Posted by: Patricia Salkin | February 25, 2020

MI Appeals Court Finds Appeal of Board of Zoning Appeals’ Decision Denying Liquor Permit was Untimely

This post was authored by Matthew Loescher, Esq,

Quality Market operated as a retail convenience store on Michigan Avenue in Detroit for 30 years, and had a Specially Designated Merchant (“SDM”) license, which enabled it to sell carry-out beer and wine. Quality Market also purchased a Specially Designated Distributor (“SDD”) license, which allowed the sale of carryout liquor from a former liquor retailer in the neighborhood. Quality Market submitted a petition to the City of Detroit Board of Zoning Appeals (“BZA”) requesting to add the SDD license to its existing retail space and requesting a spacing waiver. The BZA denied Quality Market’s petition, and the circuit court therefore reversed the BZA’s decision.

As the record reflected in this case, the BZA approved the minutes reflecting its denial of the spacing waiver on February 27, 2018, and later issued a written decision and order reflecting its denial on March 15, 2018. However, Quality Market did not file its appeal until April 26, 2018. Thus, Quality Market’s appeal was untimely under either MCL 125.3606(3) or MCR 7.112(B) if the applicable time period was measured from the approval of the BZA’s minutes, which occurred before the issuance of the BZA’s written decision. As such, the circuit court erred in concluding that it had the ability to consider Quality Market’s untimely appeal as a late application for leave to appeal.

While MCR 7.105(G) permits the filing of late applications for leave to appeal, MCL 7.103(B)(4) provides that the circuit may grant leave to appeal from “a final order or decision of an agency if an appeal of right was not timely filed and a statute authorizes a late appeal.” The court found that MCL 125.3606(3) did not authorize an appeal by leave granted or a late appeal. Accordingly, the court vacated the circuit court’s order reversing the BZA’s denial of a spacing waiver, reversed the circuit court’s order denying the BZA’s motion to dismiss, and remanded this case to the circuit court for the entry of an order granting that motion.

Quality Market v. Detroit Board of Zoning Appeals, 2019 WL 7903348 (MI App. 12/27/2019)

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