Anspaugh v. IMLAY TOWNSHIP

741 N.W.2d 518 (2007)

Earl ANSPAUGH and Trinity of Michigan, L.L.C., Plaintiffs-Appellees,
v.
IMLAY TOWNSHIP, Imlay Township Board, and Imlay Township Planning Commission, Defendants-Appellants.

Docket No. 133351. COA No. 262492.

Supreme Court of Michigan.

December 7, 2007.

On order of the Court, the application for leave to appeal the December 5, 2006 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals, and we REMAND this case to the Lapeer Circuit Court for further hearing, if necessary, and further findings of fact. The Court of Appeals engaged in appellate fact finding when it concluded that "we too find that the I-2 zoning provided for by defendants is exclusionary," because "there is no direct route of travel" to the property zoned for I-2 use, and consequently "the I-2 land use siting provided by the township is not appropriate to foster the commercial uses to which land designated for I-2 uses must be put." 273 Mich.App. at 129-130, 729 N.W.2d 251. On remand, the Lapeer Circuit Court shall determine whether, as the Court of Appeals held, "the township's zoning ordinance effectively excludes lawful and otherwise appropriate I-2 uses for which there is a demonstrated need," owing to the unsuitability for I-2 uses of the available routes of access to the I-2 zoned property within the township. In making this determination, the Lapeer Circuit Court shall consider whether there are available indirect routes that provide reasonably suitable access to the I-2 zoned property.

We do not retain jurisdiction.