DUANE LOCKWOOD, RONALD CYBULSKI, DAVID VOLLMAR, GEORGE MIKA, and EUGENE DAVISON, Plaintiffs-Appellees,
TOWNSHIP OF ELLINGTON, ERIC ZBYTOWSKI, and ED TALASKI, Defendants-Appellants.
Circuit Court LC No. 17-029711-AW
Before: M. J. Kelly, P.J., and Jansen and Meter, JJ.
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.
RELEVANT FACTS AND PROCEDURAL HISTORY
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.
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.
March 20, 2017, plaintiffs Lockwood, Cybulski, and Vollmar
filed a complaint for quo warranto relief. 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.
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
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.
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." 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.
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.
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."
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 ...