Felice v. Cheboygan County Zoning Commission

103 Mich. App. 742 (1981) 304 N.W.2d 1

FELICE
v.
CHEBOYGAN COUNTY ZONING COMMISSION

Docket No. 47702.

Michigan Court of Appeals.

Decided February 17, 1981.

Lyon, Mellon & Conboy, for plaintiffs.

Michael J. Hackett, for defendants.

Before: R.B. BURNS, P.J., and MacKENZIE and J.T. KALLMAN,^[*] JJ.

MacKENZIE, J.

Plaintiffs appeal as of right the trial court's order denying them court costs and actual attorney fees in an action filed under the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq.

On May 21, 1979, the Cheboygan County Zoning Commission (hereinafter defendants) held a meeting at which they issued a special use permit for the construction of a condominium project. Approximately one month later, plaintiffs filed this action seeking injunctive relief, court costs, actual attorney fees, and the invalidation of decisions made by the defendants in the meeting of May 21, 1979. A second meeting was held by defendants in conformity with the act on July 23, 1979, in which the same special use permit was reenacted.

At a hearing August 6, 1979, concerning the issue of actual costs and attorney fees, defendants' counsel admitted that deliberations occurred in a closed session during the May 21 meeting and that such action was not in compliance with the Open Meetings Act. Defense counsel conceded that the second meeting was held to reenact the special use permit as a result of the filing of this lawsuit.

Both parties in the court below concluded that the sole issue for the court's determination was whether defendants' admitted noncompliance with the act in their initial meeting impaired the public's right under the Open Meetings Act. Plaintiffs, at the hearing held August 6, 1979, did not seek to invalidate any decisions made by defendants for noncompliance with the Open Meetings Act. The court's order stated that injunctive relief was denied pursuant to stipulation of the parties. The trial court further found that defendants' noncompliance had not impaired a public right under the act and denied plaintiffs' claim for costs and actual attorney fees. We affirm.

MCL 15.270(2); MSA 4.1800(20)(2) provides for the invalidation of decisions of a public body when there has been noncompliance with requirements of the act and "the court finds that the noncompliance or failure has impaired the rights of the public under this act". The record shows that at 7:04 p.m. on May 21, 1979, a regularly scheduled meeting of the Cheboygan County Zoning Commission was called to order for the purpose of deciding upon the application for a special use permit for the construction of a condominium on Burt Lake. Approximately 20 people attended the meeting, including the plaintiffs-appellants. For approximately two hours the question was freely discussed with the opportunity given to those attending to express opinions. The meeting became heated with shouting and lack of control. A recess was then called at 9:15 and the people ushered out of the room. During the recess, the commission members' discussion "touched on" some of the points which had been brought up at the open meeting. At 9:45 p.m., the meeting was reconvened. After a brief discussion, a vote was taken approving the special use permit and the meeting was adjourned. The minutes of the meeting were made available to the public on June 26, 1979. Pursuant to the original applicant's request, the commission held another meeting on July 23, 1979, again approving the disputed decision to grant the permit.

The cause of action of plaintiffs-appellants is based upon MCL 15.263(3); MSA 4.1800(13)(3):

"All deliberations of a public body constituting a quorum of its members shall take place at a meeting open to the public."

The violation here is the 30 minutes' recess during which discussion admittedly continued. Under these circumstances, we do not find that the trial court erred in finding that there was no impairment of the rights of the public.

The Open Meetings Act contemplates and provides that a party may be entitled to court costs and actual attorney fees under certain specific circumstances:

"If a public body is not complying with this act, and a person commences a civil action against the public body for injunctive relief to compel compliance or to enjoin further noncompliance with the act and succeeds in obtaining relief in the action, the person shall recover court costs and actual attorney fees for the action." MCL 15.271(4); MSA 4.1800(21)(4). (Emphasis supplied.)

We find that plaintiffs are not entitled to court costs and actual attorney fees under the meaning of subsection (4) set out above because they have not succeeded in "obtaining relief in the action". Although there was an admitted violation of the act by the defendants, plaintiffs withdrew their claim for injunctive relief by stipulation prior to or at the hearing in this matter. No court order or judgment was entered compelling compliance, enjoining noncompliance, or invalidating any decision of defendants. Plaintiffs' abandonment of the invalidation action and withdrawal by stipulation of their claim for injunctive relief obviated the necessity for the court to make a finding and order such relief.

Where possible, effect must be given to each word and phrase when interpreting a statute. Dussia v Monroe County Employees Retirement System, 386 Mich 244; 191 NW2d 307 (1971). Some meaning must be attributed to the phrase "relief in the action". The Legislature did not use the phrase "because of the action", nor did they simply require that a party be successful in obtaining "relief". In choosing the words "in the action", the Legislature intended to restrict the circumstances under which a plaintiff would be entitled to costs and actual attorney fees. We would require a party seeking such relief to show more than that, after an action was brought under the Open Meetings Act, a defendant acted in a manner consistent with plaintiff's prayer for relief.

We find that the trial court did not commit error in finding that there was no impairment of a public right under the facts herein. We affirm the order denying court costs and actual attorney fees.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.