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STATE OF MICHIGAN
COURT OF APPEALS


ROMEO PLANK INVESTORS, L.L.C., Plaintiff-Appellee, v MACOMB TOWNSHIP, Defendant-Appellant.

UNPUBLISHED February 20, 2007

No. 266415 Macomb Circuit Court LC No. 04-004813-AV

Before: Kelly, P.J., and Davis and Servitto, JJ. PER CURIAM. Defendant Macomb Township (the "township") appeals by delayed leave granted from a circuit court order reversing the decision of the Macomb Township Zoning Board of Appeals (ZBA), which denied a request for a division of property and transfer of one parcel to adjacent property owned by plaintiff Romeo Plank Investors, L.L.C. ("RPI"). Because the ZBA's decision complied with the law, was based on proper procedure, is supported by competent, material, and substantial evidence on the record, and represents the reasonable exercise of discretion granted by law to the board of appeals, we reverse. RPI submitted a request to the township seeking to transfer a portion of one parcel of land to a neighboring parcel. The transferring, or parent, parcel is owned by a nursery and located in an area zoned by the township's zoning ordinances to be residential (single family). The nursery is permitted to continue operation as a vested non-conforming use. The township denied RPI's request for a transfer and RPI thereafter appealed the decision to the township's ZBA. The ZBA also denied RPI's request and RPI claimed an appeal of the ZBA decision in the Macomb County Circuit Court. The court reversed the ZBA decision, opining that the requested transfer is not a division and thus need not comply with the Land Division Act ("LDA"), MCL 560.101 et seq.,. The court further determined that because the proposed transfer is not an exempt split, a division, or a subdivision as defined in the LDA or the township's land division ordinance, the township has no authority to regulate or prohibit the transfer. This appeal followed. This Court reviews de novo a trial court's decision in an appeal from a city's zoning board, while giving great deference to the trial court and zoning board's findings." Norman Corp v City of East Tawas, 263 Mich App 194, 198; 687 NW2d 861 (2004), lv den 472 Mich 894 (2005). Statutory interpretation is a question of law which this Court also reviews de novo on appeal. People v Stone Transport, Inc, 241 Mich App 49, 50; 613 NW2d 737 (2000). The primary rule of statutory construction is to ascertain and give effect to the intent of the -1-


Legislature. People v Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). If the plain and ordinary meaning of the statute is clear, judicial construction is not permitted. Id. On appeal, the township contends that the ZBA decision was supported by competent, material, and substantial evidence on the record and that the township ordinances relied upon in denying RPI's request does not conflict with state law. We agree with the circuit court that the proposed property division is not governed by the LDA, because it does not involve an "exempt transfer," "division," or "subdivision" as those terms are defined in the LDA. MCL 560.102(d)(f). However, the circuit court erred in determining that because the property division was not governed by the LDA, the township therefore lacked the authority to regulate or prohibit the division and transfer. It is axiomatic that a township cannot enact an ordinance that directly conflicts with state law, or where a statutory scheme preempts the ordinance by occupying the "field of regulation" which the municipality seeks to enter. City of Brighton v Hamburg Twp, 260 Mich App 345, 350; 677 NW2d 349 (2004). Here, because the LDA does not govern the proposed transfer, there is no direct conflict. Further, as this Court determined in Conlin v Scio Twp, 262 Mich App 379, 387; 686 NW2d 16 (2004), the LDA "is not preeminent in the field of land subdivisions." This conclusion is supported by the language of the LDA, which expressly provides that "approval of a division is not a determination that the resulting parcels comply with other ordinances or regulations." MCL 560.109(6). In other words, even where a division is allowed by the LDA, the LDA "expressly allows municipalities to impose stricter requirements." Conlin, supra. It therefore follows that where the LDA does not govern a property division, a township remains free to regulate the division. In this case, the township's ordinances apply to a broader range of land transfers than are described in the LDA, and govern any division, partition, or split of land. Macomb Ordinances,

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