MI Appeals Court Clarifies Nuisance Per Se Standing Test & Declines to Issue Mandamus Requiring Local Zoning Enforcement in Dog Kennel Case

This post was authored by Gabriella Mickel, Pace University Elisabeth S. Haub School of Law

In the case involving a dog kennel operated by Dandy Acres, owned by veterinarian Theresa McCarthy, the Court of Appeals of Michigan clarified the standing requirements for nuisance per se actions and declined to issue a mandamus for local zoning enforcement.

Dandy Acres added a kennel around 2013 without obtaining the necessary special use permit and area variance. Neighbors complained about noise, and while the Lyon Township Zoning Enforcement Officer notified Dandy Acres of the violation, the Township refrained from further action. Plaintiffs brought a nuisance per se action against Dandy Acres and the Township, alleging civil rights deprivation due to the Township’s lack of zoning enforcement, and sought a writ of mandamus to compel the Township to enforce their zoning ordinance.

The court held that mandamus, an extraordinary remedy, is only issued to compel officials to perform duties where there’s a clear legal right and no discretion. Under the Michigan Zoning Enabling Act (MZEA), municipalities have discretion in enforcing ordinances, and the court found no abuse of discretion by the trial court in denying the writ of mandamus.

Under MCL 125.3407 (MZEA), a zoning ordinance violation is a nuisance per se. Defendants argued the plaintiffs lacked standing as they failed to show “special damages.” The court noted that the defendants were mistakenly applying the aggrieved party test, not the standing test.

The aggrieved party test, established in Saugatuck Dunes Costal Alliance v Saugatuck Twp, 509 Mich 561 (2022) by the Michigan Supreme Court, requires evidence of special damages distinct from those suffered by the community. However, this test is for appellate relief from zoning board decisions and does not apply to nuisance per se claims under MCL 125.3407. For nuisance per se, individuals must show damages of special character distinct and different from the injury suffered by the public generally.

The court concluded that the trial court erred by applying the aggrieved party test to assess standing and failed to consider the plaintiffs’ right to initiate a nuisance action under § 11.04 of the Township ordinance. The case was remanded to the trial court for application of the correct standing test and to consider § 11.04.

Sakarafos v Charter Township Board of Zoning Appeals, 2023 WL 8113026 (OH App. 11/16/2023)