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STATE OF MICHIGAN COURT OF APPEALS

VANCE CUMMINS and REBECCA CUMMINS, Plaintiffs-Appellees/CrossAppellees, v ROBINSON TOWNSHIP, BERNICE BERENS, JACKIE FRYE, CHERYL CLARK, JOHN KUYERS, TRACY MULLIGAN, JACOB KORVING, and CHRIS KUNCAITIS, Defendants-Appellees/CrossAppellants, and WILLIAM EASTERLING and PHILLIP FORNER, Defendants-Appellants/CrossAppellees and RAY MASKO, EARL RAYLA, DONNA STILLE, LARRY HARMON, WILLIAM SMITH, GREENPOINT MORTGAGE INC, and UNTIED STATES SMALL BUSINESS ADMINISTRATION, Defendants.

FOR PUBLICATION May 12, 2009 9:20 a.m.

No. 279020 Ottawa Circuit Court LC No. 06-055724-CZ

Advance Sheets Version

DENNIS BERENS, JOHN BOOS, JAMIE BOOS, ROGER BOSMAN, JANET BOSMAN, JOHN CASEMIER, LYNN CASEMIER, KEVIN CHARLES, MICHAEL CHASE, CHRISTINE CHASE, DOUGLAS COPELAND, LINDA COPELAND, DANIEL DERSHAM, EARL HILASKI, NANCY HILASKI, MARK -1-

KARBOWSKI, SUSANNA SHEPHARD KARBOWSKI, THERESE KOPERNIK, MARY PALAZZOLO, JACK PELTON, CHRISTINE PELTON, JOHN POTTER, ARLENE POTTER, KEVIN PURCELL, TRUIE PURCELL, ROBERT ROZEMA, CAROL SABIN, DOUGLAS SABIN, TERRY SABIN, HELEN SCHOLS, CATHY SIZNOR, JANE MCLAREN, RANDALL STROUD, KATHY TENBRINK, LEROY C TIMPE, DARLENE TIMPE, and TATE TREACY, Plaintiffs-Appellees, v WILLIAM EASTERLING and PHILLIP FORNER, Defendants-Appellants, and ROBINSON TOWNSHIP, BERNICE BERENS, JACKIE FRYE, CHERYL CLARK, JOHN KUYERS, TRACY MULLIGAN, JACOB KORVING, CHRIS KUNCAITIS, RAY MASKO, EARL RAYLA, DONNA STILLE, and LARRY HARMON Defendants. No. 279064 Ottawa Circuit Court LC No. 06-055793-CZ

DENNIS BERENS, JOHN BOOS, JAMIE BOOS, ROGER BOSMAN, JANET BOSMAN, JOHN CASEMIER, LYNN CASEMIER, KEVIN CHARLES, MICHAEL CHASE, CHRISTINE CHASE, DOUGLAS COPELAND, LINDA COPELAND, DANIEL DERSHAM, EARL HILASKI, NANCY HILASKI, MARK KARBOWSKI, SUSANNA SHEPHARD KARBOWSKI, THERESE KOPERNIK, MARY PALAZZOLO, JACK PELTON, CHRISTINE PELTON, JOHN POTTER, ARLENE POTTER, KEVIN PURCELL, TRUIE PURCELL, ROBERT ROZEMA, CAROL SABIN, DOUGLAS SABIN, TERRY SABIN, HELEN SCHOLS, CATHY -2-

SIZNOR, JANE MCLAREN, RANDALL STROUD, KATHY TENBRINK, LEROY C TIMPE, DARLENE TIMPE, and TATE TREACY, Plaintiffs-Appellees, v ROBINSON TOWNSHIP, Defendant-Appellants. and WILLIAM EASTERLING, PHILLIP FORNER BERNICE BERENS, JACKIE FRYE, CHERYL CLARK, JOHN KUYERS, TRACY MULLIGAN, JACOB KORVING, CHRIS KUNCAITIS, RAY MASKO, EARL RAYLA, DONNA STILLE, and LARRY HARMON Defendants. No. 279088 Ottawa Circuit Court LC No. 06-055793-CZ

Before: Murray, P.J., and Markey and Wilder, JJ. PER CURIAM. These are consolidated appeals from two cases in which plaintiffs are residents of the Van Lopik and Limberlost subdivisions in Robinson Township who assert tort claims and constitutional violations against the township, the members of its board of trustees (Bernice Berens, Jackie Frye, Cheryl Clark, John Kuyers, Tracy Mulligan, Jacob Korving, Chris Kuncaitis, Ray Masko, Earl Rayla, Donna Stille, and Larry Harmon), its building officials (William Easterling and Phillip Forner), and others, after the Grand River flooded in the area of their homes in May 2004 and January 2005. The trial court granted in part and denied in part defendants' motions for summary disposition in each case. In Docket No. 279020, defendants appeal and cross-appeal. In Docket Nos. 279064 and 279088, defendants appeal by leave granted. We reverse and remand for entry of summary disposition in favor of all defendants on all plaintiffs' claims. The underlying dispute in these cases involves the application of the Single State Construction Code Act (SSCCA), MCL 125.1501 et seq. At the times pertinent to these actions (2004-2005), the applicable building code in Michigan was, with certain exceptions, the International Building Code (2003). The 2003 International Building Code was adopted by reference effective February 29, 2004. See 2004 AACS, R 408.30401. Specifically, the defendant building officials determined the cost of repairing plaintiffs' flood-damaged homes -3-

