Opinion
No. 333970
11-21-2017
CITY OF SOUTHFIELD, Plaintiff-Appellant, v. JORDAN DEVELOPMENT COMPANY, LLC, and WORD OF FAITH CHRISTIAN CENTER CHURCH, Defendants-Appellees, and DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant.
UNPUBLISHED Oakland Circuit Court
LC No. 2016-151947-AA Before: JANSEN, P.J., and CAVANAGH and GADOLA, JJ. PER CURIAM.
Plaintiff, the city of Southfield (the City), appeals as of right an opinion and order granting summary disposition pursuant to MCR 2.116(C)(8) and (10) in favor of defendants, Jordan Development Company, LLC (Jordan), and Word of Faith Christian Center Church (WOF). On appeal, the City argues that the trial court erred in concluding that Part 615 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.61501 et seq., preempts the City's ordinances concerning oil and gas drilling. We dismiss the appeal as moot.
This Court reviews de novo whether an issue is moot. Garrett v Washington, 314 Mich App 436, 449; 886 NW2d 762 (2016). An appellate court should, "on its own motion, decline to consider cases that it does not have the power to determine, including those that are moot." In re MCI Telecom Complaint, 460 Mich 396, 434 n 13; 596 NW2d 164 (1999). Whether a case is moot constitutes a threshold issue that a court should address before reaching the substantive issues of the case. Id. at 434-435 n 13.
It is well established that a court will not decide moot issues. This is because it is the principal duty of this Court to decide actual cases and
controversies. That is, the judicial power is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. As a result, this Court does not reach moot questions or declare principles or rules of law that have no practical legal effect in the case before it. Although an issue is moot, however, it is nevertheless justiciable if the issue is one of public significance that is likely to recur, yet evade judicial review. It is universally understood that a moot case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy. Accordingly, a case is moot when it presents nothing but abstract questions of law which do not rest upon existing facts or rights. [People v Richmond, 486 Mich 29, 34-35; 782 NW2d 187 (2010), reh gtd in part on other grounds 486 Mich 1041 (2010), amended by 784 NW2d 204 (2010) (quotation marks, brackets, ellipses, and citations omitted).]See also Garrett, 314 Mich App at 450 ("On appeal, the litigant must demonstrate that he or she is affected by the decision of the trial court. An issue becomes moot when a subsequent event renders it impossible for the appellate court to fashion a remedy.") (quotation marks and citation omitted); B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998) ("As a general rule, an appellate court will not decide moot issues. A case is moot when it presents only abstract questions of law that do not rest upon existing facts or rights. An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief.") (citations omitted).
In its first amended complaint, the City requested declaratory and injunctive relief regarding an oil and gas well project that was being pursued by Jordan on WOF's property pursuant to a permit issued by the Michigan Department of Environmental Quality (DEQ). The trial court granted summary disposition to Jordan and WOF after determining that Part 615 of the NREPA preempts the City's ordinances to the extent that the ordinances purport to regulate the oil and gas drilling project. In its appellate reply brief, the City states:
It should also be noted that since the appeal was filed, Jordan drilled a test well on the WOF property and determined that there were insufficient resources for the drilling to take place on the site. As a result, Jordan has advised that it is abandoning its project. While the well reportedly will be plugged, Jordan could change its position and proceed at any time. [Emphasis added.]The City's concession that Jordan is abandoning this project is consistent with news media reports. See, e.g., Runkle, Developer abandons oil, gas drilling in Southfield, Oakland Press (March 7, 2017), <http://www.theoaklandpress.com/general-news/20170307/developer-abandons-oil-gas-drilling-in-southfield> (accessed September 17, 2017) (reporting that Jordan plans to plug the well, that the gas found was not of sufficient quantity or quality to continue the project, and that it was unlikely that Jordan would return to the project at a later time).
Although the lower court record does not contain information about Jordan's abandonment of the project given that this decision was made while the case was pending on appeal, the City's concession in its appellate reply brief establishes that Jordan has decided to abandon the project.
We conclude that the issue is moot because Jordan plans to plug the well and is no longer pursuing the project that the City sought to regulate. Although there is no indication that the permit granted to Jordan by the DEQ has been revoked, that makes no difference because the City is not contesting that the DEQ has regulatory authority over oil and gas matters. Rather, the City contends that the DEQ's authority is not exclusive and that the City has authority in this area that is not preempted by Part 615 of the NREPA. Jordan's abandonment of the project renders it impossible for this Court to fashion a remedy. Given that Jordan is no longer pursuing the project that the City wished to regulate, the preemption issue presents only an abstract question of law that does not rest upon existing facts or rights.
The City's original complaint asserted claims against the DEQ challenging the DEQ's decision to issue the permit in this case, but the trial court dismissed the City's claims against the DEQ for lack of subject-matter jurisdiction. The City is not challenging in this appeal the trial court's dismissal of its claims against the DEQ.
Although the preemption issue is one of public significance, the City identifies no reason to believe that the issue is likely to recur but evade judicial review. The issue is moot here because Jordan has abandoned the project due to its determination that there were insufficient resources for the drilling to take place; the City identifies no reason to believe that such a factual situation will likely recur and thereby prevent review of any preemption issue in other cases.
The City says that Jordan "could change its position and proceed at any time[,]" but this assertion is nothing more than speculation or conjecture about possible future events. "The doctrine of ripeness is designed to prevent the adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim is not ripe if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Huntington Woods v Detroit, 279 Mich App 603, 615-616; 761 NW2d 127 (2008) (quotation marks and citation omitted). Therefore, any claim that the City will be harmed by Jordan's possible future decision to change its decision to abandon the project rests upon contingent future events and is not ripe for review. Also, although declaratory relief may be granted before actual injuries or losses have occurred, such relief may be granted only if there is an actual controversy, which exists if declaratory relief is necessary in order to guide or direct future conduct. Id. at 616. Given that Jordan is abandoning the project that the City wished to regulate, there is no need for declaratory relief to guide or direct the parties' future conduct.
Also, although it is not necessary to the above analysis, we note that the City's suggestion in its appellate reply brief that it is continuing to pursue this appeal due to a concern that Jordan could change its decision to abandon this project is inconsistent with statements reportedly made by the City's mayor to the news media. The City's mayor is reported to have stated that "the [C]ity needs to prevail at the appellate level in order to protect future zoning and development matters that impact residents' health and safety[]" and that this "[C]ourt's ruling also has implications for other Michigan cities." Runkle, Developer abandons oil, gas drilling in Southfield, Oakland Press (March 7, 2017), <http://www.theoaklandpress.com/general-news/20170307/developer-abandons-oil-gas-drilling-in-southfield> (accessed September 17, 2017). These comments by the City's mayor suggest that the City's true concern here is about possible future zoning and development issues in the City and in other Michigan cities, rather than a concern about Jordan changing its position about this particular project at the WOF site. --------
Accordingly, we dismiss the appeal because the preemption issue raised by the City on appeal is moot. See B P 7, 231 Mich App at 360 (dismissing the appeal as moot). We thus do not address the preemption issue raised by the City on appeal.
Dismissed as moot.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Michael F. Gadola