial” attack on a zoni ng ordinance, i.e., one premised on an exclusionary zoni ng theory. They are mistaken, as even a cursory examination of the statute on which the trial court relied reveals. Precisely

mandated. L & L Wine & Liquor Corp v Liquor Control Comm , 274 Mich App 354, 358; 733 NW 2d 107 (2007); Turner v Lansing Twp , 108 Mich App 103, 108; 310 NW2d 287 (1981). [ Hendee , unpub op at 6-7 n 7.]19 because the statute prevents a “zoning ordinance or zoning decision ” from “hav[ing] the effect of totally prohibitin g the establishment of a la nd use within a township in the presence of a demonstrated need for that land use within either the township or surrounding area within the state ,” former MCL 125.297a (emphasis added), the zoning authority must first be affo rded the opportunities (1) to de termine the effect of its ordinance in light of evidence demonstrating a need for the proposed land use and (2) to render a zoning decision based on that evidence before a faci al exclusionary zoning claim can become ripe for judicial review. As the United States S upreme Court observed in Warth v Seldin , 422 US 490, 508; 95 S Ct 2197; 45 L Ed 2d 343 (1975): We hold only that a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him , and that he personall y would benefit in a tangible way from the court’s interv ention. Absent the necessary allegations of demonstrable, partic ularized injury, there can be no confidence of “a real need to exercise the power of judicial review” or that relief can be framed “no broader than re quired by the prec ise facts to which the courts ruling would be applied.” Schlesinger v. Reservists to Stop the War , 418 U.S. [208], at 221-222 [94 S Ct 2925; 41 L Ed 2d 706 (1974)]. In Warth , the plaintiffs were individuals and or ganizations residing in Rochester, New York. They brought a class action against the town of Penfield, New York, and its officials, alleging that the town’s zoning ordinance unconstitutionall y excluded low- and moderate-income persons from living in Penfie ld. The federal district court dismissed the plaintiffs’ suit, and the United States Court of Appeals for the Second Circuit affirmed. On appeal, the Unite d States Supreme Court again affirmed the decision after a majority of the justices conclu ded that the plaintiffs lacked standing to sue because none20 of the individual plaintiffs could allege a pa rticular injury to th emselves. Nor did the plaintiffs demonstrate that judicial interventi on could benefit them in a tangible way. In this respect, the Warth Court held that the plaintiffs’ facial claim alleging exclusionary zoning was not ripe for judicial review. As Judge D ONOFRIO observed in dissent in this cas e, every use is not appropriate to every community, an d Mackinac Island’s zoning (fo r example) is not necessarily unconstitutionally (or, under a statute li ke former MCL 1 25.297a, unlawfully) exclusionary because it does no t include industrial use classi fications or zone particular property for such uses. 28 The township denied the only applications that plai ntiffs submitted, requests to rezone the property from A-O to R-1-B to permit residential development (or, alternatively, to permit a 95-un it PUD) or for a use variance. Plaintiffs’ decision not to pursue an application for rezoning from A-O to MHC effectively barred plaintiffs from seeking judicial review of that question. Without such an application, and a final decision by the township, it is impossible to say whether (1) the township would permit such a use of plaintiffs’ property and (2) wh ether a denial of such a request would be reasonable in light of the town ship’s efforts to channel fu ture MHC development to its

28 Hendee , unpub op at 9 n 3 (D ONOFRIO , P.J., concurring in part and dissenting in part).21 border with the village of Pinckney, which has the only public water and sewer systems in the area. 29 We agree with the pa rtial dissent of Judge D ONOFRIO : After reviewing the record, I conclude that plaintiffs cannot show that they sought alternative uses of th e property and were denied, or that they applied for the mi nimum variance necessary to place the land in productive economic use with in the zoning classificati on. Plaintiffs did not seek a decision from the appropriate ad ministrative body regarding either a rezoning application or a variance request regarding a 498-unit MHC and instead sought premature relief from the judiciary by filing the instant lawsuit

. [30] IV. CONCLUSION We would hold that the trial court and the Court of Appeals erred by reaching the question whether the township zoning ordina nce was unconstitutional and thus also erred by holding that plaintiffs were entitled to an order enjoinin g the township from interfering with plaintiffs’ de velopment of a 498-unit MHC. Plaintiffs never submitted an application for rezoning or a variance to construct an MHC. Thus, plaintiffs’ claim was not ripe for judicial review.