would exceed 50 percent of the fair market value of plaintiffs' homes before the flooding, thus triggering the application of flood-resistant building code requirements. 2003 Michigan Residential Code R105.3.1.1. The Cumminses, in Docket No. 279020, were the only parties who suffered damage in the 2004 flood and borrowed in excess of their home's value to rebuild it under the flood-resistant building code requirements before the 2005 flood. Almost all plaintiffs in Docket Nos. 279064 and 279088 appealed to the Construction Board of Appeals (CBA) on the basis that the 50 percent threshold had not been reached. By December 1, 2005, the CBA had granted relief to all plaintiffs who appealed. All plaintiffs were reissued occupancy permits by October 2005, regardless of whether their homes complied with building code or health department regulations. In Docket No. 279020, the Cumminses filed their complaint in July 2006, alleging 13 separate counts: (1) conspiracy to violate plaintiffs' constitutional, statutory, and common-law rights, (2) concert of action to commit one or more tortious acts, (3) unlawful and unconstitutional extrajudicial taking, (4) deliberate and purposeful violation of state statutes governing the exercise of eminent domain, (5) fraud, (6) extortion, (7) trespass, (8) intentional infliction of emotional distress, (9) gross negligence, (10) substantive due process violation, (11) procedural due process violation, (12) denial of equal protection, and (13) punitive damages against the individual township trustees and building officials Easterling and Forner. The trial court granted Easterling's and Forner's motion for summary disposition pursuant to MCR 2.116(C)(4), (7), (8), and (10) with regard to all counts accept counts (5) fraud, (9) gross negligence, and (10) substantive due process violation. The trial court ruled that the Cumminses' fraud claim against Easterling and Forner presented material issues of fact for trial. The court reasoned "that there is a genuine issue of material fact as to whether or not defendants made false material representations of facts to plaintiffs which plaintiffs relied upon." On this basis, the trial court ruled that defendants' motion for summary disposition regarding count (5) fraud failed pursuant to MCR 2.116 (C)(10). Regarding the Cumminses' gross negligence claim against Easterling and Forner, the trial court also determined that a material question of fact existed over whether defendants' conduct constituted gross negligence under MCL 691.1407. Specifically, the court ruled that a question of fact existed concerning whether defendants' imposition of building code requirements after the 2004 and 2005 floods rose to the level of gross negligence and was the proximate cause of plaintiffs' injuries. The trial court also ruled that plaintiffs' substantive due process claim survived defendants Easterling's and Forner's motion for summary disposition. Specifically, the court determined that a genuine issue of material fact existed regarding whether defendants acted arbitrarily and capriciously by imposing new building code requirements on plaintiffs in an effort to convince the Federal Emergency Management Agency (FEMA) to provide the township with grant funds to buy plaintiffs' property. Easterling and Forner appeal by right. Regarding the Cumminses' claims against the township and its trustees, the trial court did not dismiss count (3) unlawful and unconstitutional extrajudicial taking, and count (10) substantive due process violation. The trial court ruled that plaintiffs' taking claim was not barred by the doctrine of ripeness, reasoning that the CBA was not the initial decision maker and that an appeal by the Cumminses to the CBA would have been futile because the CBA could not -4-

award money damages. Further, the court determined that the Cumminses' allegations that defendants engaged in a deliberate and aggressive course of action against plaintiffs to force them to sell their property without payment of just compensation and defendants' actions that caused plaintiffs to expend thousands of dollars in unnecessary repairs, stated a claim for a de facto or regulatory taking for which issues of material fact remained. The trial court, however, dismissed the Cumminses' taking claims against the individual township trustees because the Cumminses' produced no legal authority to establish that individuals--as opposed to the township--could take property for public use. The court also dismissed plaintiffs' tort claims against the township and its trustees on the basis of governmental immunity. The trial court granted defendants' motion for summary disposition regarding plaintiffs' procedural due process claim, but the court ruled that genuine issues of material fact remained with regard to the Cumminses' substantive due process claim. As with this claim against Easterling and Forner, the trial court ruled that there was a genuine issue of material fact concerning whether defendants acted arbitrarily and capriciously when they imposed new building code requirements on plaintiffs in an alleged attempt to convince FEMA to provide the township with funds necessary to induce the Cumminses and other plaintiffs to sell their properties. Defendant Robinson Township and its trustees cross-appeal the various rulings of the trial court denying summary disposition with regard to plaintiffs' taking and substantive due process claims. In Docket No. 279064, defendants Easterling and Forner appeal by leave granted the trial court's order that denied their motion for summary disposition, in part, with regard to plaintiffs' claims for violations of their rights to substantive due process. In Docket No. 279088, the township appeals by leave granted the trial court's order that denied its motion for summary disposition, in part, with regard to plaintiffs' taking and substantive due process claims. Both of these appeals arise from the same lower court case. Plaintiffs' complaint set forth four unlabeled counts. The first count cites the Fifth Amendment of the United States Constitution and Const 1963, art 10,

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