Opinion
354207
08-26-2021
CARTER WILLIAMS, Plaintiff-Appellant, v. CITY OF HARBOR SPRINGS, CITY OF HARBOR SPRINGS ZONING BOARD OF APPEALS, NICK WHITAKER and ROBERT THOMA, Defendants-Appellees.
UNPUBLISHED
Emmet Circuit Court LC No. 19-106617-CZ
Before: Ronayne Krause, P.J., and Beckering and Boonstra, JJ.PER CURIAM.
Plaintiff, Carter Williams, appeals as of right the trial court's order granting defendants'motion for summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact) and dismissing the case. On appeal, plaintiff argues that the trial court erred by concluding that defendant complied with the notice requirements of the Open Meetings Act (OMA), MCL 15.261 et seq., and provided the proper documents in response to his request made under Michigan's Freedom of Information Act (FOIA), MCL 15.231 et seq. We conclude that defendant complied with both the OMA and FOIA; therefore, we affirm the trial court's order granting the motion for summary disposition.
There are several defendants in this case: The City of Harbor Springs, the City of Harbor Springs Zoning Board of Appeals (ZBA), Nick Whitaker (city clerk for Harbor Springs), and Robert Thoma (ZBA chair). For the ease of reference, we will refer to the City of Harbor Springs as "defendant." The other defendants will be specifically named when necessary.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Irish Boat Shop's proposal to build a new sales building on the waterfront in Harbor Springs, Michigan. Plaintiff, a resident of St. Louis, Missouri, owns a summer home that is located across the street from Irish with views of Little Traverse Bay. In October 2018, Irish proposed a new sales building at its waterfront location. Plaintiff objected to the proposed building to defendant, and Irish withdrew its proposal. Irish then submitted an amended proposal, which placed the new building further west. According to plaintiff, the location of the new building would significantly impair the views and value of his home.
On January 17, 2019, the Harbor Springs City Planning Commission approved the amended proposal for the new sales building. Plaintiff appealed the planning commission's decision to the ZBA. The ZBA addressed plaintiff's appeal at a meeting held on May 8, 2019. After considering the points that plaintiff raised on appeal, the ZBA denied the appeal on the ground that plaintiff was not an "aggrieved person." According to the May 8, 2019 meeting agenda, the next ZBA meeting was to occur on "June 12, 2019, if required."
On May 9, 2019, plaintiff submitted a FOIA request to defendant, asking for materials related to the May 8, 2019 meeting so that he could appeal the decision to the circuit court.
On May 14, 2019, the ZBA posted notice of a special meeting to occur on May 15, 2019, for the purpose of approving the meeting minutes from the May 8, 2019 meeting. Victor Sinadinoski, the Harbor Springs city manager, stated in an affidavit that he posted the agenda for the May 15, 2019 meeting on defendant's Facebook page on May 14, 2019, at 12:45 p.m. Andrew Potter, Sinadinoski's assistant, explained in his affidavit that on the morning of May 14, 2019, he posted a notice concerning the May 15, 2019 ZBA meeting on the homepage of defendant's website in the section dedicated to upcoming meetings. Potter also stated that he posted copies of the agenda on the notice board inside city hall and the exterior bulletin board. The ZBA approved the May 8, 2019 meeting minutes at the May 15, 2019 meeting.
Sinadinoski explained that defendant "utilizes the agendas for meetings as the notices of meetings for purposes of the Open Meetings Act."
On May 16, 2019, defendant responded to plaintiff's FOIA request. Plaintiff received several documents pertaining to the May 8, 2019 meeting, including the typed minutes signed by Whitaker and a written decision and order denying plaintiff's appeal signed by the ZBA acting chairperson. The signed minutes were not dated, but the decision and order provided the following attestation on the last page, signed by Whitaker:
I hereby certify that the foregoing is a true and complete copy of a Decision and Order that was approved by the Harbor Springs Zoning Board of Appeals at [sic] meeting held on May 15, 2019.
According to Potter's affidavit, the minutes of the May 8, 2019 meeting, as approved at the May 15, 2019 meeting, were available on the city's website on May 20, 2019.
On May 31, 2019, plaintiff's counsel sent an e-mail to the FOIA coordinator asking about the deadline for filing an appeal in the circuit court. The coordinator responded that plaintiff had to file the appeal within 30 days of May 15, 2019.
This e-mail exchange concerns the timing requirements for appealing a ZBA decision to the circuit court. MCL 125.3606(3) provides:
An appeal from a decision of a zoning board of appeals shall be filed within whichever of the following deadlines comes first:
(a) Thirty days after the zoning board of appeals issues its decision in writing signed by the chairperson, if there is a chairperson, or signed by the members of the zoning board of appeals, if there is no chairperson.