29 Under Schwartz , 426 Mich at 325-326, the trial court had the power to grant injunctive relief permitting an MHC use only if th e ordinance’s classification of the property was unconstitutional. Similarly, we would hold that in the absence of an expressed prohibition of a lawful use in the zoning ordinance or a prohibition based on a suspect classification, an exclus ionary zoning claim is not ripe for judicial review if the zoning authority has not first been afforded an opportunity to determine whether its ordinance has the effect of totally pr ohibiting the establishment of a land use within a township in the presence of a demonstr ated need for that land use within either the township or surrounding area with the state, unless there is no location within the township where the use may be a ppropriately located, or the use is unlawful. [Former MCL 125.297a.]

30 Hendee , unpub op at 5-6 (D ONOFRIO , P.J., concurring in part and dissenting in part).22 Because plaintiffs’ claim was not ripe fo r judicial review, the trial court had no basis to enjoin the township from enforcing its zoning ordi nance, nor should the court have awarded plaintiffs their costs and expert witness fees. We would reverse the judgment of the Cour t of Appeals and remand this case for entry of a dismissal order consistent with this opinion.

H ATHAWAY , J., concurred with W EAVER , J.S T A T E O F M I C H I G A N SUPREME COURT

JEFFREY HENDEE, MICHAEL HENDEE, LOUANN DEMOREST HENDEE, and VILLAGE POINTE DEVELOPMENT LLC, Plaintiffs-Appellees, v Nos. 137446 and 137447 PUTNAM TOWNSHIP, Defendant-Appellant.

C AVANAGH , J. ( concurring ). I concur in the result only. I agree that, on the facts of this case, plaintiffs’ claims are not ripe for review. I write separately be cause I continue to adhere to my dissenting positions in Paragon Props Co v City of Novi, 452 Mich 568, 583-593; 550 NW2d 772 (1996) (C AVANAGH , J., dissenting), and Electro-Tech, Inc v H F Campbell Co , 433 Mich 57, 92-132; 445 NW2d 61 (1989) (B RICKLEY , J., joined by L EVIN and C AVANAGH , JJ., dissenting). While I generally agree that ch allenges to zoning ordi nances may require a final decision to ripen, th e finality rule adopted in Paragon and Electro-Tech serves the purposes of the ripeness doctrine at best imprec isely, and at worst incorrectly. The lead opinion’s reasoning would only exacerbate that error.2 I. OVERVIEW OF FINALI TY AND RIPENESS The question before this Co urt is whether plaintiffs’ constitutional and statutory exclusionary zoning clai ms are ripe for review . As stated by the Paragon majority, in the land-use context, “‘the doctrine of ripeness is intended to avoid prem ature adjudication or review of administrative action.’” Paragon , 452 Mich at 579 n 12 (citation omitted). Thus, when a final decision by the relevant go vernmental agency is necessary to establish whether the alleged injury has occurred, I woul d agree that it serves the purposes of the ripeness doctrine to require a final decision from that agency. As ap tly stated in Justice
B RICKLEY ’s Electro-Tech dissent, “a principled decision to apply, or not to apply, the finality requirement requires us to look beyo nd the label attached to a constitutional land use claim to the policy underlyin g the requirement and to the nature of the governmental conduct under attack.” Electro-Tech , 433 Mich at 100. The United States Supreme Court’s jurisprude nce is consistent with this approach and has required a final decision by an agen cy only to the extent that the decision is necessary for evaluating the clai m that is before the reviewing court. Thus, in the taking context, it has held that “a cl aim that the application of go vernment regulations effects a taking of a property interest is not ripe until the gove rnment entity charged with implementing the regulations has reached a fina l decision regarding the application of the regulations to the property at issue.” Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City , 473 US 172, 186; 105 S Ct 3108; 87 L Ed 2d 126 (1985). The Court has not applied this rule, however, if a final decision would not serve the ripeness doctrine, such as when the agency no longer has discretion in how the3 regulation is applied to a plaintiff’s prop erty and, thus, a final decision on the applicability of the regulation to the plaintiff’s property is not necessary to evaluate the plaintiff’s taking claim. See Suitum v Tahoe Regional Planning Agency , 520 US 725, 738-740; 117 S Ct 1659; 137 L Ed 2d 980 (1997), stati ng that “[b]ecause the agency has no discretion to exercise over Suitum’s right to use her land, no occasion exists for applying Williamson County ’s requirement that a landowne r take steps to obtain a final decision about the use that will be permitted on a particular pa rcel.” Thus, the Court has not drawn bright-line rules about what degree of finality is required to meet the ripeness doctrine based on the types of claims raised. This Court’s finality and ripeness jurispru dence stands in marked contrast to the United States Supreme Court’s sens ible and reasoned approach. In Electro-Tech , the Court held that the finality requirement app lied in the taking context, regardless of whether the claim arose out of the Just Comp ensation Clause or the Due Process Clause of the constitution. Electro-Tech , 433 Mich at 76 n 21, 79. This holding was erroneously used to extend the Williamson finality rule to all constitutional challenges to zoning regulations. 1 See, e.g., Lake Angelo Assoc v White Lake Twp , 198 Mich App 65, 72-73;

