Cornerstone Investments, Inc v. Cannon Township , 231 Mich. App. 1 ( 1998 )

585 N.W.2d 41 (1998) 231 Mich. App. 1

CORNERSTONE INVESTMENTS, INC., Plaintiff-Appellant,
v.
CANNON TOWNSHIP, Cannon Township Planning Commission, and Andy Sparks, Defendants-Appellees.

Docket No. 197297.

Court of Appeals of Michigan.

Submitted October 8, 1997, at Grand Rapids. Decided July 31, 1998, at 9:00 a.m. Released for Publication October 23, 1998.

Rhoades, McKee, Boer, Goodrich & Titta by Arthur C. Spalding, Grand Rapids, for plaintiff.

Mika, Meyers, Beckett & Jones, P.L.C. by John T. Sperla and Daniel C. Brubaker, Grand Rapids, for defendants.

Bauckham, Sparks, Rolfe & Thomsen, P.C. by John H. Bauckham and Roxanne C. Seeber, Kalamazoo, amici curiae, for Mich. Tps. Assn.

Law Firm of Thomas C. Shearer, P.C. by Thomas C. Shearer, Grand Rapids, amici curiae for Grand Rapids Home Builders Assn.

McClelland & Anderson, L.L.P. by Gregory L. McClelland and Deborah A. Lee, Lansing, for Michigan Assn. of Home Builders.

Before: WHITE, P.J., and MARK J. CAVANAGH and REILLY, JJ.

REILLY, Judge.

Plaintiff appeals as of right from an order denying its motion for summary disposition and granting defendants' motion for summary disposition. We reverse and remand.

This case arises out of plaintiff's application to have a parcel of its property in defendant Cannon Township rezoned as a planned unit development (PUD) district to allow for the development of seventeen single-family condominium units to be named, collectively, Egypt Valley Woods. The facts are essentially undisputed. In December 1991, defendant Cannon Township Planning Commission adopted, and the township board approved, an "Escrow Application Policy" designed to shift the cost of processing applications for commission action from the township to the applicants. The policy provided that a basic application fee would cover the costs associated with regular commission meetings and providing legal notice for a public hearing. All other expenses incurred in processing an application were to be paid directly from an escrow account. These expenses could include, but were not limited to, costs associated with subcommittee meetings, additional public hearings, and review by the township attorney, planner, and engineer. Under the policy, the initial escrow deposit was $1,000. Additional escrow funds could be requested by the commission at its discretion. The policy further provided that, after all the expenses were covered, any excess funds in the escrow account would be returned to the applicant without interest. Finally, no building permit or final township board approval would be granted until all escrow funds necessary to cover expenses were paid in full. On July 27,1993, the township board adopted a "PUD Rezoning Application and Review Process" incorporating the 1991 Escrow Application Policy.

On October 20, 1993, plaintiff submitted an application to the commission for a zoning ordinance amendment with respect to the Egypt Valley Woods property, which plaintiff sought to have rezoned from "agricultural and suburban residential" to a PUD district. Plaintiff paid a $350 application fee and made a $1,000 escrow deposit. Plaintiff made the escrow deposit under protest, contesting the legality of defendants' Escrow Application Policy. Pursuant to the township's ordinance concerning PUD districts, the establishment of a PUD district was subject to several considerations regarding the effect the proposed PUD district would have on adjacent land uses and public safety. An applicant was required to submit a PUD plan containing, among other things, a map showing all proposed land uses and drawings of proposed buildings. Initially, the commission determined that plaintiff's PUD plan was insufficient. However, after various amendments were made to the development plan, and additional deposits were made to the escrow account, the commission eventually approved plaintiff's application. On June 13, 1994, the township adopted PUD ordinance 94-8Z, which rezoned the Egypt Valley Woods property from agricultural and suburban residential to a PUD district. Subsequently, plaintiff was notified that it owed the township additional funds for the application. When plaintiff refused to pay, the township informed plaintiff that no building permit would be issued for Egypt Valley Woods until the unpaid deposit was remitted.^[1]

Plaintiff then filed a complaint requesting (1) a declaratory judgment that the escrow policy is illegal and unenforceable, (2) an injunction enjoining defendants from enforcing the escrow policy and from withholding plaintiff's building permit pursuant to the policy, and (3) restitution of the escrow deposit and payments, interest, and attorney fees. After the completion of discovery, plaintiff and defendants each filed motions for summary disposition pursuant to MCR 2.116(C)(10). The trial court, in granting defendants' motion and denying plaintiff's motion, ruled (1) that the township was authorized to adopt the PUD Rezoning Application and Review Process and the Escrow Application Policy, and (2) that the escrow policy used by defendants was fair and reasonable.

