Ever since the U.S. Supreme Court ruled in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) that zoning ordinances were not an unreasonable extension of a municipality’s police power, nearly every state has passed an enabling act giving cities, villages and townships the authority to regulate land use Michigan is no exception and local governments have the authority to determine the types of activities that can take place on certain lots (e.g. residential, agricultural, commercial or industrial). These regulations can go as far as to determine the kinds of businesses that can exist on the lot, the location of the building, the height of the building and even the density of parking lots. A landowner seeking to use land for a purpose not allowed by the zoning ordinance may apply for a variance or special land use permit from the municipality. The zoning board of appeals (“ZBA”) in that municipality has the last word at the government level whether a variance or a special land use permit will be granted.
The zoning board of appeals is subject to Michigan’s Open Meetings Act so it must give sufficient notice to the public as to the date, time and location it will convene. Neighbors within 300 feet of a property seeking a variance or special land use permit are required to receive direct notice from the municipality of the hearing so they can be heard. MCL 125.3103(2). After a public hearing, the ZBA renders a decision to either grant or deny the request for an exception to the zoning ordinance. If the landowner is denied the request, then he or she may file suit in the local circuit court challenging the ZBA’s decision.
What if a neighbor to the property granted a variance or special land use permit is unhappy? What if the ZBA granted the landowner the right to use the land for a purpose that is noisy, obnoxious or unsightly (e.g. permitting unsavory business such as exotic dancing club, allowing construction of oversized building, granting an excessively tall fence) which affects the neighbor’s ability to enjoy his land. Can the neighbor file suit in the circuit court challenging a ZBA decision even though he was not a party to the proceedings?
In Olsen v Chikaming Township, 325 Mich App 170; 924 NW2d 889 (2018), a property owner purchased a residential lot in Chikaming Township during a tax foreclosure sale with the intention of building a cottage on it. The lot was zoned as “single-family residential” but was non-conforming to build a structure on it because the minimum lot area was too small and there was not enough space for a 50-foot rear setback required for the septic system. As a result, the property owner applied for a variance with the Chikaming Township Zoning Board of Appeals seeking permission to build a cottage on the non-conforming lot. He argued that, without a variance being granted, the land was useless under the current zoning ordinance. A previous prospective buyer attempted to get a variance in 1996 for the same reason but was denied, so that buyer backed out of the sale. Many local residents appeared at the public hearing and voiced their opposition to the ZBA granting the requested variance. After a lively debate, the ZBA ultimately granted the variance to the landowner.
Several neighbors to the property filed suit in the circuit court seeking to reverse the ZBA’s decision granting the non-conforming variance. The landowner and the ZBA opposed the lawsuit on the basis that the neighbors had no standing to challenge the decision. The circuit court judge disagreed and found that the statutory requirement for the township to give notice to neighbors within 300-feet of the subject property “implies that the Legislature intended to confer standing to those individuals so as to qualify as aggrieved parties for the purposes of the appeal…”. The circuit court ultimately sided with the neighbors and ruled that the ZBA did not have the authority to grant a variance because the hardship conditions required under the local ordinance were not satisfied. The landowner and ZBA appealed to the Michigan Court of Appeals.
The landowner and ZBA (“appellants”) challenged the ability of the neighbors (“appellees”) to file suit in the first place, arguing that they lacked standing to appeal a ZBA decision to the circuit court because they are not “aggrieved parties” under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq. The statute does not define “aggrieved” but merely states the following:
- “The decision of the zoning board of appeals shall be final. A party aggrieved by the decision may appeal to the circuit court for the county in which the property is located…”. MCL 125.3605.
The Michigan Court of Appeals determined that the neighbors did not have standing as an “aggrieved party” to challenge the ZBA decision in the circuit court under the following analysis:
- “Given the long and consistent interpretation of the phrase “aggrieved party” in Michigan zoning jurisprudence, we interpret the phrase “aggrieved party” in § 605 of the MZEA consistently with its historical meaning. Therefore, to demonstrate that one is an aggrieved party under MCL 125.3605, a party must allege and prove that he [or she] has suffered some special damages not common to other property owners similarly situated. Incidental inconveniences such as increased traffic congestion, general aesthetic and economic losses, population increases, or common environmental changes are insufficient to show that a party is aggrieved. Instead, there must be a unique harm, dissimilar from the effect that other similarly situated property owners may experience. Moreover, mere ownership of an adjoining parcel of land is insufficient to show that a party is aggrieved, as is the mere entitlement to notice.” Olsen, 325 Mich App at 185 (internal citations omitted).
