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Michigan Supreme Court Affirms its Approach to Easing Requirements for Appealing Land Use Decisions

On June 30, 2023, the Michigan Supreme Court appeared to maintain its position towards a slightly more feasible route for parties seeking appeals in land use decisions.  In Tuscola Area Airport Authority v. Michigan Aeronautics Commission, the Court reversed in part the appeals decision, by determining Tuscola Airport Authority presented sufficient evidence to constitute as an “aggrieved party” for purposes of appealing a decision granting certain tall-structure permits for wind turbines.

The lawsuit began after the Michigan Aeronautics Commission (MAC) issued tall-structure permits for construction of wind turbines beside an airport, to Pegasus Wind, LLC which was developing a wind energy system.  The local Airport Zoning Board of Appeals (AZBA) and Airport Authority appealed the decision to issue tall-structure permits, alleging that they were aggrieved parties.  The Michigan Court of Appeals held however that neither the Airport Authority nor AZBA were aggrieved parties and therefore, lacked standing to appeal the MAC’s decision under the Tall Structures Act.  

As made evident in its June 30th order, the Michigan Supreme Court disagreed with the appellate judgment regarding the Airport Authority, and determined it “is the legal entity charged with control over the airport, and granting tall-structure permits which would allow for the placement of wind turbines in the immediate vicinity of the airport, impacts the airport.” The Court further found the Airport Authority provided evidence supporting its allegation of a “concrete and particularized injury—that the turbines will result in a pecuniary loss to the airport.” Notably, this was in direct reference to the Court’s analysis from its prior decision in Saugatuck Dunes Coastal Alliance v. Saugatuck Twp., 509 Mich. 561 (2022).

In Saugatuck Dunes Coastal Alliance, Michigan’s Supreme Court expanded certain requirements for parties to appeal municipal land use decisions.  In this 2022 ruling, the Court specifically broadened what qualifies as an “aggrieved party”, for purposes of pursuing appeals under Michigan statutes, MCL 125.3605 and MCL 125.3606. Prior to that, the requirements for an “aggrieved party” were significantly narrow in an already difficult appeals process.  As a result of Saugatuck Dunes Coastal Alliance, to qualify as an aggrieved party requires the following:

  • That the appellant participated in the challenged proceedings by taking a position on the contested decision.
  • The appellant must claim some legally protected interest or protected personal, pecuniary, or property right that is likely to be affected by the challenged decision.
  • Lastly, the appellant must provide some evidence of special damages arising from the challenged decision in the form of an actual or likely injury to or burden on their asserted interest or right that is different in kind or more significant in degree than the effects on others in the local community.

While referencing this earlier decision in Tuscola Area Airport Authority, the Court notably found the Airport Authority could qualify as an “aggrieved party” in order to appeal under the Tall Structures Act, MCL 259.481 et seq. In a dissent, Justice Viviano pointed this out and opined that Saugatuck Dunes Coastal Alliance is not applicable as it only addressed what it meant to be aggrieved by a zoning decision. Justice Viviano further opined the Court has not provided enough interpretation as to what it means to be “aggrieved” as it relates to the Tall Structures Act.

In all, finding the Airport Authority had sufficient evidence to qualify as an “aggrieved party” resulting from a decision granting tall-structure permits, could be further indication of the Supreme Court’s continued shift, even if slightly, towards a more appellant-friendly process to land use decisions. 

At Dalton & Tomich, our attorneys have extensive experience in handling appeals with zoning and land use decisions.  If you wish to speak to an attorney about a related matter, please contact the number, (313) 859-6000. We would be happy to speak with you.

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