Hindelang v. City of Grosse Pointe

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ROBERT L. HINDELANG and PAULA M. HINDELANG, Plaintiffs-Appellants, v. CITY OF GROSSE POINTE, CITY COUNCIL OF GROSSE POINTE, CITY MANAGER OF GROSSE POINTE, CITY CLERK OF GROSSE POINTE, and MAYOR OF GROSSE POINTE, Defendants-Appellees.

No. 359156

Court of Appeals of Michigan

May 18, 2023

UNPUBLISHED

Wayne Circuit Court LC No. 20-007839-CZ

Before: PATEL, P.J., and CAVANAGH and REDFORD, JJ.

PER CURIAM.

This case arises from the approval of a lot split of a residential lot in the city of Grosse Pointe (the city). On appeal plaintiffs, who opposed the lot split and filed suit challenge the trial court's orders granting summary disposition in favor of defendants, the city of Grosse Pointe, the city council, the city manager, the city clerk and the mayor, and dismissing all of plaintiffs' claims. Although plaintiffs ultimately alleged 20 different state-law counts, they only challenge the dismissal of 13 of those counts on appeal. For the reasons stated in this opinion, we affirm.

I. BASIC FACTS

Plaintiffs own a residential lot located at 235 Lincoln Road in Grosse Pointe, whose rear (western) property line abuts a lot located at 250 Washington Road. The Washington lot is zoned Estate Residential (E-R) and contains an approximate 9,000-square-foot home, which is in the northern portion of the lot. The eastern border of the Washington lot abuts the western border of plaintiffs' lot. However, because the Washington lot is approximately twice the size of plaintiffs' lot, only the southern portion of the Washington lot's eastern border abuts plaintiffs' lot. Simply put, plaintiffs' lot abuts the southern, vacant portion of the Washington lot.

One of the owners of the Washington lot filed an application with the city to split the lot into a northern portion and a southern portion. After some discussions with the owner, McKenna & Associates (McKenna), who the city hired to conduct city planning services, recommended that the city council approve the lot split. The city council considered the proposed split of the Washington lot at a meeting on February 10, 2020. The city council had some concerns about the proposed split and tabled the issue for 60 days. At a meeting on April 20, 2020, the city council voted on whether to approve the lot split. Although a majority voted to approve the split, the 4-3 vote failed to meet the two-thirds majority requirement for this proposal, resulting in the proposal failing.

The city council met again on May 11, 2020, at a meeting labeled as a "Budget Hearing," in which the primary focus was the city's 2020-2021 budget.^[1] At this meeting, the minutes for the prior April meeting were not considered for approval. Toward the end of the meeting, the city council went into a planned closed session to "[r]eview attorney memorandum subject to attorney client privilege."

At the next regular city council meeting on May 18, 2020, the city council voted to reconsider its April 20, 2020 denial of the lot split. The council then decided in a 6-0 vote to allow the split. Although this decision to open the issue for reconsideration and the decision to actually approve the lot split was noted in the minutes for the May 18 meeting, council also voted to reflect these decisions in the minutes for the April 20 meeting.

On June 22, 2020, plaintiffs filed their initial complaint alleging 14 counts. A week later, they filed their first amended complaint, realleging the original 14 counts and adding six more, for a total of 20 counts. The claims in plaintiffs' first amended complaint fall into the following categories: 11 counts alleged violations of the Open Meetings Act (OMA), MCL 15.261 et seq.; six counts alleged violations of the city's ordinances; one count set forth an appeal of the city's zoning decision; two counts implicated federal law by alleging a taking and a due-process violation; and one count alleged a violation of Michigan's Freedom of Information Act (FOIA), MCL 15.231 et seq.^[2]

In April 2020, plaintiffs made a request to the city for the production of documents under Michigan's FOIA. On June 5, 2020, the city declined to produce certain documents because of attorney-client privilege. On June 15, 2020, plaintiffs made a supplemental request for the production of other documents that were referred to, but not supplied in, the initial production of documents. Defendants, however, later declined to produce them, citing the litigation exception under the FOIA now that an action was pending between the parties.

Defendants thereafter removed the case to federal court, but because the 18 state-law claims predominated over the entire complaint, the federal court declined to exercise supplemental jurisdiction over the state claims and remanded those 18 claims to the Wayne Circuit Court.^[3] The state-law counts alleged in plaintiffs' first amended complaint are summarized as follows:

OMA Violations

Count I: Defendants violated the OMA by failing to timely post the proposed minutes for the May 11, 2020 meeting.

