Winter Building Corp v. City of Novi

119 Mich. App. 155 (1982) 326 N.W.2d 409

WINTER BUILDING CORP.
v.
CITY OF NOVI

Docket No. 57817.

Michigan Court of Appeals.

Decided June 30, 1982.

Ginn, Kramer & Jacobson, P.C. (by James M. Ginn and Ellen J. Alter), for plaintiffs.

Lampert, Fried & Levitt, P.C. (by David M. Fried and Louis D. Bugbee), for defendants.

Before: BRONSON, P.J., and D.F. WALSH and C.W. SIMON, JR.,^[*] JJ.

PER CURIAM.

Defendants appeal by right an order granting plaintiffs' motion for summary judgment and denying their own. The trial judge held that local governments were pre-empted from enacting ordinances governing the construction of curbs, approaches, sidewalks, driveways, and other concrete exterior flatwork. In so ruling, he held invalid the City of Novi Concrete Ordinance, No. 79-86.

Defendants first contend that plaintiffs should have been barred from obtaining relief in circuit court by their failure to exhaust available administrative remedies. In the lower court, defendants claimed that plaintiffs should have sought review of their claim by the State Construction Code Commission pursuant to MCL 125.1509a; MSA 5.2949(9a). We agree with plaintiffs that this statutory provision applies only to evaluation of an agency's performance in enforcing building codes, not to review of a city's substantive enactments.

Although we do not find that exhaustion was required before seeking judicial relief, the present case does present a factual situation in which the doctrine of primary jurisdiction could profitably have been invoked by the trial judge. See White Lake Improvement Ass'n v City of Whitehall, 22 Mich. App. 262, 279-284; 177 NW2d 473 (1970). In a case in which pre-emption is claimed based on the pervasiveness of a legislative scheme, the need for administrative expertise prerequisite to judicial action is greatest. We nonetheless proceed to review this case on its merits because resort to the primary jurisdiction doctrine at the appellate level would waste judicial resources.

We note that defendants conceded that parts of the Novi concrete ordinance were pre-empted by the State Construction Code Act of 1972, MCL 125.1501 et seq.; MSA 5.2949(1) et seq., where both the ordinance and the code purported to govern the same types of concrete work (i.e., "floors of garages or any other floors made of concrete within the structure"). Defendants contend on appeal that provisions governing curbs, approaches, sidewalks, driveways, service walks, and concrete slabs (for purposes of this opinion, external flatwork) are not pre-empted.

There is no direct conflict between the ordinance and the code with respect to external flatwork. Plaintiffs can only prevail if the state statutory scheme entirely occupies the field which the municipality seeks to enter. People v Llewellyn, 401 Mich. 314, 322; 257 NW2d 902 (1977), cert den 435 U.S. 1008; 98 S. Ct. 1879; 56 L. Ed. 2d 390 (1978). Our Supreme Court has adopted certain guidelines to aid in determining whether a field has been occupied by the state:

"First, where the state law expressly provides that the state's authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted. Noey v Saginaw, 271 Mich. 595; 261 N.W. 88 (1935).

"Second, pre-emption of a field of regulation may be implied upon an examination of legislative history. Walsh v River Rouge, 385 Mich. 623; 189 NW2d 318 (1971).

"Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. Grand Haven v Grocer's Cooperative Dairy Co, 330 Mich. 694, 702; 48 NW2d 362 (1951); In re Lane, 58 Cal 2d 99; 22 Cal Rptr 857; 372 P2d 897 (1962); Montgomery County Council v Montgomery Ass'n, Inc, 274 Md 52; 325 A2d 112; 333 A2d 596 (1975). While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor which should be considered as evidence of pre-emption.

"Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest." (Footnotes omitted.) Llewellyn, supra, 323-324.

We think the pervasiveness of the State Construction Code is strong evidence of an intent to pre-empt. Moreover, the nature of the subject matter demands exclusive state regulation to achieve the uniformity necessary to serve the state's purposes in regulating construction generally. We do not think the nature of the subject matter of the ordinance calls for regulation adapted to local conditions. Llewellyn, supra, 324.

Affirmed. No costs, a public question being involved.

NOTES

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