Amicus Brief

Wolf Capital Management Trust v City of Ferndale and Marsha Scheer, Robert Porter and Thomas Barwin

Case Year: 2006
Case Forum: Michigan Supreme Court
Keywords: Governmental Tort Liability Act (GTLA), governmental immunity, land use, proprietary function exception
Amicus Counsel:

Marcia L. Howe (P 37518) | Johnson, Rosati, LaBarge, Aseltyne & Field, P.C. | 34405 W. Twelve Mile Road, Suite 200 | Farmington Hills, MI 48331-5627 | 248-489-4100

CoAmicus Parties:

1. Michigan Townships Association (MTA)
2. Michigan Municipal Risk Management Authority (MMRMA)


The City of Ferndale’s concern for fiscal management,
including the raising of revenue, is not only a legitimate
governmental activity, but a required one. Ferndale owed all of its citizens a duty to both regulate land use and properly maintain and operate its public properties. Plaintiffs asserted that the City exercised this authority merely to interfere with their potential to benefit from a business relationship with a telecommunication company and relied solely on a purported improper motive of fiscally advancing the City’s own interests. The City here, at best, enacted ordinances that interfered to a limited degree with how Plaintiffs’ property could be used. Any interference with land use without a physical invasion or injury is in the nature of a constitutional violation, not a tort claim. The intent and purpose of the GTLA is to support, strengthen and protect the special role played by public entities, municipal officials, and municipal employees. The legislature intended to provide protection under a broad immunity umbrella because it recognized that public entities are required to act and regulate, but do and will make mistakes. Past case law development evidences an intent to narrow this Exception when this Court abandoned subjective tests for defining “governmental functions” and the “proprietary function” under MCl 691.1413. The wording of the Proprietary Function Exception does not expressly include abstract economic damages, lost profits, consequential damages, damages from loss of business, or damages from the tort, or an interference with prospective business or contracts. The provision does not provide damages for the loss of “property rights.” Instead, “property damage” is commonly understood as damages to “some tangible” property.


On November 13, 2006, the Court heard oral argument on the application for leave to appeal the December 20, 2005 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be’reviewed by this Court.

MSC requested LDF amicus brief? Yes

Plaintiff owns an office building in the city of Ferndale. The building is located in a retail and office use zoning district. Plaintiff and AT&T Wireless Services entered into a lease agreement by which AT&T would place a wireless-communication antenna on top of plaintiff’s building. The contract was contingent upon AT&T’s ability to secure a zoning variance from the city. Public hearings were held with the zoning board of appeals which ultimately denied the variance even though plaintiff already had one wireless-
communication antenna on its building. The board of
zoning appeals subsequently held a hearing pursuant
to a circuit court order at which time it provided its
reasons for denying the variance. Plaintiff filed a suit
in the federal district court alleging that the city’s actions were in violation of the Telecommunications Act of 1996 claiming that the prohibition was not supported in writing and with substantial evidence and further that the zoning ordinance violated the Act on the basis of discrimination.

Case Number: 2006-01
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