Count I Violation of Chesterfield’s ordinance 76-653 Sec. 76-653. Permits. The following shall apply in the issuance of any permit: (1) Required. It shall be unlawful for any person to commence excavation for, or construction of, any building, fence or structure (except concrete work not requiring a foundation or ratwall), structural changes, repairs in any existing building or structure, or moving of an existing building without first obtaining a zoning compliance permit and a building permit from the building administrator. It shall be unlawful for any person As we must follow the rule of statutory construction as stated in 2 Sutherland, Statutory Construction (3d ed), Sec. 4705, p 339: It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error The term law, as defined by the elementary writers, emanates from the sovereignty and not from its creatures. The legislative power of the state is vested in the state legislature, and their enactments are the only instruments that can in any proper sense be called laws. Delta County v City of Gladstone, 305 Mich 50; 8 NW2d 908 (1943). Can this possibly be that the Chesterfield Township board has the legislative power and jurisdiction over ANY PERSON? Anywhere? Probably not. So its obvious that the ninth circuit court of appeals was correct when they stated: Persons dealing with the government are charged with knowing government statutes and regulations, and they assume the risk that government agents may exceed their authority (and most often do) and provide misinformation. Ninth Circuit Court of Appeals, Lavin v Marsh, 644 f.2D 1378, (1981).bracketed note mine. All persons in the United States are chargeable with knowledge of the Statutes at Large... It is well established that anyone who deals with the government assumes the risk that the agent acting in the governments behalf has exceeded the bounds of his authority. Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 9th Cir., (1981) So it appears that this ordinance is facially void and that the township is causing a crime against me. Lets look at the actual authority of the township The authority reserved to local units of government to exercise reasonable control over streets and highways is expressly made subject to other provisions of the Constitution. One such provision is Const 1963, art 7, § 22 in which cities and villages enjoy broad powers to adopt ordinances relating to municipal concerns, subject to the constitution and law. AFSCME v Detroit, 468 Mich 388, 410; 662 NW2d 695 (2003). Similarly, section 4j(3) of the Act, MCL 117.4j(3), authorizes home rule cities to adopt ordinances relating to their municipal concerns subject to the Constitution and law: Each city may in its charter provide: For any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the constitution and general laws of this state. Although home rule cities may adopt a code by passing an ordinance under their general police powers, a municipality is precluded from enacting an ordinanceif the ordinance directly conflicts with the state statutory scheme addressing that subject or if the state statutory scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation. People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977). townships are created for the convenience of state governments and have only the implied power to do acts necessary to enable them to exercise their express power or to accomplish the object for which they are created, and in the absence of clearly expressed terms it will not be inferred that the legislature has delegated to the township powers to do that which supercede general laws or render them unnecessary: State v Vantage Bridge Co. 236 P. 280, 134 Wash. 568. The County cannot operate in fields prescribed by organic law. So. Dak. Employer’s Protection Assn. v. Poage, 272 N.W. 806, 809, 65 S.D. 198. Therefore, counties are restrained from actions relating to private rights which are vested with constitutional protection unless clearly injurious to the public rights. Townships are a branch of the Executive Department of Government and are created solely to aid in the administration of state affairs, but regulated by legislature. Pursuant to the doctrine of Separation of Powers, not even a single individual within one department may assume the powers or duties of another department of government Ordinances are not law, they are corporate by-laws regulating those within the corporate jurisdiction. Bouvier’s 1914 legal dictionary defines ordinance as follows: Municipal ordinances are laws passed by the governing body of a municipal corporation for the regulation of the affairs of the corporation. The technically more correct term by laws is in common and approved use. The main feature of ordinances is that they are local, as distinguished from state laws. They are not, in a constitutional sense, public laws, but mere rules or domestic regulations devoid in many respects of the characteristics of public or general laws. BY-LAW Rules and ordinances made by a corporation for its own government. The purpose of a by-law is to regulate the conduct and define the duties of its members towards the corporation and among themselves. The power to make bylaws is usually conferred by express terms of the charter creating the corporation. When not expressly granted, it is given by implication and it is incident to the very existence of the corporation. When there is an express grant limited to certain cases and for certain purposes, the corporate power of the legislation is conferred to the subjects specified, all others being excluded by implication. By-laws, when contrary to the constitution or laws of the state or United States are void whether the charter authorizes the making of such by-laws or not; because