Preview:

Michigan Supreme Court Lansing, Michigan

Opinion
CITY OF TAYLOR, Plaintiff-Appellee, v THE DETROIT EDISON COMPANY, Defendant-Appellant. _______________________________ BEFORE THE ENTIRE BENCH YOUNG, J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED MAY 31, 2006

No. 127580

We granted leave to appeal in this case to reconcile plaintiff's constitutional authority to exercise "reasonable control" over its streets with the Michigan Public Service Commission's (MPSC) broad regulatory control over public utilities. Consistent with our longstanding precedent, we hold that a municipality's exercise of "reasonable control" over its streets cannot impinge on matters of statewide concern nor can a municipality regulate in a manner inconsistent with state law. In this case, the MPSC has promulgated uniform rules governing the relocation of utility wires underground. To the degree plaintiff's ordinance on this subject conflicts with the MPSC's rules, the ordinance exceeds plaintiff's power to

exercise "reasonable control" over its streets and is invalid. Furthermore, because the question of allocation of costs for the relocation of utility wires underground falls under the primary jurisdiction of the MPSC, that entity should be the first to consider this dispute. We reverse the judgment of the Court of Appeals and remand to the Wayne Circuit Court to enter an order granting summary disposition to defendant. The dismissal is without prejudice to plaintiff's right to seek a remedy before the MPSC. FACTS AND PROCEDURAL HISTORY In the fall of 1999, the City of Taylor (plaintiff) and the Michigan Department of Transportation planned for a major reconstruction project of a fourmile portion of Telegraph Road that intersects the city. The project called for major infrastructure improvements, including the underground relocation of all utility wires along Telegraph Road. Under the proposal, the Detroit Edison

Company's (defendant) utility poles along Telegraph Road would be removed and their wires relocated underground. In early 2000, officials from plaintiff and

defendant met several times to discuss the project and its implementation. Defendant agreed to relocate the lines underground, but would not agree to bear the costs of that effort. When the parties' negotiations failed, plaintiff

enacted Taylor Ordinance 00-344, the "Telegraph Road Improvement and Underground Relocation of Overhead Lines Ordinance." Section 3 of that

ordinance requires all public utilities with lines or poles adjacent to Telegraph Road "to relocate underground all of their overhead lines and wires and remove all 2


poles and related overhead facilities equipment at their sole cost and expense and at no cost or expense to the City."1 After plaintiff enacted the ordinance, the parties continued to discuss the dispute, but could not come to an amicable resolution. Ultimately, plaintiff agreed to advance the cost of relocating the wires underground, but reserved its rights to enforce the ordinance against defendant and seek reimbursement. In June 2002, plaintiff filed a complaint for a declaratory judgment in circuit court, seeking a determination that defendant was obligated to pay the entire cost of relocating the wires under Taylor Ordinance 00-344. Defendant moved for summary disposition under MCR 2.116(C)(4), arguing that the MPSC rules required plaintiff to pay for the relocation, and that the MPSC had primary jurisdiction over this dispute. Plaintiff filed a cross-motion for summary

disposition under MCR 2.116(C)(10), arguing that the ordinance controlled. The circuit court granted summary disposition to plaintiff, holding that it was unnecessary to consider the issue of primary jurisdiction because the city's ordinance was enforceable regardless of the MPSC's interpretation of its rules. On appeal, the Court of Appeals affirmed in part the judgment of the circuit court in a published opinion per curiam.2 The Court held that the MPSC did not have primary jurisdiction because the question was one of law, and the courts

1 2

Taylor Ordinance 00-344.
263 Mich App 551; 689 NW2d 482 (2004).


3


could craft an answer that would promote uniformity without interfering with the MPSC's ability to perform its regulatory duties. Then, relying on its governmental function/proprietary function test, first articulated in City of Pontiac v Consumers Power Co,3 the Court determined that plaintiff exercised a governmental function and properly required defendant to bear the entire cost of relocation. The Court also determined that state law did not preempt the city's ordinance. This Court granted leave to appeal, specifically directing the parties to address the scope of a city's power over utilities under its constitutional authority to exercise reasonable control over its streets; whether that constitutional authority permits a city to impose relocation costs on utilities under Const 1963, art 7,

Download CITY OF TAYLOR V DETROIT EDISON CO.pdf

Michigan Law