An update: The Maxons have filed an appeal in the Michigan Supreme Court seeking to overturn this decision. The Institute for Justice is backing the Maxons. The IJ attorney states that “Americans have a right to be secure in their homes and backyards without being watched by a government drone.” The Michigan Court of Appeals decided that even if the drone flights violated the Maxons’ Fourth Amendment rights, the government should still be allowed to use the evidence obtained from the unconstitutional search in court because the Fourth Amendment’s protection applies to criminal prosecutions and does not apply to civil code enforcement proceedings.
by Gary Taylor
Michigan Court of Appeals, September 15, 2022 (published opinion)
In 2007 Long Lake Township brought a zoning action against Todd Maxon arising from his storage of junked cars on his property. The case was settled in 2008 when Maxon agreed to maintain the status quo – no more junked cars on his property than existed at the time of the settlement.
In subsequent years the neighbors complained that the Maxons had expanded their junk yard, but this could not be confirmed from ground level because buildings and trees obstructed views of the property. The township hired Zero Gravity Ariel to take areal photos of the property with a drone in 2010, 2016, 2017, and 2018. The photos allegedly show that the number of junked cars had increased considerably since the settlement agreement, so the township filed an abatement action against the Maxons. Invoking the Fourth Amendment, the Maxons filed a motion to suppress the drone photos. The trial court denied the motion holding that the drone surveillance was not a “search” within the meaning of the Fourth Amendment. After more trips up and down the appellate ladder than are necessary to review here, the Michigan Supreme Court remanded the case to the Michigan Court of Appeals to consider the legal question of “whether the exclusionary rule applies to this dispute” considering no past precedent has extended the application of the exclusionary rule beyond criminal proceedings.
The Court of Appeals began by noting that the U.S. Supreme Court has repeatedly rejected the application of the exclusionary rule in civil cases, explaining that the purpose of the exclusionary rule is twofold: to deter police misconduct, and to provide a remedy where no other remedy is available. The Michigan Court of Appeals concluded after a thorough review of U.S. Supreme Court caselaw that the only application of the exclusionary rule to civil cases under the Fourth Amendment to the U.S. Constitution is in civil forfeiture actions “when the thing being forfeited as a result of criminal prosecution is worth more than the criminal fine that might be assessed.”
Turning to Michigan law the Court of Appeals notes that Article 1, Section 11 of the Michigan Constitution specifically constrains the application of the exclusionary rule, and Michigan courts have held that this provision provides “less search and seizure protections than required under the Fourth Amendment.” After a review of Michigan cases the Court of Appeals observed
Assuming that the drone search was illegal, it was performed by a private party. True, thatLong Lake Township v. Maxon, slip opinion p. 7.
person acted at the behest of a township official. But the exclusionary rule is intended to deter
police misconduct, not that of lower-level bureaucrats who have little or no training in the Fourth
Amendment. There is no likelihood that exclusion of the drone evidence in this zoning infraction
matter will discourage the police from engaging in future misconduct, since the police were never
involved in the first place. Rather, exclusion of the drone evidence likely will deter a township-8-
employee who works in the zoning arena from ever again resorting to a drone to gather evidence
of a zoning violation. This is not the purpose of the exclusionary rule.
The Court of Appeals concluded that “the exclusionary rule was not intended to operate in this arena” because the objective of the township was not to penalize the Maxons, but rather to abate a nuisance through the operation of equitable remedies.
by Gary Taylor
Michigan Court of Appeals, September 8, 2022
Padecky is an honorably discharged military veteran. He holds a license to sell goods pursuant to Michigan law, MCL 35.441, which provides that “[a] veteran may sell his or her own goods within this state if the proceeds from the sale of the goods are to be used for his or her direct personal benefit or gain.” He obtained permission from a grocery store located in a C-1 – Commercial district to operate his hot dog stand in the store’s parking lot. The Township contended that mobile food businesses were only permitted in M-1 zoning districts, and then only then by way of a special use permit. Padecky did not dispute the fact that the C-1 zoning district does not support mobile food stands. Instead he argued that requiring him to obtain a special use permit which would still limit him to the M-1 district violated MCL 35.441.
