Ripeness; MCL 462.26(1); In re Reliability Plans of Elec Utils for 2017-2021; Compatible renewable energy ordinance; MCL 460.1221(f); Affected local unit; MCL 460.1221(a); Hybrid facilities; MCL 460.1222(1); Statutory timeline; MCL 460.1223(3); Agency interpretation; Enforcing statutes as written; In re Implementing Section 6w of 2016 PA 341 for Cloverland Elec Coop; Administrative Procedures Act (APA); “Rule”; MCL 24.207; O’Halloran v Secretary of State; Public Service Commission (PSC)

The court held that the PSC misinterpreted PA 233 as to the statutory timeline and improperly rewrote the definition of an affected local unit (ALU), but otherwise did not err in implementing the Act. Appellants-multiple townships and counties challenged a PSC order implementing PA 233, which governs certification for certain wind, solar, and energy-storage facilities. The PSC had interpreted statutory terms, addressed hybrid facilities, set application procedures, and described when developers could proceed before the PSC. On appeal, the court first held that the appeal was ripe because the PSC’s order was “‘a threshold determination that was not dependent on any further decision by the PSC’” and had “real-world implications” for local governmental units. The court next held that the PSC properly interpreted compatible renewable energy ordinance (CREO) because “the addition of requirements not contained in MCL 460.1226(8) would inherently be more restrictive,” and PA 233 limits CREOs to requirements no more restrictive than those statutory standards. But the court held that the PSC improperly narrowed ALU because the statute provides a “purely geographic definition,” and the PSC’s zoning-jurisdiction limitation “effectively re-writes the statutory definition of ALU[.]” The court also upheld the PSC’s treatment of hybrid facilities because it “merely gave a name to a concept implicit in the statutory text.” The court further held that the PSC incorrectly changed the CREO-notice timeline because “the 30-day timeline begins not with the receipt of the offer to meet but with the actual meeting . . . .” Finally, the court held that APA rulemaking was unnecessary because the PSC’s order “did not establish a regulation or policy having the force and effect of law. Rather, the PSC interpreted the relevant statutes, which did not require rulemaking.” Affirmed in part, reversed in part, and remanded.

Real estate contract dispute; Whether the parties reached a meeting of the minds on all the essential terms of a land contract; Rathbun v Herche; Zurcher v Herveat; Monetary damages award; Abandoned issues

Rejecting defendant’s arguments that a binding land contract was not formed and that the trial court erred in awarding monetary damages, the court affirmed the “order awarding plaintiffs specific performance of a” real property Buy/Sell Agreement, money damages, and their attorney fees and costs. It found that defendant waived or abandoned several of his arguments on appeal. As to whether there was a binding land contract, he argued “that the addendum to the Buy/Sell Agreement did not include all of the essential elements to create” one. He contended that it “did not address marketable title. However, the addendum was specifically incorporated as part of the Buy/Sell Agreement, which in turn provided in ¶ 3 that the ‘sale of the Property shall be consummated by delivery of a Warranty Deed or owner financing [i.e., the land contract] conveying marketable title upon compliance with [the addendum].’ Thus, there was a provision for marketable title, rendering defendant’s argument factually incorrect.” He also argued the addendum failed to “address the adjustment of taxes and assessments. However, ¶ 7 of the Buy/Sell Agreement indicates that these matters would be prorated as of the date of closing. Defendant’s argument on this issue is factually inaccurate, and” he did not show “that this requirement was not satisfied.” His contention that “the addendum did not address the vendee’s right of possession” was also factually inaccurate as “¶ 9 of the Buy/Sell Agreement provides for the buyer to take possession at closing.” The court further determined that “the requirement that the parties be identified was clearly met[.]” As to the monetary damages award, among other things defendant asserted “the trial court began its calculations by determining the gross rental income based on an ‘arbitrary’ and ‘speculative’ monthly rental rate.” But he ignored “the fact the trial court based its rental rate on the record evidence that included a lease for the property during the relevant period and the testimony of defendant’s real estate agent[.]”

