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146002 - Salem Springs LLC v Salem Township

Salem Springs, LLC,
 
Robert Carson
 
Plaintiff-Appellant,
 
v
(Appeal from Ct of Appeals)
 
 
(Washtenaw – Connors, T.)
 
Salem Township and Washtenaw County Clerk,
 
Edward Plato
Cynthia Reach
 
Defendants-Appellees,
 
and
 
 
Norman Klein et al,
 
Karl Butterer, Jr.
 
Intervening Defendants.
 


Summary

Salem Springs, L.L.C., a Schostak Brothers company, owns a 91.6-acre parcel in Salem Township, abutting M-14. The land, which is in an urban service district, was zoned agricultural-residential. On October 28, 2011, Salem Springs submitted an application seeking to have the land rezoned general commercial. The township planning commission recommended that the requested rezoning be denied, but at a May 8, 2012 meeting, the township board of trustees voted 4-3 to approve the rezoning request.
 
Under the Zoning Enabling Act, MCL 125.3101 et seq., notice of an adopted zoning ordinance amendment “shall be published in a newspaper of general circulation in the local unit of government within 15 days after adoption.” MCL 125.3401(7). The zoning amendment takes effect seven days after the notice is published – but before that period expires, a registered elector who wants to challenge the rezoning may submit a “notice of intent” to file a referendum petition. MCL 125.3402. Once the notice of intent is filed, petitioners have 30 days to submit a petition with the required number of signatures. If an adequate petition is not filed within 30 days, the zoning amendment goes into effect, the statute provides. If the township clerk determines that the petition is adequate, the amendment does not go into effect without a favorable vote at the election.
 
Salem Township submitted rezoning notices for publication by Ann Arbor.com and by the South Lyon Herald newspaper. Ann Arbor.com, an online publication that also publishes a print newspaper twice a week, published the notice on May 20 in its Sunday print edition, but the South Lyon Herald did not publish until May 24, 2012 – 16 days after the amendment was adopted and one day more than the 15 days allowed by MCL 125.3401(7). In addition, there were errors in the May 24 notice; to rectify the situation, the Herald published another notice on May 31, but it too contained mistakes, so the Herald published again on June 14. That notice complied with the zoning act’s requirements.
 
On May 22, 2012, Norman Klein, stating that he was acting for “The Concerned Citizens of Salem,” filed a notice of intent to file a referendum petition with the Salem Township clerk. The cover letter for Klein’s notice of intent referred to the notice in Ann Arbor.com. Klein’s attorney communicated with the township clerk about the erroneous notices published by the South Lyon Herald. After the Herald published the corrected June 14 notice, the township attorney advised Klein’s lawyer that the 30-day period in MCL 125.3402(3) for filing referendum petitions would start on June 14.
 
On July 12, Klein’s lawyer filed referendum petitions with the township clerk that sought a referendum on the zoning ordinance amendment; the clerk determined that the petitions were adequate and had sufficient valid signatures. On August 22, the township board of trustees passed a resolution placing the referendum on the November 6, 2012 general election ballot; the ballot wording was submitted to the Washtenaw County clerk.
 
On August 24, Salem Springs sued the township and the Washtenaw County clerk in circuit court, seeking a preliminary and permanent injunction from placing the referendum on the ballot and from holding the referendum vote. When a party seeks a preliminary injunction, the party must establish that (1) the moving party will suffer irreparable harm if the injunction is not granted, (2) the harm to the applicant absent an injunction outweighs the harm it would cause to the adverse party, (3) the moving party is likely to prevail on the merits, and (4) public interest is favored. A trial court’s decision to grant a preliminary injunction is reviewed for an abuse of discretion, which may arise from a court’s misunderstanding of controlling legal principles.
 
The circuit judge heard arguments on Salem Springs’ request for a preliminary injunction on September 5. At that hearing, the judge allowed Norman Klein, Sr. and Norman Klein, Jr., as well as The Concerned Citizens of Salem, to intervene as defendants in the case.
 
Salem Springs argued that the referendum petitions were not filed within 30 days of the notice of publication of the amended ordinance; regardless of what the township attorney might have said, there is no authority that allows the mandatory 30-day period to be extended, Salem Springs maintained. The township said that its publication in Ann Arbor.com was timely and complied with all statutory requirements, but opposed a preliminary injunction; the court should allow the election to proceed and could order any appropriate relief after the election, the township asserted.
 
The circuit judge denied Salem Springs’ motion for preliminary injunction, finding that “there may well be some factual disputes of maybe first what did occur and then … what the legal import of those actions are.” Among other issues, the judge said, discovery was needed to determine whether Ann Arbor.com was a “newspaper of general circulation in the local unit of government” for purposes of the statute. Moreover, Salem Springs had an adequate remedy at law if it was unhappy with the election result, he stated. The judge also noted that a preliminary injunction is an exceptional remedy that is appropriate only in extreme cases.
 
Salem Springs appealed the circuit court’s ruling, but on October 8, the Court of Appeals denied Salem Springs’ application for leave to appeal “for lack of merit in the grounds presented.” On October 12, Salem Springs filed an application for leave to appeal, and a motion for immediate consideration, with the Supreme Court.
 
Among other matters, Salem Springs argues that it has shown a strong likelihood of prevailing on the merits, because there is no question that the referendum petitions were filed beyond the statutory deadline and there is no basis to extend that deadline. The referendum petitions were filed more than 30 days after the notice of adoption of the ordinance amendment appeared in Ann Arbor.com on May 20, Salem Springs emphasizes. The attempt to provide notice in the South Lyon Herald is irrelevant, Salem Springs maintains, because the notice did not appear within the 15 days allowed by the statute. The township attorney’s advice is also irrelevant; there would be no limit on extensions if extensions could be based on bad advice, Salem Springs argues. Moreover, contrary to the Kleins’ and Concerned Citizens’ claims, the township board did indeed pass an amendment to the zoning ordinance on May 8, Salem Springs contends; the company points to the board’s minutes from that meeting, which state that a “Salem Springs Rezoning” application was considered and that a motion was made and carried “for the rezoning.” Accordingly, the circuit judge abused his discretion in not granting the injunction, Salem Springs argues.
 
The Kleins and Concerned Citizens, as intervening defendants, argue that the circuit court did not abuse its discretion, because, among other issues, there are too many factual questions to resolve. One of these unanswered questions is whether Ann Arbor.com is “a newspaper of general circulation in the local unit of government,” as required in the Zoning Enabling Act, the intervenors contend. The intervenors also question whether the Ann Arbor.com notice was adequate, saying that the notice did not refer to a “zoning ordinance” and did not include an ordinance number. Moreover, the intervenors argue, they are not trying to “extend” the statutory deadline for filing petitions; rather, they say, their position is that, because of the questions about whether the township board had adopted an ordinance, there was never a June 19 filing deadline in the first place. The last notice published in the South Lyon Herald was sufficient, the intervenors were told to rely on that notice, and they timely filed their petitions based on that notice, they argue.
 
In an order dated October 24, the Supreme Court ordered the case scheduled on October 31 for oral argument “on whether to grant the application or take other action.”