BRANDON CHARTER TOWNSHIP v. TIPPETT, 241 Mich. App. 417

Whttbeck, J. Defendant David Tippett appeals as of right from an order denying his motion for

summary disposition and granting

summary disposition in favor of plaintiff Brandon Charter Township pursuant to MCR 2.116(I)(2). We reverse. I. basic facts and procedural history Tippett owns ten acres of land, zoned as Rural Estate (re) District, in Brandon Township. He parked and stored various pieces of heavy equipment on his property, including a backhoe, excavator, bulldozer, semi-tractor, and dump truck and trailer.

Tippett, who occasionally used the equipment to maintain his private road in Brandon Township and to run a part-time excavating business, did not store the equipment in a building or other structure on the property and did not engage in farming activities in Brandon Township. More importantly, Tippett also used the equipment in “bona fide fanning operations” in Marlette, Michigan, which is not in Brandon Township. On November 29, 1995, Brandon Township filed its complaint requesting injunctive relief.

Brandon Township alleged that, by storing farming equipment on his property, Tippett had violated subsection 8.03 of the local zoning ordinance, which states in pertinent part: The following uses may be permitted subject to the conditions hereinafter imposed and subject further to the review and approval of the Planning Commission, and subject to the standards set forth in

Section 5.18 of this Ordinance. :|: * * 10. Parking and storing of commercial trailers, trucks and or equipment with a rated capacity exceeding 10,000 pound G.V.W. subject to the following conditions: A. Minimum acreage required shall be 10 acres. B. Not more than 3 vehicles or vehicles and mobile equipment in combination shall be parked or stored on the property. C. All vehicles and equipment shall be parked or stored in completely enclosed building(s). The restrictions in item 10 of this

section do not apply to vehicles and equipment that are used on a bona fide farm and in farming operations as defined by

article III of this ordinance. [Emphasis supplied.] The township also alleged that Tippett, who continued to refuse to remove the equipment, had not applied for special use approval to maintain the equipment on his property.

Subsequently, in addition to agreeing to the facts outlined above, the parties stipulated that (1) the zoning ordinance was enacted in 1989, four years before Tippett built and occupied his house, (2) the zoning ordinance was in force at all relevant times and applied to Tippett’s property, and (3) [o]n or about January 10, 1996, Defendant provided the Plaintiff with sixty photographs, taken at or about that time, depicting commercial equipment located on private residential property.

Of the sixty (60) photographs, eleven (11) represented situations which violated the Brandon Township zoning ordinance Rural Estate (re) provisions, but had not, previous to that date, been enforced by the Township. Tippett moved for

summary disposition pursuant to MCR 2.116(C)(10). Relying on the stipulated facts, Tippett argued that the zoning ordinance did not prohibit him from storing the equipment on his property because the zoning ordinance had an exception for equipment used for bona fide farming. Tippett also argued that Brandon Township selectively enforced the zoning ordinance and, therefore, denied him equal protection. Brandon Township countered that exception for equipment used in bona fide farming operations only applied to such an operation within the township.

Further, Brandon Township contended that it had not avoided enforcing the zoning ordinance to the extent that enforcing it against Tippett denied him equal protection. The trial court rejected Tippett’s argument that by using the equipment for a bona fide farming operation outside Brandon Township he could qualify for a zoning exception within the township. The trial court reasoned that the zoning ordinances don’t extend the authority of the Township to govern other regions.

Therefore, it appears that although the zoning ordinance in question really didn’t specifically state that the exception as applied to farming equipment was limited to farming activities in the Township, to allow the lack of specificity to mean that any activity anywhere allows one to store commercial vehicles on their property is . . . ridiculous. This . . . construction would be inappropriate in light of the fact that the Township really can’t regulate activities outside of its jurisdiction.

So the Defendant’s contention that the lack of specificity should be construed in favor of the property owner would be to give an absurd affect [sic] to the statute. The trial court also commented that, even though Tippett had provided photographic evidence of other zoning violations in the township, he had failed to show that they were “identical” to his alleged violation. He also failed to present evidence that Brandon Township had not “ticketed” the property owners who had committed these other zoning violations. As a result, the trial court ruled, Tippett failed to show that he was treated unequally.

The trial court’s resulting order enjoined Tippett from parking commercial vehicles on his property without a permit. fi. BRANDON CHARTER TOWNSHIP’S ZONING ORDINANCE A. STANDARD OF REVIEW Tippett presents the same arguments on appeal regarding the meaning of, and his exemption from, subsection 8.03.10 of Brandon Township’s zoning ordinance. Because he asks us to interpret this zoning ordinance, he presents us with a question of law subject to review de novo. Burt Twp v Dep’t of Nat ural Resources, 459 Mich 659, 662; 593 NW2d 534 (1999). B.

INTERPRETATION We interpret ordinances in the same manner that we interpret statutes. Ahearn v Bloomfield Charter Twp, 235 Mich App 486, 498; 597 NW2d 858 (1999). If the language is clear and unambiguous, the courts may only apply the language as written. Id. However, if reasonable minds could differ regarding the meaning of the ordinance, the courts may construe the ordinance. See generally Adrian School Dist v Michigan Public School Employees’ Retirement System, 458 Mich 326, 332; 582 NW2d 767 (1998). We follow these rules of construction in order to give effect to the legislative body’s intent.