no legislature can grant power larger than that which it possesses. But a by-law, void as against strangers or non-assenting members, may be as good as a contract against assenting members. It has been held that third parties dealing with corporations are not bound to take notice of by-laws. Fay v Noble, 12 Crush (Mass) 1. Bouvier’s 1914 Law Dict., p. 418. The subject matter herein being presented concerns the application of by-laws of a quasi corporation, the township, upon strangers and non-assenting members. Zoning may legally only address the use of land, it cannot address ownership; therefore, in all too many instances, zoning may be viewed as being subversive of constitutional protection of private property over which they have no authority until one’s endeavors are proven injurious to the general welfare, then the police power may be employed. Therefore, neither a township or a city governing board may initiate and enact law, nor may they enforce law. A township is a quasi corporation and a governmental agency of the state, with no independent sovereignty, and possesses only such powers as are expressly given or necessarily implied in statutes constitutionally enacted. Jefferson County ex rel Grauman v Jefferson County Fiscal Court, 118, S.W> 2d 181, 184, 274 Ky. 91. Any ordinance enacted by a township governing board to be a law in the strict sense of the word must be backed by a statute, otherwise its jurisdiction extends only to those deemed to be within the corporation. Then, as a corporate by law, the ordinance has the force of law where appropriate. While the township’s jurisdiction may extend from border to border for comprehensive zoning, it does not necessarily extend to every property or person within its borders. If it were otherwise, it would be gross deprivation of all rights and would render all laws and both the Federal and State Constitutions invalid. An agency of government is not the government or a department or an officer of it. U.S. ex rel Salzman v Salant & Salant, K.C., N.Y., 41 F Supp. 196, 197. Government does not exist in a personal sense, or as an entity in any primary sense, for the purpose of acquiring, protecting and enjoying property. It exists primarily for the protection of the people in their individual rights, and holds property not primarily for the enjoyment of property accumulations, but as an incident to the purpose for which it exists-that of serving the people and protecting them in their rights. Curley v U.S., 130 R. 1,8, 64 C.C.A. 369. The state’s creatures are corporations, which term also extends to individuals in corporate capacity. This subject is thoroughly defined by the U.S> Supreme Court in the case of Hale v Henkel, 201 U.S. 43. Thus a township is established as a state agency and its primary function is aiding the state in state affairs; an act which cannot exceed the limited jurisdiction of the agent. So there is no question that unless I am an assenting member or otherwise deemed to be within the corporation the instant ordinance does not apply to me. MICHIGAN ZONING ENABLING ACT (EXCERPT) Act 110 of 2006 125.3201 Regulation of land development and establishment of districts; provisions; uniformity of regulations; designations; limitations. Sec. 201. (1) A local unit of government may provide by zoning ordinance for the regulation of land development and the establishment of 1 or more districts within its zoning jurisdiction which regulate the use of land and structures to meet the needs of the states citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land, to ensure that use of the land is situated in appropriate locations and relationships, to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities, to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements, and to promote public health, safety, and welfare. (2) Except as otherwise provided under this act, the regulations shall be uniform for each class of land or buildings, dwellings, and structures within a district. (3) A local unit of government may provide under the zoning ordinance for the regulation of land development and the establishment of districts which apply only to land areas and activities involved in a special program to achieve specific land management objectives and avert or solve specific land use problems, including the regulation of land development and the establishment of districts in areas subject to damage from flooding or beach erosion. Private property (particularly in absolute ownership) and private men are only subject to control when it is proven beyond any reasonable doubt that their endeavors will be injurious to their neighbors or to the general welfare. If the private man in absolute ownership is required to apply for a permit it must be considered that he may be denied, thus, there is a deprivation of property rights which is actionable under Civil Rights Laws in Federal Court. It is not necessary to prove a physical taking of property, but only such substantial interference with the owner’s use of it, to amount to a taking… Todd v U.S. (1961) 155 Ct. CL111. . Where the landowner complies with existing statutes, he is entitled in the exercise of his right to improve his property. The right to build would be utterly lacking in substance if its exercise could be prevented by the arbitrary and capricious refusal of a permit or if the granting or denial of the permit rested solely in the discretion of some official or board. Dade County v Jason, 278 So. 2d 311 (Fla. App. 1973); Barnes v Austin, 199 S.E. 2d 906 (Ga. 1973); Ready to Pour, Inc v McCoy, 511 P. 2d 792 (Idaho 1973). An ordinance will be held invalid where it vests a broad discretion in local officials in granting or refusing a permit. The permit is a license and it must be uniform