Who Has “Standing?” The Michigan Supreme Court Weighs In On Who Can Appeal To And From A ZBA

In the context of zoning, “standing” is a legal concept that is typically used to describe whether a person has a sufficient legal interest in the outcome of a particular zoning decision to challenge that decision by way of an appeal to a zoning board of appeals (“ZBA”), or by way of legal action in circuit court. In its recent opinion in Saugatuck Dunes Coastal Alliance v Saugatuck Twp, the Michigan Supreme Court provided clarifying guidance on how to determine whether a party has “standing” to appeal to or from a ZBA. In other words, the opinion clarifies who has a right to challenge a municipality’s administrative zoning decisions to the ZBA or to the circuit court.

The Saugatuck Dunes case arose from a situation where a non-profit corporation attempted to appeal, to a township ZBA, the decision of a township planning commission to approve a residential site condominium project that would include a marina and boat basin, located on approximately 300 acres of land with frontage on the north shore of the Kalamazoo River and on Lake Michigan. In reliance on prior published Michigan appellate decisions, which had suggested that property ownership is required in order for a person having standing to appeal a zoning decision, the township ZBA refused to hear the appeal. The ZBA decided that, because the non-profit corporation did not own property in the vicinity of the proposed condominium project, it could therefore not show a protected legal interest to establish that it had standing to appeal. The lower courts later affirmed on generally the same grounds.

The Michigan Supreme Court reversed, however, finding that property ownership is not a prerequisite to appealing to a ZBA or from a ZBA decision. In so holding, the Court took the opportunity to more comprehensively clarify all of the standards for determining whether a person has standing to appeal an administrative zoning decision to a ZBA, or to appeal a ZBA’s decision to circuit court.

In conducting its analysis, the Court relied on the express language of the Michigan Zoning Enabling Act, which states that a “person aggrieved” by an administrative zoning decision may appeal that decision to a ZBA, and which further states that a “party aggrieved” by a ZBA decision may appeal the ZBA’s decision to circuit court. Focusing first on the meaning of the term “aggrieved,” the Court held a person must demonstrate each of the following to be considered “aggrieved:”

• The appealing person must claim some legally protected interest or protected personal, pecuniary, or property right that is likely to be affected by the challenged decision; and,
• The appealing person must provide some evidence of special damages arising from the challenged decision in the form of an actual or likely injury to or burden on their asserted interest or right that is different in kind or more significant in degree than the effects on others in the local community (i.e., not necessarily by comparison to other similarly-situated property owners, since property ownership is not required).

The Court also noted that the broader term “person” is used to describe who can appeal an administrative zoning decision to a ZBA in the first instance, whereas the narrower term “party” is used to describe who can appeal a ZBA decision to circuit court. A “person,” held the court, refers to any natural person or legal entity, whereas “party” refers to a person or legal entity who actually participated in the challenged proceedings by taking a position on the contested decision, such as through a letter or oral public comment. The important distinction is that a person or entity who did not participate in the ZBA proceedings cannot later attempt to appeal the ZBA’s decision to circuit court, no matter the degree or nature of the harm they might suffer from that decision.

The Saugatuck Dunes opinion provides a good opportunity for zoning officials to reevaluate their practices for the hearing of ZBA applications. While disappointed zoning-permit applicants will almost always have the requisite “aggrieved person” status to appeal to the ZBA, the same is not automatically true of others in the community. And so before scheduling a hearing on a ZBA appeal that is filed by a neighbor or other non-applicant person, zoning officials should consult with their municipality’s legal counsel, to determine if that person has adequately demonstrated the necessary legal interest and special damages to establish their “aggrieved” status. If not, the appeal application can potentially be rejected.

If you have questions about a particular ZBA application, please contact a lawyer in our firm’s Municipal Law Practice Group for further assistance.