*1 ROLLINGWOOD HOME CORPORATION, OWNERS INC., v. CITY OF FLINT

Opinion of the Court Zoning Housing—Municipal Corporations 1. — —Referendum. and slum clearance act allows a to violate the provisions of zoning its own ordinance, eity’s zoning but a may superseded not except by an ordinance which necessarily is to a (MCLA referendum 125.651 et § seq.). Zoning — Municipal — Corporations — 2. Public Min- isterial Function. large A rezoning scale of property providing for the of quasi-public involving building of multi-million housing complexes, dollar largely with Federal grants, is merely not government. a ministerial function of Municipal Corporations — — — 3. Resolution Public Ordinance Housing — Referendum. approving

Resolution of the Flint contract public housing project for construction of a which was let competitive bidding procedures without aid of at a total project $3,556,812, cost and which will have substantial impact community, upon influence was reality which, pursuant city charter, an ordinance (Flint 158, 159). to referendum Charter §§ Dissenting Opinion

Levin, P. J. Municipal Zoning. Corporations 4. Commission — — municipal The rule that commission under

References for Points Headnotes Redevelopment 2d, Housing 40 Am Jur Laws and Urban [1 7] — seq. Jur, Zoning 58 Am 120 et Applicability zoning regulations projects or governmental activities. 61 ALR2d 970. (1) without be exercised md slum clearance irrespective plainly applicable to local irrespective the manner in which the size (MCLA development into 126.651 et is entered *2 seq.). Municipal Corporations Housing Commission —Statutes. 5. — empowered Sousing to exercise its The Flint Commnssion housing act without powers and slum clearance under the charter; thus, the general provisions or the to statutes provide enjoys sweeping power low income commission housing housing under conditions eliminate detrimental and to enabling legislation expressly super- comprehensive state vagaries and local charter state statutes sedes the other seq.). provisions (MCLA et 125.651 Municipal Corporations Housing Commission —Contracts— — 6. Beferendum. by legislature into requiring all entered contracts housing act slum clearance commission under the governing body approved by not intend also the local did possible rejec- projects subject particular renewal urban (MCLA seq.). polls et tion at the 125.651 Municipal Corporations Housing Commission —Referendum. 7. — referendary provisions local charters are subordinate General clearance act and to and slum (MCLA created under that seq.). et Anthony

Appeal Mansour, J. from J. Genesee, Lansing. January Division at Submitted August (Docket 6,383.) 1970. No. Decided appeal granted Leave to October Mich 769. Corpo-

Complaint Rollingwood Home Owners Rollingwood and residents ration, Inc., against Village City area the Flint Corporation, Commission, injunction prevent others for an from defendants constructing adjacent housing project property Village. Summary judg- Rollingwood ROLLINGWOOD HOME OWNERS V. FLINT Opinion op the Court appeal. ment for defendants. Plaintiffs Reversed and remanded.

Lyndon plaintiffs. Lattie, J. Corporation. Nelson,

Parker & for Cruse-Loren Attorney, Weiss, E. Robert Herbert Attorney, Hutchins, of Flint Assistant and Flint Commission.

Before: P. J., Levin, and Holbrook Bronson, JJ. an action J. This case involves Holbrook,

brought County in the Genesee Circuit Court plaintiffs, Rollingwood individual residents of the *3 Village corporate of a Flint, area the of and plaintiff, an of the same association of residents enjoin City of a area, defendants, Flint, the municipal Housing Michigan corporation, the Flint Corporation, Mich- Commission, a igan corporation engaged business of real development, constructing estate from a housing project adjacent Rolling- property on Village single-family wood and zoned as an A-2 density medium district. parties, pursuant as 1963, 812.10, GCR agreed

