This case is before us on remand from the Supreme Court. 459 Mich. 905, 589 N.W.2d 769 (1998). Plaintiff challenged defendants' Escrow Application Policy, which required, as a precondition to defendants' review and processing of planned unit development (PUD) rezoning applications, that developers place funds in escrow from which Cannon Township is reimbursed for expenses incurred in processing and reviewing applications for compliance with its zoning ordinance. The circuit court granted defendants' motion for summary disposition. In a split opinion, this Court reversed. Cornerstone Investments, Inc. v. Cannon Twp., 231 Mich.App. 1, 585 N.W.2d 41 (1998), rev'd 459 Mich. 905, 589 N.W.2d 769 (1998). On defendants' appeal, the Supreme Court, in lieu of granting leave to appeal, reversed this Court's judgment for the reasons stated in the partial dissent,
The facts are largely set forth in this Court's original opinion, Cornerstone Investments, Inc, supra at 3-5, 585 N.W.2d 41.
We first address plaintiff's argument that defendants' Escrow Application Policy constitutes an illegal delegation of authority to an administrative body and administrative officials without definable standards or safeguards.
The Township Rural Zoning Act (TRZA), M.C.L. § 125.271 et seq.; MSA 5.2963(1) et seq.; is an enabling act granting townships the authority to regulate land use and pass zoning ordinances. Detroit Edison Co. v. Richmond Twp., 150 Mich.App. 40, 48, 388 N.W.2d 296 (1986). The TRZA broadly vests authority in townships to regulate land development to meet the needs of the state's citizens. Burt Twp. v. Dep't of Natural Resources, 459 Mich. 659, 665, 593 N.W.2d 534 (1999). MCL 125.271(1); MSA 5.2963(1)(1). "[T]he status and force of this zoning authority is enhanced by our state constitution. Const 1963, art 7, § 34 provides that statutory provisions relating to townships `shall be liberally construed.'" Burt Twp., supra at 666, 593 N.W.2d 534.
Michigan townships are not specifically directed to authorize the development of PUD's but have the authority to do so. MCL 125.286c; MSA 5.2963(16c)(1). Under subsection 16c(2) of the TRZA, townships may establish PUD requirements and establish a review and approval process governing PUD's:
Section 16c of the TRZA states in pertinent part:
Chapter XIV of defendants' zoning ordinance governs PUD's, sets forth minimum requirements for PUD districts, describes procedures for approval of PUD districts, and states that if the township board approves a developer's final development plan and proposed rezoning application, it may rezone the property in accordance with the TRZA, as amended. The zoning ordinance states that each application shall be accompanied by payment of a fee, as established by resolution of the township board.
Defendants' PUD Rezoning Application and Review Process, which incorporates
The policy provides that additional $500 increments "may be required at the discretion of the Chairman of the Planning Commission," and that excess funds will be refunded without interest.
We conclude that the Escrow Application Policy does not constitute an illegal delegation of authority to an administrative body and administrative officials without definite standards or safeguards. The TRZA authorizes the township to establish conditions for PUD eligibility, M.C.L.§ 125.286c(4)(b); MSA 5.2963(16c)(4)(b), and to establish a review and approval process, M.C.L. § 125.286c(2); MSA 5.2963(16c)(2). Further, the township zoning ordinance's PUD regulations meet the requirements of the TRZA, subsection 16c(4)(b), in that they set forth conditions for PUD eligibility, the procedures required for application, review, and approval, and that the planning commission reviews the PUD application and plan(s) and makes a recommendation to the township board, which determines whether the final development plan complies with the zoning ordinance and may approve the PUD request. Additionally,
The fees charged in connection with defendants' Escrow Application Policy satisfy the first limitation because they are intended to defray costs incurred in connection with PUD zoning applications and their review. Defendants' zoning ordinance and the Escrow Application Policy set forth standards to guide the commission in determining whether and to what extent professional services, additional meetings, and so forth, are needed.
With respect to the second legislative limitation, that the fee be reasonable, the circuit court concluded, and we agree, that defendants' escrow fee was fair and reasonable. We also agree with the reasons stated by the circuit court in support of its determination:
... to mandate a fixed fee in advance would require a township to create out of vaccum [sic] an arbitrary amount with the disadvantage to its residents of imposing
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We agree with the circuit court that Flama is instructive because there is no Michigan case on point and Flama involved circumstances similar to the instant case. There, a developer challenged the validity of a zoning ordinance that, as a prerequisite to any township board action, required payment into an escrow account of funds to pay for professional fees incurred in connection with its application. In affirming the lower court's determination that the zoning ordinance was valid, the appellate court noted:
It is beyond dispute that the Legislature may delegate authority to an agency as long as the legislation delegating such authority provides adequate standards to guide the agency in exercising the delegated power.... If an ordinance is totally devoid of standards to
As part of its argument that the Escrow Application Policy was an illegal delegation of authority, plaintiff also argued that because the policy lacked standards, the policy deprived plaintiff of its property rights and money without due process. We concluded above that the policy does not lack standards. Nor does the policy lack safeguards, as the township's land use decisions and zoning ordinances are subject to judicial review. Plaintiff has failed to show that the zoning ordinance as applied to it is arbitrary and capricious and has therefore failed to rebut the presumption that the ordinance is valid. A & B Enterprises v. Madison Twp., 197 Mich.App. 160, 164, 494 N.W.2d 761 (1992).
Plaintiff also argued that §§ 6 and 7a of the TRZA are inconsistent with and specifically oppose defendants' Escrow Application Policy, in that they require that compensation for zoning board members and planning experts be paid by appropriations made by the township board. We disagree.
MCL 125.276; MSA 5.2963(6) states:
MCL 125.277a; MSA 5.2963(7a) states:
Plaintiff argued below that these two provisions mandate that the planning experts be paid from funds previously appropriated and not from escrow fees collected on an ongoing basis. Again, there is no Michigan case law addressing this question, but Flama, supra, rejected that interpretation. In Flama, the appellate court rejected the developer's argument that the ordinance was contrary to statutory provisions that mandated advance appropriation of funds:
Flama argues that these statutes require that professional fees incurred by the boards in reviewing a development application must only be paid from funds previously appropriated for that purpose by the governing body. We find no such limitation in the language of the statute. Obviously, a governmental entity cannot expend funds which have not been appropriated. But these statutes refer to different situations. If the board hired employees or professionals on a permanent basis, or even as experts in other cases, it would have to have the moneys before it could enter into the contract.
Plaintiff's final argument is that the escrow fee policy is unenforceable because it was not adopted as part of the township's zoning ordinance. We disagree.
The TRZA does not require that fees connected to review of zoning applications be adopted by ordinance and, in any event, defendants' zoning ordinance provides in § 14.05 that applications be accompanied by payment of the PUD application fee.
The partial dissent agreed that § 25 of the TRZA authorizes townships to require payment of fees to defray the costs of processing applications for rezoning, but disagreed with the majority's interpretation of the term "fees," noting that a charge need not be fixed at a sum certain to be a "fee," and that "a charge assessed for certain privileges or services relating to a zoning permit application that is fixed by reference to established policy and procedure can be a fee, and is not rendered not a fee simply because the amount depends on the circumstances of each application." The partial dissent agreed with the circuit court's determination that the Escrow Application Policy is fair and reasonable, and with the circuit court's reasoning in reaching that determination.