Opinion
No. 127144.
January 27, 2006.
Summary Disposition.
SC: 127144, COA: 246319.
In lieu of granting leave to appeal, we vacate that portion of the judgment of the Court of Appeals that addressed the claim that the trial court erred in holding that public policy did not bar a challenge to plaintiff's enactment of the zoning ordinance. MCR 7.302(G)(1). Because the Court of Appeals affirmed the trial court's ruling that § 6 of zoning ordinance 96-2 was unconstitutional as applied to defendant under the circumstances, the ostensible public policy bar to the challenge was rendered moot, and the discussion of it by the Court of Appeals was dicta.
I concur in the Court's order to vacate the specified portion of the Court of Appeals judgment. I write separately to note that I question the Court of Appeals conclusion in Jackson v. Thompson-McCully Co, LLC, 239 Mich App 482, 493 (2000). In an appropriate case, this Court should squarely review the continuing validity of the so-called "public policy" doctrine. Even after the passage of many years, a challenge that alleges that a zoning ordinance was improperly enacted may yet proceed. See, e.g., Castle Investment Co v. Detroit, 471 Mich 904 (2004) (barring the enforcement of provisions of an improperly enacted 1976 ordinance that the plaintiff did not specifically challenge until 1998). For this reason, I concur in vacating the Court of Appeals reliance on a "public policy" ground described in Jackson.
CAVANAGH, WEAVER and KELLY, JJ. We would deny leave to appeal.