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Jamens v. Avon, Township of

Citation: 7 ELR 20095
No. No. 23748, 246 N.W.2d 410/71 Mich. App. 70, (Mich. Ct. App., 09/07/1976)

Although affirming the trial court's finding that plaintiff's proposed landfill conforms to applicable zoning laws, the court holds that the trial court failed to make sufficiently specific findings of fact under the Michigan Environmental Protection Act (MEPA), Mich. Comp. Laws Ann. §§ 691.1201 et seq., ELR 43001. Plaintiff owns a 28-acre parcel in Oakland County, Michigan, and proposed to extract sand and gravel from it and later use the parcel for a sanitary landfill. The property is adjacent to another landfill but is zoned for large residences. Plaintiff applied to the Department of Natural Resources (DNR) pursuant to the Garbage and Refuse Disposal Act, Mich. Comp. Laws Ann. §§ 325.291 et seq., for a permit to construct the landfill. The DNR issued the permit, pending plaintiff's satisfaction of "local requirements." Plaintiff used to enjoin the zoning ordinance's enforcement as unconstitutional, and the trial court agreed, enjoining the ordinance's effect for three years.

A zoning ordinance must allow any use that is shown to be reasonable. Sabo v. Monroe Township, 394 Mich, 531, 232 N.W.2d 584 (1975). The evidence supports the trial court's finding that the proposed landfill will be no more unreasonable under the township's zoning than the existence of the adjacent landfill. The court took account of the existing local ordinance's public health protection purpose, which parallels the requirements of the Solid Waste Disposal Act, supra. Local ordinances, however, cannot exclude what the state has permitted. Waterford Processing & Reclaiming Co. v. Waterford Township, 25 Mich. App. 507, 181 N.W.2d 675 (1970). Furthermore, the trial court did not engage in judicial legislation, as defendant contends, by altering the township's zoning map.

The trial court's conclusory findings with respect to MEPA, however, do not satisfy its burden under Ray v. Mason County Drain Comm'r, 393 Mich. 294, 224 N.W.2d 883, 5 ELR 20176 (1975), to make specific findings of fact relating to environmental protection. Although the trial court properly enjoined the township's interference with plaintiff's landfill landfill operations, the case is remanded to specify those factual findings upon which the court relied in granting injunctive relief.

The full text of this opinion is available from ELR (7 pp. $1.00, ELR Order No. C-1097).

Counsel for Plaintiff-Appellee
Ralph Sosin
Alspector, Sosin, Mittenthal & Barson
30100 Telegraph Road, Suite 302
Birmingham MI 48010
(313) 642-3200

Counsel for Defendant-Appellant
Lawrence R. Ternan
Patterson, Patterson, Whitfield, Manikoff & White
10 West Square Lake Road
Bloomfield Hills MI 48013
(313) 333-7941

Riley, J., joined by Maher and Ryan, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]