Relying on a case it decided in 2000, and a subsequent Michigan Attorney General’s opinion, the Michigan Court of Appeals determined that MCL 35.441 should be read to permit Townships to comply with regulations addressing the place and manner in which veterans sell goods, but may not require them to obtain permits or otherwise pay for the privilege of selling goods. The court therefore determined that the outcome of this case turned on “how the Township’s ordinance is construed.” It first noted that the Townships zoning ordinance requires an applicant for a special use permit to have “fee title or equitable interest in the subject property.” Padecky observed that it would be a burden for him to have a landowner seek a special use permit on his behalf. The Court agreed, but held that permission from a landowner would be sufficient “equitable interest” in the property to allow Padecky to apply for the permit himself, and that the Township could not charge Padecky a fee for seeking the permit. “The Township may use the special use permit process for the limited purpose of ensuring that plaintiff carries on his sale of goods in an appropriate location and manner, but no more.” From the record reviewed by the court it was unclear whether any land in the Township was zoned M-1. The court therefore remanded the case back to the trial court for further fact finding on whether M-zoned land existed. In doing so the court stated that “it is the Township’s obligation to ensure the existence of some property that might be appropriate for a mobile food stand – if necessary by sua sponte rezoning some other zoned property [to M-1].”
by Gary Taylor and Hannah Dankbar
Teridee LLC and Koetje Trust v. Charter Township of Haring and Township of Clam Lake
Michigan Court of Appeals, December 8, 2015
Teridee LLC and the Koetje-Trusts own 140 acres of vacant land in Clam Lake Township. They intended to create a mixed-use development on the land. The land was zoned by Wexford County, but because the County could not provide public water and sewer systems the landowners petitioned for the land to be annexed by the City of Cadillac. Charter Township of Haring and Township of Clam Lake opposed this petition.
For the purpose of economic development projects, two local governments are permitted to transfer property for the purpose of economic development projects by written agreement through a Conditional Land Transfer Agreement (aka a 425 agreement (1984 PA 425, MCL 124.21 Act 425). In 2011 the Townships used a 425 agreement to conditionally transfer several properties to the City of Cadillac, which included all of the plaintiffs’ property. When a 425 agreement is in effect, annexation cannot occur (MCL124.29). The landowners brought an action before circuit court challenging the agreement, but it was dismissed because the State Boundary Commission (SBC) had jurisdiction. SBC determined that the 425 agreement was invalid because it was not executed for economic development purposes, but rather to block Cadillac’s annexation attempt. For other reasons, the SBC also did not approve of the landowners’ annexation petition.
The Townships entered into a new Act 425 agreement and the landowners submitted a new annexation petition. The landowners also filed this action seeking relief on two counts. The landowners asked a trial court to (1) declare the Act 425 agreement invalid because it was not for economic development purposes; and (2) declare the Act 425 agreement void against public policy because it binds the current and future zoning boards of Haring Charter Township to rezone the transferred area to the rezoning requirements assigned in the agreement, which strips the body of legislative authority.
The first count was dismissed, because SBC had primary jurisdiction. The second count required, (1) the Townships to carry out the agreement in a way that did not divest the township of its legislative zoning authority, and (2) to answer whether the Townships could sever the allegedly invalid rezoning provisions of the agreement to make the balance of the agreement enforceable.
The court found that the agreement did strip Haring of their legislative authority and made the agreement void. The Townships appealed.
On appeal the court concluded that the plain language of the agreement strips Haring’s zoning authority over the undeveloped property by determining in the agreement how the property must be zoned. This is evident in the language of the concurring resolutions the Townships passed.
