Posted by: Patricia Salkin | August 10, 2018

MI Appeals Court Finds Lack of Standing to Challenge Variance Due to Inability of Neighbors to Show Special Damages

This post was authored by Matthew Loeser, Esq.

In 1957, Preston and Doris Sweet platted a 17–lot subdivision near Lake Michigan called the Merriweather Shores subdivision. Over time, the Sweets conveyed some of the lots to buyers, and retained other lots. This case involves Lot 6 of the subdivision, which had a total area of 9,676 square feet. After the enactment of a 1981 ordinance, Lot 6 was rendered nonconforming because the ordinance required all lots to have a minimum area of 20,000 square feet for buildability. Seeking to build a residential cottage on Lot 6, appellant filed an application with Chickaming Township for a nonuse dimensional variance under § 14.02, which required all R–1 lots to have a minimum lot area of 20,000 square feet and a rear setback of 50 feet. Following public comment, the ZBA voted to approve the variance request. Appellees appealed the ZBA’s decision to the circuit court, and the circuit court permitted appellant to intervene in the circuit court action. The ZBA moved to dismiss the circuit court action for lack of subject-matter jurisdiction, arguing that appellees lacked standing to challenge the ZBA’s decision to grant the variance. The circuit court reversed, holding that the ZBA did not have authority to grant the variance because appellant did not satisfy § 23.04 of the township’s zoning ordinance, which permitted the ZBA to grant a variance under specific conditions.

 

On appeal, appellant argued that appellees lacked standing to challenge the decision of the ZBA before the circuit court because they were not “aggrieved parties” within the meaning of the Michigan Zoning Enabling Act (“MZEA”). The court interpreted the phrase “aggrieved party” in §605 of the MZEA consistent with its historical meaning. Thus, 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.” Here, the court found that appellees’ aesthetic, ecological, and practical harms insufficient to show special damages not common to other property owners similarly situated. Although the circuit court noted that septic systems and setback requirements specifically affected the property of neighboring landowners, there was no evidence that these damages were more than mere speculation or anticipation of future harm.

 

Appellees next contended that they appeared before the ZBA together with counsel and presented their arguments in that forum without appellant challenging their right to do so, and the appellant therefore waived any challenge to appellees’ standing to pursue the appeal in the circuit court. The court noted, however, that appellant was not challenging the appellees’ right to appear at the public hearing before the ZBA and make public comments, but was instead challenging the ability of appellees to thereafter appeal the decision of the ZBA to the circuit court. The court further found that ZBA was not the appropriate forum to address whether appellees were empowered to appeal the ZBA’s decision as aggrieved parties. Thus, appellees did not have the ability to invoke the jurisdiction of the circuit court, and the circuit court erred in denying the township’s and appellant’s motion to dismiss the circuit court action.

 

Olsen v Jude and Reed, LLC, 2018 WL 3244150 (MI App 6/3/2018)

 


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