Sentencing; Departure sentence; People v Steanhouse; Sentencing guidelines; OV 9 scoring; MCL 777.39; People v Teike; Proportionality; People v Dixon-Bey; Mitigating factors; People v Bailey

The court held that defendant’s above-guidelines sentence for bank robbery was reasonable and proportionate because the trial court adequately justified the departure. Defendant pled guilty after presenting a note to a bank teller claiming he had a gun and demanding money, though no weapon was ever found. The guidelines recommended 5 to 17 months, but the trial court imposed a 38-month minimum sentence. On appeal, the court held that the trial court did not abuse its discretion by concluding that the guidelines did not adequately reflect the seriousness of the offense. Although OV 9 was scored at zero because fewer than two victims were placed in actual danger, the trial court reasonably found that falsely threatening to have a gun in a bank created the risk of an “immediate and very substantial and serious” law-enforcement response that could endanger multiple people. The court next held that the trial court sufficiently explained why a higher sentence better served deterrence and punishment, noting that a short jail sentence would not deter similar conduct. Finally, the court held that the trial court considered defendant’s mitigating circumstances, including his limited recent criminal history and personal background, but reasonably concluded that a departure sentence was still more proportionate given the seriousness of the offense. Affirmed.

Legal custody; Proper cause or change in circumstances; MCL 722.27(1)(c); Vodvarka v Grasmeyer; Parenting time; Routine decisions; MCL 722.27a(11); Shulick v Richards; Modification; Established custodial environment; Shade v Wright; Appellate jurisdiction; Civil contempt sanction; MCL 600.1721; Alpena Cnty Bd of Cnty Rd Comm’rs v Tadajewski

The court held that it lacked jurisdiction over defendant-father’s appeals from the civil contempt proceedings and that the trial court did not err by denying his motion to reinstate joint legal custody or by making modest parenting-time adjustments. The parties shared equal parenting time, but plaintiff-mother had sole legal custody after earlier disputes involving father’s “aggressive approach to the children’s medical” care. Father sought joint legal custody after renewed conflict over HW’s school absences and medical issues, while mother sought contempt based in part on father’s at-home blood test of the children. The court first held that the contempt appeals had to be dismissed because, despite the trial court’s criminal-contempt label, the attorney-fee sanction was compensatory civil contempt, and the court lacks jurisdiction over an appeal of right from such orders. On legal custody, the court held that father failed to establish proper cause or a change in circumstances because the facts continued to show “a pattern by father of aggressively pursuing medical treatment for the children and imposing his medical beliefs on HW,” while mother did not ignore any serious medical condition. The court also held that no evidentiary hearing was required because the asserted facts were legally insufficient. As to parenting time, the court held that requiring father to take a sick child to mother so she may decide if they should go to school and to administer only approved medications involved important medical and educational decisions, not routine matters. The court further held that these “modest adjustments” did not alter the established custodial environment and were supported by the children’s best interests. Contempt appeals dismissed, custody and parenting-time orders affirmed.

Uninsured motorist (UM) benefits; Motorcycle exclusion; Contract interpretation; Shay v Aldrich; Single accident; Summary disposition; Additional evidence on appeal; MCR 2.116(C)(10); Barnard Mfg Co, Inc v Gates Performance Eng’g, Inc

The court held that plaintiff was not entitled to UM benefits because her injuries occurred during one accident while she was occupying her own motorcycle, bringing the claim within the policy’s motorcycle exclusion. Plaintiff-Swanderski was riding her motorcycle when an unidentified driver struck it from behind, causing her to be ejected, and then almost immediately struck her person with the same vehicle before fleeing. The trial court granted summary disposition to defendant-State Farm on plaintiff’s UM claim, concluding that the two impacts arose from the same occurrence. On appeal, the court held that the policy was unambiguous when read as a whole because it excluded coverage for bodily injury sustained by an insured while occupying a motorcycle owned by the insured. The court rejected plaintiff’s attempt to characterize herself as a pedestrian at the moment of the second impact, noting that her own complaint repeatedly described the incident as “an automobile accident.” It reasoned that the accident began when plaintiff was on her motorcycle and ended when she was left in the roadway after being struck a second time by the same vehicle. The court also declined to consider affidavits from other motorcyclists who witnessed the event because review of a summary-disposition motion is limited to evidence properly presented to the trial court. Affirmed.

