Davis v. Imlay Township Board

7 Mich. App. 231 (1967) 151 N.W.2d 370

DAVIS
v.
IMLAY TOWNSHIP BOARD.

Docket No. 1,778.

Michigan Court of Appeals.

Decided June 27, 1967. Leave to appeal denied September 21, 1967.

Jack F. Smith, for plaintiff.

James D. Morrice, for defendant Imlay Township Board.

Richard J. Bahls, for defendant Imlay Township Zoning Board.

Leave to appeal denied September 21, 1967. See 379 Mich 780.

QUINN, J.

By this action, plaintiff sought to have declared invalid the Imlay township zoning ordinance for noncompliance with statutory requirements in its adoption and to restrain defendants from enforcing or attempting to enforce the provisions of such ordinance. Defendants answered denying invalidity; the essential facts were stipulated, and on the basis of such facts, the briefs and oral arguments of counsel, the trial judge ruled in favor of defendants.

Plaintiff's appeal raises the following question:

"Is a township zoning ordinance, enacted by a township board, pursuant to the enabling statute, invalid by reason of the failure of the township zoning board to submit the proposed ordinance to the county coordinating committee for approval prior to its adoption by the township board?"

Defendant zoning board raises an additional question as follows:

"Are the provisions of section 10 of the enabling statute an unconstitutional delegation of legislative power to an administrative agency in violation of article 4 of the Michigan Constitution of 1908 and of article 3, § 2, of the Michigan Constitution of 1963 in that these statutory provisions do not provide standards or guidelines for the decisions of the coordinating zoning committee?"

Following adoption of the ordinance in question, plaintiff erected on her property within the zoning district a dwelling which did not comply with the zoning ordinance requirements in respect to floor area and setback provisions. Prior to filing suit, plaintiff was advised of the nonconformance, that she would not be permitted to occupy the structure as a dwelling and that further improvement work thereon would result in prosecution for ordinance violation.

The ordinance was enacted under the township rural zoning act, PA 1943, No 184, as amended, being CL 1948, § 125.271 et seq. (Stat Ann 1958 Rev § 5.2963[1] et seq.). Pertinent to decision is section 10 of Act No 184, as amended by PA 1961, No 225, being CLS 1961, § 125.280 (Stat Ann 1965 Cum Supp § 5.2963[10]), which provides as follows:

"Sec. 10. Following such hearing, the township zoning board shall submit the proposed zoning ordinance including any zoning maps to the county zoning commission of the county in which such township is situated for approval in the event such commission shall have been appointed, as provided by Act No 183 of the Public Acts of 1943 as amended, being sections 125.201 to 125.232 of the Compiled Laws of 1948, and is functioning in the county, and in the event there is no such commission, then to the coordinating zoning committee of the county. The coordinating zoning committee shall be composed of 3 members and shall be appointed by the county board of supervisors for the purpose of coordinating the zoning ordinances proposed for adoption under the provisions of this act with the zoning ordinances of any township, city or incorporated village having a common boundary with the township. The approval of such zoning commission or coordinating zoning committee shall be conclusively presumed unless such commission or committee shall, within 30 days of its receipt, have notified the township clerk of its disapproval."

Almont township joins Imlay township on the south and the former had a township zoning ordinance in effect before the ordinance before us was adopted. Although Lapeer county had no county zoning commission, it had a coordinating zoning committee; the defendant zoning board did not submit to it the proposed ordinance and zoning maps as required by section 10, supra. However, the defendant zoning board did advise the county coordinating zoning committee of the existence of the proposed ordinance prior to its adoption, and after this suit was commenced, defendant zoning board did submit the enacted ordinance to the coordinating zoning committee. Prior to decision below, the committee had issued no notice of approval or disapproval and more than 30 days had elapsed since the ordinance was submitted to the committee.

On the basis of Ritenour v. Township of Dearborn (1949), 326 Mich 242, the trial court held the requirement of section 10, supra, that the ordinance shall be submitted to the county zoning commission or to the coordinating zoning committee was not mandatory and the ordinance was not invalid. We believe the trial court erred in this holding for several reasons. Although Ritenour is factually very similar to this case, it differs in a very significant respect, namely: there was no county zoning commission or coordinating zoning committee in existence at the time the Dearborn township ordinance was adopted, nor was there such a commission or committee until 3 years thereafter. The court held failure to submit to a nonexistent body did not invalidate the ordinance. This disposed of the issue and later discussion, to the effect that the defect was cured by submission to the later created commission, is dicta which we decline to follow.

Second, defendant township has no authority to enact such an ordinance except as it is granted such authority by Act 184, supra, and in enacting the ordinance, the mandatory provisions of the act must be complied with. Krajenke Buick Sales v. Hamtramck City Engineer (1948), 322 Mich 250; 1 Yokley, Zoning Law and Practice (2d ed), § 70; 1 Rathkopf, Zoning and Planning (3d ed), chap 3, p 5. The language of section 10, supra, makes it a mandatory provision, and to hold otherwise would violate the rule of statutory construction that it will not be presumed that the legislature intended to do a useless thing and if possible every part of a statute must be given effect. Klopfenstein v. Rohlfing (1959), 356 Mich 197.

We believe the trial court was correct in holding the function of the county zoning commission or county coordinating zoning committee to be advisory only and that section 10, supra, involves no unconstitutional delegation of legislative authority. Temple v. Portage Township (1962), 365 Mich 474, supports this view.

Since Ritenour, supra, is not authority for the proposition that submission of an adopted ordinance to a county zoning commission or to a coordinating zoning committee will cure the defect of not so submitting it prior to adoption, we are bound by the language of the statute which requires such submission prior to adoption.

Reversed and remanded for entry of judgment as prayed for by plaintiff, but without costs, a public question being involved.

T.G. KAVANAGH, P.J., and McGREGOR, J., concurred.