(b) Twenty-one days after the zoning board of appeals approves the minutes of its decision.
On June 10, 2019, plaintiff filed an appeal from the ZBA decision in the circuit court. The circuit court ultimately dismissed the appeal, concluding that it was untimely because it was filed more than 21 days after the ZBA approved the May 8, 2019 meeting minutes on May 15, 2019.The trial court explained:
Plaintiff appealed by leave the circuit court's dismissal order to this Court. Williams v Harbor Springs, unpublished order of the Court of Appeals, February 3, 2020 (Docket No. 350552). After hearing oral argument, the panel decided to hold the matter in abeyance pending a decision in this appeal. Williams v Harbor Springs, unpublished order of the Court of Appeals, entered March 29, 2021 (Docket No. 350552).
And there's really no dispute that if we just ask the question; was this claim of appeal filed within 21 days of the minutes of that decision being approved? The answer to that question is no. And . . . the appellant's council [sic] had, as early as May 16th, a copy of that written decision dated May 15th and a copy of the approved minutes. They were signed by the clerk. I think it'd be reasonable to view those minutes signed by the clerk as the approved minutes that I think put the appellant on notice that those minutes had been approved; not any later than May 16 when they had been received and possibly earlier. Although I agree with appellant that it didn't say when they were approved, but surely they were approved by the time you got the signed copy. And the appeal was, nonetheless, not filed within 21 days, even of the May 16th date. So, for those reasons the claim of appeal was not timely filed.
A transcript of the August 2, 2019 hearing on defendant's motion to dismiss was provided to this Court in plaintiff's appeal in Docket No. 350552. Defendant also quoted the trial court's ruling in its brief in the instant case. We take judicial notice of the trial court's ruling and conclude that it adds helpful context for the purposes of resolving this appeal.
Plaintiff then filed a complaint in the circuit court, asserting that defendant violated the OMA for failing to post information related to the special May 15, 2019 meeting on the city's website, and for failing to correct the May 15, 2019 meeting minutes at the June 12, 2019 meeting as required by statute. Additionally, plaintiff alleged that defendant violated FOIA by failing to provide notice of the special May 15, 2019 meeting, the agenda for that meeting, and the approved or proposed minutes for that meeting. According to plaintiff, he was prejudiced by defendant's actions because he was unaware that the special meeting occurred, and as a result, filed his appeal to the circuit court late. Therefore, plaintiff asked the court to invalidate the actions taken by the ZBA on May 15, 2019.
After discovery, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) (failure to state a claim upon which relief can be granted) and MCR 2.116(C)(10). The trial court ultimately granted the motion under MCR 2.116(C)(10) in a written opinion and order, which resulted in the dismissal of plaintiff's case. Plaintiff now appeals.
II. ANALYSIS
A. OPEN MEETINGS ACT
Plaintiff first argues that defendant violated the OMA for failing to provide sufficient notice of the May 15, 2019 special meeting on its website. We disagree.
"Challenges to the trial court's decision on a motion for summary disposition are reviewed de novo." Wood v Detroit, 323 Mich.App. 416, 419; 917 N.W.2d 709 (2018). When reviewing a motion brought pursuant to MCR 2.116(C)(10), this Court "must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence in favor of the party opposing the motion." Baker v Arbor Drugs, Inc, 215 Mich.App. 198, 202; 544 N.W.2d 727 (1996). This Court's "task is to review the record evidence, and all reasonable inferences drawn from it, and decide whether a genuine issue regarding any material fact exists to warrant a trial." Id. A genuine issue of material fact exists when the record, "giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ." Shallal v Catholic Social Servs of Wayne Co, 455 Mich. 604, 609; 566 N.W.2d 571 (1997). However, the court may not "assess credibility" or "determine facts on a motion for summary judgment." Skinner v Square D Co, 445 Mich. 153, 161; 516 N.W.2d 475 (1994). Moreover, the interpretation of a statute is a question of law that this Court reviews de novo. Estes v Titus, 481 Mich. 573, 578; 751 N.W.2d 493 (2008).
For a motion for summary disposition brought under MCR 2.116(C)(10), "[t]he moving party has the initial burden to support its claim for summary disposition by affidavits, depositions, admissions, or other documentary evidence." Lockwood v Ellington Twp, 232 Mich.App. 392, 401; 917 N.W.2d 413 (2018) (quotation marks and citation omitted). This Court "must consider all of the admissible evidence in a light most favorable to the nonmoving party." Id. "However, the party opposing summary disposition under MCR 2.116(C)(10) may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists." Id. (quotation marks and citation omitted).
