            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PHIL FORNER,                                                         UNPUBLISHED
                                                                     March 21, 2019
               Plaintiff-Appellant,

v                                                                    No. 339072
                                                                     Ottawa Circuit Court
ALLENDALE CHARTER TOWNSHIP                                           LC No. 17-004849-AV
SUPERVISOR,

               Defendant-Appellee.


Before: RIORDAN, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

        Plaintiff appeals by leave granted1 the circuit court’s order affirming the district court’s
grant of summary disposition to defendant. We affirm.

                   I. BACKGROUND FACTS & PROCEDURAL HISTORY

        Plaintiff desired that the township require an adjacent property owner to submit a site
plan for approval of the installation by the neighbor of a fence and dumpster enclosure on the
neighbor’s property. When the township administrator declined to do so, plaintiff filed an
application to the township’s zoning board of appeals requesting an interpretation of the
township’s zoning ordinance. The township required plaintiff to pay a $1,500 escrow fee, which
plaintiff paid under protest. The township engaged the services of a company and a law firm to
review and provide opinions regarding plaintiff’s request. The township used the escrow funds
instead of the township’s general funds to pay for those services.


1
  We originally denied plaintiff’s application for leave to appeal. Forner v Allendale Charter
Twp Supervisor, unpublished order of the Court of Appeals, entered October 25, 2017 (Docket
No. 339072). However, our Supreme Court remanded the case to us for consideration as on
leave granted. Forner v Allendale Charter Twp Supervisor, 501 Mich 980; 907 NW2d 560
(2018).
         After the zoning board of appeals ruled that the adjacent property owner had no
obligation to submit a site plan, plaintiff sued defendant for fraud and unjust enrichment because
it charged him the $1,500 escrow fee in relation to his application. Plaintiff alleged that the
township lacked statutory authority to charge the fee. Defendant moved for summary disposition
on the grounds that no dispute regarding any material fact existed and that defendant was entitled
to judgment as a matter of law because the township had authority to request payment of escrow
fees to defray the costs associated with an individual’s request regarding zoning and zoning
ordinance determinations. Defendant persuaded the district court that it had statutory
authorization under MCL 125.3406(1) to charge the escrow fee, and the court dismissed
plaintiff’s complaint. Plaintiff appealed to the circuit court. He contended that MCL
125.3406(1) only authorized the township to charge fees for zoning permits and because he
never sought any zoning permit and only wanted an interpretation of the township’s zoning
ordinances, the township could not charge him the escrow fee. The circuit court affirmed the
district court’s ruling after concluding that MCL 125.3406(1) permitted the escrow fee charge
because plaintiff’s request related to the legal question regarding land use.

        Plaintiff argues that the circuit court erred because the township lacked authority to
charge the escrow fee under MCL 125.3406(1), and therefore, the fee lacked legitimacy. He
contends that, because he never sought a zoning permit, the only thing for which MCL
125.3406(1) permits charging a fee, the township committed fraud and unjustly enriched itself by
charging and using the escrow fee funds. For the reasons explained in this opinion, we agree that
the district court and the circuit court failed to properly interpret MCL 125.3406(1), nevertheless,
we affirm the lower courts’ rulings because both courts achieved the right result, albeit for the
wrong reason.

                                          II. ANALYSIS

        We review de novo questions of statutory interpretation and application. Nason v State
Employees’ Retirement Sys, 290 Mich App 416, 424; 801 NW2d 889 (2010). Similarly, “[o]ur
review of a circuit court’s review of a district court’s order is also de novo.” Noll v Ritzer (On
Remand), 317 Mich App 506, 510; 895 NW2d 192 (2016). When courts interpret statutes
created by the Legislature, they must first look to the specific statutory language to determine the
intent of the Legislature, and if the language is clear and unambiguous, the plain meaning of the
statute reflects the legislative intent and judicial construction is not permitted. Universal
Underwriters Ins Group v Auto Club Ins Ass’n, 256 Mich App 541, 544; 666 NW2d 294 (2003).
“Judicial construction of a statute is only permitted when statutory language is ambiguous,” and
ambiguity exists “only if it creates an irreconcilable conflict with another provision or it is
equally susceptible to more than one meaning.” Noll, 317 Mich App at 511.

