Viviano, J.
These consolidated cases present two issues. First, in Clam Lake Twp. v. Dep't of Licensing & Regulatory Affairs, we must decide whether the State Boundary Commission (Commission), when reviewing an annexation petition, has authority to determine the validity of a separate agreement entered into under the Intergovernmental Conditional Transfer of Property by Contract Act, 1984 PA 425, MCL 124.21 et seq. (Act 425 agreement). We hold that it does not. Instead, the Commission may only make the more limited determination of whether an Act 425 agreement is "in effect," as described by the statute, in which case the agreement preempts the annexation petition.
Second, in TeriDee LLC v. Haring Charter Twp, we must decide whether an Act 425 agreement can include requirements that a party enact particular zoning ordinances. The plain language of MCL 124.26(c) permits these requirements. Accordingly, the Court of Appeals erred by determining that they were prohibited, and we reverse.
This case involves an undeveloped parcel of roughly 241 acres of land surrounding
Undeterred, TeriDee filed a petition to have the land annexed by Cadillac in 2011. About the same time, Clam Lake Township and Haring Charter Township entered into an Act 425 agreement to transfer the land to Haring. The Commission reviewed both the annexation petition and the Act 425 agreement, which, if effective, would have preempted the petition.
The current round of disputes began in 2013, when the Townships learned that TeriDee was again planning to file for annexation. Cadillac, the proposed annexor, had public water and sanitary sewer services available near the proposed annexation area. In 2013, neither of the Townships could provide those services. However, that year Haring obtained financing for a new wastewater treatment plant that would enable it to extend water and sewer lines to the property. In light of this development, as well as TeriDee's impending petition, the Townships entered into an Act 425 agreement on May 8, 2013, transferring the land to Haring. The agreement was signed by the Townships and filed with the Wexford County Clerk and the Secretary of State on June 10, 2013.
The agreement, as subsequently amended, describes the Townships' desired economic development project as having two components. First, the project would include "the construction of a mixed-use, commercial/residential development... in order to balance the property owners' desire for commercial use with the need to protect the interests of surrounding residential property owners[.]" Second, the project required "the provision of public wastewater services and public water supply services to the Transferred Area, so as to foster the new mixed-use, commercial/residential development...." Further, the agreement provides that the forest-recreation zoning would remain in effect only until Haring could enact various zoning standards, including numerous minimum requirements. The agreement also states that the area's residential portions "shall be zoned in a Haring zoning district that is comparable" to the Township's existing zoning. The remaining property "shall be rezoned" according to the agreement's minimum
TeriDee subsequently filed its annexation petition. Though the petition mirrors TeriDee's 2011 attempt, the Commission this time found the petition legally sufficient. On review, the Commission concluded that the Act 425 agreement was invalid because it "was created solely as a means to bar the annexation and not as a means of promoting economic development." It cited five factual findings supporting this conclusion: (1) the economic project was "not believed by the Commission to be viable" because the Townships did not consult TeriDee, the landowner; (2) Clam Lake received no tax revenues from the agreement; (3) e-mails between Township officials indicated that the agreement was meant to prevent annexation; (4) the Commission questioned Haring's "ability to effectively and economically provide the defined public services"; and (5) the agreement's timing, shortly before TeriDee's annexation petition, suggested that it was a sham.
The Townships appealed in the circuit court, which upheld the Commission's determination. Relying on Casco Twp. v. State Boundary Comm.,
As the Commission proceedings were ongoing, TeriDee sued the Townships, seeking a declaratory judgment that the Act 425 agreement was invalid. It argued that the agreement was a contrivance meant to block the annexation. Alternatively, it asserted that the agreement was void as against public policy because it contracted away Haring's zoning authority by obligating Haring's zoning board to rezone pursuant to the agreement. The circuit court declined to consider the first argument, finding that the Commission had primary jurisdiction over that contention. However, the court struck down the agreement based on TeriDee's alternative argument. It found that the agreement required Haring to enact specific zoning ordinances, an impermissible delegation of zoning authority.
The Townships appealed, and the Court of Appeals affirmed.
In TeriDee LLC, two of the issues we asked the parties to address were
Our Constitution requires that we review administrative agency decisions to determine whether they "are authorized by law."
"We review de novo a trial court's determination regarding a motion for summary disposition."
We first address the scope of the Commission's power to review Act 425 agreements when considering an annexation petition.
Next, we must consider whether Act 425 provides the Commission authority to review agreements created under that statute. Act 425 provides that "[t]wo or more local units may conditionally transfer property for a period of not more than 50 years for the purpose of an economic development project. A conditional transfer of property shall be controlled by a written contract agreed to by the affected local units."
Local governmental units must consider various factors when entering into an Act 425 agreement, including the natural environment, population statistics, the need for and cost of government services, existing services, and the general effects of the transfer.