Ripeness; MCL 462.26(1); In re Reliability Plans of Elec Utils for 2017-2021; Compatible renewable energy ordinance; MCL 460.1221(f); Affected local unit; MCL 460.1221(a); Hybrid facilities; MCL 460.1222(1); Statutory timeline; MCL 460.1223(3); Agency interpretation; Enforcing statutes as written; In re Implementing Section 6w of 2016 PA 341 for Cloverland Elec Coop; Administrative Procedures Act (APA); “Rule”; MCL 24.207; O’Halloran v Secretary of State; Public Service Commission (PSC)

The court held that the PSC misinterpreted PA 233 as to the statutory timeline and improperly rewrote the definition of an affected local unit (ALU), but otherwise did not err in implementing the Act. Appellants-multiple townships and counties challenged a PSC order implementing PA 233, which governs certification for certain wind, solar, and energy-storage facilities. The PSC had interpreted statutory terms, addressed hybrid facilities, set application procedures, and described when developers could proceed before the PSC. On appeal, the court first held that the appeal was ripe because the PSC’s order was “‘a threshold determination that was not dependent on any further decision by the PSC’” and had “real-world implications” for local governmental units. The court next held that the PSC properly interpreted compatible renewable energy ordinance (CREO) because “the addition of requirements not contained in MCL 460.1226(8) would inherently be more restrictive,” and PA 233 limits CREOs to requirements no more restrictive than those statutory standards. But the court held that the PSC improperly narrowed ALU because the statute provides a “purely geographic definition,” and the PSC’s zoning-jurisdiction limitation “effectively re-writes the statutory definition of ALU[.]” The court also upheld the PSC’s treatment of hybrid facilities because it “merely gave a name to a concept implicit in the statutory text.” The court further held that the PSC incorrectly changed the CREO-notice timeline because “the 30-day timeline begins not with the receipt of the offer to meet but with the actual meeting . . . .” Finally, the court held that APA rulemaking was unnecessary because the PSC’s order “did not establish a regulation or policy having the force and effect of law. Rather, the PSC interpreted the relevant statutes, which did not require rulemaking.” Affirmed in part, reversed in part, and remanded.

The Michigan Regulation & Taxation of Marihuana Act (MRTMA); Municipal ordinances governing recreational marijuana establishments; Marijuana licenses; Exclusive Cap Partners LLC v Royal Oak; The Open Meetings Act (OMA); “Public body” (MCL 15.262(a)); Licensing decisions made in nonpublic meetings; Alleged MRTMA violations; Whether the selection process was competitive; MCL 333.27959(4); Yellow Tail Ventures, Inc v Berkley; Whether the selection criteria related to an applicant’s compliance with the MRTMA; MRTMA’s 1,000-foot rule

In this case concerning the issuance of marijuana licenses under the MRTMA and defendant-City of Royal Oak’s ordinances, the court held that the trial court erred in granting the City summary disposition on plaintiff’s OMA violation claim. But it rejected the claims that the City violated the MRTMA. This appeal arose from the same facts as those in Exclusive Cap. Plaintiff first argued “the City violated the OMA because the city manager and ranking committee effectively rendered the licensing decisions in nonpublic meetings.” The court agreed, noting it held in Exclusive Cap that “the city manager and ranking committee ‘acted as a public body subject to the OMA.’” While that decision is pending on appeal to the Michigan Supreme Court, as a published decision of the court it remains binding unless or until the Supreme Court overturns it. Plaintiff next asserted “the marijuana ordinance—both on its face and as applied—violated the MRTMA because (1) the City’s selection process was not competitive, (2) the selection criteria did not relate to an applicant’s compliance with the MRTMA, and (3) the City violated the MRMTA’s 1,000-foot rule.” It contended as to the first issue that “Exclusive Cap failed to adequately address whether the City’s ‘criteria and process sufficiently focused on what state law requires the competitive process’s focus to be: suitability to comply with MRTMA in Royal Oak.’” The court found this argument was “misplaced. First, Exclusive Cap expressly held that the City’s selection criteria were competitive and did not conflict with the MRTMA because they allowed the city manager ‘to determine which applicants are most favorable for operating in compliance with the MRTMA’ within Royal Oak. Second,” the court rejected a substantially similar argument in Yellow Tail Ventures, concluding “the phrase ‘within the municipality’ in MCL 333.27959(4) was a ‘qualifier’ permitting ‘a municipality to craft criteria suited to its own local concerns, provided that the criteria conform to the other provisions of the MRTMA.’” As to plaintiff’s as-applied challenges, “the City was permitted to establish criteria ‘suited to its own local concerns,’” and plaintiff did not allege that the challenged criteria here “otherwise violated the MRTMA.” Finally, plaintiff’s 1,000 foot rule claim also failed under Exclusive Cap.