amended an 1965, submitted statement of part facts which is restated in as follows: July “On of Flint 27, enacted 1964, Housing creating No 1788, the Flint Com pursuant to No Public of mission, 18, 1933, Act Acts seq. Extra as Session, amended, MCLA 125.651et 1 prior May Some time defendant 9, 1968, Cruse- ^[1] Stat et seq.—Reporter. op Flint negotiated Corporation with defendant Loren Housing Assistance Housing Commission Housing Department Administrator government Development, States United both Urban project to be of a agencies, for construction labeled East, as Branchwood known Housing- Flint and the Administrator Assistance project Michigan 9-9. The Commission dwellings property single family on in the unplatted, adjacent presently but parcels Bolling-wood platted Vil- known as various lage plaintiffs in which reside. the individual single family dwellings, a com- to the 183 addition building, munity part will as so-called, be constructed project. May that the it became known 1968, 9, “Prior to and Cruse-Loren Cor- poration a for the said into would enter complaint May plaintiffs project. filed On 9,1968, restraining temporary among- things asking other preliminary injunction blocking the and a order actions of all defendants in further May project. the court issued a tem- 13, 1968, On May porary restraining order. defend- On Corporation filed its motion to ant Cruse-Loren temporary restraining dissolve order and the hearing May on on 17, same was held hearing arguments “After 17th counsel on the May, temporary restraining 1968, order was Arguments dissolved order of the court. on plaintiffs’ why temporary order to show cause injunction May should not issue were 21, heard on May May 1968 and 23, 1968, opinion denying injunctive court issued its re- requested by plaintiffs. lief denying An order *4 injunctive May relief was filed on 27, city July City 8, “On commission of the adopted approving a resolution the Flint Housing- Commission contract with Cruse-Loren Rollingwood Owners v. Flint Home op Corporation. Thereafter, the contract was sub- Housing mitted to the Assistance Administrator approval. approval yet his That has not been granted. days adoption of the resolu “Within 30 after plaintiffs authorizing contract, tion filed caused City clerk of of Flint referendum petitions2 seeking a referendum on the reso election approving city lution the contract. The clerk has any certifying refused to take otherwise recognizing validity petitions, acting on city attorney advice to the effect that resolution is not to referendum. project, whereby between the Commission, “The Corporation sponsor the contract is question ^[*] ^[*] developer, and the Public approval is a so-called ^[*] negotiated directly in this case, ‘turnkey’ Housing Housing Assistance Administrator. “In summary, the four basic factual matters to ^[*] ^[*] ^[*] parties stipulate give and which rise to appeal the instant are as follows: approve

“1. The Flint Commission acted to execution of the contract between Cruse-Loren Cor- poration the Flint adoption by passage of a resolution rather than an ordinance.

“2. acting through city The of certify clerk petitions refuses to the referendum plaintiffs circulated and their associates and request- delivered to the clerk certification, ing a referendum approving vote the resolution execution of the contract.

“4. is so-called a ^[*] ^[*] ^[*] ‘turnkey’ project as defined in promul- ‘Low-Rent Manual’ signatures Petitions with 5995 pursuant were filed PA 1933, § 3, No 18 (MCLA 125.653; as amended Stat Ann 1969 Rev 5.3013), 159 of the charter of the of Flint. §§ *5 App 1 op Opinion the Court of Housing Administrator gated by Assistance Development department Urban of competitive No Government. States of the United negotiation of procedures in the bidding this used were contract.” of this the execution contract and of appeal Plaintiffs dismissal court’s from the entry summary judgment from for motion their summary judgment no September of of on cause upon filed on motion defendants, for pursuant on all August 117, 1963, to GCR 19, issues. follows: is restated as to be determined