1 This extension is particularly unfortu nate given that the underpinnings for applying this test to cons titutional challenges outside the Fifth Amendment have since been rejected. In Lingle v Chevron USA, Inc , 544 US 528; 125 S Ct 2074; 161 L Ed 2d 876 (2005), the United States Supreme Court cl arified that regulatory taking claims arise exclusively out of the Just Compensation Clause and never out of the Due Process Clause. Thus, the regulation’s underlying validity is an inquiry that “is l ogically prior to and distinct from the question whether a re gulation effects a taking . . . .” Id. at 543. This calls into question cases in which this Cour t held that taking claims may be framed in terms of either the Due Process Clause or the Taking Clause. See, e.g., K & K Constr,4 498 NW2d 1 (1993). The Paragon majority cemented this erro r in our jurisprudence in two ways. First, it broadly declared that as-applied challenges are subject to the Williamson rule of finality, but facial challenges ar e not. Second, it cavalierly stated that this rule is applicable to all as-applied challenges to zoning ordinances, regardless of whether analyzed “as a denial of equal protection, as a de privation of due process under the Fourteenth Amendment, or as a taking under the Just Compensation Clause of the Fifth Amendment . . . .” Paragon , 452 Mich at 576. It is an extremely imprecise measure of ripeness to require the same type of final decision regardless of whether that decision actually serves the pur poses of the ripeness doctrine. As discussed, the United States Supreme Court ha s not even applied the Williamson test to every taking claim, let alone every constitutional claim. 2
II. RIPENESS AND EXCLUS IONARY ZONING CLAIMS The lead opinion’s analysis today would exacerbate the errors in Paragon and Electro-Tech by extending the requirement that a final decision must have been made regarding the regulation’s ap plication to the plaintiff’s property to all as-applied exclusionary zoning claims. An essential fe ature of every type of exclusionary zoning
Inc v Dep’t of Natural Resources , 456 Mich 570, 576; 575 NW2d 531 (1998), and Bevan v Brandon Twp , 438 Mich 385, 391; 475 NW2d 37 (1991).

2 It also has not generally shared Paragon ’s dependence on classifying claims as facial or as-applied. See, e.g., Suitum , 520 US at 736 n 10, stating that “‘facial’ challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed . . . .” (Emphasis added .) Although the enactment of the ordinance itself generally ripens a facial claim for revi ew, I do not favor adopting a bright-line rule to this effect. It merely forces a court to engage in the additiona l analytical step of definitively labeling a claim as either facial or as-applied.5 claim is that th e alleged injury is to an entire geographic area and not a single parcel of land. 3 As a result, exclusionary zoning claims exemplify the l ogical flaw in applying the Williamson taking finality test to all constitutional claims. While a particular plaintiff may need to show an injury to have standing , the injury alleged in an exclusionary zoning claim is not specific to one parcel, and, ther efore, whether it is ripe for review may be unrelated to whether a final decision has b een made regarding the applicability of the regulation to one specific parcel or plaintiff. 4 Thus, a final decision regarding the applicability of a regulation to a particular parcel may be ne eded to develop an injury sufficiently for a claim to be ripe in the context of a taking claim, in which the alleged harm is specific to the plaintiff’s parcel , but it is not necessa rily needed for an exclusionary zoning claim, in which th e alleged injury is to an entire area. Further, although it is not clear whet her the lead opinion’s and Justice
C ORRIGAN ’s analyses address constitutional or st atutory exclusionary zoning claims, I would note that to the extent that the opinions apply the Williamson ripeness

3 This is true regardless of whether the cl aim is facial or as-applied. I am thus somewhat troubled by Justice C ORRIGAN ’s conclusion that this case presents an asapplied exclusionary zoning claim on the basis that plai ntiffs’ claim relates to the infringement of plaintiffs’ right to develop manuf actured housing on their property

. Plaintiffs did raise constitutional claims that we re specific to their property, but those are distinct from their exclusionary zoning claims.