        The interpretation of both the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et
seq. and MCL 125.3406(1) requires (1) reading the statute as a whole, (2) reading the statute’s
words and phrases in the context of the entire legislative scheme, (3) considering both the plain
meaning of the critical words and phrases along with their placement and purpose within the
statutory scheme, and (4) interpreting the statutory provisions in harmony with the entire
statutory scheme. Courts may not intuit legislative intent from the absence of action by the
Legislature. McCahan v Brennan, 492 Mich 730, 749; 822 NW2d 747 (2012). A “legislature


                                                -2-
legislates by legislating, not by doing nothing, not by keeping silent.” Id., quoting Wycko v
Gnodtke, 361 Mich 331, 338; 105 NW2d 118 (1960).

        In this case, the parties dispute whether MCL 125.3406(1) authorized defendant to charge
the $1,500 escrow fee. The MZEA provides in relevant part that

                [a] local unit of government may provide by zoning ordinance for the
       regulation of land development and . . . regulate the use of land and
       structures . . . to ensure that use of the land is situated in appropriate locations
       and . . . to promote public health, safety, and welfare. [MCL 125.3201(1).]

Further, MCL 125.3406(1) provides:

               The legislative body may charge reasonable fees for zoning permits as a
       condition of granting authority to use, erect, alter, or locate dwellings, buildings,
       and structures, including tents and recreational vehicles, within a zoning district
       established under this act.

        Here, one can easily discern from the language of the statute that the charging of
reasonable fees as a condition for the issuance of zoning permits. Although the term “zoning
permits” is neither defined by MCL 125.3406 nor by any other provision in the MZEA, the
term’s meaning lacks ambiguity and is easily understood in the context of MCL 125.3406(1)
itself. MCL 125.3406(1) indicates that zoning permits grant authorization for land uses
including the erection, alteration, or location of dwellings, buildings, tents and recreational
vehicles within zoning districts established under the MZEA. Moreover, commonly, zoning
permits are documents issued by a local government or authority to permit land to be used for a
prescribed purpose.

        Thus, the township could not rely on the plain language of MCL 125.3406(1) to charge
the disputed escrow fee.

        Next, we must consider whether there is any authority to charge defendant the escrow fee
in dispute. “Townships have no inherent powers, but have only those limited powers conferred
on them by the Legislature or by the state constitution.” Graham v Kochville Twp, 236 Mich
App 141, 146; 599 NW2d 793 (1999). The Michigan Constitution provides:

               The provisions of this constitution and law concerning counties,
       townships, cities and villages shall be liberally construed in their favor. Powers
       granted to counties and townships by this constitution and by law shall include
       those fairly implied and not prohibited by this constitution. [Const 1963, art 7, §
       34.]

        “Michigan is strongly committed to the concept of home rule, and constitutional and
statutory provisions which grant power to municipalities are to be liberally construed.” Bivens v
Grand Rapids, 443 Mich 391, 400; 505 NW2d 239 (1993) (citation omitted). Local
governments may exercise reasonable control to regulate matters of local concern in a manner
and to the degree that the regulation does not conflict with state law. City of Taylor v Detroit
Edison Co, 475 Mich 109, 117-118; 715 NW2d 28 (2006).

                                                -3-
        Charter townships are governed by Michigan’s Charter Township Act, MCL 42.1 et seq.
Under MCL 42.33, the provisions of the act are to be liberally construed in the interest of the
public health, welfare, and safety of persons within such townships. Pursuant to MCL 42.1(2),
charter townships have all the powers, privileges, immunities, and liabilities possessed by a
township under MCL 41.1a et seq. Under MCL 42.5 a charter township’s township board is
vested with legislative authority and powers. MCL 42.15 in relevant part provides township
boards the authority to enact ordinances and MCL 42.20(1) authorizes charter townships as
follows:

               Legislation of a charter township shall be by ordinance or by resolution.
       A resolution shall be limited to matters required or permitted to be done by
       resolution by this act or by state or federal law and to matters pertaining to the
       internal affairs or concerns of the township government. Any other act of the
       township board, and any act imposing a sanction for the violation of the act, shall
       be by ordinance. “Resolution” means the official action of the township board in
       the form of a motion.

MCL 125.3603 defines the scope of a township zoning board of appeals’ review as:

               (1) The zoning board of appeals shall hear and decide questions that arise
       in the administration of the zoning ordinance, including the interpretation of the
       zoning maps, and may adopt rules to govern its procedures sitting as a zoning
       board of appeals. The zoning board of appeals shall also hear and decide on
       matters referred to the zoning board of appeals or upon which the zoning board of
       appeals is required to pass under a zoning ordinance adopted under this act. It
       shall hear and decide appeals from and review any administrative order,
       requirement, decision, or determination made by an administrative official or
       body charged with enforcement of a zoning ordinance adopted under this act. For
       special land use and planned unit development decisions, an appeal may be taken
       to the zoning board of appeals only if provided for in the zoning ordinance.