The issue required ap- Flint theWas defendant by prove by resolution, than ordinance, rather Flint Commis- contract between defendant Corporation construction sion and Cruse-Loren project question, thereby public housing rendering approval subject referendum¶ said No 18, Plaintiffs that PA MCLA contend (Stat seq. 5.3011 et 125.651 et seq.), generally known as the and slum requires authorization clearance act of that the public housing of a contract construction of for the accomplished by facilities ordinance since must be thereby influence will be established community, having with authorization the effect repealing amending prior ordinance. As authority position plaintiffs for this cite Parr v. Lansing City Also, Clerk Ranjel Lansing (1969), see, v. 417 F2d 321. Defendants maintain that the and slum supra, prevent act, clearance does not authorization public housing of a contract for construction of a resolution. The the act authorizing stated to be that of * * * “any city purchase, acquire, construct, operate, improve, repair extend maintain, hous- Rollingwood Home Owners op ing facilities; to eliminate conditions which public peace, are detrimental safety, health, any purposes welfare; morals such * * * any authorize such to create ordi- power nance a commission with to effectuate said purposes, prescribe and to and duties of *6 city.” such commission and of such support position, §§ of its defendants refer to provide city and 39 of the act which that a may “purchase, acquire, oper- construct, maintain, improve, repair housing ate, extend or facilities”, (Stat § 5.3012); § MCLA 125.652 Ann 1969 Rev that may it create, ordinance, a commission to accom- plish purposes (Stat § of the MCLA act, 125.653 5.3013); § Ann 1969 may Rev that such commission city proper sanitary determine in what area of the housing facilities for low income families should be may design erected, and and con- any housing project projects, struction of MCLA (Stat § 5.3017); § Ann 1969 Rev complete commission shall have control of the housing project projects including construction, operation maintenance and if as the commission represented private (Stat owners, MCLA 125.662 5.3022); 1969 Rev and that the act, authority is to terms, provided be deemed full for the “any provision general therein, of the laws any of the or of contrary state charter to the not- withstanding”, (Stat MCLA 125.689 Ann 1969 § 5.3049).

Defendants assert that the charter of provide expressly Flint does not that contracts are approved by to ordinance and cite Renshaw v. Coldwater They argue provision that even if such were

in supra, inoperative. the charter it would be Renshaw, city’s

held zoning that a ordinance is sub- n 26 powers commission as itsof ordinate by the hous- declared defined those are therefore, ing that, slum clearance author- have “full” housing ity commission deemed purposes act not- carry into effect commission withstanding of such that the action city provisions or ordinance of a charter violate the Court, The general state. laws of the or the Renshaw, speak under to the issue however, did not, i.e., whether hand, at in the case consideration (resolution versus ordi- nance) referendum. No property, provides such area of that the lot single- as an A-2 in this zoned case,

as that involved density family shall contain min- district, medium per square dwelling unit, feet 5,000 imum of yard yard of a minimum feet, side minimum front yard of 25 and a minimum rear of 5 6 feet, sale executed between The contract of feet. *7 Corporation of Flint approved by Flint Commission and provides completed improvements that [a in schedule set forth “shall be accordance in] in all and local ‘A’; exhibit accordance with state applicable regulations laws, codes, ordinances, study Michigan”. of A of proposed pro- plat encompassing of the 183 lots posed housing project Branchwood East reveals that question not all of the in lots contain at least the specified lot area in in and, minimum the ordinance proposed yard instances, several front and rear require- areas likewise do not meet minimum ments ordinance.

While and slum clearance act, as interpreted city in Renshaw, allows a to violate the provisions of own we rule ordinance, that, Bollingwood Owners Home op present, the contract where as the such

