Northville Charter Township v. Northville Public Schools , 469 Mich. 285 ( 2003 )

666 N.W.2d 213 (2003)

CHARTER TOWNSHIP OF NORTHVILLE, Plaintiff, and
Heather Schulz, Jeffrey Schulz; Mary Lowe, George Lowe; Eric Hanpeter, Laura Hanpeter; Frank Corona, Marcella Corona; David Malmin, Lee Ann Malmin; John Miller, Debra Miller; Tom Conwell, Evy Conwell; Mary Beth Yakima, Dan Yakima; Richard Lee, Patty Lee; Beth Peterson, Rick Peterson; John Buchanan; Ken Buchanan; Larry Gregory, Nancy Gregory; K. Maureen Wynalek, James Wynalek; Harold W. Bulger and Sandra A. Bulger, Intervening-Plaintiffs, Appellants,
v.
NORTHVILLE PUBLIC SCHOOLS, Superintendent of Northville Public Schools, and Northville Board of Education, Defendants-Appellees.

Docket No. 120213, Calendar No. 9.

Supreme Court of Michigan.

Argued March 12, 2003. Decided July 31, 2003.

Honigman Miller Schwartz & Cohn, LLP by Susan K. Friedlaender, Bingham Farms, for intervening plaintiffs-appellants.

Keller Thoma, P.C. by Robert A. Lusk, Lincoln G. Herweyer, and Kristin R. Binkley, Detroit, for defendants-appellees.

Bauckham, Sparks, Rolfe, Lohrstorfer & Thall, P.C. by John H. Bauckha, Kalamazoo, for Michigan Townships Association and Michigan Municipal League, amici curiae.

John F. Rohe, Petoskey, for Michigan Environmental Council, Tip of the Mitt Watershed Council, and Michigan Land Use Institute, amici curiae.

Anthony A. Derezinski and Brad A. Banasik, Lansing, for Michigan Association of School Boards, amicus curiae.

OPINION

TAYLOR, J.

We granted leave to appeal to determine whether local school districts, which are required to submit building plans to the state superintendent of public instruction for approval pursuant to M.C.L. § 380.1263(3), must also comply with township zoning and planning ordinances pursuant to the Township Zoning Act, M.C.L. § 125.271 et seq., and the township planning act, M.C.L. § 125.321 et seq. We conclude that because the text of M.C.L. § 380.1263(3) grants the state superintendent sole and exclusive jurisdiction over local school district construction and site plans, it immunizes school districts from local zoning ordinances affecting those functions. However, a majority declines to address whether this is an impermissible delegation of legislative power because the state superintendent is not a party to this suit.

Accordingly, a majority affirms in part and vacates in part the judgment of the Court of Appeals.

I

Before beginning construction of a new high school in Northville Township, the Northville Board of Education met with township officials to discuss the effect of local zoning ordinances on its site plan. Although somewhat productive, conflicts remained and the township sought to enjoin construction.^[1] The trial court denied a stay, but allowed nearby landowners to intervene as plaintiffs. After discovery, the township and intervening plaintiffs moved for summary disposition. The circuit court denied the motion on the basis of the text of M.C.L. § 380.1263(3), which grants sole and exclusive jurisdiction over school site plans to the state superintendent.

The intervenors appealed, and the Court of Appeals affirmed, holding that the text of the revised school code, M.C.L. § 380.1263(3), conveys a clear intention to grant "sole and exclusive jurisdiction" over site plans to the state superintendent. The Court also rejected intervenors' claim that the Legislature unconstitutionally delegated legislative authority to the state superintendent, concluding that the statute provides sufficient construction and design standards.^[2]

We granted intervenors' application for leave to appeal.^[3]

II

We review de novo decisions on summary-disposition motions. Stanton v. Battle Creek, 466 Mich. 611, 614, 647 N.W.2d 508 (2002). Similarly, we review de novo questions of statutory interpretation. In re MCI, 460 Mich. 396, 413, 596 N.W.2d 164 (1999).

III

To determine whether local school districts are subject to township zoning and planning ordinances, we must examine the authority of the school district to develop school construction and site plans, with the approval of the state superintendent, under M.C.L. § 380.1263(3).

M.C.L. § 380.1263(3) states:

The board of a school district shall not design or build a school building to be used for instructional or noninstructional school purposes or design and implement the design for a school site unless the design or construction is in compliance with [M.C.L. §§ 388.851 to 388.855a]. The superintendent of public instruction has sole and exclusive jurisdiction over the review and approval of plans and specifications for the construction, reconstruction, or remodeling of school buildings used for instructional or noninstructional school purposes and of site plans for those school buildings. [M.C.L. § 380.1263(3) (emphasis supplied).]

Of importance is that this subsection vests design and construction oversight authority over the district's decision in the state superintendent, who has "sole and exclusive jurisdiction...."

The first step in construing a statute is to discern legislative intent. To do this requires review of the statutory text adopted by the Legislature. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). If unambiguous, the Legislature will be presumed to have intended the meaning expressed, and the courts enforce that meaning without further judicial construction or interpretation. Grievance Administrator v. Underwood, 462 Mich. 188, 193-194, 612 N.W.2d 116 (2000). These rules control the disposition of this matter.

We determine that the statute here is unambiguous. It grants sole and exclusive jurisdiction to the state superintendent to review and approve plans and specifications of school buildings and site plans for those buildings. Thus, what the state superintendent approves is immune from the provisions of local zoning ordinances.

