On July 3, 2018, the Michigan Court of Appeals ruled in favor of a Bloom Sluggett, PC (“BSPC”) client, which had obtained a dimensional nonuse variance for a dwelling from the Chickaming Township’s Zoning Board of Appeals (the “ZBA”).
BSPC’s client, hoping to build a residential cottage in Chickaming Township, Berrien County, filed an application with the Township for a non-use variance from the Township’s zoning ordinance, which requires R-1 lots to have a certain minimum lot area and a rear setback. The client’s lot (Lot 6) was smaller than the required square footage and also required a lesser rear setback. The lot was eligible for a variance under the zoning ordinance; without which it would be unusable. With BSPC’s assistance, a variance request was presented to the ZBA and approved.
After the ZBA’s decision, certain neighbors tried to appeal the decision to the Berrien County Trial Court. With BSPC’s assistance, the client intervened in the trial court action to assist the ZBA in defending its decision to grant the variance request. Thereafter, BSPC and the Township asked the Trial Court to dismiss the neighbors’ appeal because they were not “aggrieved parties” entitled to appeal under Michigan’s Zoning Enabling Act (“MZEA”). BSPC argued that because the neighbors failed to demonstrate damages different from those of others within the community, they did not have standing to appeal the ZBA’s decision. The appealing neighbors argued that they were aggrieved under the MZEA because (1) they relied upon a 1996 variance denial concluding that the same lot was unbuildable, (2) they relied upon the zoning ordinance to be enforced as it is written, (3) they were entitled to receive notice of the public hearing before the ZBA as owners of property within 300 feet of Lot 6, and (4) they would suffer aesthetic, ecological, practical, and other alleged harms due to the grant of the zoning variance. The Berrien County Trial Court agreed with the neighbors and overturned the ZBA’s decision. BSPC then appealed that decision to the Michigan Court of Appeals. Agreeing with BSPC, the Court of Appeals reversed the Berrien County Trial Court’s decision and held in a published decision that the neighbors could not challenge the decision of the ZBA because they were not “aggrieved parties” within the meaning of the MZEA. The neighbors’ alleged injuries (aesthetic, ecological, and practical harms) were insufficient to show “special damages not common to other property owners similarly situated.” This meant that they were not able to invoke judicial review by the Berrien County Trial Court of the ZBA’s non-use variance. Hence, the ZBA’s decision is preserved and the matter is remanded to the Trial Court for dismissal of the appeal.
This is an important decision because it clarifies who, under the MZEA, is an “aggrieved party” and able to challenge a final decision made by a zoning board of appeals. Merely disagreeing with a zoning board of appeals isn’t enough. On this point, the Court of Appeals indicates that: “To demonstrate that one is an aggrieved party under MCL 125.3605, a party must “allege and prove that he [or she] has suffered some special damages not common to other property owners similarly situated.” Incidental ..inconveniences such as increased traffic congestion, general aesthetic and economic losses, population increases, or common environmental changes are insufficient to show that a party is aggrieved. Instead, there must be a unique harm, dissimilar from the impact that other similarly situated property owners may experience. Moreover, mere ownership of an adjoining parcel of land is insufficient to show that a party is aggrieved, as is the mere entitlement to notice (citations omitted).
With its victory secured, and the ZBA’s decision preserved, BSPC’s client plans to begin work on its cottage as soon as possible.