Village of Wolverine Lake v. State Boundary Commission

T. M. Burns, J. The Village of Wolverine Lake appeals from the Oakland Circuit Court’s affirmance of the State Boundary Commission’s decision on two petitions for incorporation of a home rule city. Both Commerce Township and Wolverine Lake submitted petitions to the State Boundary Commission for the creation of cities from the present township and village. MCLA 123.1007; MSA 5.2242(7). After appropriate proceedings the State Boundary Commission granted Commerce Township’s petition for incorporation as a new home rule city but adjusted the boundaries of the new City of Commerce to include all of the Village *58 of Wolverine Lake. 1 Wolverine Lake’s petition for incorporation was denied. I Wolverine Lake first contends that the State Boundary Commission has adopted a "rule” within the meaning of the Administrative Procedures Act of 1969, MCLA 24.207; MSA 3.560(107), disfavoring the creation or expansion of small cities within the metropolitan area of Wayne, Oakland and Ma-comb counties without complying with the procedures mandated by the APA. 2 MCLA 24.241, 24.242; MSA 3.560(141), 3.560(142). The definition of a rule and exclusions from that definition, one of which is applicable here, are contained in § 7 of the APA, " 'Rule’ means an agency regulation, statement, standard, policy, ruling or instruction of general applicability, which implements or applies law enforced or administered by the agency, or which prescribes the orga *59 nization, procedure or practice of the agency, including the amendment, suspension or recission thereof, but does not include the following: "(j) a decision by an agency to exercise or not to exercise a permissive statutory power, although private rights or interests are affected thereby.” MCLA 24.207; MSA 3.560(107). If the disfavor of the SBC for small communities within the larger metropolitan area follows from the statutory authority, then it is the exercise of a permissive statutory power and is not a rule requiring formal adoption under the APA. The criteria set forth in MCLA 123.1009; MSA 5.2242(9) implicitly require the SBC to look with favor on a larger community. The criteria include "past and probable future urban growth”, "probable future needs for services”, "practicability of supplying such services”, "the probable effect * * * on the cost and adequacy of services in the area to be incorporated and on the remaining portion of the unit from which the area will be detached”, and "the financial ability of the incorporating municipality to maintain urban type services in the area”. With the emphasis on future growth and ability to provide services, it is inevitable that the Boundary Commission will favor a municipality with open space and a large tax base relative to population. Since two of the factors are "assessed valuation” and ability "to maintain urban type services” a small community made up principally of residential land use cannot compare favorably with a larger community that has an industrial tax base. This bias against small communities rises as much from the statute as it does from the Boundary Commission "policy”, but this legislative *60 choice is a political one and not subject to judicial review. Having its basis in the "permissive statutory power”, the actions of the SBC do not constitute the adoption of a rule which requires compliance with the APA. II Wolverine Lake also contends that MCLA 123.1001 et seq.; MSA 5.2242(1) et seq. which created the State Boundary Commission is unconstitutional because it delegates legislative authority to an administrative agency without sufficient guidance for the exercise of the discretion granted. This Court has rejected the argument in Midland Twp v State Boundary Commission, 64 Mich App 700; 236 NW2d 551 (1975), leave granted, 397 Mich 810 (1976), and Novi Twp v State Boundary Commission, 67 Mich App 596; 242 NW2d 449 (1976), leave granted, 397 Mich 810 (1976). Both cases are presently before the Supreme Court. Until that Court decides the issue, the challenge made here will not be well taken. III Apart from the constitutionality of the authority of the State Boundary Commission to act on petitions generally, Wolverine Lake claims that the authority to revise boundaries, granted to the Commission in MCLA 123.1010; MSA 5.2242(10), is unconstitutional for lack of standards to guide the decision. Before this position could be accepted it would be necessary to construe the act so that the criteria of § 9, MCLA 123.1009; MSA 5.2242(9), do not guide the Commission’s decision to revise boundaries. In reviewing this claim the Court must read the *61 act as a whole and in a manner consistent with validity, not invalidity, if possible. 3 Department of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976). Examining the act as a whole, principally §§ 8 through 10, MCLA 123.1008-123.1010; MSA 5.2242(8)-5.2242(10), a certain ambiguity appears. By § 8(1) the Commission is ordered to review petitions for proposed incorporation in light of the criteria of § 9. By contrast, § 10(1) allows the Commission to "deny the proposed incorporation, approve the petition or revise the boundaries of the area proposed for incorporation and approve the proposal as revised” without making a specific reference to the criteria of § 9. The act may be construed as valid if the criteria of § 9 governed not only the "review” function of § 8(1) but also the decisional function of § 10(1). It would be sheer folly to read the legislation as requiring the Commission to review the petition in light of specific legislative standards but leave the decision after this controlled review to the whim and caprice of the Commission. This is not what the Legislature intended. The criteria of § 9 governed the Commission’s decision under § 10(1). The Commission applied these standards in this case. IV Wolverine Lake’s last contention is that the Commission’s action on these petitions is not supported by competent, material and substantial evidence on the whole record. 4 *62 After examining the whole record, both the evidence in support of the Commission’s ruling and that against it, Michigan Employment Relations Commission v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974), it cannot be said that the Commission’s conclusions are unsupported. The testimony of witnesses plus the documentary proof shows that Wolverine Lake cannot remain a viable community, supplying its citizens with the level of services required, unless an additional tax base is acquired. This acquisition can only come with a corresponding detriment to the larger community of which it is a part. The Commission’s decision to create this larger community is supported by the record. Affirmed. Public question, no costs. Footnotes [1] Commerce Township’s petition to the State Boundary Commission did not ask for the boundary adjustment to be made and left unaffected those areas already existing in the Village of Wolverine Lake, the City of Walled Lake, and the City of Wixom. The Wolverine Lake petition sought incorporation of a new city with a proposed boundary adjustment to include portions of Commerce Township. [2] The basis of Wolverine Lake’s claim is found in the summary of proceedings, findings of fact and order of the Commission. In the Commerce Township petition order the Commission stated, "28. The Commission finds that it denied the proposed incorporation of the Village of Wolverine Lake on the grounds that it was an integral part of Commerce Township, that it did not favor the proliferation of more and more small communities several square miles in size within the Greater Detroit Metropolitan Area, and that it would not only be harmful to its residents but would be detrimental to the development of the larger community of which it is a part.” In the Wolverine Lake order the Commission stated, "29. The Commission finds that it has not favored the proliferation of more and more small communities several square miles in size within the Greater Detroit Metropolitan Area.” [3] Seaman also requires that the legislative standards to guide administrative action must be as precise as possible. Wolverine Lake contends there are no standards. If § 9 applies, it supplies sufficient standards. [4] This is the standard of review for both the circuit court and this Court. Const 1963, art 6, § 28; MCLA 24.306(l)(d); MSA 3.560(206)(l)(d).