In Dearden v. Detroit, 403 Mich. 257, 264, 269 N.W.2d 139 (1978), a case concerning the authority of the Department of Corrections to locate prisons without regard to local zoning, in which the department was given exclusive jurisdiction concerning location, we found the words "exclusive jurisdiction" indicative that the department had, not surprisingly, exclusive jurisdiction. In later cases, apprehensive that this may have suggested a need for "talismanic words," and that a court, not finding any, might conclude that the state agency was not immune from local zoning, we indicated in Burt Twp. v. Dep't of Natural Resources, 459 Mich. 659, 669, 593 N.W.2d 534 (1999), that even in the absence of talismanic words the state agency may be immune if the Legislature's intent to immunize was otherwise clear. The thrust of this was that a court should look to the intent of the Legislature and not just do a word search. We recently discussed this again in Pittsfield Charter Twp v. Washtenaw Co, 468 Mich. 702, 664 N.W.2d 193 (2003). We now come full circle. The fact that the Legislature does not have to use talismanic words does not mean that, if it does, they are to be disregarded. That is, Burt Twp, et al., should correctly be understood as recognizing an enlarged target for the Legislature, but it should not be read to say a bull's eye no longer counts. With that in mind, as explained below, we conclude that "sole and exclusive jurisdiction" means, again we hope not surprisingly, sole and exclusive jurisdiction.

We find the dictionary definitions dispositive. "Sole" means "[b]eing the only one; existing or functioning without another or others; only." The American Heritage Dictionary of the English Language (1981). Similarly, "exclusive" is defined as "not divided or shared with others [or] single or independent; sole." Id. The Legislature's choice of modifiers reflects its intention to unambiguously vest "jurisdiction," i.e., "the general power to exercise authority," in the state superintendent. Black's Law Dictionary (7th ed.).

This leaves to be determined the definition of "site plan." The dictionary defines "site" as "The place where something was, is, or is to be located," The American Heritage Dictionary of the English Language (1982), or similarly, "[T]he area or exact plot of ground on which anything is, has been, or is to be located...." Random House Webster's College Dictionary (1997). "Plan" is defined as "A detailed scheme, program, or method worked out beforehand for the accomplishment of an object.... A proposed or tentative project or goal...." The American Heritage Dictionary of the English Language (1982). Thus, it is apparent that the meaning of "site plan," with no qualifying modifiers, is the plan for everything on the property, i.e., the entire project.

This definition is consistent not only with the common understanding of the phrase but also with the Legislature's use of the term "site plan" in both the Township Zoning Act and the township planning act. The Township Zoning Act states that the proposal for the individual "site plan" of a property owner or user must be "in compliance with local ordinances and state and federal statutes." M.C.L. § 125.286e(1). If it is, the township zoning authorities have the duty to approve it. Similarly, in the township planning act, the site plan must "comply with the [township's basic development] plan adopted under this section." M.C.L. § 125.326(4). If the site plan does comply, it is to be approved by the planning authorities. Thus, in both these acts the site plan, i.e., what is to be undertaken on the site, is presented to the appropriate zoning and planning authorities and, if consistent with the ordinance and plan, it is to be approved.

In a fashion similar to the procedure followed by individuals who wish to have their site plans approved by the zoning and planning authorities discussed above, the school district, under M.C.L. § 380.1263(3), must present its site plan to the state superintendent for approval. Just as the township zoning authorities have duties to accept or reject the individual homeowner's site plan, so the state superintendent has similar duties to "review and approv[e]" the school district's site plans.

This understanding of M.C.L. § 380.1263(3) makes clear that the state superintendent's power is unaffected by any zoning or planning rules or ordinances regarding what goes on within the site itself. While this may appear to be an extensive grant of authority, it is, in our view, no more so than, and indeed of a piece with, the authority given to the ultimate reviewing authorities by the Township Zoning Act and the township planning act.

We also note that this interpretation is in harmony with the general structure of M.C.L. § 380.1263(3), in which the state superintendent is given distinct duties regarding both construction and site plans. Because the state superintendent must approve construction plans and, as a separate matter, approve site plans, we are led to the conclusion that the Legislature considered these two types of plans as not being identical. Thus, we conclude that it was the Legislature's view that "site plans" would not be coterminous with "construction plans." Our interpretation of the statute is consistent with this.

Further, it is important that neither the Township Zoning Act nor the township planning act by its terms requires school district compliance with zoning ordinances. Intervening plaintiffs correctly note that M.C.L. §§ 125.273 and 125.327(2)(a) clarify that township zoning ordinances and plans should be drafted to accommodate a community's educational needs. However, it does not necessarily follow that local school districts must comply with all township land-use controls prescribed by ordinance.^[4]

Intervenors further argue that "site plans" cannot extend beyond the construction of school buildings because the state superintendent's agents testified in the matter that they have no published standards for site design and do not review site plans for land-use matters. This argument has no merit. The purported failure to act on the part of the state superintendent's agents is not indicative of the Legislature's intent and cannot control the meaning of the statutes at issue. The intervenors' claim in this regard would be better understood as precipitating challenges to the administration of the statute rather than its meaning.

After considering all the above arguments and applying Dearden, it is our view that the Legislature clearly evidenced an intention to grant "sole and exclusive jurisdiction" over school construction and site plans to the state superintendent, thereby immunizing local districts from township zoning ordinances as they affect the content of the site plan itself. M.C.L.§ 380.1263(3). Because nothing in either the Township Zoning Act or the township planning act suggests an intent to usurp the state superintendent's "sole and exclusive jurisdiction" over design, construction, and siting requirements, we must conclude that local school districts for their site plans must seek only the state superintendent's approval and need not have the approval of township zoning and planning authorities.

IV

Intervening plaintiffs also argue that this act is unconstitutional because it is an impermissible delegation of legislative power to the state superintendent. For us to address whether this statute effects an impermissible delegation of legislative authority, it would have been necessary for the state superintendent to have been joined as a party pursuant to MCR 2.205(A). Because this did not take place, the issue is not properly before us and we decline to address the matter further. Similarly, the matter was not properly presented to the Court of Appeals and that Court's opinion, to the extent that it considered this issue, must be vacated.