On appeal, plaintiff makes several arguments challenging the trial court's decision to grant defendants' motion for summary disposition. We review de novo a trial court's decision to grant a motion for summary disposition. Pinckney Community Schools v. Continental Casualty Co., 213 Mich.App. 521, 525, 540 N.W.2d 748 (1995). Summary disposition may be granted under MCR 2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Foster v. Cone-Blanchard Machine Co., 221 Mich.App. 43, 48, 560 N.W.2d 664 (1997).

First, plaintiff argues that the township's escrow policy is invalid because it is not authorized by any statutory or constitutional grant of power. We agree. Townships have no inherent powers, but have only those limited powers conferred on them by the Legislature or by the state constitution. Hanselman v. Wayne Co. Concealed Weapon Licensing Bd., 419 Mich. 168, 187, 351 N.W.2d 544 (1984); Detroit Edison Co. v. Richmond Twp., 150 Mich.App. 40, 47-48, 388 N.W.2d 296 (1986). In addition to the powers expressly granted them, townships possess those powers necessarily or fairly implied in or incident to their express powers. See Const. 1963, art. 7, § 34; Independence Twp v. Roy, 12 Mich.App. 107, 109, 162 N.W.2d 339 (1968). Pursuant to Const. 1963, art. 7, § 34, the powers conferred upon townships are to be liberally construed in their favor. Natural Aggregates Corp. v. Brighton Twp., 213 Mich.App. 287, 294-295, 539 N.W.2d 761 (1995). The Township Rural Zoning Act (TRZA), M.C.L. § 125.271 et seq.; M.S.A. § 5.2963(1) et seq., is the basic enabling act granting townships the power to pass zoning ordinances. Detroit Edison, supra at 48, 388 N.W.2d 296. The TRZA gives township boards very broad and general authority to zone "to promote public health, safety, and welfare." M.C.L. § 125.271(1); M.S.A. § 5.2963(1)(1); Delta Charter Twp. v. Dinolfo, 419 Mich. 253, 263, 351 N.W.2d 831 (1984); Detroit Edison, supra at 49, 388 N.W.2d 296.

PUD districts are authorized under § 16c of the TRZA, which provides that PUD regulations established by a township must specify "[t]he conditions which create planned unit development eligibility, the participants in the review process, and the requirements and standards upon which applicants will be judged and approval granted." M.C.L. § 125.286c(4)(b); M.S.A. § 5.2963(16c)(4)(b). While this language certainly implies that townships are authorized to establish "conditions" for PUD "eligibility" and "requirements" for PUD "approval," it does not specifically address funding for township actions or provide any express authority for defendants' escrow policy. The permissible methods of funding township actions taken pursuant to the TRZA are addressed in § 25 of the act:

For the purpose of providing funds to carry out this act, the township board of an organized township may require the payment of reasonable fees for zoning permits as a condition to the granting of authority to erect, alter, or locate dwellings, buildings, and structures, including tents and trailer coaches, within a zoning district established under this act, both for the purpose of obtaining advance information as to building operations, locations, and proposed uses, and for the purpose of defraying the cost, in whole or in part, of the enforcement of this act in the township, and if the board has incurred or expects to incur any expense of public funds in carrying out this act, shall, for that purpose, in addition to the revenues of the fees, levy a sufficient tax, in addition to other taxes now authorized by law, upon the real and personal property subject to taxation in the township, and the taxes shall be collected as other taxes are collected. When the taxes or fees are collected, they shall be applied to the payment of any indebtedness incurred by the township subject to this act, and to no other purpose. However, the taxes assessed, levied, and collected shall not cause the limit of taxes established by law to be exceeded. [M.C.L. § 125.295; M.S.A. § 5.2963(25) (emphasis added).]

Section 25 expressly authorizes townships to charge "reasonable fees for zoning permits" as a condition of granting authority to a landowner to locate buildings within a particular zoning district, and the charging of such fees serves the purposes of (1) obtaining advance information about the proposed land uses and (2) defraying the costs of the enforcement of the TRZA, which includes the PUD review process addressed in § 16c.

