Recent Michigan Court of Appeals Decisions Offer Guidance to Zoning Boards of Appeals
Zoning Boards of Appeals (“ZBAs”) interpret zoning ordinances and maps, hear appeals of administrative orders and decisions, and consider variances from strict application of a zoning ordinance. In January and February of 2020, three unpublished Michigan Court of Appeals opinions were issued which offer guidance to ZBA members as they undertake their statutory duties.
Kingsbury Country Day School v Addison Township
Addison Township leased a five-acre parcel to Verizon Wireless for installation of a 197-foot-high monopole cellular tower. The Addison Township zoning ordinance required a minimum lot size of 20 acres for cellular towers and required that towers be set back from all lot lines by a distance equal to no less than the height of the tower. Verizon proposed a tower on a 5-acre parcel, rather than 20 acres, and proposed the tower be constructed 90 feet from the property line of the adjacent school lands, rather than 197 feet, as required. Variances were requested and granted by the ZBA. The adjacent landowner, a school, sued the Township and Verizon to challenge the variances.
The Court first determined that the adjacent school had standing to sue as an “aggrieved party” because the cellular tower was a fall risk to the school. This constituted a unique harm to the school, which was different from similarly situated community members. Also, the school’s potential harm was of a pecuniary nature, not a mere possibility arising from some unknown and future contingency.
The Court of Appeals then evaluated the variances. The Court noted that “the ZBA did not make any factual findings on the record nor state the reasons for granting the [variance] application.” Various justifications for the variance were offered in the township’s variance application, including topography, the natural landscape barriers existing on the site, the fact that the proposed monopole collapsible tower did not require a fall zone and other justifications.
Nevertheless, the Court noted that although the ZBA granted the requested variance, “the ZBA did not make factual findings nor did it articulate whether the township had met the requirements established by the township’s ordinance for granting a variance.” The Court made clear that the ZBA was required to articulate, with respect to each standard, whether the township/applicant had supplied facts sufficient to satisfy that standard. The Court held that it was error to conclude that the ZBA’s decision was supported by competent, material and substantial evidence on the record and was not an abuse of the ZBA’s discretion.
Because the ZBA did not make findings that the township met the standards for granting a variance and because the township’s application did not demonstrate entitlement to the variance, the variances were overturned by the Court of Appeals.
Although Verizon and the township sought to demonstrate how the proposed site was very desirable for a cellular tower, suggesting that a larger 20-acre parcel was not necessary, and similarly indicating that the construction of the tower made the “fall zone” unnecessary because these towers don’t fall, the Court did not generally evaluate those arguments. Instead, the Court firmly held on to the concept that a ZBA’s decisions must be based only upon evidence on the record. The evidence must be competent, material and substantial, and the decision may not be an abuse of the ZBA’s discretion. To meet these requirements, the ZBA must make findings of fact and rely on those findings of fact to establish that the zoning ordinance standards are satisfied.
The Court made it clear that, even though in the eyes of the applicant the site may have been very suitable or a good idea, the ZBA could not simply agree that this is the case and grant a variance where adequate findings of fact justifying the variance standards were not established.
Nixon Farms v Webster Township
Nixon Farms LLC wished to join in the popular trend of conducting weddings in a barn on its farm. The ZBA ruled that wedding barns were not included within the definition of “seasonal agri-tourism” under the township’s zoning ordinance, and therefore prohibited the use.
Nixon Farms sued to challenge the ruling and the Court of Appeals reviewed the procedures followed by the ZBA. The Court of Appeals began by reciting the Zoning Enabling Act provision which establishes the standards for review of a ZBA decision. The decision must comply with the constitution and laws of the state, be based on proper procedure, be supported by competent, material and substantial evidence on the record and represent the reasonable exercise of discretion granted by law to the Zoning Board of Appeals. MCL 125.3606.
The Court then reviewed the procedures used by the ZBA to interpret the zoning ordinance. “Seasonal agri-tourism” under the ordinance was not specifically defined, but the ordinance states that it “includes, but is not limited to hayrides, pumpkin patches, corn mazes and Christmas tree farms.” The Court found that the examples of agri-tourism listed in the ordinance relate to recreational or amusement activities on a farm that occur during the autumn and winter seasons and during the holidays. It then stated that, “In contrast, wedding ceremonies and receptions are private events that are not associated with a particular agricultural product or harvest season.”