V

As we read Justice Cavanagh's opinion, he agrees with us that M.C.L. § 380.1263(3) granted the state superintendent authority superseding township zoning ordinances for what goes on within the site itself. He would go further however, understanding the statute to mean that

there is no reason to presume the state superintendent's review power over local school districts is necessarily limited to activities contained within the site itself. (Post at 216).

Thus, he concludes that

it would be inappropriate to suggest that, even in some limited fashion local school districts should be subject to township zoning authorities. (Post at 216).

Justice Weaver concurs with our approach to the authority of the superintendent stating that

the text of M.C.L. § 380.1263(3) evidences a legislative intent to subject local school districts to the authority of the superintendent of public instruction, thus immunizing districts from township zoning ordinances. (Post at 215).

Thus a clear majority of the Court agrees that the authority of the state superintendent pursuant to M.C.L. § 380.1263(3) is at least as broad as set forth in this opinion.

Justice Markman disagrees with us. Under Justice Markman's interpretation of M.C.L. § 380.1263(3) the words "sole and exclusive jurisdiction" do not convey that the jurisdiction is sole and exclusive. His view, we believe, is inconsistent with the Legislature's grant of "sole and exclusive jurisdiction over the review and approval" of the site plans as well as, were it the majority, an effective overruling of the line of cases commencing with Dearden and including Burt Twp.; Byrne v. Michigan, 463 Mich. 652, 624 N.W.2d 906 (2001), and most recently, Pittsfield Twp.^[5]

As for plaintiffs' claim that M.C.L. § 380.1263(3) is unconstitutional because it is an inappropriate delegation of legislative power to the state superintendent, Justice Markman, while otherwise dissenting as we have mentioned, concurs with our position that to reach this issue the state superintendent should have been joined as a party. Justice Cavanagh, in his concurrence, only briefly addresses this issue without stating a preference for its resolution. Justice Weaver, however, reaches the delegation question and finds no improper delegation. Accordingly, with others joining this plurality, a clear majority of the Court agrees that the failure to join the state superintendent as a party precludes us from resolving the claim that M.C.L. § 380.1263(3) is an unconstitutional delegation of legislative power.

VI

In the present case, the Legislature vested "sole and exclusive jurisdiction" over school construction and site plans in the state superintendent of public instruction, who has the approval authority for school construction and site plans submitted by the local school districts. This unambiguous language, when viewed in light of the zoning authority granted to townships in the township zoning and planning acts, indicates an intention to immunize school districts from local ordinances as they affect the content of a school site plan. Further, the issue of delegation of legislative authority to the state superintendent is not properly before us, and a majority declines to consider it. For these reasons, with others joining this plurality, the Court affirms the judgment of the Court of Appeals dismissing the intervening plaintiffs' appeal after the denial of their motion for summary disposition and the Court vacates those portions of the opinion of the Court of Appeals that address the issue of delegation of legislative authority to the state superintendent of public instruction.

MICHAEL F. CAVANAGH, J. (concurring).

I agree with the lead opinion's conclusion that an evaluation of M.C.L. § 380.1263(3)^[1] indicates a legislative intent to subject local school districts to the authority of the state superintendent, thereby immunizing districts from township zoning ordinances. However, I must concur in the result only.

Above all, I am troubled by the lead opinion's suggestion that the state superintendent's power to review a local school district's site plan is limited to "what goes on within the site itself." Ante at 225. In drafting M.C.L. § 380.1263(3), the Legislature indicated no such restriction on the superintendent's authority. As the lead opinion clearly states, the statute provides the state superintendent with "sole and exclusive jurisdiction" over "site plans." M.C.L. § 380.1263(3).

This interpretation accords with the events leading up to the statute's revision. In response to several Court of Appeals cases mandating local school district compliance with township ordinances,^[2] the Legislature amended subsection 1263(3) and extended state oversight authority to include "site plans for those school buildings." 1990 P.A. 159. Interpreting the 1990 amendment in a manner that gives a distinct meaning to "site plans" requires an acknowledgment that "site plans" contain data other than that strictly necessary for "the construction of ... school buildings...."

Further, although the term "site plans" is not defined in the revised school code, the Legislature's practice of employing the term in zoning statutes suggests its utility as a tool to measure compliance with land-use regulations.^[3] Hence, it is reasonable to assume that the superintendent's exclusive jurisdiction over site plans would include the authority to review and approve land-use controls for the promotion of community health, safety, and welfare. See, e.g., M.C.L. § 125.271(1) ("the township board of an organized township in this state may provide by zoning ordinance ... to promote public health, safety, and welfare."). Therefore, while we require no "talismanic words," the legislative grant of "sole and exclusive jurisdiction" unambiguously indicates a legislative intent to vest comprehensive and undivided control over both school construction plans and site plans in the state superintendent, which includes land-use oversight authority. From this broad grant of power, there is no reason to presume the state superintendent's review power over local school districts is necessarily limited to activities contained within the site itself.

In this case, for example, plaintiff requested a "traffic impact study to evaluate peak hour movement." Certainly, the relevant traffic patterns with which the township was concerned included activities not contained exclusively within the site itself. Although accommodations for such concerns would normally be (and were) included within the site plan, § 1263(3) indicates no particular land-based limit to the state superintendent's oversight authority, as the lead opinion suggests. Rather, the state superintendent has "sole and exclusive jurisdiction" over "site plans," which reasonably includes the authority to review land-use controls designed for zoning purposes. M.C.L. § 380.1263(3). Given that textual indicator of legislative intent, it would be inappropriate to suggest that, even in some limited fashion, local school districts should be subject to township zoning authorities.

