Opinion
354688
10-21-2021
ANN M. KULLENBERG, Plaintiff-Appellant, v. TOWNSHIP OF CRYSTAL LAKE and CRYSTAL LAKE TOWNSHIP ZONING BOARD OF APPEALS, Defendants-Appellees.
UNPUBLISHED
Benzie Circuit Court LC No. 19-011160-AA
Before: Redford, P.J., and K. F. Kelly and Letica, JJ.
PER CURIAM
Plaintiff appeals as of right the order finding that she was not an aggrieved party under MCL 125.3605 and dismissing her appeal of the decision of the Crystal Lake Township Zoning Board of Appeals (ZBA). Because we conclude that the record establishes plaintiff has at least alleged facts, which if proven, could establish the harm she would suffer from the ZBA's decision is singular and unique to her, we reverse and remand for further proceedings.
I. FACTUAL BACKGROUND
The dispute in this case involves two parcels neighboring plaintiff's property. Parcel 1 included one multifamily building known as the "blue building," which had been abandoned and unoccupied for at least 10 years. Parcel 2 had four additional buildings comprising seven rental units. Crystal Lake Township's original zoning ordinance became effective in 1964. Under that ordinance, the subject property was zoned Commercial Resort. Subsequent zoning ordinances were passed in 1984 and 1994, under which the parcels were zoned agricultural/residential. Multifamily dwellings were not permitted under any of the ordinances, but records show that the owners constructed and rented out multiple rental units on the property starting in 1987. In the early 2000s, Crystal Lake Township adopted the Benzie County Zoning ordinance, and subsequently repealed it effective March 31, 2010. Crystal Lake Township did not adopt a new zoning ordinance until April 29, 2010, effective May 28, 2010. Under the new zoning ordinance, the parcels were again zoned agricultural/residential and multifamily units were not permitted on the property. Peter Steenstra purchased the property in 2017.
Plaintiff lived next door to the Steenstra parcels since 1997. Over the years, she submitted many complaints about the property, which she summarized in her May 5, 2020 affidavit. Plaintiff contacted the health department multiple times from 2012 to 2019 regarding overflowing dumpsters on the property. She stated that the garbage would not be collected for weeks at a time and that wind and animals carried it onto her property. She explained that the neighbors had loud vehicles, loud music, drunken parties, and domestic disturbances at all hours of the day and night. Dogs on the property barked incessantly and roamed freely onto her property and when plumbing issues arose on the Steenstra parcels, the residents defecated on her property.
In November 2018, Steenstra applied for a special land use permit to demolish and rebuild the abandoned blue building on parcel 1 to create eight new rental units. The Crystal Lake Township Planning Commission denied the application, citing the multiple complaints against the property and expressing concern about the possibility of adding 32 new residents. On February 6, 2019, Steenstra applied for a zoning permit to remodel the blue building in its existing footprint. The Zoning Administrator approved the permit later that month and determined that all the existing buildings on the Steenstra parcels were lawful nonconforming structures. Plaintiff filed an appeal with the ZBA regarding the zoning permit and the Zoning Administrator's decision. The ZBA held public hearings regarding the permit, and upheld the Zoning Administrator's decision. The ZBA concluded that because there had been a gap in the zoning ordinances between repealing the Benzie County Zoning Ordinance on March 31, 2010, and the adoption of the Crystal Lake Township Zoning Ordinance on April 29, 2010, all existing land uses at the time became lawful because no ordinance existed in effect to make the uses illegal. Plaintiff appealed the ZBA's decision to the Benzie County Circuit Court which concluded that plaintiff was not an aggrieved party under MCL 125.3605 and the standard outlined in Olsen v Chikaming Twp, 325 Mich.App. 170, 185; 924 N.W.2d 889 (2018). The circuit court declined to decide the issue of whether the gap in zoning made the use of the Steenstra parcels lawful.
II. ANALYSIS
Plaintiff argues that she satisfied the standard to be considered an aggrieved party under MCL 125.3605. We agree.
We review de novo a circuit court's decision regarding whether a party is an aggrieved party under MCL 125.3605 in an appeal from a decision of a zoning board of appeals. Olsen, 325 Mich.App. at 180-181. We also review de novo questions involving statutory interpretation. Polkton Charter Twp v Pellegrom, 265 Mich.App. 88, 98; 693 N.W.2d 170 (2005). "The decision of a zoning board of appeals should be affirmed unless it is contrary to law, based on improper procedure, not supported by competent, material, and substantial evidence on the record, or an abuse of discretion." Detroit v Detroit Bd of Zoning Appeals, 326 Mich.App. 248, 255; 926 N.W.2d 311 (2018) (quotation marks and citation omitted).
"The [Michigan Zoning Enabling Act (MZEA)] grants local units of government authority to regulate land development and use through zoning." Olsen, 325 Mich.App. at 179. MCL 125.3605 provides: "The decision of the zoning board of appeals shall be final. A party aggrieved by the decision may appeal to the circuit court for the county in which the property is located as provided under section 606." MCL 125.3606 provides in relevant part:
(1) Any party aggrieved by a decision of the zoning board of appeals may appeal to the circuit court for the county in which the property is located. The circuit court shall review the record and decision to ensure that the decision meets all of the following requirements:
(a) Complies with the constitution and laws of the state.
