Samantha Bevins v. Detroit Bldg Safety Engineering Environ Dept ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SAMANTHA J. BEVINS, UNPUBLISHED
September 10, 2020
Plaintiff-Appellant,
v No. 348437
Wayne Circuit Court
DETROIT BUILDING SAFETY ENGINEERING LC No. 19-002810-AW
AND ENVIRONMENTAL DEPARTMENT—
SPECIAL LAND USE DIVISION and DETROIT
ZONING MANAGER,
Defendants-Appellees.
Before: LETICA, P.J., and FORT HOOD and GLEICHER, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order denying plaintiff’s request for a writ of
mandamus. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case arise out of plaintiff’s application to open a medical marihuana
caregiver center (MMCC) in Detroit, Michigan. In conformity with the city of Detroit’s
ordinances in effect at the time, plaintiff submitted the appropriate zoning application and fee in
October 2017. Less than a month after plaintiff submitted her application, the city of Detroit placed
a moratorium on the review or approval of zoning applications connected with the opening of
MMCCs. Plaintiff was informed by defendant, the city of Detroit’s Building, Safety Engineering,
and Environmental Department (the Department), that her application would be held in abeyance
during the moratorium, and that the Department would contact all applicants with further
directions once the moratorium ended.
The city of Detroit ended the moratorium on October 14, 2018—the effective date of
several new zoning ordinances affecting marihuana facilities. Under the new framework, the
Department could no longer accept new zoning applications for MMCCs. However, any
applications for MMCCs received on or before the effective date of the new ordinances could be
considered as applications for the opening of a medical marihuana provisioning center facility
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(MMPCF), so long as the applicant submitted an amended application. After the enactment of
these ordinances, Jayda Sanford-Philson, a zoning manager with the Department, sent an e-mail
to plaintiff stating the Department had not received the documentation required for plaintiff’s
application to be submitted to the appropriate review committee. A month later, plaintiff received
several text messages from Sherita Elliott, a building inspector and plan reviewer with the
Department, stating the plaintiff still had not supplied the required documentation. On January 17,
2019, the Department sent plaintiff a letter stating it had dismissed plaintiff’s application because
plaintiff had failed to provide the mandatory documentation.
Plaintiff filed suit in the trial court and immediately sought a writ of mandamus requiring
the Department to review and approve her application. Defendants responded, asserting that
plaintiff did not have a clear legal right to have her application submitted to the review committee
and that defendants had a clear legal duty under the 2018 ordinances to dismiss plaintiff’s
application because it did not contain the required documentation. After hearing oral arguments
from the parties, the trial court agreed with defendants and entered a written order denying
plaintiff’s request for mandamus relief. Plaintiff submitted a motion for reconsideration, in which
she argued for the first time that her application was governed by the ordinances in effect at the
time of her original application—ordinances with which the Department failed to comply—and
that the 2018 ordinances did not retroactively apply to her application. The trial court found that
plaintiff had not demonstrated a palpable error requiring reversal, and entered an order denying
plaintiff’s motion. This appeal followed.
II. ISSUE PRESERVATION AND STANDARDS OF REVIEW
Generally, an appellate court reviews “for an abuse of discretion a court’s decision to issue
or deny a writ of mandamus.” Stand Up for Democracy v Secretary of State, 492 Mich. 588, 598;
822 NW2d 159 (2012) (footnote omitted). Similarly, a trial court’s decision concerning a
preliminary injunction is reviewed for an abuse of discretion. Dep’t of Environmental Quality v
Gomez, 318 Mich. App. 1, 33; 896 NW2d 39 (2016). A trial court abuses its discretion when its
decision falls “outside the range of reasonable and principled outcomes . . . .” Hecht v Nat’l
Heritage Academies, Inc, 499 Mich. 586, 604; 886 NW2d 135 (2016). “[T]his Court reviews de
novo as questions of law whether a defendant has a clear legal duty to perform and whether a
plaintiff has a clear legal right to performance.” Barrow v City of Detroit Election Comm, 301
Mich. App. 404, 411; 836 NW2d 498 (2013). “The trial court’s findings of fact underlying the writ
of mandamus will not be set aside unless clearly erroneous.” Delly v Bureau of State Lottery, 183
Mich. App. 258, 261; 454 NW2d 141 (1990) (citation omitted). “[F]actual findings are clearly
erroneous where there is no evidentiary support for them or where there is supporting evidence but
the reviewing court is nevertheless left with a definite and firm conviction that the trial court made
a mistake.” Hill v City of Warren, 276 Mich. App. 299, 308; 740 NW2d 706 (2007) (citation
omitted). This case also implicates the interpretation of city ordinances. This Court “interpret[s]
ordinances in the same manner that we interpret statutes. If the language is clear and unambiguous,
the courts may only apply the language as written.” Brandon Charter Twp v Tippett, 241 Mich
App 417, 422; 616 NW2d 243 (2000).
