Posted by: Patricia Salkin | January 10, 2010

Based on Decision in Previous Case, Plaintiff Estopped from Inverse Condemnation or Regulatory Taking Claim

Plaintiff contended under the defendant-township’s sewer ordinance it was entitled to more sewer connections (taps) than defendant allocated to its property, defendant’s decision denying more taps denied it any economically viable use of the property, and interfered with its investment-backed expectations. Defendant argued this case was barred by collateral estoppel or res judicata because in the prior action based on the same facts, the trial court upheld defendant’s decision limiting the number of sewer taps available to plaintiff’s property. In 2004, plaintiff bought a 20.4-acre parcel located in the township. Only 2.65 acres of the parcel fell within the boundaries of the local sewer district, which is within the township. The remaining 17.75 acres are outside the district. Plaintiff sought to develop the property with as many residential site condos as could lawfully fit within the entire parcel. Plaintiff submitted various plans to the township’s zoning administration, one of which was a 24-unit development. The zoning administrator informed plaintiff based on the square footage of the part of plaintiff’s property within the sewer district, 10 taps would be the maximum connections allowed to the local sewer system. Later, plaintiff submitted a 28-unit plan to the township board, requesting a preliminary site plan approval and the allocation of 27 more sewer taps. Because the planning commission was the proper body from which to seek approval of the site plan, the township board considered plaintiff’s request as one to expand the boundaries of the sewer district to include its entire parcel. The township board approved a motion to affirm the boundaries of the local area sewer district and the allocation of the sewer taps. Plaintiff appealed to the trial court contending it was entitled to more sewer taps based on the township ordinance. The trial court later denied plaintiff’s request finding it sought to expand the boundaries of the local sewer system and doing so would tax the system beyond its capacity. The court denied plaintiff’s application for leave to appeal. Then, plaintiff filed this case alleging inverse condemnation or regulatory taking. The court noted the issue actually litigated and decided in the prior case was a mixed question of fact and law — whether defendant’s ordinance required defendant to grant plaintiff additional sewer connections when part of plaintiff’s parcel was situated within and part was situated outside the boundaries of the local sewer district. The court held plaintiff’s claims in the prior case and this case were substantially similar, if not identical. Further, the facts on which plaintiff based its claim to the additional sewer connections were undisputed and were the same claims asserted in the prior case, and the legal issue in the first case was fully and fairly litigated to a final decision. Thus, the appeals court held that the trial court properly applied collateral estoppel and dismissed.

Soave Land Dev., LLC v. Salem Twp, No.  287687 (MI. App. 11/24/2009)

The unpublished opinion can be accessed at:

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