When contesting a land development project, the local planning or zoning board may render a decision approving or favoring such project. Pursuant to the Michigan Zoning Enabling Act, MCL § 125.3606 (“MZEA”), “any party aggrieved by a decision of the zoning board of appeals may appeal to the circuit court for the country in which the property is located.” In other words, those who have been impacted—as defined under Michigan law—by a land use or zoning decision, are entitled to appeal to circuit court. Generally, state courts are also provided express authority under Article VI of the Michigan Constitution to review all final decisions, rulings, orders, and findings rendered by any administrative officer or agency.
Therefore, it is important to be aware what to include in a claim of appeal for those who wish to pursue one in circuit court. Claims of appeals are governed in part by Michigan Court Rule 7.122, which specifically cover appeals from zoning ordinance determinations. At the outset, there are crucial time requirements for filing a claim of appeal. Per MCR 7.122(B), an appeal must be filed within thirty (30) days after the certification of the minutes of the board or commission from which the appeal is taken or within thirty (30) days after the board or commission issued its decision in writing, whichever deadline comes first.
Under MCR 7.122(C)(2), there are specific requirements for what content to include in a claim of appeal. According to the rule, the claim of appeal must provide concise statements of the following:
- The nature of the determination by the officer or entity;
- The statute authorizing the officer or entity’s proceedings and determination;
- The statute or constitutional provision under which the appeal is taken;
- The facts on which venue is based;
- The grounds on which relief is sought, stated in as many separate paragraphs as there are separate grounds alleged; and
- The relief sought.
A claim of appeal operates similar to a complaint filed in state civil court. As in complaints, citing specific Michigan statutes and court rules is required in order to establish proper jurisdiction and venue for the court you are filing in. Be aware of certain statutory provisions that are specific to zoning/land-use appeals, such as the MZEA. As provided above, you must include the statute that authorizes the local board or entity in its land use proceeding and eventual decision.
Notably, Michigan law requires that those who are appealing a zoning board decision to be an “aggrieved party.” MCL § 125.3606. The statute does not define what constitutes an “aggrieved party”, however, the Michigan Supreme Court has provided certain elements to qualify as one. First the appellant must have participated in the local proceeding at issue; next the appellant must claim some legally protected interest right likely to be affected by the challenged decision; and lastly, there must be some evidence of an actual or likely injury, or burden that is different in kind, or more significant in degree than the effects on other in the local community. Saugatuck Dunes Coastal Alliance v. Saugatuck Twp., 509 Mich. 561l 983 N.W.2d 798 (2022). These qualifications for an aggrieved party will be discussed in greater detail in the next blog post to this series regarding contesting land development projects. Notwithstanding, establishing the facts and grounds for why you qualify as an aggrieved party must be incorporated in the appeal.
When preparing a claim of appeal, it is crucial to provide the court with a succinct timeline or story of events as to what is being contested and how it reached this point. As such, a claim of appeal should provide all relevant facts that have been acquired at that time, including a description of the parties i.e.—who the appellant and appellee are, details about the proposed land development project, the zoning board’s application process, and events leading up to the zoning board decision. Providing sufficient factual background will support the subsequent legal claims asserted in your claim of appeal.
As provided above under subsection (v) to MCR 7.122(C)(2), the appeal must include the grounds on which relief is sought or the appeal is premised on. These grounds must be concisely labeled and organized (typically by counts), in order to clarify what the legal claims are and how many there are. Each legal count should be supported by which laws governed or were violated. Therefore, cite specific state and/or local law that applies to the substance of your appeal. For instance, the local planning or zoning board may have violated procedures required under local ordinance, or rendered a decision based on improper reasoning or evidence that violates state and local laws. Even more, the proposed development project itself may violate certain zoning ordinances. As such, include the specific statutory provisions or court decisions where you can in the appeal to support the grounds on which your relief is sought.
Beyond apart from necessary content, a claim of appeal should include certain documents attached to it when filing in court. Pursuant to MCR 7.122(C)(4), a copy of the order and/or minutes of the local zoning board or entity must be attached to the appeal, if accessible. Moreover, other beneficial documents to attach as evidence can include the contested project’s land use/zoning applications, property surveys, construction plans, expert studies, traffic reports, and community letters opposing the project. It is important to note that not all relevant documents may be accessible at the time of filing an appeal. However, the documents should become available through the record of appeal that is filed by the local entity (appellee) subsequently in court.
At Dalton & Tomich, PLC, our attorneys are highly experienced in the realm of land use and zoning and have represented numerous clients in appealing decisions from local planning or zoning boards. If you are considering pursuing a claim of appeal or have any related questions, contact Dalton & Tomich at (313) 859-6000, to speak to one of your attorneys.