upon every class of subject within the jurisdiction or within the particular zone, it cannot be arbitrary. Corporate creatures of government can be regulated; private men, in exercising their inalienable right to property, cannot. A permit implies consent given or leave granted (Loosey v Osner, 4 Bosw. N.Y., 391); it has been defined to mean; to allow by not prohibiting (Com. V Curtis, 9 Allen, Mass., 266). It is permission granted by competent authority, therefore, when applying for a permit we state that we are incompetent and ask to be controlled and watched over. Administrative law requires that all applications for a permit shall be submitted to the Zoning Commission for its recommendations, however, this is only for applications for permits required and authorized under this chapter. . Art 3 Sec. 2 State Constitution. ARTICLE III GENERAL GOVERNMENT . History: Const. 1963, Art. III, § 1, Eff. Jan. 1, 1964. Former constitution: See Const. 1908, Art. I, § 2. § 2 Separation of powers of government. Sec. 2. The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution STILLE-DEROSSETT-HALE SINGLE STATE CONSTRUCTION CODE ACT Act 230 of 1972 AN ACT to create a construction code commission and prescribe its functions; to authorize the director to promulgate rules with recommendations from each affected board relating to the construction, alteration, demolition, occupancy, and use of buildings and structures……………….. 125.1502a Additional definitions. Sec. 2a. (1) As used in this act:…………………… (o) Department means the department of consumer and industry services. (p) Director means the director of the department or an authorized representative of the director………………. Compilers Notes: Enacting sections 1 and 2 of Act 245 of 1999 provide: Enacting section 1. The title and sections 2a, 3a, 8a, 8b, and 9b of the state construction code act of 1972, 1972 PA 230, the title as amended and sections 2a, 3a, 8a, 8b, and 9b as added by this amendatory act, are effective upon enactment but apply only to 1 or more of the following codes only upon the effective date of the particular code update promulgated after October 15, 1999:(a) The plumbing code, R 408.30701 to 408.30796 of the Michigan administrative code. [Effective July 31, 2001](b) The electrical code, R 408.30801 to 408.30873 of the Michigan administrative code. [Effective December 7, 1999](c) The mechanical code, R 408.30901a to 408.30995a of the Michigan administrative code. [Effective July 31, 2001](d) The building code, R 408.30401 to 408.30499 of the Michigan administrative code. [Effective July 31, 2001]Enacting section 2. The title and sections 2, 3, 8, 9, and 9a of the state construction code act of 1972, 1972 PA 230, MCL 125.1502, 125.1503, 125.1508, 125.1509, and 125.1509a, the title and sections 2 and 8 as amended by this amendatory act, apply to 1 or more of the following codes until the rules for the code update promulgated after October 15, 1999 for the specific code become effective, at which time each section does not apply to the particular code. Sections 2, 3, 8, 9, and 9a of the state construction code act of 1972, 1972 PA 230, MCL 125.1502, 125.1503, 125.1508, 125.1509, and 125.1509a, are repealed on the effective date of the last of the rules updating the following codes promulgated after October 15, 1999:(a) The plumbing code, R 408.30701 to 408.30796 of the Michigan administrative code. [Effective July 31, 2001](b) The electrical code, R 408.30801 to 408.30873 of the Michigan administrative code. [Effective December 7, 1999](c) The mechanical code, R 408.30901a to 408.30995a of the Michigan administrative code. [Effective July 31, 2001](d) The building code, R 408.30401 to 408.30499 of the Michigan administrative code. [Effective July 31, 2001] Rules updating the electrical code (R 408.30801 et seq.) were promulgated November 19, 1999, and became effective December 7, 1999. Popular Name: Act 230 Popular Name: Uniform Construction Code History: Add. 1999, Act 245, Imd. Eff. Dec. 28, 1999 Compilers Notes: Enacting section 1 of Act 245 of 1999 provides: Enacting section 1. The title and sections 2a, 3a, 8a, 8b, and 9b of the state construction code act of 1972, 1972 PA 230, the title as amended and sections 2a, 3a, 8a, 8b, and 9b as added by this amendatory act, are effective upon enactment but apply only to 1 or more of the following codes only upon the effective date of the particular code update promulgated after October 15, 1999:(a) The plumbing code, R 408.30701 to 408.30796 of the Michigan administrative code. [Effective July 31, 2001](b) The electrical code, R 408.30801 to 408.30873 of the Michigan administrative code. [Effective December 7, 1999](c) The mechanical code, R 408.30901a to 408.30995a of the Michigan administrative code. [Effective July 31, 2001](d) The building code, R 408.30401 to 408.30499 of the Michigan administrative code. [Effective July 31, 2001] Popular Name: Act 230 Popular Name: Uniform Construction Code ¡¡ ADMINISTRATIVE PROCEDURES ACT OF 1969 (EXCERPT) Act 306 of 1969 24.203 Definitions; A to G. Sec. 3. (1) Adoption of a rule means that step in the processing of a rule consisting of the formal action of an agency establishing a rule before its promulgation. (2) Agency means a state department, bureau, division, section, board, commission, trustee, authority or officer, created by the constitution, statute, or agency action. Agency does not include an agency in the legislative or judicial branch of state government, the governor, an agency having direct governing control over an institution of higher education, the state civil service commission, or an association of insurers created under the insurance code of 1956, Act No. 218 of the Public Acts of 1956, being sections 500.100 to 500.8302 of the