This case involves the interpretation of a statute. "When courts construe statutory meaning, their primary goal is to ascertain and give effect to legislative intent." Institute in Basic Life Principles, Inc v Watersmeet Twp (After Remand), 217 Mich.App. 7, 12; 551 N.W.2d 199 (1996). We "first look to the specific statutory language to determine the intent of the Legislature." Id. "The Legislature is presumed to intend the meaning that the statute plainly expresses." Id. Therefore, "[j]udicial construction of a statute is not permitted where the plain and ordinary meaning of the language is clear." Id.
In this case, plaintiff asserts that defendant violated the OMA by holding the special May 15, 2019 meeting without providing the requisite notice. Specifically, plaintiff argues that defendant did not provide notice of the meeting on the city's website as required by MCL 15.265(4), and therefore, he seeks to invalidate the ZBA's approval of the May 8, 2019 meeting minutes.
MCL 15.265(1) provides that "[a] meeting of a public body shall not be held unless public notice is given as provided in this section by a person designated by the public body." In pertinent part, MCL 15.265(4) states that:
for . . . a special meeting of a public body, a public notice stating the date, time, and place of the meeting shall be posted at least 18 hours before the meeting in a prominent and conspicuous place at both the public body's principal office and, if the public body directly or indirectly maintains an official internet presence that includes monthly or more frequent updates of public meeting agendas or minutes, on a portion of the website that is fully accessible to the public. The public notice on the website shall be included on either the homepage or on a separate webpage dedicated to public notices for nonregularly scheduled public meetings and accessible via a prominent and conspicuous link on the website's homepage that clearly describes its purpose for public notification of those nonregularly scheduled public meetings.
According to MCL 15.270(1),
Decisions of a public body shall be presumed to have been adopted in compliance with the requirements of this act. The attorney general, the prosecuting attorney of the county in which the public body serves, or any person may commence a civil action in the circuit court to challenge the validity of a decision of a public body made in violation of this act.
A decision made by a public body may be invalidated . . . if failure to give notice in accordance with section [MCL 15.265] has interfered with substantial compliance with [MCL 15.263] and the court finds that the noncompliance or failure has impaired the rights of the public under this act. [MCL 15.270(2).]
As a result, a court has discretion to invalidate a decision made by a public body if failure to comply with the notice requirements of the OMA impaired the rights of the public under the OMA. Lockwood, 323 Mich.App. at 402. "A trial court's determination of whether the public's rights were impaired is based on the public's opportunity to participate in the public body's decision-making process." Id. See also Spalding v Swiacki, ____ Mich. App____; ____N.W.2d (Docket No. 354598, issued July 8, 2021), slip op 5.
In this case, defendant attached several affidavits to its motion for summary disposition, including an affidavit prepared by city manager assistant Potter, who posted notice of the meeting on the website. Potter provided the following explanation concerning the posting:
8.The City maintains on the home page of the City's website a section that contains a listing of the upcoming meetings of the City Council, and the various Boards and Commissions of the City, including but not limited to the meetings of the Zoning Board of Appeals ("ZBA").
9.The notices of meeting on the City website contain a link to a page on the City website for the particular board or commission that states the time and location of the specific meeting noticed, and also contains a link to information on the specific meeting noticed.
* * *
12. On May 14, 2019 between 10:40 am and 10:50 am, I posted on the City's website a notice, similar to the notices of meetings as shown on [an attached screenshot showing how the homepage looked as of July 29, 2019], of a meeting of the ZBA scheduled for May 15, 2019.
13.The page linked to the notice of meeting for May 15, 2019 of the ZBA contained a link to the Agenda for the meeting of May 15, 2019.
Moreover, city manager Sinadinoski stated in his affidavit that he posted a notice of the May 15, 2019 meeting on defendant's Facebook page at 12:45 p.m. on May 14, 2019. He attached a screenshot of the post to his affidavit, which provided:
There will be a special meeting of the Zoning Board of Appeals on Wednesday, May 15 @ 6:00 PM in City Hall to approve the minutes of May 8, 2019. Please see the agenda for more details.
The post also contained a link to defendant's website and the agenda for the May 15, 2019 meeting.
