Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lockwood v. Township of Ellington

Court of Appeals of Michigan

March 13, 2018

DUANE LOCKWOOD, RONALD CYBULSKI, DAVID VOLLMAR, GEORGE MIKA, and EUGENE DAVISON, Plaintiffs-Appellees,
v.
TOWNSHIP OF ELLINGTON, ERIC ZBYTOWSKI, and ED TALASKI, Defendants-Appellants.

         Tuscola Circuit Court LC No. 17-029711-AW

          Before: M. J. Kelly, P.J., and Jansen and Meter, JJ.

          Jansen, J.

         Defendants, the Township of Ellington, Eric Zbytowski, and Ed Talaski, appeal as of right the May 22, 2017 judgment outing Zbytowski and Talaski from the Ellington Township Planning Commission, and instead reinstating the appointments of plaintiffs Eugene Davison and George Mika to the planning commission. The basis of defendants' appeal, however, is actually a challenge to the trial court's order granting summary disposition, pursuant to MCR 2.116(C)(10), in favor of plaintiffs, Duane Lockwood, David Vollmar, Ronald Cybulski, Mika, and Davison. We reverse and vacate the trial court's order granting summary disposition in favor of plaintiffs and the trial court's judgment in favor of plaintiffs.

         I. RELEVANT FACTS AND PROCEDURAL HISTORY

         This case arises out of a November 1, 2016 meeting of the Ellington Township board. The November 1, 2016 meeting had been rescheduled from November 8, 2016, which was election day. It is uncontested that no notice of the November 1, 2016 open meeting was posted at the Ellington Township Hall, as is required under the Open Meetings Act (OMA), MCL 15.265. During the November 1, 2016 meeting, the board appointed and verified the appointments of Mika and Davison to the planning commission. Mika and Davison were to serve three-year terms, beginning on January 1, 2017. Mika and Davison each took an oath of office on November 15, 2016.

         Subsequently, a new board took office, and at a special board meeting on November 22, 2016, the new board concluded that the November 1, 2016 meeting was held in violation of OMA, therefore the events of that meeting would be added to the December meeting agenda. This included the appointments of Mika and Davison. At the December 15, 2016 board meeting, the board did not ratify the appointments of Mika and Davison to the planning commission. Instead, the board resolved to accept applications for the vacancies that the removals created. On January 17, 2017, the board approved the appointments of Zbytowski and Talaski to the planning commission.

         On March 20, 2017, plaintiffs Lockwood, Cybulski, and Vollmar filed a complaint for quo warranto relief.[1] Plaintiffs stated that they were lessors of land, leased by Next Era Energy Resources, LLC, for the purpose of development of a wind energy conversion system in Almer, Fairgrove, and Ellington Townships known as Tuscola Wind III, LLC (the Tuscola Wind Project). Plaintiffs explained that the Tuscola Wind Project would utilize their properties and they would generate income from the leases.

         Plaintiffs first alleged that the Ellington Township board erroneously invalidated the actions of the November 1, 2016 meeting because OMA does not permit a public body to invalidate prior actions taken, and further, that the board had not engaged in any evaluation or discussion regarding whether the November 1, 2016 meeting impaired the rights of the public because no notice was given. Additionally, the invalidation of the appointments of Mika and Davison to the planning commission were unlawful

as contrary to MCL 125.3815(a); Section 6 of the Township of Ellington Planning Commission Ordinance and Section 5c of its Bylaws which require finding of misfeasance, malfeasance, or nonfeasance in office, written charges, notice, and an opportunity to be heard.

         Because Mika and Davison were unlawfully removed from the planning commission, plaintiffs alleged that Zbytowski and Talaski were "usurping, intruding into, or unlawfully holding office on the Ellington Township [p]lanning [c]ommission."[2] Plaintiffs requested the trial court order the ouster of Zbytowski and Talaski from the planning commission, order that Mika and Davison were entitled to serve complete three-year terms on the planning commission, and enjoin Zbytowski and Talaski from holding office or participating as members of the planning commission until a determination was made regarding the rightful holders of office on the planning commission.

         Before defendants could file an answer, plaintiffs filed a motion for summary disposition pursuant to MCR 2.116(C)(10). Plaintiff argued that OMA does not vest a public body with the power of invalidation. Rather, OMA "provides that an action may be commenced in the circuit court to challenge the validity of a decision of a public body made in violation of OMA[.] MCL 15.270(1)." The board's "power to take action, curative or otherwise, is limited to those situations in which a circuit court action has been filed seeking invalidation of action." Accordingly, the new board did not have the authority to "invalidate" the political appointments of Mika and Davison, particularly in light of the fact that there were never any charges or findings of misfeasance, malfeasance, or nonfeasance brought or made with respect to Mika and Davison.

         Further, plaintiffs argued that a decision of a public body can only be invalidated if the public body has not complied with the requirements of MCL 15.263(1) - (3). Plaintiffs contended that was not the case here, as the November 1, 2016 meeting was open to the public, held in a place that was available to the public, and the failure to give notice did not impair the rights of the public. Therefore, even if the board had the power to take action, "the action it took failed to meet the statutory or case law requirements."

         Defendants filed their brief in opposition to plaintiffs' motion for summary disposition on April 17, 2017, and requested summary disposition in their favor pursuant to MCR 2.116(I)(2). Defendants argued that before the four of five members of the board left office, they "purported to reappoint two members to the [p]lanning [c]ommission" at a meeting that did not comply with the notice requirement of OMA. However, after the new board took office, they corrected the defect by holding a new, properly noticed meeting and appointed two different individuals to the planning commission. Defendants argued that nothing in OMA prevents public bodies from curing their own defects, and plaintiff's "contrary interpretation of . . . OMA would prevent public bodies from correcting their own mistakes and would instead require the public body to be sued, at taxpayers' expense." Although a circuit court's jurisdiction ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.