The Michigan Regulation & Taxation of Marihuana Act (MRTMA); Municipal ordinances governing recreational marijuana establishments; Marijuana licenses; Exclusive Cap Partners LLC v Royal Oak; The Open Meetings Act (OMA); “Public body” (MCL 15.262(a)); Licensing decisions made in nonpublic meetings; Alleged MRTMA violations; Whether the selection process was competitive; MCL 333.27959(4); Yellow Tail Ventures, Inc v Berkley; Whether the selection criteria related to an applicant’s compliance with the MRTMA; MRTMA’s 1,000-foot rule

In this case concerning the issuance of marijuana licenses under the MRTMA and defendant-City of Royal Oak’s ordinances, the court held that the trial court erred in granting the City summary disposition on plaintiff’s OMA violation claim. But it rejected the claims that the City violated the MRTMA. This appeal arose from the same facts as those in Exclusive Cap. Plaintiff first argued “the City violated the OMA because the city manager and ranking committee effectively rendered the licensing decisions in nonpublic meetings.” The court agreed, noting it held in Exclusive Cap that “the city manager and ranking committee ‘acted as a public body subject to the OMA.’” While that decision is pending on appeal to the Michigan Supreme Court, as a published decision of the court it remains binding unless or until the Supreme Court overturns it. Plaintiff next asserted “the marijuana ordinance—both on its face and as applied—violated the MRTMA because (1) the City’s selection process was not competitive, (2) the selection criteria did not relate to an applicant’s compliance with the MRTMA, and (3) the City violated the MRMTA’s 1,000-foot rule.” It contended as to the first issue that “Exclusive Cap failed to adequately address whether the City’s ‘criteria and process sufficiently focused on what state law requires the competitive process’s focus to be: suitability to comply with MRTMA in Royal Oak.’” The court found this argument was “misplaced. First, Exclusive Cap expressly held that the City’s selection criteria were competitive and did not conflict with the MRTMA because they allowed the city manager ‘to determine which applicants are most favorable for operating in compliance with the MRTMA’ within Royal Oak. Second,” the court rejected a substantially similar argument in Yellow Tail Ventures, concluding “the phrase ‘within the municipality’ in MCL 333.27959(4) was a ‘qualifier’ permitting ‘a municipality to craft criteria suited to its own local concerns, provided that the criteria conform to the other provisions of the MRTMA.’” As to plaintiff’s as-applied challenges, “the City was permitted to establish criteria ‘suited to its own local concerns,’” and plaintiff did not allege that the challenged criteria here “otherwise violated the MRTMA.” Finally, plaintiff’s 1,000 foot rule claim also failed under Exclusive Cap.

Real estate contract dispute; Whether the parties reached a meeting of the minds on all the essential terms of a land contract; Rathbun v Herche; Zurcher v Herveat; Monetary damages award; Abandoned issues