The Townships argued that Act 425 allows for contract zoning, and therefore the zoning requirements in the 425 agreement were authorized by statute. This argument did not stand up in court. Act 425 permits a 425 agreement to contain language concerning “the adoption of ordinances and their enforcement by or with the assistance of the participating local units.” This language is not sufficiently specific to permit an interpretation that would allow for contract zoning.
The lower court decision was affirmed.
by Hannah Dankbar and Gary Taylor
Claybanks Township v Paul and Tana Feorene
Michigan Court of Appeals, December 8, 2015
Paul and Tana Feorene own 40 acres of land in Claybanks Township. They built a greenhouse, gazebo and hay barn on their property without obtaining zoning permits according to the Claybanks Township Zoning Ordinance (CTZO). The Township sued the Feorenes and requested that the trial court order them to remove the structures, but the Township was ordered to issue the zoning permits at the standard fee for the three structures.
The Township argued that the trial court did not follow CTZO and Michigan Zoning Enabling Act (MZEA). CTZO §§ 203 and 207 require a zoning permit to be obtained before construction begins and that any construction before a permit is obtained is a nuisance and must be abated. There is no question that the Feorenes violated CTZO by building the structures without permits; therefore the issue becomes the abatement of the nuisance. The abatement could be accomplished either by razing the buildings or issuing the permits, and courts have broad discretion in granting relief appropriate to the circumstances. Once the Feorenes were notified that they needed zoning permits for the structures they attempted to get them; however, the Township conditioned granting the permits on the payment of a $3,100 fine it had already imposed on the Feorenes for violating CTZO. The Feorenes refused to pay the fine and built the buildings anyway.
CTZO §208 imposes a $100 fine “upon conviction” of violation of the CTZO, and each day the violation continues shall be deemed a separate offense. Applying the rules of statutory interpretation, the court concluded that because the Township had not brought an action in court there could be no “conviction.” As a result, the $3,100 fine was inappropriate.
The Feorenes claimed that Michigan Right to Farm Act (RTFA) also provided an alternative basis to affirm the trial court’s conclusion. RTFA was enacted to protect farmers from nuisance lawsuits. To assert an RTFA the Feorenes had to prove: (1) the challenged activity constitutes a “farm” or “farm operation”; and (2) the farm or farm operation conforms to the relevant generally accepted agricultural and management practices (GAAMPs). The Feorenes did not cite any relevant GAAMPs; and so the court rejected the RTFA argument.
The trial court ruling was affirmed.
by Hannah Dankbar
Charter Township of Haring v City of Cadillac
Michigan Court of Appeals, March 5, 2015
In the early 2000s the Charter Township of Haring signed an agreement with the city of Cadillac in accordance with MCL 124.22 which allows two or more local units of government to “conditionally transfer property for a period of not more than 50 years for the purpose of an economic development project” by means of “a written contract agreed to by the affected local units.” This contract conditionally transferred property in East Haring over to Cadillac so that Cadillac could provide public safety and infrastructure services for the property. The contract said that the property would belong to the city in 2053, however there was an early termination and reversal clause affecting part of the property, the Boersma parcel.
In relevant part, the early termination clause states: For the [Boersma parcel], City water and/or City sewer services must be provided no later than 10 years from the effective date of this agreement. In the event that City water and/or City sewer services are not provided within the 10 year term provided above, then the real estate described in this paragraph shall be automatically removed from the terms of this agreement and the jurisdiction for such real estate shall immediately revert to the Township.
The contract was not specific about what constitutes “city water or sewer.” Cadillac did not put in a sewer pipeline that led to the wastewater treatment facility, rather the City installed a self-contained sewage holding tank and a truck was used to pump the sewage in order to transport it to the facility. Haring sued Cadillac in 2003 claiming a breach in the contract, and seeking termination of the contract for failing to install a sewer system.
The early termination clause specified that jurisdiction over the Boersma parcel would “immediately revert” to Haring Township if Cadillac failed to provide the Boersma parcel with “City water and/or City sewer services” within ten years of the agreement. The Township argued that the sewer services that Cadillac provides to Boersma are different, and of lower quality, than the services it provides to the other properties within their jurisdiction. Neither the early termination clause nor the wider contract defined “City sewer services.” The Court of Appeals referred to dictionary definitions of “city,” “sewer,” and “services” to ascertain the “plain and ordinary meaning” of the term as used in the agreement.