4 For this reason, I find puzzling the lead opinion’s quotation of Warth v Seldin , 422 US 490; 95 S Ct 2197; 45 L Ed 2d 343 (1975), which addresses the importance of standing in exclusionary zoning claims. While st anding “bears close affinity to questions of ripeness,” ripeness addresses “whether the harm asserted has matured sufficiently to warrant judicial intervention,” whereas standing addresses whether the particular plaintiff has suffered a harm. Id. at 499 n 10. In this case, th e question is not standing but whether plaintiffs’ alleged harm has ma tured sufficiently for judicial review.6 requirements to statutory exclusionary zoning claims, I disagree. 5 While a statutory exclusionary zoning claim may not be ripe for review in the absence of the decision necessary to evaluate whethe r the plaintiff has suffered the harm required by the exclusionary zoning statute, MCL 125.3207, this inquiry is wholly distinct from the Williamson analysis.
III. APPLICATION OF THE RIPENE SS DOCTRINE TO THIS CASE Nonetheless, even though I disagree with the lead opinion’s reasoning, I agree that plaintiffs’ statutory and constitutional exclusiona ry zoning claims are not ripe for review on the facts of this case. Plaintiffs essentia lly alleged that defendant ’s “actions” excluded manufactured housing communities (MHCs) from th e township. Therefore, to the extent that plaintiffs pleaded a constitutional excl usionary zoning clai m, and regardless of whether it was based in substantive due pr ocess or equal protection, in order for plaintiffs’ claim to be ripe, they must show that defendant has made decisions excluding MHCs to an impermissible disagree. 6 I do not think that plaintiffs’ claim of an alleged injury is ripe for review, especially given that defendant’s ordinance recognizes an MHC

5 To the extent that the opi nions could be read to implicitly adop t the position of the Court of Appeals partial dissent that MCL 125.3207 provides the requirements for both constitutional and statutory claims, I disagree. A statute may not supersede a constitutional claim recognized by this Court because th e power to interpret the constitution and the scope of the rights it prov ides is within the judicial power held exclusively by the courts. Cons t 1963, art 6, § 1; see also People v Salsbury , 134 Mich 537, 546; 96 NW 936 (1903).

6 As noted by the Court of Appeals partia l dissent, there is some question about whether plaintiffs pleaded such a claim. But, for purposes of this analysis, I will assume that they did.7 zoning classification and has a process for reque sting that classificati on. While I do not believe that plaintiffs must necessarily show that MHCs have been excluded from every parcel in the defendant township in order for their claim to be ripe, they have not shown that they have been excluded from any parcels suitable for that us e, including their own. Thus, I do not think that plai ntiffs’ constitutional exclusiona ry zoning claim is ripe for review. Similarly, plaintiffs’ statut ory exclusionary zoning claim is not ripe. The current exclusionary zoning statute, MCL 125.3207, 7 requires in part that there be a “zoning ordinance” or a “zon ing decision” that has “the e ffect of totally prohibiting the establishment of a land use wi thin a local unit of government . . . .” This case does not involve the former, so plaintiffs must allege that there has been a zoning decision that has the effect of totally prohibiting MHCs from th e defendant township. Again, given that the township ordinance has a process by wh ich a landowner could seek rezoning and plaintiffs have not shown that they or any landowners were denied an MHC use on their property, plaintiffs have not presented a “zon ing decision” that has the effect of totally prohibiting a use and ripening thei r claim for judicial review.

7 When plaintiffs filed thei r complaint, the exclusionary zoning statute that applied to townships was former MCL 125.297a. See MCL 125.3702. While the previous statute applied only to townships, the curre nt statute applies to all local units of government. This change does not affect the analysis in this case, and the statutes are otherwise identical.8 IV. CONCLUSION Although I disagree with th e lead opinion’s analysis , which would extend and exacerbate the errors in Electro-Tech and Paragon , ultimately I agree with its conclusion that plaintiffs have not presen ted any exclusionary zoning claims that are ripe for review. Therefore, I concur wi th the decision to reverse the judgm ent of the Court of Appeals and remand the case for entry of a dismissal orde r consistent with this Court’s decision.

K ELLY , C.J., concurred with C AVANAGH , J.S T A T E O F M I C H I G A N SUPREME COURT

JEFFREY HENDEE, MICHAEL HENDEE, LOUANN DEMOREST HENDEE, and VILLAGE POINTE DEVELOPMENT LLC, Plaintiffs-Appellees, v Nos. 137446 and 137447 PUTNAM TOWNSHIP, Defendant-Appellant.