- “A review of the record in this case indicates that, contrary to the holding of the circuit court, appellees failed to demonstrate that they were aggrieved parties for purposes of the MZEA. Appellees argued before the circuit court that they were aggrieved because (1) they relied on the 1996 variance denial concluding that Lot 6 was unbuildable, (2) they relied on the zoning ordinance to be enforced as it is written, (3) they were entitled to receive notice of the public hearing before the ZBA as owners of real property within 300 feet of Lot 6, and (4) they would suffer aesthetic, ecological, practical, and other alleged harms from the grant of the zoning variance. These alleged injuries, however, do not establish appellees as aggrieved parties under MCL 125.3605. Aesthetic, ecological, and practical harms are insufficient to show special damages not common to other property owners similarly situated. Similarly, appellees’ expectations that the 1998 zoning ordinance would be interpreted in the same manner as the 1981 zoning ordinance, or that the ZBA would arrive at the same decision as the 1996 denial of an altogether different variance request, were not sufficient to show special damages. Because appellees failed to show that they suffered a unique harm different from similarly situated community members, they failed to establish that they are parties aggrieved by the decision of the ZBA.” Olsen, 325 Mich App at 186 (internal citations omitted).
The Olsen decision set the standard for determining an “aggrieved party” going forward for the purposed of appealing ZBA decisions. For a party who is not the property owner to be aggrieved, “one must have some interest of a pecuniary nature in the outcome of the case and not a mere possibility arising from some unknown and future contingency” and “have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court’s power.” Olsen, 325 Mich App at 181. What kind of facts would have to be shown to meet this standard?
In Kingsbury Country Day Sch. v Addison Twp, unpublished per curiam opinion of the Court of Appeals decided Feb 18, 2020 (Docket No. 344872), a local school challenged a non-use variance granted to a neighboring property by the ZBA. Verizon Wireless purchased a 5.23 acre parcel of land and entered into an agreement with the Township to place cellular tower on the parcel in exchange for annual payments of $17,000.00 per year. The variance was necessary because the ordinance required that cellular towers must be built on a land parcel with a minimum of 20 acres. The proposed tower would be 197 feet high. On the adjoining property, there was school property whose boundary was only 90 feet from the tower’s proposed location. The school opposed the cellular tower because its structures and its students would be within the “fall zone” if the tower collapsed. Despite the school making objections at the public hearing, the ZBA granted the variance. The school filed suit in the circuit court to challenge the decision, but the ZBA’s ruling was affirmed. The school then filed an appeal to the Michigan Court of Appeals.
Verizon Wireless (“appellee”) argued that the school (“appellants”) had no standing to challenge the ZBA’s decision regarding the variance because they did not meet the definition of an aggrieved party under the Olsen decision. The Michigan Court of Appeals disagreed and found that the school met its burden to demonstrate standing:
- “In this case, appellants assert that unlike other property owners or members of the community, they are aggrieved parties because the cellular tower is a fall risk to the school. To the extent that appellants allege that the school, and the students attending the school, are at heightened risk if the cellular tower were to collapse, and that enrollment could decline as a result of the fall risk of the tower, such considerations constitute special damages not incurred by other members of the community. Put another way, these potential harms are unique and dissimilar from effects that other property owners may experience as a result of the placement of the tower on the subject property… [A]ppellants are aggrieved parties under MCL 125.3605 and were entitled to appeal to that court from the decision of the ZBA as “aggrieved parties” of the ZBA’s decision.” Slip op. at 6.
Since the school had standing to challenge the decision, the Michigan Court of Appeals ultimately ruled that the zoning board of appeals ultimately erred in granting a variance to Verizon Wireless. The ZBA failed to determine if the requested variance met the standards and conditions under the zoning ordinance before granting it. Likewise, Verizon Wireless’s variance application failed to demonstrate entitlement to a variance under the applicable ordinance and did not support their application with substantial evidence. As a result, the school prevailed in their litigation and the variance for the cellular tower was denied.
Land use law is complicated and determining if someone is an “aggrieved party” is not easy. If you are a landowner or neighbor affected by the decision of the local zoning board of appeals, you need a skilled property lawyer in your corner to advance your case to circuit court, protect your rights, and properly argue that you meet the definition of an “aggrieved party” under the law to get your day with the judge. If the court throws out your case because it determines you do not have standing, you either lost your chance to be heard on the merits or will have to spend thousands of dollars and perhaps several years in the appellate courts for a slim chance at a declaratory judgment that you were always an “aggrieved party”. Make sure you understand the strengths and weaknesses of your land use case before it becomes a costly mistake.
If you have any questions about property and land use law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.