Plaintiff asserts that the trial court erred in determining that plaintiff did not have a clear
legal right, and defendants did not have a clear legal duty, concerning the submission of plaintiff’s
application for assessment by the review committee. In support of the assertion, plaintiff makes
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the same argument as she did in her motion for reconsideration—that the trial court relied on an
inapplicable ordinance when determining the scope of the applicable rights or duties in this case.
When “an issue is first presented in a motion for reconsideration, it is not properly preserved.”
Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich. App. 513, 519; 773 NW2d 758 (2009)
(citation omitted). However, because the scope of legal rights and duties is a question of law and
the relevant facts are available in the record, we elect to review plaintiff’s claim. See id. (“This
Court may review an unpreserved issue if it is an issue of law for which all the relevant facts are
available.”)
This Court reviews unpreserved issues for plain error. Hogg v Four Lakes Assoc, Inc, 307
Mich. App. 402, 406; 861 NW2d 341 (2014). “To avoid forfeiture under the plain error rule, three
requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e. clear or
obvious, 3) and the plain error affected substantial rights.” Kern v Blethen-Coluni, 240 Mich. App.
333, 335-336; 612 NW2d 838 (2000) (quotation marks and citation omitted). “An error affects
substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings.” Lawrence
v Mich Unemployment Ins Agency, 320 Mich. App. 422, 443; 906 NW2d 482 (2017) (quotation
marks and citation omitted).
III. ANALYSIS
To demonstrate entitlement to a writ of mandamus “[t]he plaintiff must show that (1) the
plaintiff has a clear legal right to the performance of the duty sought to be compelled, (2) the
defendant has a clear legal duty to perform such act, (3) the act is ministerial in nature such that it
involves no discretion or judgment, and (4) the plaintiff has no other adequate legal or equitable
remedy.” Barrow, 301 Mich. App. at 412 (citation omitted). As the party requesting relief, plaintiff
bore the burden of demonstrating entitlement to the requested relief. Id. at 411-412.
At the time of plaintiff’s original application, the city of Detroit’s ordinances required an
applicant to submit
such documentation as requested by the Buildings, Safety Engineering and
Environmental Department in order for the department to determine consistency or
non-consistency with the locational specifications of subsection (b) of this section.
Determination of whether the permit application is complete shall be made in
accordance with Sec. 61-3-5 of this Code. [Detroit Ordinances, § 61-3-354(c)
(March 1, 2016).]
Detroit Ordinances, § 61-3-5(a), as it was codified at the time, stated:
An application will be considered complete where it is submitted in the required
form, contains all mandatory information, including all exhibits that are specified
by the official responsible for accepting the application, and is accompanied by the
applicable fee. A determination of application completeness shall be made by the
official who is responsible for accepting the application within ten (10) days of the
date that the application is filed. Where an application is determined to be
incomplete, the official responsible for accepting the application shall provide
written notice to the applicant along with an explanation of the application’s
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deficiencies. No further processing of the application shall occur until the
deficiencies are corrected. Where the deficiencies are not corrected by the applicant
within thirty (30) days, the application shall be considered withdrawn and returned
to the applicant. [Detroit Ordinances, § 61-3-5(a) (August 11, 2016).]
Under the terms of these ordinances, if an application was incomplete, defendants had an
affirmative responsibility to provide plaintiff with written notice explaining the manner in which
the application was incomplete, and to provide plaintiff with an opportunity to remedy the
application.
It is undisputed that plaintiff’s application was held in abeyance before it could be
considered as a result of the city of Detroit’s moratorium on MMCC applications. The moratorium
was lifted because of several new zoning ordinances concerning marihuana facilities coming into
effect. Under the new ordinances, the city of Detroit would no longer accept applications for
MMCCs. Detroit Ordinances, § 61-3-354 (October 14, 2018). However, any application for an
MMCC received by the Department “on or before” the effective date of the new ordinances, could
be converted to an application for the opening of a medical marihuana provisioning center facility
(MMPCF) through the submission of an amended application. Detroit Ordinances, § 61-3-354(a)
(October 14, 2018). Plaintiff was informed of this fact. If an applicant failed to submit the
amended application, the ordinance required the Department to dismiss the application. Any
MMCCs that had already been legally established at the time of the ordinances’ effective date
could continue operation as a nonconforming use. Detroit Ordinances, § 61-3-354(b) (October 14,
2018).
Under the plain language of the ordinances, we determine that the 2018 ordinances
superseded those in effect at the time plaintiff made her original application. The record
demonstrates that plaintiff’s application was received before the effective date of the 2018
ordinances and had been held in abeyance. As a result, it was subject to the provisions of Detroit
Ordinances, § 61-3-354(a), which provided that any pending application concerning the opening
of an MMCC could be converted into and considered as an application for an MMPCF, if the
applicant submitted an amended application. If the applicant failed to submit the amended
application, under the terms of the ordinance, the Department was required to dismiss the MMCC
application.
The ordinance clearly set out a procedure to address MMCC-related applications that were
pending when the new ordinance took effect. As a result, and contrary to plaintiff’s assertions, we
do not believe that the trial court clearly erred in determining the 2018 ordinances applied to
plaintiff’s application. Moreover, because the ordinances governed the legal rights and duties
applicable to this case, we assess plaintiff’s request for mandamus against the 2018 ordinances.
