The Michigan Zoning Enabling Act, MCL 125.3101 et seq. (“MZEA”), authorizes municipalities to create zoning ordinances that regulate land use within their borders. The MZEA also requires that zoning ordinances create a Zoning Board of Appeals (“ZBA”) for each municipality. MCL 125.3601(1).
The ZBA’s decisions are final, meaning the losing party has no further recourse at the municipal (i.e., governmental) level. MCL 125.3605. However, the losing party can still challenge a ZBA decision by appealing it to the local Circuit Court. MCL 125.3606.
The MZEA also explains who can appeal a ZBA decision to the Circuit Court:
Any party aggrieved by any order, determination, or decision of any officer, agency, board, commission, zoning board of appeals, or legislative body of any local unit of government … may obtain a review in the circuit court for the county in which the property is located.
MCL 125.3607(1). In other words, you must qualify as an “aggrieved party” in order to have standing to appeal a ZBA decision in Circuit Court.
The next logical question is: What is an aggrieved party?
Unfortunately, the MZEA does not define the term, so our next option is to look at how Michigan courts have defined it.
A recent Michigan Court of Appeals case – Olsen v Jude & Reed, LLC – is particularly helpful. In that case, a property owner purchased a residential lot in Chikaming Township at a tax foreclosure sale with plans to build a cottage on it. The lot was located in the R-1 single family residential zoning district but was classified as “nonconforming.” The zoning ordinance required residential lots to have a minimum lot area of 20,000 square feet and a rear setback of 50 feet. This lot was only 9,700 square feet and had a rear setback of 30 feet.
Since the lot was nonconforming, the property owner submitted a dimensional (also called a “non-use”) variance to the Chikaming Township Zoning Board of Appeals (“ZBA”) seeking special permission to build the cottage. The property owner argued that without a variance, the lot was not buildable and essentially unusable.
At the ZBA hearing on the variance application, neighboring property owners opposed the variance. However, the ZBA ultimately voted to approve the variance request. The neighbors then appealed the ZBA’s decision to the Berrien County Circuit Court. The property owner then intervened to support the ZBA. Together, the ZBA and property owner moved to dismiss the Circuit Court case, arguing the neighbors did not have standing to challenge the ZBA decision.
The ZBA and property owner argued that under the MZEA, only an “aggrieved party” had the authority to appeal the ZBA’s decision. According to the ZBA and property owner, the neighbors opposing the cottage were not “aggrieved parties” because they did not suffer special damages different than others in the community.
The neighbors argued they were in fact “aggrieved” for the following reasons:
- they had all relied upon a 1996 variance denial concluding that the lot at issue was unbuildable,
- they relied upon the zoning ordinance being enforced as written,
- they were entitled to receive notice of the ZBA hearing because they were owners within 300 feet of the lot, and
- granting the variance would cause them to suffer aesthetic, ecological, practical, and other alleged harm.
The Circuit Court agreed with the neighbors’ argument and reversed the ZBA’s grant of the variance. The ZBA and property owner then appealed to the Michigan Court of Appeals.
On appeal, the Court of Appeals reversed the Circuit Court’s decision and sided with the ZBA and property owner. The Court of Appeals clarified that the neighbors were not “aggrieved parties” under the MZEA and had no grounds to challenge the ZBA decision. The Court elaborated on how to show that a party is “aggrieved”:
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 impact 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.”
Because the neighbors’ alleged injuries did not rise to the level of “special damages,” the Court found they lacked the standing to challenge the ZBA’s decision in court. As a result, the ZBA’s approval of the variance was upheld.
This decision is significant because it clarifies who qualifies as an “aggrieved party” under the MZEA. As noted above, this inquiry is extremely important because it directly governs who can challenge a final decision from a ZBA to the Circuit Court.
The attorneys at Dalton & Tomich, PLC have extensive experience representing clients in Michigan land use and zoning matters before municipal boards and in court. If you received an adverse decision from your local ZBA and are thinking about challenging that decision in court, do not hesitate to contact us so we can discuss your options.