Kalinoff v. Columbus Township , 214 Mich. App. 7 ( 1995 )

Griffin, J.

Defendant Columbus Township appeals as of right an order of the circuit court granting plaintiffs’ motion for summary disposition and denying the township’s motion for summary disposition. We affirm.

Although the dissent addresses an issue that is not raised on appeal, we are restricting our review to the issues that are before us as framed in the township’s brief.¹ At issue in this case is the trial court’s construction of Columbus Township Zoning Ordinance No. 17, art IV, § 4.02, regarding nonconforming lots. Plaintiffs alleged in their lawsuit that § 4.02(B) of the ordinance prohibits defendant LCS Homes, Inc., from building on five residential lots that it had acquired and that fail to meet minimum lot size and frontage requirements. Section 4.02 provides as follows:

A. In any district in which single-family dwellings are permitted, notwithstanding limitations imposed by other provisions of this ordinance, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this ordinance. This provision shall apply even though such lot fails to meet the requirements for area, or width, or both, that are generally applicable in the district; provided that yard dimensions and other requirements not involving area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. Yard requirements variances may be obtained through approval of the Board of Appeals.

B. If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of this ordinance, and if all or part of the lots do not meet the requirements for lot width and area as established by this ordinance, the lands involved shall be considered to be an undivided parcel for the purposes of this ordinance, and no portion of said parcel shall be used or occupied which does not meet lot width or area requirements established by this Ordinance, nor shall any division of the parcel be made which leaves remaining any lot width or area below the requirements stated in this ordinance.

In making its ruling, the trial court reasoned as follows regarding its construction of § 4.02:

I view this case as one of statutory, or in this case ordinance interpretation. And I find it very difficult to harmonize Subparagraphs A and b with —If you don’t give b some meaning.

And the rationale, as I’ve always understood it, and I may be entirely wrong, but the rationale for b in an ordinance of this kind is for the purpose of reducing nonconformity to the extent that it can be done irrespective of the fact that the township has not given it that interpretation.

It’s recognized that as long as people own single lots that predated the enactment of the ordinance, that obviously with certain limitation they are permitted to build on those single lots. But once any owner owns more than two lots with which he can conform to the ordinance, then he is required to do so. And even though that means that you cut down on the number of dwellings that can be erected in this subdivision, and that’s precisely what the ordinance requires, when a single owner owns two or more lots, then that owner will be required to meet the 200 — or 200 foot frontage requirement.

On appeal, the township challenges the trial court’s construction and application of § 4.02 of the ordinance. Defendant argues that § 4.02(A) clearly allows single-family homes to be constructed on the parcels in question. According to the township, § 4.02(B) is not applicable to lots that were platted before the adoption of the ordinance. We disagree.

We apply the rules of statutory construction when construing a zoning ordinance. Albright v Portage, 188 Mich App 342, 350, n 7; 470 NW2d 657 (1991); Settles v Detroit City Clerk, 169 Mich App 797, 808; 427 NW2d 188 (1988). Therefore, when the language used in an ordinance is clear and unambiguous, we may not engage in judicial interpretation, and the ordinance must be enforced as written. Livingston Co Bd of Social Services v Dep’t of Social Services, 208 Mich App 402, 406; 529 NW2d 308 (1995); Oberlin v Wolverine Gas & Oil Co, 181 Mich App 506, 511; 450 NW2d 68 (1989).

We agree with the trial court that, when read in context, § 4.02(B) requires an owner of two or more lots with continuous frontage to combine the lots to conform to the township’s minimum lot size and frontage requirements. In our view, the township’s reading of the ordinance is inconsistent with its plain language; the ordinance does not exempt the subdivision lots at issue here. Rather, § 4.02(B) applies to lots that "are of record” at the time of the passage of the ordinance. Moreover, defendant’s reliance on § 4.02(A) is misplaced. This section clearly applies only to owners of single parcels of property ráther than to owners of multiple parcels of property. The trial court did not err in granting plaintiffs’ motion for summary disposition.

Next, the township relies on Macenas v Michiana, 433 Mich 380, 398; 446 NW2d 102 (1989), for its argument that the trial court failed to give deference to the township’s established interpretation and application of its zoning ordinance. The township claims that it consistently has not applied § 4.02(B) to "legal lots of record” in subdivisions legally created and recorded before the adoption of the ordinance. Nevertheless, unlike in Macenas, the language used in the ordinance at issue in this case is clear and unambiguous and must be enforced as written. Oberlin, supra.

The township’s remaining issues merit only a brief discussion. The trial court’s ruling did not contravene the Subdivision Control Act, MCL 560.101 et seq.; MSA 26.430(101) et seq. In addition, the trial court did not grant prematurely plaintiffs’ motion for summary disposition; there were no genuine issues of material fact left to resolve. Finally, the township’s claim that summary disposition was improvidently granted because the complaint and affidavit were not drawn in conformity with the court rules is wholly frivolous.

Affirmed.

Michael J. Kelly, P.J., concurred.

1 If we were inclined to rule on the standing issue, plaintiffs, as property owners, appear to have standing to seek enforcement of the zoning ordinance. D’Agostini v Roseville, 396 Mich 185; 240 NW2d 252 (1976).