Kalamazoo Circuit Court LC No. 2009-000307-CZ.
Before: METER, P.J., and ZAHRA and DONOFRIO, JJ.
Defendant Kalamazoo County Road Commission appeals by leave granted from an order that granted plaintiff Oshtemo Charter Township's request for a preliminary injunction and, thereby, enjoined the implementation of the road commission's decision to void a portion of plaintiff's Truck Route Ordinance. We hold that the trial court misinterpreted MCL 257.726(3), the statue authorizing the road commission to resolve the dispute among several townships in this matter. We conclude that a typographical error exists on the face of MCL 257.726(3). The trial court erred when it failed to employ the interpretive doctrine known as scrivener's error when construing MCL 257.726(3). We vacate the preliminary injunction and remand this case for further proceedings.
On March 27, 2007, plaintiff adopted its Truck Route Ordinance No. 478. The ordinance designates, "to the exclusion of all other roads," certain specific streets traversing the township for use by heavy trucks, including double-trailer gravel trucks. It also expressly bars any person from operating "a truck or truck-trailer and semi-trailer or truck-tractor and trailer combination, or truck and trailer combination with a combined carrying capacity of over five (5) tons in Oshtemo Charter Township on any road other than a designated truck route," except as expressly provided elsewhere in the ordinance. According to the road commission, this ordinance bars double-trailer gravel trucks from using three streets within plaintiff township, Tenth Street, Ninth Street, and H Avenue. This prohibition of the use of these three streets has the effect of routing the truck traffic to roads in Alamo Township and Kalamazoo Charter Township and off the roads that provide the most direct routes of access to US 131. Plaintiff's ordinance became effective on May 4, 2007.
Subsequently, the Michigan Legislature enacted 2008 PA 539, which amended MCL 257.726, effective January 13, 2009, to provide:
(3) If a township has established any prohibition or limitation under subsection (1) [on the operation of trucks or other commercial vehicles] on any county primary road that an adjoining township determines diverts traffic onto a border highway or street shared by the township and the adjoining township, the adjoining township may submit a written objection to the county road commission having jurisdiction over the county primary road, along with a copy to the township that established the prohibition or limitation, on or before the later of March 1, 2009, or 60 days after the township approves the prohibition or limitation. The written objection shall explain how the prohibition or limitation diverts traffic onto the border highway or street shared by the township and the adjoining township. The county road commission shall then investigate the objection. The township and adjoining township shall cooperate with that investigation and negotiate in good faith to resolve the objection. If the objection is not resolved within 60 days after the township receives a copy of the written objection, the county road commission has the authority to, and shall, either approve or void the prohibition or limitation that is the subject of the objection within 60 days thereafter, which decision shall be final. For purposes of this subsection, "county primary road" means a highway or street designated as a county primary road pursuant to 1951 PA 51, MCL 247.671 to 247.675.
Significantly, a review of MCL 247.671 to 247.675 reveals a complete absence of any provisions designating "a highway or street as a county primary road...."
In February 2009, both Alamo Township and Kalamazoo Charter Township filed written objections with the road commission with respect to plaintiff's Truck Route Ordinance. When the three townships involved in this case could not resolve the dispute, the road commission held a public hearing on the objections and, pursuant to MCL 257.726(3), declared the Truck Route Ordinance void with regard to the three respective streets and opened those streets to use by heavy trucks. Plaintiff township commenced the present lawsuit in the Kalamazoo Circuit Court on June 4, 2009, with the filing of a ten-count complaint, which sought, in part, the issuance of a preliminary injunction that would stay the road commission's decision and prevent heavy trucks from using the contested streets.
The trial court heard plaintiff's request for a preliminary injunction on June 22, 2009. Following the close of arguments, the trial court granted plaintiff's request for a preliminary injunction from the bench. The trial court began its bench ruling by observing that plaintiff's entitlement to the requested injunction depended on the results of the balancing of four factors:
(1) harm to the public interest if the injunction issues; (2) whether harm to the applicant in the absence of temporary relief outweighs the harm to the opposing party if relief is granted; (3) the likelihood that the applicant will prevail on the merits; and (4) a demonstration that the applicant will suffer irreparable injury if the relief is not granted. The trial court then concluded that factors (1), (2), and (4) were a "wash" and "equally balanced out" between the opposing sides. It opined that "the real question is[,] given that everything else is equally balanced out, does plaintiff have the likelihood of success on the merits."
The trial court, focusing on an apparent typographical error in the last sentence of MCL 257.726(3), resolved this question as follows:
The Court is aware that there is -- there are notes from the complier [sic] who does in fact provide that the destination [sic] set forth in the ordinance, in fact is either typographical or some clerical error, and that the legislature could in fact have, or should have probably meant to include a different reference with regard to the definition of county primary roads.
The court is then -- thus faced with the very interesting dilemma of interpreting the statue [sic] in a way that actually provides for justification for the Road Commission action. Or interpreting the statue [sic] as it's written with some questions in terms of whether the Road Commission had the authority to ...