in a ease corpora- construction question defendant was let to bidding proce- competitive the aid without tion and where $3,556,812, cost a total at dures impact influence that it is clear community substan- upon will be of such super- city’s zoning not be ordinance tial, necessarily is except ordinance an seded referendum. to a of this follow the decision constrained areWe Lansing City Clerk in Parr v. Court Judge stated in In case McGregor that pp part 723: at as follows legislative is in somé field in the “Nomenclature naming ways analogous child. a new-born important, not given but is name areas the both applied masculine name of much. A determinative to the 7th change family daughter that will not anticipated Likewise, lovely girl first son. into the Lansing city chose to council the fact that label its action moment, May little 8th resolution improperly designated. fact, if in it was only attorney argues city ordinances “The city action to be are to referendums and pre- adopted manner in the an it must be ordinance, Lansing city charter. scribed in section 6.3 of the requires, among things, that each other That section begin phrase, city with the ‘The * * * argument Lansing ’. ordains While this appeal, Lansing is not has council of some mislabelling free to insulate its actions actions. such pointed Municipal Corpo- McQuillin, “As out in 5 p § rations, at the difference between municipal ordinances resolutions in what the *8 they do, actions rather than in manner in which passed. implementing are isterial Besolutions are for min- government

functions of for short-term purposes. establishing Ordinances are for more 1 Mich by Levin, J. Dissenting Opinion P. community itself. Kala- influences Municipal Utilities Association mazoo By (1956), no Mich 328. stretch Kalamazoo logic large-scale rezoning can we that a find public property providing quasi-public involving building housing complexes, largely multimillion dollar grants, only a ministerial federal function of government. “Normally, when faced with the fact a resolu- passed by city government tion an an area where required, respond by ordinance is this Court would declaring the resolution McQuillin, void. 5 Munic- ipal Corporations, pp § 16.10 at In 173-177. this procedure case, that we however, believe the better allowing followed the trial court in the reso- lution to stand as an ordinance, thus to the procedures.” (Emphasis referendum supplied.) supra, Parr, Pursuant we determine the resolu- reality, tion of the Flint be, Commission to pursuant §§ an which, 158 and 159 of charter, is to referendum. proceedings Reversed remanded for further opinion. not inconsistent with this No costs, question being involved. J.,

Bronson, concurred. (dissenting). Renshaw,1 P. Mich J. Levin, igan Supreme municipal housing Court ruled that pursuant commission established (the “act”), slum clearance act of 19332 as was the Commission, defendant Flint exercise provide necessary and take action to housing facilities for low income families and for 1 2 Renshaw v. Coldwater (Ex Sess) seq. (Stat PA 1933 125.651, No et MCLA § 5.3011, seq.). et *9 Rollingwood Home Owners Dissenting Opinion by J.P. Levin, housing of detrimental conditions elimination zoning’ complying with local ordinances.

without majority say now Flint’s that, nevertheless, The superseded except “zoning may not be necessarily ref- is to a an ordinance because a contract between the erendum” developer, particular and defendant Corporation, into entered “without was competitive procedures aid of at a total * * * it is clear that the $3,566,812 cost upon impact permanent of such action influence community will be substantial.” distinguishing bases Renshaw asserted unpersuasive. incongruous are expected projects, that all urban renewal It is large, impact will and a small and have upon community by and substantial alleviating influence proj- social conditions at which such pertinent It is the issue ects are directed. not zoning’requirements preempted of whether local are particular par- by the that a contract between developer and the commission was ticular preceded by competitive negotiated and was not bidding. municipal

Renshaw’s rule that of a commission under the act be exercised plainly applicable without to local irrespective project, size of whether more irrespective or less than of man- $3,556,812, development ner in which the into. entered presented in this The issue case was con not Lansing City in Parr v. sidered Clerk App majority opinion. 719, relied on There Lansing City adopted, by Council what it labeled rezoning a reclassification or resolution, a tract development quasi-public of land for Dissenting by Levin, P. J. housing. ruled that the council’s was We of the electorate even to a referendum though resolution, it not ordinance.3 acted opinion appear from the Parr whether It does not exercising powers Lansing housing commission has a challenged if and, under the act whether so, respect rezoning to a reclassification was hous- *10 ing project; was decided moreover, Parr Supreme opinion before its Court handed down in Renshaw. any was not in event it contended Parr that project pur of an construction urban renewal subjected

