169 Mich. App. 465 | Mich. Ct. App. | 1988
Defendant, Volunteers of America, appeals from a November 3, 1986, order of the Wayne Circuit Court denying defendant’s motion to set aside a permanent injunction issued on October 10, 1986, prohibiting defendant from oper
The record reveals that defendant’s property on Rivard, which was once a manufacturing plant, is situated in a district zoned for intensive industrial activity. Although a portion of the property was certified for use as a dormitory and lodging house, no part of it was certified for use as a penal or correctional facility. In October, 1984, defendant entered into a contract with the Michigan Department of Corrections under the terms of which a portion of its property was to be used as a probation residential center or halfway house. This contract expired on September 30, 1985.
On November 9, 1984, defendant’s property was inspected by the Detroit Department of Buildings and Safety Engineering, which, one week later, informed defendant by letter that its facilities contained several building and zoning code violations and ordered defendant to "[discontinue in the use of [the] premises as a guarded correctional unit (halfway house) as no permit has been issued
On appeal, defendant first argues that the City of Detroit has no authority to prohibit the use of the Rivard property as a rehabilitation center,
*470 We read this language as a clear expression of the Legislature’s intent to vest the department with complete jurisdiction over the state’s penal institutions, subject only to the constitutional powers of the executive and judiciary, and not subject in any way to any other legislative act, such as the zoning enabling act.
* * *
As noted above, the zoning enabling act does not indicate whether or not the Legislature intended to subject the department to local zoning ordinances. We can find no expression of a legislative intent in the language of that act to subject the department’s exclusive jurisdiction over the state’s penal institutions, and its duty to coordinate and adjust those institutions as an integral part of a unified, general correctional system, to the many and varied municipal zoning ordinances throughout the state. If the department were subject to those ordinances, the underlying policies of the general correctional system could be effectively thwarted by community after community prohibiting the placement of certain penal institutions in appropriate locations. A careful reading of the statute establishing the department evidences a contrary legislative intent.
We hold that in enacting MCL 791.201, et seq.; MSA 28.22271, et seq., the Legislature intended to grant the Department of Corrections immunity from local zoning ordinances when establishing state penal institutions. Consequently, defendant’s zoning ordinance is void to the extent that it attempts to prohibit the use of the subject property as a rehabilitation center. [403 Mich 265-267.]
See also Pecoraro v Dep’t of Corrections, 100 Mich App 802; 300 NW2d 418 (1980), lv den 411 Mich 973 (1981); Marquette Co v Bd of Control of Northern Michigan Univ, 111 Mich App 521, 526; 314 NW2d 678 (1981); Cody Park Ass’n v Royal Oak School Dist, 116 Mich App 103, 106-107; 321 NW2d 855 (1982), lv den 417 Mich 985 (1983); and Lu
Although we do not disagree with defendant’s analysis of the ruling and significance of Dearden, we believe that its reliance on that case is misplaced. In Dearden, the department leased the subject property from the private lessor and itself operated a neighborhood rehabilitation center. In this case, the department did not lease the Rivard property, but rather merely entered into a contract with defendant, who, as an independent contractor, was to maintain and operate a probation residential center. Moreover, the contract between defendant and the chief executive officer of Wayne County specifies that defendant, as an independent contractor, "agrees ... to obtain and maintain all licenses and certificates required by State, Federal and Local laws, ordinances, statutes and administrative rules and regulations . . . which are required for engagement in the contemplated services and activities,” further specifying that "[failure to comply with these requirements shall comprise a substantial breach of the terms of this agreement, and shall constitute cause for immediate termination by the County.” Thus, the Dear-den rule, to reach the facts presented in this case, would require substantial enlargement, and, indeed, enlargement to the point of permitting independent contractors enjoying service contracts with the Department of Corrections and contracts with Wayne County including language specifically holding the independent contractor responsible for complying with local zoning ordinances, to ignore with impunity the requirements of applicable municipal laws. We are hesitant to enlarge the Dear-den rule to this extent, believing that that rule— involving the Supreme Court’s construction of an
Defendant also argues on appeal that the circuit court erred in granting injunctive relief to plaintiff because defendant was not provided with notice of the hearing at which that relief was granted, as is required under the court rules. MCR 2.119(C), 2.107(A). The hearing on plaintiff’s motion for a permanent injunction was dismissed by the circuit court on September 26, 1986, the date originally scheduled for oral arguments on the motion. We have found no evidence in the record suggesting that plaintiff’s motion was repraeciped; however, at the hearing on plaintiff’s motion, which was conducted on October 10, 1986, plaintiff’s attorney informed the court that defendant’s attorney of record had requested that the hearing date be adjourned until October 10. We note that that same attorney of record was substituted by consent with new counsel by way of an order issued on October 16, 1986.
Defendant’s argument based on the lack of notice, however, lacks merit. MCR 2.613(A) provides that an error in anything done or omitted by a
Accordingly, the circuit court’s order denying defendant’s motion to set aside the permanent injunction issued on October 10, 1986, prohibiting defendant from operating a penal or correctional institution on its premises at 6060 Rivard in the City of Detroit is affirmed.
Affirmed.
Regarding defendant’s contractual relationship with the Michigan Department of Corrections, the record filed on appeal contains only one contract, effective between October 1, 1984, and September 30, 1985. In response to a request made at oral arguments, plaintiff supplied this Court with a copy of a second contract, effective between October 1, 1985, and September 30, 1987, as well as an addendum to the second contract which, while not specifically extending the effective date of the second contract, obligates the department to compensate defendant through September 30,1988, for services rendered.
Defendant’s application to the Department of Buildings and Safety Engineering for a permit to expand its facilities to include a correctional institute was denied in a decision dated February 11,1985, and in a decision dated April 16, 1985, the Detroit Board of Zoning Appeals affirmed the department’s denial. In a decision dated October 8, 1985, the board reaffirmed its earlier decision. Finally, in a letter dated August 19, 1985, the board — after having once again considered a request, this time having been filed not by defendant but by Edward Davis Associates — dismissed the case with prejudice because "[t]he petitioner failed to present evidence to show that the further expansion, enlargement, and concentration of other non-conforming uses would not be injurious and/or detrimental to the industrial area” and because "[t]here would be an overuse of the property by adding the additional proposed use.”
The consent to substitution signed by defendant’s first attorney of record was undated. However, the notice of appearance filed by defendant’s new counsel was dated September 30, 1986, and, as already noted, the order for substitution by consent was issued on October 16, 1986.