The Court recognized that the potential negative effects for significant commercial traffic, noise late into the night, amplified music for dancing and celebrating and other aspects of the wedding barn events were not in line with traditional agricultural sounds or noise associated with agricultural activities. The ZBA made specific findings that weddings do not promote the rural character of the agricultural district and that wedding barns were a commercial activity. These findings allowed the Court of Appeals to conclude that the ZBA properly based its determination that wedding barns were not included in the definition of “seasonal agri-tourism” on the plain language and the scheme of the ordinance. The Court of Appeals therefore concluded that the ZBA’s decision to exclude wedding barns from the “seasonal agri-tourism” was authorized by law and supported by competent, material and substantial evidence on the whole record and was a reasonable exercise of its discretion.
Moran v Cooper Charter Township
The Morans owned a ceramic shop in Cooper Charter Township’s C-1 Business District. The C-1 district permitted “retail sales of goods and services.” Historically, the shop was a legal non-conforming building, which did not comply with the township’s current physical zoning requirements pertaining to setbacks, parking and lighting.
In 2006, the Morans rebranded their ceramic shop as a “Stretch-A-Dollar” discount store. The ZBA found that the addition of more general merchandise was not an alteration of the property and therefore did not require the Morans to bring the property physically into compliance with the zoning ordinance.
However, when the Morans announced plans to open a liquor store without updating the property to make it compliant with the zoning ordinance, the township treated the planned liquor store as an alteration or expansion of use, prohibited as to legal non-conforming uses by the zoning ordinance, and required that the property be brought into compliance with current setback, parking and lighting requirements.
The Morans filed a lawsuit alleging that the requirement to conform to the zoning ordinance resulted in a taking of their property without just compensation. The ZBA had determined, in 2018, that the proposed liquor store did in fact constitute an “extension, alteration or addition” to the property’s use under the nonconforming use provision of the zoning ordinance, and as a result, required that compliance with the current zoning ordinance was necessary to begin use as a liquor store. The Court of Appeals, evaluating the record, dismissed the takings claim because the claim was not yet ripe for judicial review.
The Morans had not requested a variance from application of the setback, parking and lighting requirements, and unless they did so or otherwise submitted a compliant plan, no final decision was considered to have been taken, thereby enabling relief from the Courts.
This portion of the Court’s opinion is a good reminder of the legal requirement for exhaustion of remedies. In short, a litigant may not go to court until a final decision is issued by the municipality, which often requires that the Zoning Board of Appeals must be approached for a variance as a last resort.
Because a ZBA is allowed to grant only the minimum relief necessary to alleviate a practical difficulty or unnecessary hardship, this offers the township an opportunity to avoid an “all or nothing” position in litigation. For example, if a developer applies for permission to have a very high density development, there may be circumstances where a ZBA could grant a variance to allow a more moderate density development. This opportunity for compromise has often been an effective tool to avoid litigation for municipalities. The Court cited prior case law as follows:
“Where the possibility exists that a municipality may have granted a variance—or some other form of relief—from the challenged provision of the ordinance, the extent of the alleged injury is unascertainable unless these alternative forms of potential relief are pursued to a final conclusion.”
The Court did offer the reminder that “the effort to request alternative relief must involve at least one meaningful application from the landowner.”
The Court then evaluated a second issue that we frequently encounter. After the Morans filed their complaint, the township amended its zoning ordinance to provide that liquor stores would be permitted only by special land use permit, not as a permitted use in the C-1 district. The significance is that the Morans would be required to provide a site plan which the Morans had previously refused to provide, and in essence, it appears that under the special land use procedure, the Morans would have been required to comply with current setback, parking and lighting requirements.
The Court pointed out that a reviewing court must generally apply the version of the zoning ordinance in effect at the time of the municipality’s decision, except in two narrow situations. A court will not apply an amendment to a zoning ordinance where the amendment would destroy a vested property interest acquired before its enactment or where the amendment was enacted in bad faith and with unjustified delay (for example, where it was enacted for the purpose of manufacturing a defense to plaintiff’s suit).
The Court of Appeals, continuing to recognize the need to have factual determinations made on the record, remanded the case for a full determination of whether the zoning ordinance amendment would apply. The Court made clear that even if the more recent amendment applied, the township’s decision should still be analyzed based on whether it was authorized by law and supported by competent, material and substantial evidence on the record.
The key takeaway from all three of the above decisions is the importance the Court of Appeals places on providing factual findings on the record as a basis for ZBA decisions.