Rejecting defendant’s arguments that a binding land contract was not formed and that the trial court erred in awarding monetary damages, the court affirmed the “order awarding plaintiffs specific performance of a” real property Buy/Sell Agreement, money damages, and their attorney fees and costs. It found that defendant waived or abandoned several of his arguments on appeal. As to whether there was a binding land contract, he argued “that the addendum to the Buy/Sell Agreement did not include all of the essential elements to create” one. He contended that it “did not address marketable title. However, the addendum was specifically incorporated as part of the Buy/Sell Agreement, which in turn provided in ¶ 3 that the ‘sale of the Property shall be consummated by delivery of a Warranty Deed or owner financing [i.e., the land contract] conveying marketable title upon compliance with [the addendum].’ Thus, there was a provision for marketable title, rendering defendant’s argument factually incorrect.” He also argued the addendum failed to “address the adjustment of taxes and assessments. However, ¶ 7 of the Buy/Sell Agreement indicates that these matters would be prorated as of the date of closing. Defendant’s argument on this issue is factually inaccurate, and” he did not show “that this requirement was not satisfied.” His contention that “the addendum did not address the vendee’s right of possession” was also factually inaccurate as “¶ 9 of the Buy/Sell Agreement provides for the buyer to take possession at closing.” The court further determined that “the requirement that the parties be identified was clearly met[.]” As to the monetary damages award, among other things defendant asserted “the trial court began its calculations by determining the gross rental income based on an ‘arbitrary’ and ‘speculative’ monthly rental rate.” But he ignored “the fact the trial court based its rental rate on the record evidence that included a lease for the property during the relevant period and the testimony of defendant’s real estate agent[.]”

Children’s best interests; In re White

Holding that the trial court did not clearly err in finding that terminating respondent-mother’s parental rights was in the children’s best interests, the court affirmed. While she contended “there was insufficient evidence to support the trial court’s determination that she had not benefited from services,” the clinic evaluation and her foster care worker asserted that she had not, “and further noted that she often refused to take accountability for her actions. The trial court found this evidence credible, and” the court deferred to its credibility assessments. The record also belied her assertion “that visits ‘went well with no problems reported[.]’” The record reflected that she “was inappropriate at half of the 20 visits she attended—out of the 40 total offered.” And while there was evidence that she “had a bond with the children, they did not feel safe with her; they did, however, feel safe with their relative placement.” As to her claim that termination was premature, “the case had already been pending for 15 months with no demonstrable improvement from her.” In addition, even if she “voluntarily sought out additional services or did so to comply with her probation requirements, the record” showed that, as with “the DHHS-provided services, respondent failed to benefit from” them. Finally, the court found no merit in her relative placement argument. The “relative placement was against guardianship and wished to adopt the children.” The court concluded that “respondent’s history with CPS and neglect, failure to benefit from services, and refusal to accept responsibility for her actions, coupled with the fact that the children’s relative placement was able and willing to provide them with permanency, stability, and finality,” supported the trial court’s finding.

Child’s best interests; In re White; Reasonable reunification efforts; Aggravated circumstances; MCL 712A.19a(2); MCL 722.638(1) & (2)

The court held that the trial court did not clearly err in finding that terminating respondents’ parental rights to their child (EKD) was in her best interests. Further, aggravated circumstances were present, excusing the DHHS from its obligation to make reasonable reunification efforts. Thus, in these consolidated appeals the court affirmed the trial court’s termination order. Respondent-mother argued “termination was not in EKD’s best interests because she was a ‘young mother with little support from her family[]’ who did not know any better. She” also asserted that “termination was not in EKD’s best interests because she was not offered services despite wanting to learn how to properly parent EKD.” But the court found that both arguments failed because they were “premised on respondent-mother’s interests, not EKD’s. It is EKD’s best interests—not respondent-mother’s—that govern whether termination was proper.” The court noted that apart “from briefly noting that she and EKD shared a ‘special bond,’” the mother made “no argument as to why the trial court’s best-interests findings were erroneous.” Respondent-father argued the trial court erred because it failed to consider the White factors. He emphasized the parent-child bond factor. But the record indicated “the trial court did consider EKD’s bond with her parents” and the father did not explain on appeal how its “consideration was somehow inadequate[.]” As to respondents’ claim that they were wrongfully denied services, they pled no contest to § (k)(iii) as a statutory ground for termination and did not challenge it on appeal. “The trial court’s finding that this ground was satisfied necessarily means that both MCL 722.638(1) and (2) are satisfied; respondents were the suspected perpetrators—MCL 722.638(2)—of EKD’s harm, which was caused by abuse including battering, torture, or other severe physical abuse—MCL 722.638(1)(a)(iii).”