C ORRIGAN , J. ( concurring ). In this zoning action, we consider whet her the ripeness doctrine barred plaintiffs’ exclusionary zoning claim and, if so, whet her the Court of Appeal s majority properly held that defendant township’s previous denial s of plaintiffs’ application to rezone their property for a less intensive la nd use excused plaintiffs from ha ving to formally pursue an application for a more intensive land use un der the futility excepti on to the rule of finality. I concur in the result of the lead opinion, which ho lds that plaintiffs’ exclusionary zoning claim is not ripe for judicial review. However, I cannot join its reasoning. I write separately to provide my analysis for concluding that plaintiffs’ as applied exclusionary zoning cl aim is not ripe for judicial review and that the futility exception to the rule of finality is inapplicable.2 I. THE COURT OF APPE ALS MAJORITY OPINION After acknowledging the connection between the ripeness doctrine and the rule of finality in zoning actions, the Court of Appeals majority concluded that it was unnecessary to determine whethe r plaintiffs’ exclusionary zoni ng claim constituted either a “facial” or an “as applied” challe nge to defendant’s zoning ordinance. 1 The majority also concluded that it was unnecessary to determine whether plaintiffs’ exclusionary zoning claim was subject to the rule of finality, “holding that further township proceedings would have been futile assuming application of the rule.” 2 The Court of Appeals majority reasoned that although plain tiffs had presented defendant an application to rezone their property as a 95-unit pla nned unit development (PUD) and not as a 498- unit manufactured housing community (MHC), “presenting an MHC application to the township would have b een an exercise in fu tility and nothing more th an a formal step to the courthouse.” 3 The majority, therefor e, held that the doctrin e of ripeness did not bar plaintiffs’ action.
II. RIPENESS AND FI NALITY IN ZONING The Court of Appeals majority properly acknowledged the interrelation between the ripeness doctrine and the rule of finality in our zoning jurisprudence. At common law, the ripeness doctrine is one of several justiciability doctrines developed “to ensure

1 Hendee v Putnam Twp , unpublished opinion per curiam of the Court of Appeals, issued August 26, 2008 (Doc ket Nos. 270594 and 275469).

2 Id . at 6.

3 Id . at 7.3 that cases before the courts are appropriate for judicial action.” 4 Generally, “[a] claim is not ripe if it rests upon contingent future ev ents that may not occur as anticipated, or indeed may not occur at all.” 5 “‘In land use challenges, the doctrine of ripeness is intended to avoid premature adjudication or review of administrative action.’” 6 The rationale of the ripeness doctrine in zoning actions “‘rests upon the idea that courts should not decide the impact of regulation until the full ex tent of the regulation has been finally fixed and the harm caused by it is measurable.’” 7
In Electro-Tech, Inc v H F Campbell Co , 433 Mich 57; 445 NW2d 61 (1989), this Court discussed the connection between the ri peness doctrine and the rule of finality in deciding whether the taking cl aim alleged by the plaintiff property owner was ripe for adjudication. Electro-Tech introduced its discussion of finality with the following observation from Williamson Co Regional Planning Comm v Hamilton Ba nk of Johnson City , 473 US 172; 105 S Ct 3108; 87 L Ed 2d 126 (19 85), about the conceptual distinction between the exhaus tion of administrative remedi es and the finality of the administrative decision: “The question whether ad ministrative remedies must be exhausted is conceptually distinct . . . from the question whether an administrative action must be final before it is judicia lly reviewable. While the policies underlying the two concepts often overlap, the finality requirement is

4 Mich Chiropractic Council v Comm’r of the Office of Fin & Ins Servs , 475 Mich 363, 370; 716 NW2d 561 (2006).

5 Id. at 371 n 14 (citation and quotation marks omitted).

6 Paragon Props Co v City of Novi , 452 Mich 568, 57 9 n 12; 550 NW2d 772 (1996), quoting Herrington v Sonoma Co , 834 F2d 1488, 1494 (CA 9, 1987).

7 Paragon , 452 Mich at 57 9 n 12, quoting Herrington , 834 F2d at 1494.4 concerned with whether th e initial decisionmaker has arrived at a definitive position on the issue that inflicts an ac tual, concrete injury; the exhaustion requirement generally refers to admini strative and judici al procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” [8] Electro-Tech stated that the first finality requirement under Williamson required “the plaintiff [to] obtain a final decision regarding the application of the zoning ordinance and subdivision regulations to its property.” 9 “The second finality requirement set forth by the Williamson Court is that a taking claim is not ripe until a plaintiff has sought compensation through state procedures.” 10 Electro-Tech concluded that the plaintiff, at most, had satisfied the second Williamson finality requirement and he ld that “because the conditional approval of the plai ntiff's site plan was not the city’s final disposition of the matter, we hold that the plaintiff's ac tion under 42 USC 1983 was not ripe for adjudication.” 11 This Court also addressed the import of Electro-Tech and the finality requirements of Williamson in subsequent cases. For example, Paragon stated that Electro-Tech “expressly adopted the Williamson finality requirements . . . .” 12 Paragon also reaffirmed that the rule of finality or the first finality requirement of Williamson “‘is concerned with whether the initial decisionmaker has arrived at a definitive positi on on the issue that