              (2) The concurring vote of a majority of the members of the zoning board
       of appeals is necessary to reverse an order, requirement, decision, or
       determination of the administrative official or body, to decide in favor of the
       applicant on a matter upon which the zoning board of appeals is required to pass
       under the zoning ordinance, or to grant a variance in the zoning ordinance.

        Under MCL 125.3603, the township board of appeals can review plaintiff’s application
requesting interpretation of the township’s zoning ordinances. Under the Allendale Charter
Township Zoning Ordinance, Art 28, § 28.02, the township’s zoning board of appeals has
jurisdiction to review decisions by administrative officials charged with the enforcement of the
zoning ordinance and to act upon all questions that arise in the administration of the zoning
ordinance. Under § 28.04, the zoning board of appeals has power to hear and decide any request
for interpretation of the township’s zoning ordinance.

        Section 28.03A of the Allendale Charter Township Zoning Ordinance requires payment
of fees by persons who submit appeals to the township’s board of appeals:

                                               -4-
               All appeals from any order, requirements, decision, or determination of
       any administrative official shall be taken within such time as shall be prescribed
       by the Board of Appeals by general rule, by filing with the officer from whom the
       appeals are taken with the Board of Appeals a notice of appeal specifying the
       grounds thereof. The administrative official from whom the appeal is taken shall
       forthwith transmit to the Board of Appeals all the papers constituting the record
       upon which the action appealed was taken. Each appeal or application to the
       Board of Appeals shall be accompanied by a filing fee as specified by resolution
       of the Charter Township Board. [Emphasis added.]

        In this case, the record reflects that plaintiff sought review by the township zoning board
of appeals of the township zoning administrator’s decision not to require plaintiff’s neighbor to
submit a site plan to the township’s planning commission related to his installation of a fence and
a dumpster enclosure. Plaintiff asserted that the zoning administrator’s decision violated
numerous provisions of the township’s zoning ordinance because his neighbor’s land use
constituted a new use requiring site-plan approval. The township then required payment of the
$1,500 fee under its Zoning Fee Escrow Policy enacted pursuant to the Township Board’s
Resolution 2011-2.

        The Township Board passed Resolution 2011-2 and its fee structure because MCL
125.3406 authorized the charging of reasonable fees for zoning permits and zoning applications.
The Township Board specifically referred to § 28.03A as authorizing the fees. It justified
establishing escrow accounts by explaining in Resolution 2011-2 that review of applications
often required the township to incur costs and it considered it reasonable and appropriate for
applicants to bear such costs rather than the township’s taxpayers. Resolution 2011-2 requires,
upon determination by township officials the likely incurring of exceptional or unusual costs, the
deposit of $1,500 into an escrow account. Resolution 2011-2 specified further that the township
could draw from escrowed funds to reimburse itself for expenses incurred.

        In Bolt v Lansing, 459 Mich 152, 161-162; 587 NW2d 264 (1998), our Supreme Court
defined three criteria for a determination of the legitimacy of a fee charged by a municipality: (1)
a fee must serve a regulatory purpose, (2) a fee must be proportionate to the necessary costs of
the service, and (3) a fee is voluntary.

        Resolution 2011-2 shows the specified fees serve a regulatory purpose as prescribed in
the MZEA and the township’s zoning ordinance. The fee schedule and the escrow account fees
defined in Resolution 2011-2 were proportionate to the necessary costs of the services provided.
Further, the fees were voluntary and similar to user fees charged for other services provided to
local citizens. Additionally, the escrow fees applied to and could only be used to reimburse the
township for actual costs incurred for the services necessary for the township, including the
Zoning Board of Appeals, to carry out its duties.

                                       III. CONCLUSION

        Both the district court and the circuit court erred by not interpreting and applying the
plain language of MCL 125.3406(1). Consequently, both courts incorrectly concluded that the
township had statutory authority under MCL 125.3406(1) to charge the disputed escrow fee.

                                                -5-
Nevertheless, we affirm the lower courts’ rulings because both courts achieved the right result, as
Resolution 2011-2 authorized the imposition of the fee upon plaintiff.

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ Jane E. Markey
                                                            /s/ Anica Letica




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