Plaintiff contends that the term "zoning permits," as used in § 25 of the TRZA, refers to the building permits, which a township may require before granting a landowner permission to build a particular structure. Accordingly, plaintiff argues that § 25 does not authorize the township's escrow policy, because the township charges an additional fee for building permits. Zoning regulations and building regulations are distinct areas of law. See 7A McQuillin, Municipal Corporations (3d ed.), § 24.504, p. 91. The primary purpose of building permits is to obtain compliance with the rules governing the construction, use, and occupation of particular buildings. See M.C.L. § 125.1504; M.S.A. § 5.2949(4), M.C.L. § 125.1510(6); M.S.A. § 5.2949(10)(6); see also 9A McQuillin, Municipal Corporations (3d ed.), § 26.200, pp. 171-172. In contrast, zoning ordinances are a mechanism for regulating land use by geographic area. See Gackler Land Co., Inc. v. Yankee Springs Twp., 427 Mich. 562, 574, n. 2, 398 N.W.2d 393 (1986); Frericks v. Highland Twp., 228 Mich.App. 575, 582, 579 N.W.2d 441 (1998); Natural Aggregates, supra at 298, 539 N.W.2d 761; see also M.C.L. § 125.271; M.S.A. § 5.2963(1). Because § 25 specifically authorizes "zoning permits" (as opposed to "building permits")^[2] and speaks of a township granting authority to "locate" buildings, plaintiff's argument that the permits referred to in § 25 are really "building permits" is not well taken.

Nowhere in the TRZA is the term "zoning permit" statutorily defined. Unless defined in the statute, every word or phrase of a statute should be understood according to the common and approved usage of the language, taking into account the context in which the words are used. M.C.L. § 8.3a; M.S.A. § 2.212(1); Yaldo v. North Pointe Ins. Co., 217 Mich.App. 617, 621, 552 N.W.2d 657 (1996). When the words are not defined in the statute, a court may consult dictionary definitions. Id. Webster's New Collegiate Dictionary (1977) defines "permit," in part, as "a written warrant or license granted by one having authority." Here, the goal of defendants' PUD Rezoning Application and Review Process is to obtain advance information about proposed land uses before deciding whether to grant approval for such uses, including the location of buildings. When the township board decides to approve a PUD application, it does so by amending the zoning ordinance. Because an amendment of the zoning ordinance made at the request of an applicant seeking PUD rezoning constitutes written permission to engage in a particular land use, the township is essentially granting a "zoning permit" when it so amends its zoning ordinance.

Although we are not persuaded by plaintiff's "zoning permit" argument, we nevertheless conclude that the township's method of funding its PUD Rezoning Application and Review Process oversteps its legislative grant of power. Section 25 of the TRZA specifically lists two methods a township may employ to raise revenue to fund actions taken pursuant to the TRZA. The first is by charging "reasonable fees for zoning permits" and the second is by levying a property tax. See M.C.L. § 125.295; M.S.A. § 5.2963(25). On the facts of this case, we need only address the first option. Our concern is whether the word "fees" encompasses the sort of openended escrow deposits the township requires under its Escrow Application Policy. Because the term "fee" is not defined in the TRZA, we again turn to dictionary definitions for help in understanding the common and approved usage. Yaldo, supra at 621, 552 N.W.2d 657. Webster's New Collegiate Dictionary (1977) defines "fee" as "a fixed charge." Similarly, Black's Law Dictionary (6th ed.), citing Fort Smith Gas Co. v. Wiseman, 189 Ark. 675, 74 S.W.2d 789 (1934), defines "fee," in part, as "[a] charge fixed by law for services of public officers or for use of a privilege under control of government." Finally, the Michigan Supreme Court has explained, albeit in a different context, that a fee, understood in its usual and ordinary sense, "is usually a fixed charge, a prerequisite charged as a recompense for labor and trouble." People v. Goulding, 275 Mich. 353, 357, 266 N.W. 378 (1936). On the basis of the foregoing definitions, we construe the word "fees" as used in § 25 of the TRZA to mean a fixed or established charge.

Here, the township's Escrow Application Policy is structured to allow the commission and its agents unfettered discretion in determining the costs accumulated in association with each individual application for PUD rezoning. Under the township's policy, the cost of an application for PUD rezoning to any particular applicant is, essentially, whatever amount the commission deems to have been "necessary" after the application has already been processed. Accordingly, rather than charging an established amount, the township has created a system under which the ultimate price for the issuance of a zoning permit is inherently unpredictable. We conclude that this method of funding differs from that contemplated by the Legislature when it chose to expressly authorize the collection of "reasonable fees" in § 25 of the TRZA. Therefore, we hold that the township's Escrow Application Policy is not authorized by a statutory or constitutional grant of power.

Because we have concluded that the township's Escrow Application Policy is not authorized by the TRZA, we need not address plaintiff's argument that the township's escrow policy constitutes an illegal delegation of authority to administrative officials, or its argument that the escrow policy was never adopted as part of the township's zoning ordinance.