Further, the lead opinion comments upon the "standards" to which the state superintendent must submit itself and the adequacy with which state agents are able to enforce those standards in part III, ante at 218, but continues by refusing to reach the merits of plaintiff's delegation-of-power claim in part IV. Because of the lead opinion's position regarding plaintiff's failure to join the superintendent as a party and its refusal to rule on the adequacy of the standards delegated by the Legislature, I would, had I chosen to join the lead opinion's position, refrain from all unnecessary commentary in part III.

In sum, while I agree that Dearden v. Detroit, 403 Mich. 257, 269 N.W.2d 139 (1978), requires the rejection of plaintiffs' claim in light of the "sole and exclusive authority" granted to the state superintendent in M.C.L.§ 380.1263(3), I respectfully concur in the result only for the reasons noted above.

WEAVER, J. (concurring in result).

I concur in the result of the lead opinion because the text of M.C.L. § 380.1263(3) evidences a legislative intent to subject local school districts to the authority of the state superintendent of public instruction, thus immunizing districts from township zoning ordinances.^[1] This conclusion is consistent with the general understanding of the term "site plan," as that term is used in the Township Zoning Act, M.C.L. § 125.271 et seq.,^[2] as well as the general understanding of the phrase "sole and exclusive jurisdiction."

I write separately because not persuasive is the lead opinion's position that it is "necessary" to join the state superintendent as a party before addressing the intervening plaintiffs' argument concerning the improper delegation of legislative authority.^[3] Rather, applying the guidelines articulated in Dep't of Natural Resources v. Seaman, 396 Mich. 299, 240 N.W.2d 206 (1976),^[4] I would conclude that the act does not constitute an impermissible delegation of legislative authority because the Revised School Code provides sufficient standards to guide the superintendent's discretion.

For these reasons, I concur in the result of the lead opinion.

MARKMAN, J. (dissenting).

I respectfully dissent. A majority of the Court affirms in part the judgment of the Court of Appeals, concluding that M.C.L. § 380.1263(3) evidences a legislative intent to immunize school districts from local zoning ordinances that affect the content of school site plans. I disagree with the majority's conclusion that the language in this statute according the state superintendent of public instruction (superintendent) "sole and exclusive jurisdiction" to review and approve "site plans" for school buildings permits the superintendent to determine what may be placed on a site without regard to local zoning ordinances. Because, in my judgment, there is no clear legislative intent in M.C.L. § 380.1263(3) to exempt school districts from local zoning ordinances, I would reverse the judgment of the Court of Appeals.

I. THE DEARDEN TEST AND RELEVANT CASES

As this Court indicated in Dearden v. Detroit, 403 Mich. 257, 264, 269 N.W.2d 139 (1978), "legislative intent, where it can be discerned, is the test for determining whether a governmental unit is immune from the provisions of local zoning ordinances." In Dearden, this Court considered a statute granting the Department of Corrections "exclusive jurisdiction" over penal institutions, M.C.L. § 791.204, and determined that the statutory scheme demonstrated a legislative intent to grant the department immunity from local zoning ordinances in the establishment of state penal institutions. Dearden, supra at 265-267, 269 N.W.2d 139.

Subsequently, in Burt Twp. v. Dep't of Natural Resources, 459 Mich. 659, 593 N.W.2d 534 (1999), this Court concluded that the Department of Natural Resources was required to comply with a local zoning ordinance when constructing a public boat launch. Although the Legislature granted the department "power and jurisdiction over the management, control, and disposition of all land under the public domain, except for those lands ... that are managed by other state agencies," M.C.L. § 324.503(1), other statutes granted the township extensive regulatory authority over land use, including waterfront land use. We noted that the burden was on the department to demonstrate a "clear legislative intent" to exempt the department from the township's zoning ordinances. Nothing in the statutes in that case indicated a "clear expression" of legislative intent to grant the department exclusive jurisdiction or to exempt the department from the township's zoning ordinance. Burt Twp, supra at 668, 593 N.W.2d 534.

More recently, in Byrne v. Michigan, 463 Mich. 652, 660-661, 624 N.W.2d 906 (2001), this Court concluded that the Legislature clearly expressed its intent to grant the Michigan State Police exclusive authority, not subject to any local zoning ordinances, over the siting and construction of a communications tower. The statute at issue there, M.C.L. § 28.282(2), specifically required that the local zoning authority be notified of the site selected and set out a procedure to be followed in the event that the selected site failed to comply with local zoning, with the result that if any dispute could not be resolved, the department could proceed with construction.^[1] Thus, the statute amounted to a "clear expression" of the Legislature's intent to invest the state police with full authority over the construction of the tower. Id. at 661, 624 N.W.2d 906.

II. ANALYSIS

For the following reasons, which will be discussed in more detail below, I do not believe that M.C.L. § 380.1263(3) evidences a legislative intent, much less a "clear" legislative intent, Burt, supra at 666, 593 N.W.2d 534, to equate the state superintendent's authority over school site plans with the general power to act as a statewide zoning official. First, authority over site plans is wholly distinct from authority over zoning and land-use matters. Second, M.C.L. § 380.1263(3) fails to reference zoning, an inexplicable failure if the purpose of this provision was to confer zoning authority upon a public official. Third, the Township Zoning Act, M.C.L. § 125.321 et seq., sets forth a contrary understanding of the zoning and land-use authority of local officials. As a result, under the test set out in Dearden, in which this Court declined to adopt a rule that state agencies have inherent immunity from local zoning ordinances, there is no evidence of a "clear legislative intent," Burt, supra at 666, 593 N.W.2d 534, to provide the superintendent with zoning authority and thereby immunize school districts from township zoning ordinances.

A. SITE PLAN AUTHORITY DISTINCT FROM ZONING AUTHORITY

Determining whether the Legislature intended to exempt local school districts from township zoning affecting site plans for schools requires an examination of the relevant portion of the Revised School Code, M.C.L. § 380.1263(3), which provides:

The board of a school district shall not design or build a school building to be used for instructional or noninstructional school purposes or design and implement the design for a school site unless the design or construction is in compliance with [M.C.L. §§ 388.851 to 388.855a, the construction of school buildings act]. The superintendent of public instruction has sole and exclusive jurisdiction over the review and approval of plans and specifications for the construction, reconstruction, or remodeling of school buildings used for instructional or noninstructional school purposes and of site plans for those school buildings.