Count II: Defendants violated the OMA by failing to timely post proposed minutes of the May 18, 2020 meeting.

Count III: Defendants violated the OMA by failing to timely post approved minutes of the May 11, 2020 meeting.

Count IV: Defendants violated the OMA by failing to timely post approved minutes of the May 18, 2020 meeting.

Count VI: Defendants violated the OMA by failing to provide sufficient notice of the city council's 2020 meetings.

Count VII: Defendants violated the OMA by failing to timely approve the minutes of the April 20 meeting.

Count VIII: Defendants violated the OMA by deliberating and making decisions in a closed meeting. Specifically, defendants' deliberation regarding reconsideration of its April 20 vote denying the lot split was not conducted in a public session.

Count IX: Defendants violated the OMA (and ordinances) by failing to provide sufficient notice for the May 18 meeting.

Count XI: Defendants violated the OMA in the procedure going into and returning from the closed session on May 11.

Count XIII: Defendants violated the OMA by submitting false and misleading minutes for the May 11, 2020 meeting.

Count XIV: Defendants violated the OMA by not submitting proposed minutes for the April 20 meeting and its revision.

Grosse Pointe Ordinance Violations

Count V: Defendants violated the Grosse Pointe Ordinances by not signing posted minutes.

Count IX: Defendants violated the Grosse Pointe Ordinances (and OMA) by failing to provide sufficient notice for the May 18 meeting.

Count X: Defendants violated the Grosse Pointe Ordinances by not complying with its notice requirements in relation to the May 18 meeting.

Count XII: Defendants violated the Grosse Pointe Ordinances by going into a closed session on May 11.

Count XVI: Defendants violated the Grosse Pointe Ordinances because the council's decision to approve the lot split produced a result that is contrary to the Master Plan and other ordinance provisions.

Count XVII: Defendants violated the Grosse Pointe Ordinances by considering an application that was defective under the ordinances.

Administrative Appeal of Decision

Count XV: Plaintiffs challenge the May 18 decision to allow the lot split, arguing, among other things, that the decision was unreasonable, arbitrary, and capricious.

FOIA Violation

Count XX: Plaintiffs request an in camera review of materials that defendants have declined to disclose under the FOIA, claiming attorney-client privilege.

Defendants moved for summary disposition under MCR 2.116(C)(7) and (8). The trial court granted defendants' motion respecting Counts V, VII, IX-XII, XIV, XVI, and XVII, and dismissed those counts with prejudice. For Count V, the court ruled that nothing in the ordinances or the OMA required any meeting minutes to be signed. For Count VII, the court ruled that any violation of untimely posting of approved minutes was de minimis and not intentional. For Count IX, the trial court ruled that there was no notice violation because plaintiffs had notice of the May 11 meeting and even participated in the May 18 meeting. For Counts X, XVI, and XVII, the trial court determined that they were not actionable because they did not pertain to the city council's decision-making process. Although the trial court in its written order dismissed Counts XI and XII, it gave contradictory rulings during the hearing, first seemingly denying defendants' motion on these counts and then later granting the motion and dismissing these counts. The trial court dismissed Count XIV because the April 20 minutes on their face showed no violation of the OMA. The trial court ruled that the remaining counts could survive defendants' motion, but some would need to be amended.

Consistent with the trial court's ruling, plaintiffs filed a second amended complaint that contained amended Counts I-IV and XX,^[4] and contained two new counts, Counts XXI and XXII. Count XXI alleged a violation of 1963 Const, art 1, § 17 in conjunction with defendants treating plaintiffs unfairly. Count XXII alleged that defendants failed to treat the lot split as a variance subject to action by the zoning board of appeals. Defendants thereafter filed their second motion for summary disposition on Counts XXI and XXII under MCR 2.116(C)(7) and (8), and dismissal of Count XV under MCR 7.211. The trial court granted the motion. The court dismissed Count XV because plaintiffs failed to allege any special damages, a necessary requirement to have standing to appeal a zoning decision. The trial court granted defendants' motion for summary disposition on Count XXI because, in part, plaintiffs provided no legal theory to support their due-process claim. The court also granted defendants' summary disposition on Count XXII because the...