Village of Lincoln v. Viking Energy of Lincoln Inc ( 2005 )

Order Michigan Supreme Court
Lansing, Michigan
January 27, 2006 Clifford W. Taylor,
Chief Justice
127144 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
VILLAGE OF LINCOLN, Maura D. Corrigan
Plaintiff-Appellee, Robert P. Young, Jr.
Stephen J. Markman,
Justices
v SC: 127144
COA: 246319
Alcona CC: 00-010619-CE
VIKING ENERGY OF LINCOLN, INC.,
Defendant-Appellant.
_________________________________________/
On January 12, 2006, the Court heard oral argument on the application for leave to
appeal the August 24, 2004 judgment of the Court of Appeals. On order of the Court, the
application is again considered. In lieu of granting leave to appeal, we VACATE that
portion of the judgment of the Court of Appeals that addressed the claim that the trial
court erred in holding that public policy did not bar a challenge to plaintiff’s enactment of
the zoning ordinance. MCR 7.302(G)(1). Because the Court of Appeals affirmed the
trial court’s ruling that section 6 of zoning ordinance 96-2 was unconstitutional as applied
to defendant under the circumstances, the ostensible public policy bar to the challenge
was rendered moot, and the discussion of it by the Court of Appeals was dicta.
CORRIGAN, J., concurs and states as follows:
I concur in the Court’s order to vacate the specified portion of the Court of
Appeals judgment. I write separately to note that I question the Court of Appeals
conclusion in Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 493 (2000). In
an appropriate case, this Court should squarely review the continuing validity of the so-
called “public policy” doctrine. Even after the passage of many years, a challenge that
alleges that a zoning ordinance was improperly enacted may yet proceed. See, e.g.,
Castle Investment Co v Detroit, 471 Mich 904 (2004) (barring the enforcement of
provisions of an improperly enacted 1976 ordinance that the plaintiff did not specifically
challenge until 1998). For this reason, I concur in vacating the Court of Appeals reliance
on a “public policy” ground described in Jackson.
CAVANAGH, WEAVER, and KELLY, JJ., would deny leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 27, 2006 _________________________________________
s0124 Clerk