8 Electro-Tech , 433 Mich at 80-81, quoting Williamson , 473 US at 192-193.

9 Electro-Tech , 433 Mich at 81.

10 Id. at 87.

11 Id . at 91.

12 Paragon , 452 Mich at 578.5 inflicts an actual, concrete injury . . . .’” 13 Additionally, Paragon observed that

“ Williamson articulated the need for finality in the context of land use regulation.” 14 The interrelation between the ripeness doctrine and th e rule of finality is so embedded in our zoning jurisprudence that this Court has occasionally discussed the two concepts interchangeably. 15 In any event, I would conclude that this Court’s discussions concerning the ripeness doctrine and the rule of finality in Electro-Tech and Paragon remain equally instructive today.
III. “FACIAL” AND “AS APPLIED” CHALLENGES While the Court of Appeals majority acknowledged the connection between the ripeness doctrine and the rule of finality, it erroneously concluded that it was unnecessary to determine whether plaintiffs ’ exclusionary zoning claim c onstituted a facial or an as applied challenge to defendant’s zoning ordinance. The lead opinion repeats this error by failing to define plaintiffs’ exclusionary zoning claim as either a facial or an as applied challenge. In so doing, the l ead opinion blurs the establishe d distinctions between facial

13 Id . at 577, quoting Williamson , 473 US at 193; see also MacDonald , Sommer & Frates v Yolo Co , 477 US 340, 348; 106 S Ct 2561; 91 L Ed 2d 28 5 (1986) (“It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative dete rmination of the type and inte nsity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone “too far” unless it knows how far the regulation goes .”) (emphasis added).

14 Paragon , 452 Mich at 577.

15 See, e.g., Bevan v Brandon Twp , 438 Mich 385, 392 n 8; 475 NW2d 37 (1991) (stating that the plaintiffs’ claim “falls short of compliance with finality (ripeness) requirements laid down in Williamson Co Regional Planni ng Comm v Hamilton Bank of Johnson City , 473 US 172; 105 S Ct 3108; 87 L Ed 2d 126 (1985), an d applied by this Court in Electro-Tech , supra .”).6 and as applied challenges and sidesteps any substantive discussion about the differing ripeness and finality analyses appli cable to each type of challenge. As the lead opinion explains in part, a fa cial challenge to the validity of a zoning ordinance asserts that “the me re existence and threatened enforcement of the ordinance materially and adversely affect s values and curtails opportun ities of all property regulated in the market.” 16 By contrast, “[a]n ‘as applied’ ch allenge alleges a present infringement or denial of a specific right or of a partic ular injury in process of actual execution.” 17 Whether it is analyzed unde r 42 USC 1983 as a denial of equal protection, as a deprivation of due process under the Fourt eenth Amendment, or as a taking under the Just Compensation Clause of the Fifth Amendmen t, an as applied challenge is subject to the rule of finality. 18 This contrasts with a facial cha llenge, to which the rule of finality does not apply because “such challenges attack the very existence or enactment of an ordinance.” 19 Simply stated, the threshold issues posed by the rule of finality and the ripeness doctrine do not apply to faci al challenges to a zoning ordinance. 20

16 Paragon , 452 Mich at 576, citing Village of Euclid v Ambler Realty Co , 272 US 365, 395; 47 S Ct 114; 71 L Ed 303 (1926).

17 Paragon , 452 Mich at 576, citing Euclid , 272 US at 395.

18 Paragon , 452 Mich at 576; see also Lake Angelo Assoc v White Lake Twp , 198 Mich App 65, 71; 498 NW 2d 1 (1993) (“[W]hen ou r Supreme Court followed Williamson , it logically adopted the finality requireme nt to claims based on the Fifth and Fourteenth Amendments, not just to actions based on [42 USC] 1983.”).