As the lead opinion recognizes, this provision requires local school boards to comply with the construction of school buildings act and grants the state superintendent "sole and exclusive jurisdiction" to review and approve "plans and specifications for the construction, reconstruction, or remodeling of school buildings" and "site plans for those school buildings."

I agree with the lead opinion that the references in M.C.L. § 380.1263(3) to both construction plans and site plans indicate that the Legislature viewed site plans as meaning something different from construction plans. Like the lead opinion, I believe that a site plan essentially comprises "the plan for everything on the property." Ante at 217. As the lead opinion acknowledges, a site plan reflects "what is to be undertaken on the site," ante at 217, and amounts to a proposal. This is supported by the description of site plans given in M.C.L. § 125.286e(1):

As used in this section, "site plan" includes the documents and drawings required by the zoning ordinance to insure that a proposed land use or activity is in compliance with local ordinances and state and federal statutes. [Emphasis added.^[2]]

Site plans thus can be reasonably understood as consisting of written and illustrative documents that set forth the proposed layout of a site and that are used to ensure compliance with local zoning regulations.

Although I do not disagree with the lead opinion's general characterization of site plans, I disagree with its conclusion that the superintendent's authority over site plans is "unaffected by any zoning or planning rules or ordinances regarding what goes on within the site itself." Ante at 218. As the lead opinion recognizes, a "plan" is a proposal that is tentative in nature and is not, by definition, a final decision. Ante at 217. Recognizing this meaning, it is clear, in my judgment, that the authority granted to the superintendent in M.C.L. § 380.1263(3) relates only to the approval of proposals for what might be built, or what the school district would like to have built, on the school site, and is not the equivalent of authority to undertake final zoning or land-use decisions. The lead opinion, however, construes M.C.L. § 380.1263(3), as empowering the superintendent to effect final zoning and land-use decisions regarding the placement of buildings and facilities on school sites. In contrast, I believe that the superintendent's authority extends under the statute only to the final review and approval of the proposed layout—that is the "site plan"—for the school building. The statute authorizes the superintendent to finally review and approve the plan for the school site. However, local authorities, consistently with M.C.L. § 125.286e(1), are authorized to utilize the site plan as a means for ensuring that the proposed land use by the superintendent complies with local zoning ordinances.^[3]

The superintendent's authority over site plans is not the equivalent of zoning or land-use authority, but it is an authority in support of, an authority that informs, the exercise of zoning authority by local officials. A site plan is a tool that ensures compliance with zoning; it is not merely substitute nomenclature for describing the zoning and land-use processes.^[4]

B. ABSENCE OF REFERENCE TO ZONING

It is noteworthy that M.C.L. § 380.1263(3) is not a zoning or land-use statute at all and nowhere does it refer to zoning or land-use authority. Rather, this provision is located within Part 16 of the Revised School Code, which concerns the general powers and duties of boards of education. As discussed in the preceding subsection, the statute grants the superintendent sole and exclusive jurisdiction to review and approve site plans for school buildings, but nowhere empowers the superintendent to make final zoning or land-use decisions, even as they relate to school site plans. This omission is particularly significant in light of the level of specificity with which the provision otherwise describes the superintendent's jurisdiction. Under M.C.L. § 380.1263(3), the superintendent possesses jurisdiction over "plans" and "specifications" for the "construction," the "reconstruction," and the "remodeling" of schools, as well as for the "site plans," of certain school buildings. However, nowhere in this provision is there any mention of jurisdiction concerning zoning or land-use planning, both of which are subject to regulation under entirely separate statutes. This is hardly surprising, considering that subsection 1263(3) is part of a school code and not a part of a zoning or land-use statute.^[5]

Despite the lack of any statutory reference to zoning or land-use authority, the lead opinion construes subsection 1263(3) as replacing the authority of local officials in this realm with that of the superintendent. It reaches this conclusion with little substantive analysis, instead simply assuming that the Legislature, by granting the superintendent certain enumerated powers, intended to grant him unenumerated powers as well.^[6] Yet, in my judgment, it is difficult to conceive that the Legislature would have conferred zoning and land-use authority upon the superintendent by implication, and that it would have set forth with specificity an enumeration of lesser authorities and yet intended to grant a greater authority despite failing to specify that greater authority. Further, it is difficult to conceive that the Legislature would have intended to deprive communities throughout the state of one of their most fundamental powers, the power to zone and regulate land use, through such indirection.^[7] In the absence of any indication in M.C.L. § 380.1263(3), clear or otherwise, that the superintendent is not required to comply with local zoning and land-use regulations, I believe that such compliance is required. There is nothing in that statute that authorizes the superintendent to act in disregard of the zoning and land-use decisions made by local communities throughout this state.

C. TOWNSHIP ZONING ACT

The lead opinion's interpretation of M.C.L. § 380.1263(3) is further refuted by the Township Zoning Act, pursuant to which township boards are authorized to regulate in a very broad manner land uses and development within their boundaries, including regulation of the location and size of buildings.^[8] Moreover, M.C.L. § 125.271 specifically allows townships "to facilitate adequate and efficient provision for ... education...." Similarly, M.C.L. § 125.273 provides:

The zoning ordinance shall be based upon a plan designed to ... facilitate adequate provision for a system of transportation, sewage disposal, safe and adequate water supply, education, recreation, and other public requirements....