Only one provision in Act 425 implicates the Commission, but it does so in a manner that circumscribes the Commission's involvement. MCL 124.29 states that "[w]hile a contract under this act is in effect, another method of annexation or transfer shall not take place for any portion of an area transferred under the contract." Thus, all that is required to
Thus, the conditional land transfer takes place when the parties enter into the contract and file the appropriate documents with the county clerk and Secretary of State. At that point, the agreement is operative, or "in effect," and the agreement preempts any other method of annexation. Act 425 does not condition preemption on a finding that the contract is otherwise valid, and it does not expressly grant to the Commission the power to determine the agreement's validity. Instead, the Commission may only make an initial determination of whether the Act 425 agreement is operative, i.e., whether the contract was entered into by the parties and filed in accordance with the statute.
Only one Court of Appeals case has essayed a serious interpretation of Act 425. In Casco Twp., landowners in Casco and Columbus Townships petitioned to have Richmond City annex their lands; however, Lenox Township had shortly before acquired the land through two Act 425 agreements.
In Casco Twp., the Court of Appeals erred by concluding that MCL 124.29 authorizes the Commission to examine an Act 425 agreement's validity rather than simply to determine its effectiveness. The Court interpreted MCL 124.29 to "expressly require[] an Act 425 agreement that is `in effect' and, therefore, necessitates a valid agreement. Consequently, this statutory bar to the commission's consideration of an annexation petition requires an agreement that fulfills the statutory criteria...."
The problem with this analysis is that an Act 425 agreement preempts annexation when the agreement is "in effect." The
In sum, Casco misinterpreted Act 425, and we take this opportunity to overrule it. The plain language of the Act provides that the Commission must find any annexation petition preempted if a relevant Act 425 agreement is "in effect." In that situation, the Commission lacks the power to make any further determination of the agreement's validity.
Here, there is no dispute that the parties had entered into the Act 425 agreement and that it was properly filed with the Wexford County Clerk and the Secretary of State at the time the Commission considered the annexation petition.
We next consider whether the Townships' Act 425 agreement is void as against public policy for impermissibly contracting away Haring's legislative zoning authority. The Court of Appeals concluded that it was. To reach this result, it first found that the Act 425 agreement required Haring to enact specific zoning standards, thus restraining the Township's discretion in how to zone the property.
The Court of Appeals concluded that this provision did not permit the local units to agree to zoning ordinances. A contrary interpretation, it feared, "reads more words into the statute than are present."
We disagree with this analysis of MCL 124.26(c) and hold that the statute authorizes the Townships' zoning provisions.
The only remaining question is whether a zoning ordinance is an "ordinance" under MCL 124.26(c). The Court of Appeals thought not, because the statute does not mention zoning. But no specific types of ordinances are named in the statute. Therefore, the Court of Appeals' observation does not end the inquiry of whether a zoning ordinance qualifies under the statute as an "ordinance." An "ordinance" is simply "a law set forth by a governmental authority," specifically "a municipal regulation."
From here, completing the statutory analysis is syllogistic. MCL 124.26(c) permits the local units to specify the content and substance of ordinances in their Act 425 agreement, and a zoning ordinance is an ordinance for purposes of the statute. It follows that MCL 124.26(c) allows the units to specify the content and substance of zoning ordinances in their Act 425 agreement. As applied here, MCL 124.26(c) authorizes the Townships' zoning provisions.
Neither the parties nor the courts below suggest any reason why the Legislature would be prohibited from authorizing this form of contract zoning. True, the zoning power "constitutes a legislative function" that municipalities may exercise.
Accordingly, the Legislature in Act 425 enabled local units to contract for zoning. We reverse the Court of Appeals' contrary conclusion.
In Clam Lake, we hold that the Commission, when faced with an Act 425 agreement
Stephen J. Markman, C.J., Brian K. Zahra, Bridget M. McCormack, Richard H. Bernstein, Joan L. Larsen, Kurtis T. Wilder, JJ., concur.
Appellees have also claimed that the Townships are judicially estopped from challenging Casco Twp., 243 Mich.App. 392, 622 N.W.2d 332, because in TeriDee, the Townships successfully relied on Casco to obtain partial dismissal under the primary jurisdiction doctrine. A party is judicially estopped from asserting a position inconsistent with one it successfully and unequivocally asserted in a prior proceeding. Paschke v. Retool Indus., 445 Mich. 502, 509, 519 N.W.2d 441 (1994). There is nothing inconsistent in the Townships' positions. In TeriDee, they claimed that Casco required the Commission, rather than the circuit court, to have the first opportunity to review the Act 425 agreement. In Clam Lake, the theory they offer, and prevail on, is that Casco gave the Commission too much authority to review Act 425 agreements, and that the statute limits review to determining whether an agreement is "in effect" under MCL 124.29. In both cases, the Commission can examine the agreement; the pertinent argument here, and the one that the Townships have consistently made, concerns the scope of that examination. Therefore, the Townships are not estopped from challenging this aspect of Casco.