Michigan Compiled Laws, or other association or facility formed under Act No. 218 of the Public Acts of 1956 as a nonprofit organization of insurer members. (3) Contested case means a proceeding, including rate-making, price-fixing, and licensing, in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing. When a hearing is held before an agency and an appeal from its decision is taken to another agency, the hearing and the appeal are deemed to be a continuous proceeding as though before a single agency. (4) Committee means the joint committee on administrative rules. (5) Court means the circuit court. (6) Guideline means an agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person. History: 1969, Act 306, Eff. July 1, 1970 ;-- Am. 1970, Act 40, Imd. Eff. July 1, 1970 ;-- Am. 1977, Act 108, Eff. Jan. 1, 1978 ;-- Am. 1988, Act 277, Imd. Eff. July 27, 1988 Compilers Notes: Section 2 of Act 277 of 1988 provides:The amendment to section 3 of Act No. 306 of the Public Acts of 1969, being section 24.203 of the Michigan Compiled Laws, pursuant to this amendatory act is intended to codify, approve, and validate the actions and long-standing practices taken by the associations and facilities mentioned in this amendatory act retroactively to the time of their original creation. It is the intent of this amendatory act to rectify the misconstruction of the applicability of the administrative procedures act of 1969 by the court of appeals in League General Insurance Company v Catastrophic Claims Association, Case No. 93744, December 21, 1987, with respect to the imposition of rule promulgation requirements on the catastrophic claims association as a state agency, and to further assure that the associations and facilities mentioned in this amendatory act, and their respective boards of directors, shall not hereafter be treated as a state agency. Popular Name: Act 306 Popular Name: APA ¡¡ . . History: 2006, Act 110, Eff. July 1, 2006 CONSTITUTION OF MICHIGAN OF 1835 ARTICLE I BILL OF RIGHTS Political power. First. All political power is inherent in the people. Right of the people. 2. Government is instituted for the protection, security, and benefit of the people; and they have the right at all times to alter or reform the same, and to abolish one form of government and establish another, whenever the public good requires it. No exclusive privileges. 3. No man or set of men are entitled to exclusive or separate privileges. § 26 Bills; printing, possession, reading, vote on passage. Sec. 26. No bill shall be passed or become a law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days. Every bill shall be read three times in each house before the final passage thereof. No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house. On the final passage of bills, the votes and names of the members voting thereon shall be entered in the journal. History: Const. 1963, Art. IV, § 26, Eff. Jan. 1, 1964. Constitutionality: In Advisory Opinion on Constitutionality of 1978 PA 426, 403 Mich. 631, 272 N.W.2d 495 (1978), the Michigan supreme court held that the lieutenant governor may cast a tie-breaking vote during the final consideration of a bill when the senate is equally divided, and 1978 PA 426 was constitutionally enacted. Former constitution: See Const. 1908, Art. V, §§ 22, 23. § 28 Administrative action, review. Sec. 28. All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmens compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.Rendered Wednesday, March 16, 2011 Page 27 Michigan Compiled Laws Complete Through PA 3 of 2011 It is clear from an examination of Const 1963, art 4, that the term law is intended to mean the formal and completed process of legislative activity starting with the introduction of a bill and normally ending with the Governors approval. (1) Examples which illustrate the intent of the framers of the Constitution to restrict the meaning of the word law in the sense in which it is used in 1965 PA 54, supra, include the following excerpts from Const 1963, art 4: Sec. 23. The style of the laws shall be: The People of the State of Michigan enact. [Emphasis supplied] Sec. 26. No bill shall be passed or become law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days. Every bill shall be read three times in each house before the final passage thereof. No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house. . . . [Emphasis supplied] Sec. 33. Every bill passed by the legislature shall be presented to the governor before it becomes law, and the governor shall have fourteen days measured in hours and minutes from the time of presentation in which to consider it. If he approves, he shall within that time sign and file it with the secretary of state and it shall become law. . . . [Emphasis supplied] In addition to the fact that the above provisions of the Constitution make it clear that the use of the word law means a bill which has been passed by the legislature and acted upon by the Governor, the Supreme Court defined the term in Fennell v Common Council of Bay City, 36 Mich 186, 190 (1877) where the court said: . . . The term law, as defined by the elementary writers, eminates from the sovereignty and not from its creatures. The legislative power of the state is vested in the state legislature, and their enactments are the only instruments that can in any proper sense be called laws. . . . [Second emphases added] See also, Lobadio v Department of Corrections, 37 Mich App 171; 194 NW2d 444 (1971), OAG 1967-1968, No 4637, p 241, 242-243 (May 16, 1968). It is my opinion, therefore, that the term ratified by law means an enactment by the legislature and action by the Governor. Frank J. Kelley
Posted on: Fri, 25 Oct 2013 00:54:27 +0000
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