“In relation to a request for mandamus, a clear, legal right is one clearly founded in, or
granted by, law . . . .” Rental Props Owners Ass’n of Kent Co v Kent Co Treasurer, 308 Mich. App.
498, 518-519; 866 NW2d 817 (2014). Under the terms of Detroit Ordinances, § 61-3-354(a),
plaintiff had the right to convert her MMCC application into an application to open a MMPCF, if
she submitted an amended application within 45 days of the ordinance’s effective date. If she
complied with the ordinance’s terms then she would have a right for her application to be
considered by the review committee. The trial court correctly determined, on the basis of the
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evidence placed on the record, that plaintiff did not comply with the terms of the ordinance and
failed to provide a completed application.
Further, the trial court found that because plaintiff failed to file a complete application, she
did not have a clear legal right to have that application assessed by the review committee. While
the paucity of the trial court’s record makes assessment of this determination challenging, there is
nothing in the record to demonstrate the trial court clearly erred in making this finding. Plaintiff
bears the burden of demonstrating she is entitled to mandamus relief. However, the evidence
presented in the trial court demonstrates that plaintiff was informed that her application was
incomplete and needed to be remedied. Plaintiff relies on her allegations that she submitted all
required documentation in her original application, but provides no proof of this assertion. Nor
does she assert that she filed a completed amended application that gave rise to a her claimed right
of review. Considering these factors, we determine the trial court’s finding that plaintiff did not
submit an amended application was not clearly erroneous. As a result, the trial court did not err in
determining that, because plaintiff failed to submit a complete application under the 2018
ordinances, she did not have a clear legal right to assessment of her application by the review
board.
Similarly, defendants did not have a clear legal duty to submit plaintiff’s incomplete
application to the review board. Under Detroit Ordinances, § 61-3-354(a), defendants were
required to dismiss any pending application to open an MMCC, if the applicant did not file an
amended application within 45 days of the ordinance’s effective date. And, the trial court
determined defendants were obligated under the ordinance to dismiss plaintiff’s application
because plaintiff failed to provide an amended application within the 45 days provided for within
the ordinance. Just as with plaintiff’s legal right, there is nothing on the record to suggest the trial
court’s finding that plaintiff failed to provide an amended application was clearly erroneous.
Moreover, the ordinance did not leave dismissal of plaintiff’s application to defendants’ discretion.
Rather, the duty to dismiss plaintiff’s application was “prescribed and defined by law with such
precision and certainty as to leave nothing to the exercise of discretion or judgment,” Carter v Ann
Arbor City Attorney 271 Mich. App. 425, 439; 722 NW2d 243 (2006) (quotation marks and citation
omitted), making defendants’ duty a ministerial function. Under the terms of the ordinance,
defendants were obligated to dismiss plaintiff’s appeal unless plaintiff filed an amended
application, and nothing on the record suggests plaintiff filed an amended application, triggering
defendants’ duty to dismiss plaintiff’s application rather than a duty to allow the application to go
forward. Thus, while defendants had a clear legal duty, under the facts of this case and the
applicable ordinances, the duty was to dismiss plaintiff’s incomplete application.
Plaintiff makes several arguments regarding other duties and rights owed her under the
earlier ordinances. However, as discussed above, those ordinances were clearly supplanted by the
procedure established by the 2018 ordinances. As a result, the rights of plaintiff or the duties of
defendants under those ordinances do not create a right or a duty “clearly founded in, or granted
by, law,” Rental Props Owners Ass’n of Kent Co, 308 Mich. App. at 518-519, and have no bearing
on our analysis. The trial court did not make an error concerning the applicable law defining the
scope of the legal rights and duties at issue in this case; nor were its factual findings that plaintiff
failed to meet the factual predicates required to trigger those legal rights and duties clearly
erroneous. As a result, the trial court did not abuse its discretion by determining plaintiff failed in
her duty to establish a entitlement to mandamus relief.
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The trial court also determined that plaintiff was not entitled to relief in the form of a
preliminary injunction when it denied plaintiff’s request for a writ of mandamus. Injunctive relief
is an equitable remedy rather than an independent cause of action. Terlecki v Stewart, 278 Mich
App 644, 663; 754 NW2d 899 (2008). As a result, for plaintiff to support her request for a
preliminary injunction she needed to also demonstrate wrongful conduct by defendants that would
be remedied by a grant of equitable relief. However, considering our conclusion that plaintiff had
no clear legal right to assessment of her application by the review committee and defendant had
no clear legal obligation to submit plaintiff’s application for assessment, plaintiff could not
demonstrate wrongful action occurred that merited injunctive relief. Put another way, because
plaintiff’s legal claims fail, she lacked a basis for asserting her entitlement to a preliminary
injunction. As a result, the trial court did not abuse its discretion in denying plaintiff’s request for
a preliminary injunction.
Affirmed.
/s/ Anica Letica
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher
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