As a result, the affidavits prepared by Sinadinoski and Potter and attached to defendant's motion for summary disposition establish that notice of the special May 15, 2019 meeting was posted on the homepage of defendant's website and Facebook page more than 18 hours before the meeting. See MCL 15.265(4). Although Potter's affidavit is inartfully worded, by considering the affidavit in conjunction with the screenshot of the website's homepage that was attached, we conclude that Potter posted notice of the meeting in the "Meeting and Events" section that is located on the right of the homepage. The notice contained a link, which opened a page containing additional information about the meeting, including a link to the agenda. Because the homepage is continually updated with notices of upcoming meetings, the notice for the May 15, 2019 meeting was no longer visible by the time this litigation began.
In response to defendant's motion for summary disposition, plaintiff submitted an affidavit, stating that he visited defendant's website several times between May 8, 2019, and June 12, 2019, and no information was posted on the homepage about the May 15, 2019 special meeting. However, although plaintiff claims to have visited the website "several times," he does not specify that he viewed the website on May 14 or May 15, when the notice was posted. Further, plaintiff filed an improper response to defendant's reply to plaintiff's opposition to the motion for summary disposition and attached documentation allegedly showing that there were no updates made to the website on May 14, 2019. These documents were discussed at the motion hearing, with defendant arguing that changes to the "Meetings and Events" section were not included. Otherwise, defendant pointed out, there would be many more noted changes because defendant had so many meetings. Plaintiff did not dispute defendant's position. Consequently, we agree with the trial court's finding that plaintiff failed to refute the evidence showing that notice of the May 15, 2019 meeting was posted on defendant's website as required by MCL 15.265(4), as well as on its Facebook page. Therefore, the trial court properly granted defendant's motion for summary disposition under MCR 2.116(C)(10). See Lockwood, 232 Mich.App. at 401.
In addition, plaintiff objects to the trial court's reliance on the "substantial compliance" doctrine in its decision to grant the motion for summary disposition. However, we do not believe that the trial court concluded that defendant substantially complied with the OMA. Rather, the court was explaining that it found that defendant complied with the OMA, but observing that even if that had not been the case, defendant, at minimum, substantially complied with the requirements of the statute. See Arnold Transit Co v Mackinac Island, 99 Mich.App. 266, 274-276; 297 N.W.2d 904 (1980) (holding that although the defendant violated the technical requirements of the OMA by failing to post notice of the meeting 18 hours in advance and failing to keep meeting minutes, the defendant substantially complied with the statute because notice was printed in the local newspaper, the defendant sent notices to the plaintiff, and the meeting was announced at an earlier meeting; in addition, the failure to keep meeting minutes was not a reason to invalidate the disputed ordinance). Further, although not discussed in the trial court proceedings, any technical violation of the notice requirements did not hinder the public's opportunity to participate in the meeting because notice was posted at city hall, on the website, and on the Facebook page. See Lockwood, 323 Mich.App. at 402.
Plaintiff also argues that defendant violated MCL 15.269(1) for failing to make all corrections to the May 15, 2019 meeting minutes at the June 12, 2019 meeting. MCL 15.269(1) states:
Each public body shall keep minutes of each meeting showing the date, time, place, members present, members absent, any decisions made at a meeting open to the public, and the purpose or purposes for which a closed session is held. The minutes shall include all roll call votes taken at the meeting. The public body shall make any corrections in the minutes at the next meeting after the meeting to which the minutes refer. The public body shall make corrected minutes available at
or before the next subsequent meeting after correction. The corrected minutes shall show both the original entry and the correction.
According to city clerk Whitaker's affidavit, he took the minutes for the May 15, 2019 meeting, and an unapproved version of those minutes was available to the public on May 16, 2019. The May 15, 2019 meeting minutes were approved at the June 12, 2019 meeting. According to Whitaker's affidavit, he explains that he became aware on June 20, 2019, that there were mistakes in the May 15, 2019 meeting minutes concerning the day and date that the meeting occurred. Those errors were corrected at the June 24, 2019 meeting. Whitaker noted that there is an additional mistake in the corrected minutes regarding the time that the meeting started. The corrected minutes provide that the meeting started at 5:30 p.m., when the meeting actually started at 6:00 p.m. Whitaker attached his handwritten minutes from the meeting that state that the meeting began at 6:00 p.m., which matches the time posted in the meeting's agenda.
At any rate, the late correction of the date and time in the May 15, 2019 meeting minutes did not result in the impairment of the public to participate in the meeting. According to Whitaker, the posted agenda had the correct information and the meeting minutes would not have been released to the public until after the meeting occurred. See Lockwood, 323 Mich.App. at 402. Moreover, any deficiency in the meeting minutes is not a ground upon which to invalidate an action by a public body. See Willis v Deerfield Twp, 257 Mich.App. 541, 554; 669 N.W.2d 279 (2003) (stating that "deficiencies in the maintenance of meeting minutes do not provide grounds for invalidating action taken by a public body"). Accordingly, the trial court did not err by granting defendant's motion for summary disposition.
