Posted by: Patricia Salkin | September 3, 2010

Exclusionary Zoning and Takings Claims Dismissed on Ripeness Grounds by MI Supreme Court

Plaintiffs filed an application with the Putnam Township Planning Commission to rezone their mostly undeveloped 144- acre property consisting of flat lands, hills, wetlands and woods, formerly used as a dairy farm, from agricultural open space (A-O) to single family, rural residential (R-1-B) so they could sell it to be developed.  Upon the Livingston County Planning Commission’s recommendation to consider planned use development (PUD) to protect the wetlands, plaintiffs also filed application for approval of a 95-unit PUD, along with a new application to permit manufactured housing committee (MHC) development.  The MHC application was withdrawn when the township informed them it would not be processed while the PUD application was pending, but the rezoning request and PUD application were both denied anyway.  Plaintiffs then applied for a use variance permit to the township zoning board of appeals (ZBA), which was also denied.  

As a result, plaintiffs filed an exclusionary zoning complaint against the Putnam Township alleging the zoning ordinance was an unconstitutional taking and deprived them of their substantive due process and equal protection rights.  The trial court found that MHC was an appropriate use of their land, granted an injunction prohibiting the township from interfering with development of the MHC and awarded costs and expert fees to plaintiffs.  The Court of Appeals issued a split opinion affirming the trial court’s decision, not including the as-applied constitutional claims.  The majority found the equal protection, substantive due process, and taking claims failed on the merits because the township was advancing a legitimate government interest, was not acting arbitrarily or capriciously, and not all avenues of use were explored and negated.   It did not address whether the exclusionary zoning claim presented a facial challenge because it presented ripeness issues.  

The Supreme Court of Michigan found the trial court erred by deciding plaintiffs’ claim that the ordinance was facially invalid, because the township had no rezoning request pertaining to development of a MHC and therefore had not issued a final decision.  Without a final decision from the zoning authority, plaintiffs cannot demonstrate they were specifically injured by an ordinance.  The Court disagreed with lower court’s decision excusing plaintiffs from the finality requirement, because they did not even make ‘one successful meaningful application for a rezoning request,’ and thus did not establish that the futility doctrine applied.  The exclusionary zoning claim was not yet ripe for review because the township could not determine the effect of its ordinance in light of evidence demonstrating a need for the proposed land use or render a zoning decision based on that evidence; it would be impossible to say whether the township would have permitted MHC development on the property or whether a denial would be reasonable.  Plaintiffs, by not pursuing the application for rezoning from A-O to MHC, did not show they had exhausted administrative remedies and instead sought premature relief by filing the complaint.  The court also held since the claim was not yet ripe for review, the lower courts had no basis in enjoining the township from interfering with plaintiffs’ development of the 498 unit MHC, or awarding costs and fees.  The case was reversed and remanded for dismissal.   

Hendee v. Putnam Township, 2010 WL 2787923 (Mich. 7/15/2010). 

The decision can be accessed at:

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