                          STATE OF MICHIGAN

                            COURT OF APPEALS



MAYFIELD TOWNSHIP,                                                   UNPUBLISHED
                                                                     May 24, 2016
               Plaintiff-Appellee,

v                                                                    No. 323774
                                                                     Lapeer Circuit Court
DETROIT EDISON COMPANY,                                              LC No. 12-045398-CZ

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and SAWYER and STEPHENS, JJ.

RONAYNE KRAUSE, P.J. (dissenting).

        This case was presented to the trial court, and comes before us now, on a set of stipulated,
and rather incomplete, facts. The parties have presented this case as a question of law and ask
for a determination of the validity of plaintiff’s ordinance and the charges owed by defendant
thereunder. Nonetheless, “[t]he reasonableness of an ordinance, while a question of law,
depends upon the particular facts of each case.” Square Lake Condo Ass’n v Bloomfield Twp,
437 Mich 310, 318; 471 NW2d 371 (2008) (emphasis added). I would remand this case to the
trial court for the development of a more complete record in light of the following observations.

         To begin with, I agree with the majority opinion and the trial court that MCL 460.6 does
not shield defendant from fees for beneficial services. While the public service commission has
exclusive authority to “regulate all rates, fares, fees, charges, services, rules, conditions of
service, and all other matters pertaining to the formation, operation, or direction of public
utilities,” MCL 460.6(1), plaintiff’s ordinance does not govern Detroit Edison’s formation,
operation, or direction of the utility. Rather, the ordinance imposes a fee on Detroit Edison for
services rendered in Detroit Edison’s benefit. Nowhere in MCL 460.6, or elsewhere, has the
public utility been exempted from such a fee.

        That defendant is not exempt from this fee, however, does not end our inquiry. In order
to be a valid fee, there must exist “some reasonable relationship . . . between the amount of the
fee and the value of the service or benefit.” Bolt v City of Lansing, 459 Mich 152, 161; 587
NW2d 264 (1998). The trial court concluded that plaintiff was not required to determine the fee
with mathematical precision and that plaintiff’s procedure of dividing the contract price for fire
protection by the number of fire runs in a year was reasonable. Though I recognize that the costs
for responding to various calls will fluctuate with the precise circumstances of each call, I agree
with the trial court that, in this case, the amount of the fee was reasonable. Plaintiff does not


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operate its own fire services; rather, the Lapeer Fire Department provides services to the citizens
of Mayfield Township and Mayfield Township pays Lapeer a flat yearly fee. Therefore,
plaintiff’s costs do not fluctuate with regard to the particular circumstances of the call. Plaintiff
is not required to calculate the exact value of services rendered to the beneficiary when plaintiff
itself does not pay by the service rendered. Accordingly, I agree with the trial court that
plaintiff’s procedure for determining the fee schedule is reasonable.

        Where I depart from the trial court and the majority opinion regards plaintiff’s
assessment of the fee for the 25 incidents relayed in the statement of facts. In each of the 25
incidents, defendant was charged the entire fee for the services rendered. The majority opinion
finds no error in the trial court’s conclusion that this assessment was reasonable because the fire
runs conferred a benefit on Detroit Edison in that the runs attempted to protect defendant’s
personal property from damage and protected defendant from liability caused for damage to
property owned by others. I find the latter justification somewhat untenable; there is no statute
imposing strict liability upon electric utility companies and therefore defendant would only be
liable if it breached some duty of care. Nevertheless, I agree that defendant did receive some
benefit from the fire runs. At the very least, the presence of fire personnel offers an initial
assessment of the damage to defendant’s property and allows defendant to plan its response
accordingly. Further, in many cases fire personnel prevented members of the public from
coming into contact with the damaged equipment and thereby exposing the equipment to the
possibility of further damage.

        The majority opinion’s analysis essentially ends here, determining that, because
defendant received a benefit, the ordinance was reasonable. However, the receipt of a benefit
should not end our inquiry. As the majority opinion points out, the federal and state constitutions
guarantee equal protection of the law. US Const, Am XIV; Const 1963, art 1, §2. “ ‘The
purpose of the equal protection clause of the Fourteenth Amendment is to secure every person
within the State's jurisdiction against intentional and arbitrary discrimination, whether
occasioned by express terms of a statute or by its improper execution through duly constituted
agents.’ ” Vill of Willowbrook v Olech, 528 U.S. 562, 564 (2000), quoting Sioux City Bridge Co.
v Dakota County, 260 U.S. 441, 445 (1923).

         The ordinance in this action assesses a fee upon those who receive a benefit from fire
runs. As defendant received a benefit from the fire runs at issue, defendant is responsible for the
fee. Nonetheless, defendant was not the only beneficiary in each of the 25 stipulated incidents.
When a power line falls on a homeowner’s yard or a utility pole catches fire, the fire
department’s response not only protects from damage to the utility’s property but also to the
property of the homeowner. By preventing the family pet from being electrocuted or preventing
a fire from spreading to the home, the fire department has protected the homeowner’s property
and bestowed a benefit upon the homeowner. Therefore, under the ordinance, the homeowner
would be responsible for the fee. However, neither plaintiff nor the fire department make any
inquiry into this benefit. The stipulated facts indicate multiple incidents in which a tree fell on a
power line threatening damage to the power line from the weight of the tree and fire damage to
the tree and surrounding property. Nonetheless, plaintiff did not investigate to determine who
the tree belonged to and therefore who would be partially responsible for the fee in any of the
incidents included in the stipulated facts. Rather, in all 25 stipulated incidents, defendant was the
sole beneficiary responsible for the fee.


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        Plaintiff and the majority opinion contend that this responsibility is reasonable because
the fire department’s intervention precluded defendant from being liable for the damage to
property owned by others. In doing so, the majority opinion predetermines defendant’s liability
without affording defendant its day in court. In an appropriate case, defendant may have
breached a duty of care entitling the property owner to seek reimbursement of his or her portion
of the fee. Yet, in such a case, the property owner’s remedy is properly determined by the small
claims court; not by the Mayfield Township clerk’s office.

        “The reasonableness of an ordinance . . . depends upon the particular facts of each case.”
Square Lake Condo Ass’n, 437 Mich at 318. By enacting an ordinance that assesses a fee upon
all beneficiaries of a service and then applying that ordinance in a given situation to exclude
potential payers and channel responsibility to a single beneficiary, a township arbitrarily
discriminates against the beneficiary in violation of his equal protection rights. Accordingly, I
would remand this case to the trial court for an examination of each of the 25 incidents at issue.
In situations where the trial court determines that defendant was the sole beneficiary of the fire
run, the fee is valid; however, in situations where there existed a second beneficiary and plaintiff
arbitrarily imposed the fee solely on defendant, I would have the trial court declare the fee
invalid.

                                                             /s/ Amy Ronayne Krause




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