These provisions generally recognize the zoning and land-use authority of townships, as well as the specific role of zoning and land-use authority in promoting a system of education. Because the Legislature has authorized township boards to comprehensively regulate land use, and has specifically authorized townships to enact zoning ordinances in order to provide for the area's education requirements, I do not believe that the superintendent's authority under M.C.L. § 380.1263(3) can reasonably be construed to displace all local zoning and land-use ordinances that, in any way, "affect" school site plans. The breadth of the Township Zoning Act is inconsistent with the notion that the Legislature would have compromised this authority through statutory silence and indirection.

Given the integrated and coordinated nature of most zoning and land-use plans, in which the whole is affected by the part, the conferral of authority upon the superintendent to disregard local regulations concerning school sites carries with it a potential effect reaching far beyond these sites. In communities throughout the state, the most carefully considered and finely coordinated zoning and land-use plan will now potentially be subject to the disruptiveness of a contrary zoning or land-use decision made by the superintendent. Moreover, such a decision will be one undertaken by an unelected official who, almost certainly, will possess less familiarity with the needs and circumstances of these communities, and who will be less responsive to the people of these communities, than their own local officials.

III. APPLICATION OF THE DEARDEN TEST

In Dearden, supra at 265, 269 N.W.2d 139, the statute at issue granted the Department of Corrections "exclusive jurisdiction" over penal institutions. The statute indicated that it was intended to repeal other provisions of law that were inconsistent with the department's administration of the penal system and indicated that the Michigan Corrections Commission was to address "`all matters relating to the unified development of the penal institutions... of the state....'" Id. at 266, 269 N.W.2d 139 quoting M.C.L. § 791.202(1). The statute thus evidenced a legislative intent to immunize the department "from local zoning ordinances when establishing state penal institutions." Id. at 267, 269 N.W.2d 139.

In my judgment, the circumstances involved in Dearden materially differ from the circumstances in this case. Although, like the statute in Dearden, subsection 1263(3) contains "exclusive jurisdiction" language, the exclusive jurisdiction applies specifically to "the review and approval of plans and specifications for the construction, reconstruction, or remodeling of school buildings" and "site plans for those school buildings." This language, in my view, reflects an intent to grant the state superintendent a more limited authority that relates specifically to the oversight of construction and site plans for particular school buildings. Whereas the statutory scheme in Dearden reflected a legislative intent to provide the Department of Corrections with broad authority to oversee and develop a statewide system of penal institutions, the relevant statute here reflects an intent to empower the superintendent to oversee a much narrower area relating to construction and site plans for school buildings. This is not surprising in view of the fact that principal authority over schools, unlike prisons, has traditionally reposed with local communities.^[9]

In regard to the application of the Dearden test, this Court indicated in Burt Twp, supra at 666, 593 N.W.2d 534, that the party claiming to be exempt must show "a clear legislative intent" to exempt the particular activities from local zoning. The lead opinion effectively inverts this test, asserting that the statutes pertaining to township zoning and planning do not expressly require school districts to comply with local zoning regulations. Ante at 218. However, given the broad land-use authority that the Legislature has granted to townships, it would hardly be expected that these statutes would also affirmatively enumerate those entities obligated to comply with their zoning requirements. To assume otherwise is to suggest that, unless express compliance is mandated, then compliance is not required. Following this reasoning to its logical conclusion, one would have to assume that no entity must comply with local zoning authority because no such entities are listed. The lead opinion's analysis improperly shifts the burden to the township to demonstrate that its generally applicable zoning and land-use regulations are applicable to a particular entity.

In my judgment, the school district, the party claiming exemption, has not met its burden. Rather, the relevant statutory provisions do not evidence a "clear legislative intent" to immunize local school districts from local zoning ordinances.

IV. CONSEQUENCES OF THE MAJORITY HOLDING

The majority of the justices conclude that the superintendent's authority over "what goes on within the site itself is unaffected by local zoning, ante at 218, and that local school districts are immune from township zoning ordinances "as they affect the content of the site plan itself." Ante at 217. However, the lead opinion does not otherwise explain how broad or how limited it perceives the superintendent's jurisdiction to be. This prompts the obvious questions: precisely what, under the lead opinion, does the superintendent have the authority to do; and precisely what do local officials have the authority to do? By not offering insight into how these questions should be answered, the public is left only to speculate, ensuring that new litigation will be the product. Which types of zoning and land-use matters "affect" the content of the site plan itself?^[10] Do sewage and drainage pipes that extend beyond the "site itself" and into the surrounding community "affect" the site plan? Do roads and paths, and means of ingress and egress that extend beyond the "site itself" and into the surrounding community "affect" the site plan? Do environmental regulations that affect the community generally "affect" the site plan? Do noise regulations that have a general effect on the community "affect" the site plan? Indeed, what generally applicable zoning and land-use regulations might not be perceived, at least under some circumstances, as "affecting" the site plan?^[11]

Apart from what "affects" the site plan, and is thereby within the exclusive determination of the superintendent, what "affects" the community surrounding the school is also within the exclusive determination of the superintendent. Persons living within the surrounding neighborhood, and within the surrounding community, will, as a result, have diminished effective resort to their local representatives, none of whom will any longer possess authority over matters relating to school sites and the structures upon them.

V. CONCLUSION

Contrary to the majority, I do not believe that M.C.L. § 380.1263(3), which grants the state superintendent "sole and exclusive jurisdiction over the review and approval of plans and specifications for the construction, reconstruction, or remodeling of school buildings ... and of site plans for those school buildings," indicates a "clear legislative intent" to exempt the state school superintendent from local zoning ordinances. First, the superintendent's authority over "site plans" is not the equivalent of zoning or land-use authority, and such authority cannot reasonably be understood to displace local zoning and land-use authority. Second, subsection 1263(3) does not even refer to zoning. Its specific grants of authority to the superintendent cannot reasonably be construed to include the distinct, and greater, authority over zoning and land-use matters. Third, the relevant provisions of the Township Zoning Act confer upon townships broad land-use authority and specifically recognize the role of such authority in providing for a system of education. Such breadth of authority is inconsistent with the notion that the Legislature would have compromised this authority through statutory silence and indirection.

