
    CITY OF MUSKEGON HEIGHTS v MOSELER
    Docket No. 106248.
    Submitted February 15, 1989, at Grand Rapids.
    Decided March 28, 1989.
    Muskegon Community Alternative Program, Inc. (mcap), a private, nonprofit corporation which had entered into a contract with the Michigan Department of Corrections under which mcap was to maintain a facility to be utilized as a probation residential center, entered into an agreement to lease a building owned by Sidney Moseler which was located in the commercial district of the City of Muskegon Heights and which was to be the site of mcap’s center. The city filed a complaint in the Muskegon Circuit Court against Moseler and mcap seeking an order restraining defendants from entering into a lease agreement and from occupying the building, alleging that the building violated city building and fire codes and that the zoning ordinance proscribed the use of the building as a probation residential center. The court, Ronald H. Pannucci, J., granted summary disposition in favor of defendants on the basis that plaintiff did not have authority to prohibit use of property as a residential center because the program was funded and controlled by the state Department of Corrections and the Department of Corrections is immune from local zoning ordinances when establishing state penal institutions. Plaintiff appealed.
    The Court of Appeals held:
    
    Where the Department of Corrections enters into a contract whereby a private property owner is to maintain and operate a probation residential center, the private property owner remains subject to applicable local zoning ordinances.
    Reversed.
    Zoning — Probation Residential Centers — Department of Corrections — Private Property Owners.
    The Department of Corrections is immune from local zoning ordinances when establishing state penal institutions where it will have active participation in the operation of the facility; however, where the Department of Corrections enters into a contract whereby a private property owner is to maintain and operate a probation residential center, the private property owner remains subject to applicable local zoning ordinances.
    
      References
    Am Jur 2d, Penal and Correctional Institutions §§ 8-12; Zoning and Planning §§ 149, 150.
    See the Index to Annotations under Exemptions and Exclusions; Zoning.
    
      
      Rose & Rose (by James M. Rose), for plaintiff.
    
      Libner, Van Leuven & Kortering, P.C. (by Vernon D. Kortering and Daniel F. Bonner), for Muskegon Community Alternative Program, Inc.
    Before: Hood, P.J., and Wahls and Neff, JJ.
   Per Curiam.

Plaintiff appeals as of right from an order of the Muskegon Circuit Court granting summary disposition to defendants on the basis that plaintiff did not have authority to prohibit use of property as a residential center. We reverse.

Defendant, Muskegon Community Alternative Program, Inc. (mcap), is a private, nonprofit corporation which entered into a contract with the Michigan Department of Corrections under which mcap was to maintain a facility to be utilized as a probation residential center.

Plaintiff learned that mcap and defendant Sidney Moseler had entered into an agreement to lease a building owned by Moseler and located in plaintiff’s commercial district which was to be the site of mcap’s center.

Plaintiff thereupon filed a verified complaint seeking an order restraining defendants from entering into a lease agreement and from occupying the building, alleging that the building violated city building and fire codes and that the zoning ordinance proscribed the use of the building as a probation residential center.

In its answer, mcap raised the following affirmative defense:

Since the Program is totally funded and controlled by the Michigan Department of Corrections and houses state probationers, the Plaintiffs "zoning ordinance is void to the extent that it attempts to prohibit the use of the subject property as a rehabilitation center.” Dearden v City of Detroit, 403 Mich 257; 269 NW2d 139 (1978). Therefore, Plaintiffs complaint fails to state a claim on which relief can be granted.

The trial court-granted summary disposition to defendants, and plaintiff appeals as of right.

In Dearden v Detroit, supra, our Supreme Court held that the Department of Corrections was immune from local zoning ordinances when establishing state penal institutions. In that case, however, the rehabilitation center in question was to be operated directly by the Department of Corrections.

In Detroit v Volunteers of America, 169 Mich App 465; 426 NW2d 743 (1988), this Court held that Dearden is not to be expanded to include situations such as that presented here, where a party other than the state is to operate the facility. The facts in this case are almost identical to those presented in Volunteers of America, and we concur with and adopt the reasoning of that panel.

Reversed.  