Ballman v Borges, 226 Mich App 166, 167; 572 NW2d 47 (1997). C. PLAIN LANGUAGE In most cases, whether a property owner would be exempt from the requirements in subsection 8.03.10 of the zoning ordinance would rely on proof that the property owner used the disputed equipment or vehicles on a “bona fide farm and in farming operations.” However, those terms are not at issue in this case because the parties agreed that the equipment on Tippett’s Brandon Township property generally fell within this exception.

The narrow issue on appeal, then, is whether using the equipment in this manner in Marlette — but not in Brandon Township — exempts Tippett from complying with subsection 8.03.10 of Brandon Township’s zoning ordinance. There is no question that subsection 8.03.10 of Brandon Township’s zoning ordinance regulates, as a whole, on the basis of many factors.

Those factors include the size of the property at issue, the nature of the equipment or vehicles stored on the property, the number of vehicles or pieces of equipment, how the equipment and vehicles are used, and where the vehicles and equipment are stored on the property, i.e., in an enclosed structure. However, none of these factors, including the exception for equipment and vehicles used on a bona fide farm, explicitly or implicitly mentions a geographic location where the equipment is used.

Brandon Township’s argument relies wholly on having this Court add three words to the exception in subsection 8.03.10, so that it would read: The restrictions in item 10 of this

section do not apply to vehicles and equipment that are used on a bone fide farm and in farming operations in Brandon Township as defined by

article in of this ordinance. This, however, is beyond our authority because courts may not legislate. See generally Morgan v Taylor, 434 Mich 180, 192; 451 NW2d 852 (1990), quoting Melia v Employment Security Comm, 346 Mich 544, 561-562; 78 NW2d 273 (1956). Subsection 8.03.10 of the zoning ordinance, as written by the proper authority, is unambiguous and must be applied as written. Ahearn, supra at 498.

That Brandon Township, when drafting the zoning ordinance, may have omitted what it now considers to be critical language limiting the exception to farming within the township is certainly not Tippett’s fault and should not be construed in a manner that prejudices him. D. ABSURD RESULTS Brandon Township nevertheless argues that Tippett’s

interpretation is inconsistent with the purpose for enacting the zoning ordinance, which it contends is to protect farming within the township. Courts attempt not to interpret statutes, and by implication ordinances, in a manner that leads to absurd results. See Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409 (1994); Ahearn, supra at 498. However, we disagree that applying the plain language in this case leads to an absurd result. Subsection 8.01 of the zoning ordinance explains the goals of zoning in this particular type of district: 1.

Land containing agricultural value should be preserved because it is a vital resource. 2. Land with agricultural value justifies a design technique which attempts to support a town-country spatial relationship creating intrinsic urban-rural values. 3.

Rural Estate zoning permits the timing of land allotments to urban purposes in keeping with a theory of maximizing supporting public utilities so as to achieve the greatest amount of service for each dollar of capital expenditure. 4. ^discriminating urbanizing [sic] of agricultural lands adversely affects the remaining owners of land pursuing agricultural endeavors, by creating urban land values. Not one word within this very plain explanation of the zoning ordinance suggests that the benefits of preserving agricultural land relate only to property within Brandon Township’s limits.

Rather, Brandon Township chose to express these goals in universal terms, without restriction to its borders. Nor can we see a flaw in this approach. For instance, the statement that “[l]and containing agricultural value should be preserved because it is a vital resource” may be as true outside Brandon Township as it is within Brandon Township. We do agree with the trial court that Brandon Township would exceed its authority by attempting to regulate land outside its jurisdiction. See generally MCL 125.271(1); MSA 5.2963(1)(1) (describing a zoning board’s authority).

However, to our knowledge, nothing would limit Brandon Township’s ability to reward property owners within its borders for arguably socially useful activities they conduct elsewhere. If Brandon Township did not intend to create this sort of reward in subsection 8.03.10 of its zoning ordinance, then the remedy is to amend the ordinance by going through the proper processes. Brandon Township cannot attempt to enforce the zoning ordinance to reflect wording it wishes it had adopted that, nonetheless, does not appear anywhere in the ordinance.

That the township cannot regulate land use outside its jurisdiction is both true and interesting, but essentially irrelevant to the disposition of this case. Using the trial court’s terminology advisedly, it would be truly “ridiculous” to amend the Brandon Township zoning ordinance by judicial fiat in order to accommodate an essentially irrelevant notion of the scope of the township’s regulatory authority. Overall, we must be guided first and foremost by the language of the ordinance, which clearly compels the result in this case.

Even when we consult the explicit intentions behind the zoning ordinance, we see nothing absurd in enforcing subsection 8.03.10 as written. m. CONCLUSION Tippett claims that Brandon Township’s failure to enforce the zoning ordinance uniformly bars its enforcement against him. However, in light of the way we disposed of Tippett’s first claim, we need not reach this issue. Reversed and remanded for further proceedings consistent with this decision. We do not retain jurisdiction. Gage, J., concurred.

Brandon Township contends that we must defer to the trial court’s factual findings and engage in a review for clear error. However, because the parties stipulated the facts, our primary concern is with the law. In re Butterfield Estate, 405 Mich 702, 715; 275 NW2d 262 (1979). We review how the trial court applied the facts to the relevant law de novo, Cain v Dep't of Corrections, 451 Mich 470, 503, n 38; 548 NW2d 210 (1996), which is consistent with the standard of review de novo for

summary disposition, Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).