I would therefore reverse the part of the judgment of the Court of Appeals finding such an exemption for the superintendent's decisions, and remand for entry of summary disposition on this issue in favor of the intervenors.^[12]

NOTES

[1] After reviewing defendant's site plans, the township provided over ninety zoning-related recommendations. Defendant school district addressed each concern and complied with all but a handful of recommendations.

[2] Although the township also appealed separately, it then settled with the school district and that appeal was dismissed.

[3] 467 Mich. 896 (2002).

[4] Intervening plaintiffs also assert that the Legislature, by not expressly exempting school districts from zoning regulations, as it had regarding certain gas and oil operations and electric transmission lines, should be held to have not intended to exempt school districts from zoning. M.C.L. § 125.271(1). However, as we noted in Pittsfield Charter Twp v. Washtenaw Co, 468 Mich. 702, 664 N.W.2d 193, this reads too much into these existing exceptions, which, by the nature and timing of their enactment, were the Legislature's attempt to coordinate other statutes with the Township Zoning Act, not to identify the only possible exceptions to a township's zoning authority.

[5] Moreover, with respect to Justice Markman's concern that unfortunate consequences may flow from the state superintendent having such power, we do not share his apprehensions. Regarding the prospect of a school district recommending, and the state superintendent approving, plans that are in conflict with a community's interests, it is, of course, possible, but seems unlikely when one recalls that the local school district, the generator of the site plan, is controlled by a locally elected board. We believe they, as other unnamed elected officials in whom Justice Markman seems to have more confidence, can be expected to be sensitive to the local community interests. If they are not, there are the usual political remedies. In any event, assuming this is insufficiently reassuring, we fail to see why, as a general matter, these elected officials would be inherently less sensitive to local concerns than would be an appointive (that is, unelected) zoning board or planning commission. Further, reinforcing our conclusion in this regard is the fact that the state superintendent serves at the pleasure of yet another elected body, the State Board of Education. Thus, we believe the statute, as we have construed it, will produce fewer discordant outcomes with local wishes than can be expected under Justice Markman's approach. If, however, this is not the case, it is within the Legislature's power to simply change the process to have ultimate authority rest with appointed zoning boards and planning authorities.

[1] Portions of the school construction code, M.C.L. § 388.851 et seq., have been revised by 2002 P.A. 628. Without amending the grant in M.C.L. § 380.1263(3) of "sole and exclusive jurisdiction over ... site plans" to the superintendent of public instruction, the act transfers the authority to enforce construction codes from one state entity, the superintendent, to the Department of Consumer and Industry Services. Because this case arose before 2002 P.A. 628 was enacted, we need not decide whether the revisions alter the scope of the superintendent's authority.

[2] Lutheran High School Ass'n v. Farmington Hills, 146 Mich.App. 641, 381 N.W.2d 417 (1985) (subjecting private school to local zoning ordinances); Cody Park Ass'n v. Royal Oak School Dist., 116 Mich.App. 103, 321 N.W.2d 855 (1982) (holding that the power of a school district to acquire property did not exempt it from local zoning ordinances).

[3] M.C.L. § 125.286e(1) provides:

As used in this section, "site plan" includes the documents and drawings required by the zoning ordinance to insure that a proposed land use or activity is in compliance with local ordinances and state and federal statutes.

See also M.C.L. § 125.326.

Unlike the lead opinion, I disagree that the American Heritage Dictionary should be used to define "site plan." As noted above, the phrase is a term of art in the fields of, inter alia, zoning, construction, and planning, i.e., a "site plan" refers to the specifications required for the task assigned. See M.C.L. § 8.3a ("technical words and phrases ... shall be construed and understood according to such peculiar and appropriate meaning"). See also Production Credit Ass'ns of Lansing v. Dep't of Treasury, 404 Mich. 301, 312, 273 N.W.2d 10 (1978) ("terms of art" should be interpreted "in accordance with the experience and understanding of those who would be expected to use and interpret the act").

[1] M.C.L. § 380.1263(3) provides:

The board of a school district shall not design or build a school building to be used for instructional or noninstructional school purposes or design and implement the design for a school site unless the design or construction is in compliance with [M.C.L. §§ 388.851 to 388.855a]. The superintendent of public instruction has sole and exclusive jurisdiction over the review and approval of plans and specifications for the construction, reconstruction, or remodeling of school buildings used for instructional or noninstructional school purposes and of site plans for those school buildings. [Emphasis added.]

[2] The Township Zoning Act provides:

As used in this section, "site plan" includes the documents and drawings required by the zoning ordinance to insure that a proposed land use or activity is in compliance with local ordinances and state and federal statutes. [M.C.L. § 125.286e(1).]

[3] MCR 2.205(A) states that "persons having such interests in the subject matter of an action that their presence in the action is essential to permit the court to render complete relief must be made parties...." The superintendent's presence is not essential to permit the Court to render complete relief on the issue concerning the constitutionality of the statute, where the conclusion is that the statute is constitutional and the superintendent would not be arguing against the constitutionality of the statute. Additionally, I note that none of the parties moved to join the superintendent at any stage of the proceedings, and the Attorney General declined to file a brief amicus curiae on the superintendent's behalf, despite this Court's invitation to do so. This Court's grant order stated:

Leave to file briefs amici curiae is granted. The Attorney General is invited to file a brief amicus curiae on behalf of the Superintendent of Public Instruction. [467 Mich. 896 (2002).]