We reverse and remand for entry of an order granting plaintiff's motion for summary disposition. The trial court shall consider the further relief requested by plaintiff. We do not retain jurisdiction.

MARK J. CAVANAGH, J., concurs.

WHITE, Presiding Judge (concurring in part and dissenting in part).

I agree that the township has statutory authority to require the payment of fees to defray the costs of processing applications for rezoning such as that involved in the instant case. I respectfully dissent from the majority's conclusion that because the fees charged here were not fixed at a sum certain, they were not "fees" as contemplated by the statute. I would affirm the order of the circuit court.

While some dictionaries use the term "fixed charge" in defining the word "fee," that term is generally but one of several definitions of the word. Another definition is quoted by the majority from Black's Law Dictionary (6th ed.), "[a] charge fixed by law for services of public officers or for use of a privilege under control of government." The second definition in Black's is "[a] recompense for an official or professional service or a charge or emolument or compensation for a particular act or service."^[1] Ballantine's Law Dictionary does not include the term "fixed charge." Webster's Third New International Dictionary includes as definitions "a fixed charge for admission (as to a museum)" and "a charge fixed by law or by an institution (as a university) for certain privileges or services." People v. Goulding, 275 Mich. 353, 357, 266 N.W. 378 (1936), relied on by the majority, simply stated that a fee "is usually a fixed charge, a prerequisite charged as a recompense for labor and trouble." (Emphasis added).

I conclude that a charge does not have to be fixed at a sum certain to be a "fee." A charge assessed for certain privileges or services relating to a zoning permit application that is fixed by reference to established policy and procedure can be a fee and is not precluded from being a fee simply because the amount depends on the circumstances of each application.

The only express legislative limitations on the fee authorized by the Township Rural Zoning Act, M.C.L. § 125.271 et seq.; M.S.A. § 5.2963(1) et seq.; is that it be for the purposes of obtaining advance information or defraying the cost of enforcing the act in the township and that it be reasonable. Here the circuit court found that the fee was reasonable. See Flama Constr. Corp. v. Franklin Twp., 201 N.J.Super. 498, 493 A.2d 587 (1985). There is no reason to suppose that the Legislature mandated a system where developers seeking approval of small planned unit developments would be required to pay a fee that is unreasonable in relation to their particular application, but reasonable in light of the average costs of processing and investigating all applications, including those related to the largest planned unit developments involving the greatest amount of review and investigation. For the reasons stated by the circuit court,^[2] I would affirm.

NOTES

[1] Defendant Andy Sparks is the township's building inspector. As such, he is responsible for issuing building permits in the township.

[2] Before March 1, 1979, § 25 of the TRZA used the term "building permits." It was changed to "zoning permits" with the passage of 1978 P.A. 637.

[1] The third definition in Black's includes the term "fixed charge": "A fixed charge or perquisite charged as recompense for labor; reward, compensation, or wage given to a person for performance of services or something done or to be done."

[2] The circuit court concluded:

First, the escrow fee policy is fair and reasonable because it is based on actual costs; that is, the actual consulting fee incurred by the township in connection with the particular project. No additional municipal revenue is generated. Any remaining monies in the account are returned to the developer at the conclusion of the process.

Second, the escrow fee policy is fair and reasonable because they are proportionate to the costs of the regulation itself.

[Merrelli v. St. Clair Shores, 355 Mich. 575, 583, 584, 96 N.W.2d 144 (1959).]

Third, the escrow fee policy is fair and reasonable because it is the developer who benefits from the consulting work rendering a property capable of development, and resulting profit to the developer with no perceived necessary value to the existing residence[sic].

Four, [sic], the escrow fee policy is fair and reasonable because it allows the developer a measure of control over the costs, provided that the site plan and other preliminary work is properly done, so that the need for review by outside consultants is minimized.

Fifth, the escrow fee policy is fair and reasonable because to mandate a fixed fee in advance would require a township to create out of vaccum [sic] an arbitrary amount with the disadvantage to its residents of imposing an unforeseen shortfall requiring increased taxes each year or, conversely, creating a windfall of revenue contrary to the intent of the statute itself.

Moreover, the effect of a fixed fee on a developer is equally apparent. It can create a windfall to the developer of a complex project at the expense of one whose project is relatively simple and straightforward.

* * * * * *

Certainly, as has been argued and as the court has quoted and as is apparent, to the extent that developer claims that a particular escrow policy fee is unreasonable this Court is of the opinion, as is noted in Flama Constr. Corp. v. Franklin Twp., 201 N.J.Super. 498, 503, 493 A.2d 587 (1985)].

"All fees ultimately paid are subject to the requirement that they be reasonable, and that determination is subject to review by the courts."