The infrastructure Cadillac installed on the Boersma parcel merely collects sewage in a holding structure, and leaves the sewage on the property. It does not “carry off waste water and refuse” to another location—the dictionary definition of what a “sewer” does…. The fact that Cadillac planned to upgrade the sewage infrastructure on the Boersma parcel militates against finding that the existing infrastructure satisfies the mandates of the early termination clause, because it indicates that Cadillac believes the existing infrastructure to be inadequate in some way—and perhaps not the “sewer” contemplated by the contract.
To meet the conditions of the agreement Cadillac must have installed a sewer pipeline that leads to the wastewater treatment plant within ten years of signing the agreement. Accordingly, the Court of Appeals found that the property “immediately reverted[ed]” to the Township.
by Hannah Dankbar
Haynes v Village of Beulah
Michigan Court of Appeals, December 9, 2014
The Haynes argue that they are entitled to two strips of land within the platted rights-of-way of Lake Street and Commercial Avenue in the Village of Beulah citing the theory of acquiescence. The Haynes own Lots 10,11 and part of Lot 7 in Block 2. These lots are bordered by Lake Street on the northwest side and Commercial Avenue on the southwest side. Before 1968 the prior owners of the Haynes’ property installed railroad ties along Lake Street, separating the portion of the road used for travel from the grass and trees. On the southwest, a rock wall was installed in the 1950s to separate the part of Commercial Avenue used for travel from landscaping plants, a portion of the Haynes’ driveway, a maple tree and a strip of grass owned by the Haynes.
In 2012, the Village of Beulah introduced plans to create angled parking, a new sidewalk and a streetscape in the platted right-of-way of each street and would occupy land owned by the Haynes. The Haynes brought suit to prevent this action. The trial court granted the Village of Beulah’s motion for summary disposition based on MCL 247.190.
MCL 247.190 provides as follows:
All public highways for which the right of way has at any time been dedicated, given or purchased, shall be and remain a highway of the width so dedicated, given or purchased, and no encroachments by fences, buildings or otherwise which may have been made since the purchase, dedication or gift nor any encroachments which were within the limits of such right of way at the time of such purchase, dedication or gift, and no encroachments which may hereafter be made, shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.
Plaintiffs argued that MCL 247.190 does not apply to platted village streets or property acquiescence claims. The issue in this case is the definition of “public highways,” which is not defined in the statute. “Highway” has been defined through multiple cases and multiple legal dictionaries before the enactment of MCL 247.190. These definitions encompass a broad reading of the term “highway.” Because of this, the Court of Appeals found that the trial court did not err in broadly construing the term to include village streets.
The Haynes also argued that MCL 247.190 does not apply to property acquiescence claims, but the Court of Appeals disagreed. MCL 247.190 provides, “no encroachments” on a public highway “shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.” Nothing in the statute permits the court to distinguish between different legal theories used to assert a private right or claim to any portion of a public highway. A claim for acquiescence constitutes an encroachment.
The Haynes also argued that the unimproved portions of platted right-of-ways are not “public highways” that are entitled to protection under MCL 247.190. The Court of Appeals disagreed with this assertion, as well. It is sufficient for the spending of public funds on a road in a dedicated right-of-way to constitute public acceptance of the entire width, and therefore have the entire width constitute “public highway,” even if the municipality never improves the specific strips of land within the right-of-way.