Moreover, were the superintendent a party whose presence was essential under MCR 2.205, MCR 2.207 authorizes the Court to add parties at any stage of the proceeding, even on appeal. 2 Dean & Longhofer, Michigan Court Rules Practice, p. 97. See also Henkel v. Henkel, 282 Mich. 473, 488, 276 N.W. 522 (1937) ("And, ordinarily, if the proper parties plaintiff are not joined, this court will direct the joinder of the proper parties plaintiff on appeal." [Citations omitted.]).

[4] The rule concerning delegation states:

"The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government." [Seaman, supra at 308, 240 N.W.2d 206, quoting Locke's Appeal, 72 Pa. 491, 498-499 (1873).]

Seaman offers the following criteria for determining whether a statute provides sufficient standards: (1) the act in question must be read as a whole when determining whether the provision at issue provides sufficient standards, (2) "the standard should be `as reasonably precise as the subject matter requires or permits'" (quoting Osius v. St. Clair Shores, 344 Mich. 693, 698, 75 N.W.2d 25 [1956]) and (3) when possible, the statute must be construed in a manner that renders it valid rather than invalid. Id. at 309, 240 N.W.2d 206.

[1] M.C.L. § 28.282(2) provides:

In siting the buildings and equipment necessary to implement the Michigan public safety communications system, the director of the department of state police shall locate the system, a local unit of government with zoning authority shall be notified of a site selected in their jurisdiction and the requirements necessary for a site. If the selected site does not comply with zoning, the local unit shall have 30 days from the date of notification to grant a special use permit or propose an equivalent site. If the local unit does not grant a special use permit within the 30 day period, or a proposed alternate site does not meet the siting requirements, the department may proceed with construction.

[2] See also the township planning act, M.C.L. § 125.326(4):

After adoption of a plan under this section, a site plan for a property located in the plan area that is required to be submitted under section 16e of the township zoning act [M.C.L. § 125.286e] shall comply with the plan adopted under this act.

[3] To illustrate this point, consider the situation of an individual planning to build a new house. Although the individual might have "sole and exclusive" authority to review and approve a site plan for the house, as between the individual and the builder and neighbors, this does not mean that the site plan is exempt from applicable local zoning ordinances. Local zoning authorities are still empowered to examine the site plan in order to ensure that the proposed use complies with local zoning requirements.

[4] The lead opinion's assertion that I view the township's authority under M.C.L. § 380.1263(3), as "not only concurrent with, but also superior to" the superintendent's authority, ante at 219, misapprehends this dissent. Rather, the respective authorities of these entities are simply different. That the President, for example, may veto legislation enacted by the Congress does not make his veto authority either "concurrent" with or "superior" to the legislative authority of the Congress. It is simply a different authority whose exercise may have an effect on the authority of the Congress.

[5] Given its placement in Michigan statutory law, it is quite likely that the legislative intention underlying M.C.L. § 380.1263(3) was merely to recognize the superintendent as the final authority within the school system empowered to review and approve construction plans and site plans for school buildings.

[6] This is reflected in part by the lead opinion's apparent conclusion that the state superintendent may preempt some local zoning and land-use regulations, but not others. Absent any reference to zoning or land-use authority in the statute, it is hard to understand how the lead opinion draws a distinction between zoning that is preempted and zoning that is not preempted.

[7] The Legislature has hardly shown itself incapable of, or disinclined to, expressly use "zoning" when that was its intention. A simple word check of the Michigan statutory law indicates that the Legislature has used the term on at least several hundred occasions when it wished to reference such authority. Yet, in the view of the lead opinion, the Legislature, through M.C.L. § 380.1263(3), conferred authority over zoning upon an unelected state official, in derogation of the authority possessed by the people of communities throughout the state, in a realm (i.e., schooling) that likely would effect every one of these communities, without happening to mention "zoning."

[8] With regard to land-use regulation by townships, M.C.L. § 125.271(1) states:

The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts... which regulate the use of land and structures; to meet the needs of the state's citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land; to insure that use of the land shall be situated in appropriate locations and relationships; to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities; to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare.... The township board of an organized township may use this act to provide by ordinance for the regulation of land development.... Ordinances regulating land development may also be adopted designating or limiting the location, the height, number of stories, and size of dwellings, buildings, and structures that may be erected or altered ..., and the specific uses for which dwellings, buildings, and structures..., may be erected or altered; the area of yards, courts, and other open spaces, and the sanitary, safety, and protective measures that shall be required for the dwellings, buildings, and structures....

[9] Compare, also, the specificity and concreteness of M.C.L. § 46.11, considered in Pittsfield Charter Twp v. Washtenaw Co, 468 Mich. 702, 664 N.W.2d 193 (2003), which states that a county board of commissioners may "[d]etermine the site of, remove, or designate a new site for a county building," M.C.L. § 46.11(b), and "[e]rect the necessary buildings for jails, clerks' offices, and other county buildings, and prescribe the time and manner of erecting them," M.C.L. § 46.11(d) (emphasis supplied).

[10] Some sense of the breadth of the answer to this question might be gleaned by reading the United States Supreme Court's decision in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), and its considerable line of progeny, concerning what is meant by matters that "affect" interstate commerce.

[11] The lead opinion is tentative even in addressing whether a community may determine the initial location of a school, for example, by restricting it from being placed in a recreationally, residentially, or commercially zoned area. The lead opinion, while indicating that school districts are exempt from zoning ordinances that "affect the content of a school site plan," ante at 219, does not clearly address the question of who has the power to determine the location of the school site in the first instance, and whether a community has any involvement in this decision. Although the lead opinion appears at one point to limit the superintendent's exemption to "the site plan itself," ante at 218, it proceeds to suggest that the superintendent possesses exclusive authority "over design, construction, and siting requirements," ante at 218 (emphasis added). Moreover, it is difficult to understand what could more directly "affect" a school site plan than where a school is sited in the first place.

[12] I concur in part IV of the lead opinion, in which the justices decline to address intervenors' argument regarding the improper delegation of authority.