Carol Rosati | Johnson, Rosati, LaBarge, Aseltyne & Field | 3405 W Twelve Mile Road Ste 200 | Farmington Hills MI 48331-5627 | 248-489-4100

1. Michigan Municipal Risk Manageemnt Authority (MMRMA)
2. Michigan Municipal League Liability and Property Pool (Pool)

The Township was not given the opportunity prior to litigation to evaluate any proposed mobile home use for the subject property, or any need for such a use in the community. Because no application was made, the Township was never able to have such an application reviewed by its consultants or legal counsel. Further, the general public was not provided notice of a proposed rezoning for such a use or given an opportunity to speak at a public hearing as required by the Zoning Enabling Act. This Court must make it clear that a landowner may not bring such a claim until he has first given the local municipality the ability to evaluate an application requesting the use, and the public has been given the opportunity to address such a proposal. An exclusionary zoning claim should not be asserted until such time as an application for the alleged excluded use is made to the municipality, and a final decision rendered. In summary, the Trial Court and the Court of Appeals failed to apply clear and
longstanding federal and Michigan precedent. Plaintiffs’ contention that they can proceed to Court without ever asking the Township for a decision on their proposed use of the property would turn zoning law on its head. Such a proposition would create uncertainty, result in the Court usurping the legislative prerogative of the local municipality, and undermine the statutory reqUirements for notice and public comment on any rezoning request. This Court should decline to do so. Moreover, the Court of Appeals attempt to create a “constitutional” exclusionary zoning claim should be rejected.

Michigan Supreme Court:
We conclude that the trial court and the Court of Appeals majority (1) erred to the extent that they held that the township zoning ordinance was facially invalid because it unconstitutionally excluded a lawful use (MHC) and (2) erred by holding that the futility exception excused compliance with the finality rule and that the appropriate remedy was to enjoin the township from interfering with plaintiffs’ development of a 498-unit MHC. An ordinance is not facially invalid merely 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-density level automatically establish that it would be futile for the property owner to apply for 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’ claim was not ripe for judicial review.

Plaintiffs own a 144-acre tract of land in defendant Putnam Township. The land is essentially undeveloped, consisting of flat lands, hills, wetlands, and woods. The land was and is currently zoned A-O, which permits development as a farm or 10-acre single-family homes. The parties stipulated that the surrounding property to the east and south is zoned for agricultural use, that the property to the west is zoned for agricultural and medium-acreage residential estate 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. In 2002, the Hendees attempted to sell the land, but they concluded that they could not get an acceptable price for the land because the A-O zoning classification limited its development potential. Plaintiff Village Pointe Development LLC agreed to purchase
and develop the land, contingent on the property being rezoned from A-O to R-1-B. AFter being denied a rezoning, a PUD and a variance, the Hendees, together with the proposed buyer/developer, Village Pointe, filed a complaint against the township, alleging that the refusal to rezone the property from A-O zoning to allow MHC development deprived plaintiffs of equal protection and substantive due process and constituted an unconstitutional taking and further alleging that the township’s zoning was exclusionary, in violation of former MCL
125.297a, because it excluded MHC zoning.