Judgment for the Village of Beulah was affirmed.
by Hannah Dankbar
Schall v City of Williamston
Michigan Court of Appeals, December 4, 2014
William and Melanie Schall brought suit to compel their neighbors, D&G Equipment, Inc., owned by Elden and Jolene Gustafson to comply with the City of Williamston’s zoning ordinance that requires a special use permit to allow outdoor display of farm implements for sale. The ordinance also requires a landscaped buffer zone to shield plaintiffs’ property from the sales display. The Schalls sought a writ of mandamus to compel the city and its contract zoning administrator to enforce the ordinance. The trial court found that the Gustafson’s use of their property violated the city’s zoning ordinance and ordered for the zoning administrator to enforce the ordinance.
As an initial matter the Court of Appeals affirmed that the Schalls had standing to bring the suit. As abutting neighbors, the Schells “have a real interest in the subject matter of the controversy. Nothing in state law indicates that private parties are limited in their ability to ask the court to abate a nuisance arising out of the violation of a zoning ordinance.
The requirements for a landscape buffer are defined in § 74-7.101 as “a minimum 15 feet wide” and “a staggered double row of closely spaced evergreens (i.e., no farther than 15 feet apart) which can be reasonably expected to form a complete visual barrier at least six feet in height within three years of installation.” The planning commission can only modify this requirement with “a written request identifying the relevant landscape standard, the proposed landscaping, how the proposed landscaping deviates from the landscaping standard, and why the modification is justified.”
In the present case, there was no “written request” to modify the ordinance standards. Even assuming that the site plan and the zoning administrator’s written and oral submissions to the planning commission were sufficient to meet this standard, and that the modified landscape included utilizing existing vegetation as part of the buffer, it must “achieve the same effect as the required landscaping.” The minimum standards of the ordinance apply except if the standard is reached with existing vegetation.
At the time of the lawsuit the buffer did not meet the standard, but the question became whether the buffer will meet the standard in three years. Based on its review of the expert testimony the Court of Appeals agreed with the trial court’s conclusion that the landscaping could not meet the standards of the ordinance and, therefore, that the Gustafsons were in violation of the zoning ordinance.
The zoning ordinance is clear and unambiguous and the trial court did not err in granting summary disposition by finding no material disputed fact that defendants’ buffer failed to comply with the zoning ordinance and therefore was an abatable nuisance per se.
by Rachel Greifenkamp
International Outdoor, Inc. v City of Roseville
(Michigan Court of Appeals, May 1, 2014)
In the City of Roseville, Michigan International Outdoor, Inc. (IO) applied to erect a billboard 70 feet high, 672 square feet total, 365 feet from property that was zoned residential. Due to regulations on billboards within city limits, the Building Department denied the application. IO appealed the decision to the Zoning Board of Appeals (ZBA) who also denied the application. IO then appealed to the circuit court, challenging the constitutionality of the ordinances. After the circuit court also found in favor of the City, IO appealed to the State of Michigan Court of Appeals.
IO argued that the ordinances of the City of Roseville constitute an unconstitutional prior restraint because the city has not applied the stated objective standards for billboards found in the ordinance in a consistent manner. It maintained that the ZBA has ignored or waived those objective standards on an ad hoc basis, and relies solely on subjective criteria such as “in harmony with the general purpose of the sign ordinance,” “injurious to the neighborhood,” and “detrimental to the public welfare” when denying billboard applications. These criteria, IO argued, have been found in previous court cases to be insufficiently precise and therefore unconstitutional prior restraint. The city countered that the circuit court was correct when it found the regulations on their face to be narrow, objective, and definite, and that IO’s proposed billboard did not meet the standards of those regulations.
After noting that IO’s challenge was to the application of the ordinances by the ZBA, the court noted the key holdings in previous prior restraint cases:
- A licensing scheme that gives public officials the power to deny use of a forum in advance of actual expression is a prior restraint on First Amendment liberties.
- Any system of prior restraints on expression bears a heavy presumption against its constitutional validity.
- A law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority.
- Moreover, a licensing law that places “unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.
Because IO could not meet the strict application of the narrow, objective, and definite terms of the city’s Sign Ordinance, it was required to present evidence that a variance from the ordinance was necessary; i.e., that a practical difficulty or unnecessary hardship existed. The record reflected that the ZBA applied this test in determining that a variance could not be granted. the application of the test meant that the ZBA was not operating with unbridled discretion when it denied the variance.