19 Paragon , 452 Mich at 577.

20 As the United States Supreme Court e xplained, “‘facial’ challenges . . . are generally ripe the moment the challenged regul ation or ordinance is passed, but face an ‘uphill battle,’ since it is difficult to demonstr ate that ‘“mere enactment”’ of a piece of7 Accordingly, it is essential to first reso lve the question avoided by the Court of Appeals majority and the lead opinion: whether plaintiffs ’ exclusionary zoning claim constituted a facial or an as applied challenge . This determination is the critical starting point in any analysis of the extent to whic h the ripeness doctrine an d the rule of finality apply in this case. Defendant urges this Court to conclude that plaintiffs’ exclusionary zoning claim is not ripe for ad judication because plaintiffs neither sought no r obtained a decision concerning their cont emplated development of a 498-unit MHC from defendant before filing suit. Plaintiffs respond that thei r exclusionary zoning claim presents a facial challenge, which is ripe for adjudi cation as a matter of law under Paragon . I disagree with plaintiffs’ contention. A review of plaintiffs’ multicount complain t reveals that plaintiffs alleged facial and as applied challenges in four counts, including a denial of equal protection, a deprivation of substantive due process, a re gulatory taking, and a statutory exclusionary zoning claim. Yet plaintiffs’ exclusionary zoning claim does not amount to a facial challenge because the claim does not allege that “the mere exis tence and threatened enforcement of the ordinance materially and adversely affects values and curtails opportunities of all property regulated in the market.” 21 Instead, plaintiffs’ exclusionary zoning claim alleges “a present infringement or denial of a specific right,” namely

legislation ‘deprived [the ow ner] of economically viable use of [his] property.’” Suitum v Tahoe Regional Planning Agency , 520 US 725, 736 n 10; 1 17 S Ct 1659; 137 L Ed 2d 980 (1997) (citations omitted).

21 Paragon , 452 Mich at 576, citing Euclid , 272 US at 395.8 plaintiffs’ right to develop a 498-unit MHC on their property. 22 Alternatively, the complaint alleges that plainti ffs suffered “a particular injury in [the] process of actual execution” or enforcement of defendant’s zoning ordinance. 23 Because plaintiffs’ exclusionary zoning claim challenges the infri ngement of a specific right or aspects of the enforcement of the zoning ordinance, I would conclude that plaintiffs presented an as applied challenge. 24 Even though I conclude that plaintiffs’ exclusionary zoning claim is an as applied challenge, I emphasize that futu re litigants should not endeavor to av oid the threshold issues of ripeness and finality by masking an as applied challenge as a facial challenge. As Judge Easterbrook of the Un ited States Court of Appeals for the Seventh Circuit aptly observed: [A] property owner may not avoid Williamson by applying the label “substantive due process” to the claim. So too with the label “procedural due process.” Labels do not matter. A pers on contending that state or local regulation of the use of land ha s gone overboard mu st repair to state court

. [25] Judge Easterbrook’s statement is similarly pe rsuasive when consider ing the substance of a zoning challenge. Whether the challenge is labe led “facial” or “as applied,” it is not the

22 Paragon , 452 Mich at 576, citing Euclid , 272 US at 395.

23 Paragon , 452 Mich at 576, citing Euclid , 272 US at 395.

24 See Susan R Bruley Trust v City of Birmingham , 259 Mich App 619, 626; 675 NW2d 910 (2003) (concluding th at because the plaintiff’s co mplaint did not dispute any aspect of the execution or en forcement of the zoning ordinance, it presented a facial challenge).

25 River Park, Inc v Highland Park , 23 F3d 164, 167 (C A 7, 1994) (citation omitted).9 label that matters. Instead, a reviewing c ourt should analyze the substance of the challenge and what that challenge requires the court to resolve. 26
IV. THE FUTILITY EXCEPTION TO THE RULE OF FINALITY Having concluded that plainti ffs presented an as applie d challenge to defendant’s zoning ordinance, I w ould hold that both th e ripeness doctrine and the rule of finality apply to plaintiffs’ exclusionary zoning claim, consistent with Paragon . That conclusion does not end my analysis. As the Court in Paragon implicitly recognized, a judicially created futility exception to th e rule of finality exists. 27 In order to invoke the futility exception, “‘it must be “ clear that an appeal to an administ rative board is an exercise in futility and nothing more th an a formal step on the way to the courthouse.”’” 28 Additionally, federal common law generally recognizes that th e plaintiff must submit at least one “meaningful application” to the local zoning agency before asserting the

26 See Smookler v Wheatfield Twp , 394 Mich 574, 581; 232 NW2d 616 (1975) (opinion by W ILLIAMS , J.) (“[W]hen confronted with a re gulation invalid on its face, it is not necessary for this Court to examin e the reasonableness of the ordinance as applied to plaintiffs’ land.”) (emphasis added).

27 Paragon rejected the plaintiff’s argument that it would have been futile to seek a use variance from the defendant’s zoning board of appeals. Paragon , 452 Mich at 581- 583. As the lead opinion correctly notes, our Court of Appeals has discussed the futility exception at greater length in more recent opinions. See, e.g., L & L Wine & Liquor Corp v Liquor Control Comm , 274 Mich App 354, 358; 733 NW2d 107 (2007).

