BUNNELL HILL DEVELOPMENT CO., INC., Tractor Supply Company, and 1515 Management Co., Inc., Plaintiffs-Appellees, v. BAY COUNTY ROAD COMMISSION, Defendant-Appellant, 123 F. App'x 684

DAVID A. NELSON, Circuit Judge. This is an appeal from a final judgment declaring that the Bay County Road Commission lacks authority to revoke a driveway permit when there has been a change in the use of the property served by the driveway. The judgment prohibits the Commission from closing a commercial driveway over which the plaintiffs hold an easement.

The basis for the district court’s ruling was that Michigan law allows revocation of a driveway permit only “pursuant to duly enacted rules” and that the Commission had not promulgated any rule “authoriz[ing] it to revoke a duly-issued driveway permit simply because there has been a change in use ... or an increase in traffic flow to the site.” At the appellate argument, however, the parties informed the court that the Commission has now promulgated a rule requiring property owners to obtain a new driveway permit when there has been a change in the use of the property served by the driveway.

The new rule, adopted on December 22, 2004, defines “change in use” to include “additional access to another commercial property from/through a previously permitted driveway.” The new rule raises a substantial question as to whether this case has become moot. That question should be addressed in the first instance, we believe, by the district court. Accordingly, the judgment is VACATED and the case is REMANDED to the district court with instructions to determine the effect of the Commission’s new rule and then proceed accordingly.