Additionally, IO argued that commercial speech is protected under the First Amendment. As such, any restriction or regulation must be advance a substantial government interest, and the ordinance must be narrowly tailored to meet that interest. IO does not believe that it is narrowly tailored because the ZBA has the discretion to grant one request for a billboard otherwise restricted by the ordinance, but deny others. The court rejected this argument, noting that the stated purpose of the ordinance – “to protect the health, safety and welfare of the citizens of the City of Roseville, including but not limited to defining and regulating signs in order to promote aesthetics, to avoid danger from sign collapse and to regulate sign materials, avoid traffic hazards from sign locations and size, avoid visual blight and provide for the reasonable and orderly use of signs” – is a substantial governmental interest. The court simply stated that IO provided “no relevant legal authority or factual support for its claim.
The circuit court’s decision in favor of the City of Roseville was affirmed.
by Rachel Greifenkamp
Township of Webber v Bruce Austin
(Michigan Court of Appeals, April 22, 2014)
In 2011 Bruce Austin began a horse rescue project in the Township of Webber, Michigan on commercially zoned property that he had purchased for this purpose. The Township filed a complaint against Austin, alleging that the project violated the regulations of the commercial zoning district. The Township was granted a preliminary injunction forcing Austin to temporarily cease his horse rescue project. At trial, Austin utilized the Michigan Right to Farm Act (RTFA) as an affirmative defense, stating that even though he had not yet made a profit from the project, he intended to in the future. The trial court deemed the animal rescue operation to be a valid nonconforming use of the property and was not a nuisance, and that therefore the use of the property was protected by the Michigan RTFA. Following the trial court’s judgment, Austin filed for costs and attorney fees as well as costs for the transport, care, and feeding of the horses during the trial. Austin was granted attorney fees and costs but was denied animal care costs. The Township appealed both the judgment and the attorney fee award to the Michigan Court of Appeals.
The Court of Appeals addressed three issues critical to the outcome (1) characterization of the horse rescue project as a nonconforming use, (2) the application of generally accepted agricultural management practices (GAAMPs) under the RTFA, and (3) the horse rescue project as “commercial production” under the RTFA.
Nonconforming use. A nonconforming use is “a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because the use lawful existed before the zoning regulation’s effective date.”…When a property is transferred to a new owner, the nonconforming use may continue but cannot be expanded…To be a valid continuation of a nonconforming use, the new owner’s use must be “substantially of the same size and the same essential nature as the use existing at the time of passage of a valid zoning ordinance.” The court concluded that because the commercial zoning designation was in effect prior to Austin beginning his project, and the project was significantly different than the previous use of the property (no livestock was raised or sold), the horse rescue project was not a nonconforming use.
GAAMPs. The township argued that the precedent set in the recently decided case of Lima Township v. Bateson requires that a person asserting the RTFA as a defense has the burden of proving that the activity at issue is a protected operation, and that it complies with the generally accepted agricultural management practices (GAAMPs). Because the trial court’s refusal to consider the GAAMPs is directly contrary to the Bateson holding, the court determined that remand for further proceedings was necessary.
Commercial production. Finally, the township contended that the trial court’s determination that Austin’s horse rescue project was a commercial production protected by the RTFA was incorrect. The RTFA only protects activities associated with the commercial production of farm products. While the RTFA itself does not define “commercial production,” previous cases have stated that commercial production means “the act of producing or manufacturing an item intended to be marketed and sold at a profit….There is no minimum level of sales that must be reached before the RTFA is applicable. The trial court concluded that Austin successfully proved that he intended to operate the horse rescue project as a commercial production, and that absent clear error, the Court of Appeals could not overturn that assessment. This portion of the judgment was held by the Court of Appeals.
The judgment was reversed by the Court of Appeals and the case was remanded for rehearing the trial court level.