suant to the act not be to a referendum4 a nd, therefore, issue was not there considered or decided.5 And the real that is issue case; in this not whether council Flint’s could approval manifest the contract between the commission and Cruse-Loren resolution Conceding, should have acted ordinance. arguendo, only approved that the contract could by an approving and, ordinance6 therefore, 723): (p 722, We declared implementing “Resolutions are for govern- ministerial functions of ment purposes. for short-term establishing Ordinances are for more community (Citation on the influences omitted.) itself. By logic no stretch of can we large-scale find that a rezoning of property housing for the providing or quasi-public involving building of multimillion dollar complexes, largely of federal grants, only ministerial function government.” City Schrier v. Kalamazoo (1968), 626, Mich 635, 636, Cf. and cases cited in footnote 6. 4 Nor in was it Parr general contended that a referendary provi inapplicable sion is a change in zoning because a referendum procedures would be inconsistent with the effecting a change in zoning village established enabling (MCLA seq. 125.584, et Ann 1969 seq.]) Rev 5.2934, et [Stat Elliott See v. (1970), Clawson 21 Mich (1880), See Allen v. 43 14 Mich and authorities Duffie collected Chapman v. Buder App 13, 20, in 4. 6 Michigan appears ease law to be to contrary. See Case Saginaw (1939), 151; Kalamazoo Municipal Utilities Association v. Kalamazoo (1956), 345 Bollingwood Home Owners v. Flint Dissenting Opinion by Levin, P. J.

resolution functioned anas ordinance and should be question deemed to be an ordinance,7 the central right par remains: Do the voters have a to veto a project? ticular urban renewal legislative In Renshaw the Court said that the in (p 594) tent under the act “vis-a-vis other laws, whether enacted as statutes, charters, or ordinances conspicuous framed under other statutes, both pronounced”; repeatedly and that 39 of the 8 (p 594) act bidding “adds a directive to the courts, apply authority them pur the act as ‘full’ for the poses provided by ‘any provisions its terms, general any laws of the state or of charter contrary notwithstanding’ housing- The Flint empowered pow commission is, thus, to exercise its ers general under the act without statutes provisions or the of its charter. The commission, enjoys sweeping power provide thus, housing low income

and to eliminate detrimental condi comprehensive tions enabling legislation under state expressly supersedes vagaries of other *11 provisions. state statutes and local charter by While all housing contracts entered into com required “approved mission under the are act to be governing body” municipality,9 of the and, under city the terms of Flint’s charter, its commis approving sion’s in the contract between be Rev § Ann 1969 commission shall options be “shall resolution. Mich ^[8] The ^[7] approved by “All MCLA 125.689 But see Schrier v. 318, 333, 334, holding 5.3021). following need not purchase deeds, contracts, liberally § be so section of be in 5.3050), pursuing construed to effeet the governing body (Stat necessary approved.” the name of the leases or Kalamazoo, that a contract materials, 1969 Rev act, MCLA 125.661 of said purchases this § supra, theme, purposes city § leases with tenants MCLA 5.3049). can be entered into pp 635, 636. adds that village. village thereof”. § (Stat approved by Ann 1969 and shall Contracts (Stat Dissenting Opinion by Levin, J.P. might Cruse-Loren and its commission subject to I referendum,10 am satisfied that requiring approval governing body the local legislature subject par did also to not intend projects possible rejection ticular urban renewal polls. at the provides municipality

The act that if a creates a pursuant provisions, to its creating right ordinance is referen part people.11 suggests dum on the of the This legislature operating if the intended to only decisions of the commission not approval governing body municipality of the of the disapproval, but also to voter that this would have explicitly provided enabling been for in the act, as right people reject creating was the ordinance itself. referendary provisions

General in local charters language (p 594), are, of the Renshaw Court “subordinated” the act and to the of hous- ing commissions created under the act. plaintiffs-appellants have raised other issues dissenting opinion but since this is a and is not precedential there is no need to comment on them. see But footnote 6. (Stat

11 MCLA 125.653 Ann 1969 Rev § 5.3013).