28 L & L Wine , 274 Mich App at 358, quoting Manor House Apartments v City of Warren , 204 Mich App 603, 605; 516 NW2d 530 (1994).10 applicability of th e futility exception. 29 Further, federal caselaw confirms that “[t]he futility exception is narrow, and mere unc ertainty does not establish futility.” 30 I am not persuaded that the futility exception to the rule of fina lity applied in this case. Contrary to the Court of Appeals ma jority, I think that it is unclear whether plaintiffs’ pursuing an application for a 498-unit MHC development would have been little more than a formal step to the courthouse. I ag ree with the lead opinion that defendant’s previous denials of plaintiffs’ application to rezone their property for a 95- unit PUD does not summarily establish that it would have been futile for plaintiffs to apply for a more intensive land use, includi ng the 498-unit MHC de velopment eventually sought by plaintiffs in the trial court. “Land use planni ng is not an all-or-nothing proposition.” 31 The denial of one proposed de velopment by a local zoning agency “cannot be equated with a refusal to permit any development . . . .” 32 Moreover, I agree with the lead opinion insofa r as it concludes that plaintiffs failed to submit at least one meaningful application to defendant. As MacDonald stated, “[r]ejection of exceed ingly grandiose development plan s does not logically imply that

29 See Bannum Inc v City of Louisville , 958 F2d 1354, 1363 (CA 6, 1992) (“For the exception to be available to an aggr ieved landowner, the landowner must have submitted at least one ‘meaningf ul application’ for a varian ce from the challenged zoning regulations.”); see also MacDonald , 477 US at 353 n 8 (“The implication is not that future applications would be futile, but that a meaningful application has not yet been made.”).

30 Manufactured Home Communitie s Inc v City of San Jose , 420 F3d 1022, 1035 (CA 9, 2005).

31 MacDonald , 477 US at 347.

32 Id

.11 less ambitious plans will receive similarly unfavorable reviews.” 33 In the same fashion, it stands to reason that the rejection of a le ss intensive land use does not offer a fair indication of how the local z oning authority would receive a comprehensive proposal for a more intensive land use. 34 In either instance, the plain tiff has not filed one meaningful application, and the local zoning authority is deprived of the opportunity to reach “a final, definitive position regarding how it will apply th e regulations at issue to the particular land in question.” 35
The bottom line is that this Court cannot decide whether defendant is, in fact, excluding MHCs without first knowing how the township would have responded to a proposed MHC development within the township. In other words, this Court cannot conclude that the township is excluding MH Cs when nobody has ever asked the township for permission to develop a MHC. Just as this Court held in Mich Chiropractic Council , 475 Mich at 382, that the issue was not ripe fo r review in that case because the plaintiffs had not yet suffered an “actual . . . injury,” th e issue in the instant case is also not ripe because plaintiffs have not yet suffered an act ual injury. Plaintiffs have not yet been injured because the township ha s not yet refused to allow them to use their property for

33 Id . at 353 n 9.

34 One of the reasons that defendant re jected the 95-unit PUD was because it determined that there was no additional need for that use as there was already sufficient property zoned for PUDs in th e township. If plaintiffs ha d submitted their MHC proposal to the township, the township would have had the opportunity to determine whether there was a need for MHCs in the township that was not being fulfilled. However, because plaintiffs never requested rezoning for that purpose, there is no way to know what the township would have done.

35 Williamson , 473 US at 191.12 an MHC since plaintiffs have not yet made such a request to the township. “[A] landowner must give a land-use authority an o pportunity to exercise its discretion . . . .” 36 Here, the township never had an opportunity to exercise its discretion regarding the contemplated 498-unit MHC development.
V. CONCLUSION Plaintiffs’ exclusionary zoning claim is not ripe for adjudication because plaintiffs neither sought nor obtained a decision concerning their c ontemplated development of a 498-unit MHC before filing suit. I would hold that plaintiffs’ as applied challenge to the validity of defendant’s zoning ordinance is s ubject to the threshold doctrine of ripeness and the interrelated rule of finality. Becaus e plaintiffs cannot cross this threshold and because the futility exception to th e rule of finality is inapplic able in this case, I would reverse the judgment of the Court of Appeals.

Y OUNG and M ARKMAN , JJ., concurred with C ORRIGAN , J.

36 Palazzolo v Rhode Island , 533 US 606, 620; 121 S Ct 2448; 150 L Ed 2d 592 (2001).