Posted by: Patricia Salkin | August 6, 2022

MI Appeals Court Allows Late Appeal of Variance Denial Because of Unclear Procedures During Covid Lockdowns

This post was authored by Amy Lavine, Esq.

A late appeal was permitted in a Michigan case decided in January 2022, Green Skies Healing Tree, LLC v. Flint Zoning Bd. of Appeals. The case involved a variance application that was denied in the spring of 2020 just after the Covid-19 pandemic began. At the time, the zoning board and other city departments had discontinued their normal procedures and were operating remotely, which led to a certain amount of confusion regarding procedural matters. The appellate court concluded that the property owner’s late appeal was excusable under these unusual circumstances, and as a result the trial court should have exercised its equitable powers to expand the time period for appealing the zoning board’s decision. The court emphasized that the plaintiff was unable to determine when it was required to file its appeal because the zoning board’s schedule had been suspended and it was unclear when it would issue the meeting minutes reflecting the variance denial. The plaintiff had also informed city employees repeatedly that it needed to know when the minutes would be approved so that it could file its appeal, and it made numerous attempts to contact city employees regarding the status of the meeting minutes. The plaintiff had relied on promises made by two city employees that they would provide notice when the minutes were approved, and as the court concluded, the plaintiff’s reliance was reasonable under the circumstances. Allowing the plaintiff’s late appeal was also appropriate because the plaintiff’s appeal was only a week late and the city conceded that there was no prejudice as a result of this delay.

Green Skies Healing Tree, LLC v. Flint Zoning Bd. of Appeals, 2022 WL 188313 (Mich. App. 1/20/22).

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