B. FREEDOM OF INFORMATION ACT
Lastly, plaintiff asserts that the trial court erred by concluding that defendant did not violate FOIA for failing to provide documents related to the May 15, 2019 special meeting. We disagree.
In this case, plaintiff submitted a FOIA request to defendant on May 9, 2019, requesting:
• All materials provided the ZBA for their review of [the May 8, 2019] ZBA hearing
• The formal written record of the hearing and its decision in a fashion appropriate for circuit court filling [sic]
On May 16, 2019, defendant fully granted the request and provided several documents, including a signed copy of the approved May 8, 2019 meeting minutes and a signed decision and order denying plaintiffs appeal.
At the outset, plaintiff s FOIA claim relates to the timing of his appeal to the circuit court. Plaintiff did not ask for the production of documents or attorney's fees in the trial court. See Thomas v New Baltimore, 254 Mich.App. 196, 202; 657 N.W.2d 530 (2002). ("If a plaintiff prevails in an action to compel disclosure under the FOIA, the circuit court must award reasonable attorney fees, costs, and disbursements to the plaintiff."). Instead, plaintiff contends that defendant's failure to include materials related to the May 15, 2019 meeting stopped him from filing a timely appeal in the circuit court.
"Any party aggrieved by a decision of the zoning board of appeals may appeal to the circuit court for the county in which the property is located." MCL 125.3606(1). The timelines for an appeal are contained in MCL 125.3606(3), which provides:
An appeal from a decision of a zoning board of appeals shall be filed within whichever of the following deadlines comes first:
(a) Thirty days after the zoning board of appeals issues its decision in writing signed by the chairperson, if there is a chairperson, or signed by the members of the zoning board of appeals, if there is no chairperson.
(b)Twenty-one days after the zoning board of appeals approves the minutes of its decision.
In this case, the ZBA issued its written decision and approved the minutes of the May 8, 2019 meeting at the special meeting held on May 15, 2019. Therefore, plaintiff was required to file his appeal within 21 days of May 15, or by June 5, 2019. However, his appeal was filed on June 10, 2019, and the circuit court ultimately dismissed the appeal as untimely. Nonetheless, plaintiff's confusion about the deadline to file an appeal does not establish a FOIA violation. Plaintiff asked for the materials reviewed by the ZBA for the May 8, 2019 hearing and the formal written record of the hearing and decision in a fashion appropriate for circuit court filing. In response, defendant provided the approved May 8, 2019 meeting minutes and the signed decision and order. MCR 7.122(C)(4) states that, in an appeal to the circuit court from a decision of a ZBA, "[t]he appellant must attach to the claim of appeal a copy of the order and/or minutes of the officer or entity from which the appeal is taken or must indicate that there is no such document to attach." Accordingly, plaintiff had the necessary documents to file an appeal in the circuit court on May 16, 2019. At the motion hearing concerning the motion for summary disposition, plaintiff's counsel acknowledged that plaintiff received a signed copy of the May 8, 2019 meeting minutes and the signed decision and order, which indicated that a meeting occurred on May 15, 2019. As earlier noted, the decision and order contained the following attestation with Whitaker's signature:
I hereby certify that the foregoing is a true and complete copy of a Decision and Order that was approved by the Harbor Springs Zoning Board of Appeals at meeting held on May 15, 2019.
Therefore, plaintiff failed to establish that defendant violated FOIA or that defendant's insufficient response prejudiced plaintiff's ability to file an appeal. Consequently, the trial court's grant of defendant's motion for summary disposition on this ground was proper.
Plaintiff also argues that the city attorney and FOIA coordinator erroneously informed him that he had until 30 days from May 15, 2019 to file the appeal; however, that inaccurate advice does not constitute a violation of FOIA, especially considering that e-mail exchange did not occur until after defendant responded to the request. Further, plaintiff alleges that defendant should have disclosed its communication informing Irish about the May 15, 2019 special meeting. But, we do not believe that the failure to include such communication resulted in a FOIA violation because it was outside the scope of plaintiff's request and, as previously discussed, plaintiff was given the necessary documents to file his appeal. Additionally, evidence showed that the communication was in response to Irish's inquiry in regard to its building permit.
Affirmed.
AMY RONAYNE KRAUSE, JANE M. BECKERING, MARK T. BOONSTRA JJ.