(b) Is based upon proper procedure.
(c) Is supported by competent, material, and substantial evidence on the record.
(d) Represents the reasonable exercise of discretion granted by law to the zoning board of appeals.
Neither statute defines what constitutes an "aggrieved party."
In Olsen, 325 Mich.App. at 175-175, the owner of subdivision lot near Lake Michigan sought a variance of the Chikaming Township ordinance that required all lots to have a minimum area of 20, 000 square feet for buildability. Neighbors of the property opposed the variance and appealed the zoning board of appeals' decision to approve the variance request. Id. at 176. Chikaming Township argued that they were not aggrieved parties because they could not show that they suffered special damages. Id. This Court interpreted MCL 125.3605 and MCR 7.203(A), and considered prior caselaw to determine what constitutes an "aggrieved party" under the MZEA. Id. at 180-181. This Court explained:
Given the long and consistent interpretation of the phrase "aggrieved party" in Michigan zoning jurisprudence, we interpret the phrase "aggrieved party" in § 605 of the MZEA consistently with its historical meaning. Therefore, 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 effect 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. [Id. at 185 (quotation marks, alteration, and citations omitted).]
This Court concluded that the alleged aesthetic, ecological, and practical harms were insufficient to show special damages not common to other property owners similarly situated, and nothing indicated that the construction on the lot would harm adjacent landowners. Id. at 186.
Plaintiff argues that the Olsen Court erred by concluding that an aggrieved party must suffer damages not common to other property owners similarly situated. This standard originated from the citation of a Georgia appellate case in Joseph v Grand Blanc Twp, 5 Mich.App. 566, 570-571; 147 N.W.2d 458 (1967). Plaintiff argues that because this standard was not based on an interpretation of any Michigan statute, Olsen is not a reliable interpretation of Michigan law. While the rule may have roots in Georgia law, the Olsen Court premised its interpretation on the "long and consistent" application of that interpretation in Michigan zoning jurisprudence. Olsen, 325 Mich.App. at 185. The Olsen Court noted that cases like Unger v Forest Home Twp, 65 Mich.App. 614, 617; 237 N.W.2d 582 (1975), Village of Franklin v Southfield, 101 Mich.App. 554, 557; 300 N.W.2d 634 (1980), and Western Mich. Univ Bd of Trustees v Brink, 81 Mich.App. 99; 265 N.W.2d 56 (1978), all relied on that standard. Therefore, we find plaintiff's argument lacks merit because Olsen based its ruling on longstanding Michigan case law.
In Olsen, 325 Mich.App. at 183, this Court relied on Unger v Forest Home Twp, 65 Mich.App. 614, 617; 237 N.W.2d 582 (1975), which in turn, relied on Joseph v Grand Blanc Twp, 5 Mich.App. 566, 570-571; 147 N.W.2d 458 (1967), which cited a Georgia case for the standard that an aggrieved party must suffer damages not common to other property owners similarly situated.
Further, this Court's reasoning is not rendered invalid because it considered instructive a standard articulated in Georgia law. The Olsen Court properly interpreted both MCL 125.3605 and MCR 7.203(A), and correctly set forth a standard for determination of aggrieved-party status consistent with the Legislature's intent as expressed in the statute. Id. at 180-181, 185.
Plaintiff argues that we should adopt the more permissive standard applied in many other states: whether the appellant has suffered damages distinct from the public at large. Plaintiff argues that because Michigan is in an apparent minority of jurisdictions requiring damages distinct from similarly situated property owners, the interpretation is invalid. However, that other states have adopted a different standard does not make Olsen's interpretation invalid. In fact, in Olsen, 325 Mich.App. at 188-189, we expressly rejected the application of Brown v East Lansing Zoning Bd of Appeals, 109 Mich.App. 688; 311 N.W.2d 828 (1981), superseded by MCL 125.3605, which "involved the application of a more permissive threshold for standing under a previous enabling statute that a person have an interest affected by the zoning ordinance." (Quotation marks omitted.)
See, e.g., Pflugh v Indianapolis Historic Pres Comm, 108 NE3d 904, 909 (Ind App 2018) ("A petitioner must also demonstrate a special injury not common to the community as a whole."); Smith v City of Papillion, 270 Neb 607, 614; 705 N.W.2d 584 (2005) ("It is generally held that an adjacent landowner has standing to object to the rezoning of property if such landowner shows some special injury separate from a general injury to the public."); Midwest Fireworks Mfg Co v Deerfield Twp Bd of Zoning Appeals, 91 Ohio St 3d 174, 177-178; 2001 Ohio 24; 743 N.E.2d 894 (2001) (holding that an appellant is a "person aggrieved" in a zoning appeal when the appellant's "position is unique as compared to others within the general community"); Reynolds v Dittmer, 312 N.W.2d 75, 78 (Iowa App, 1981) (an appellant whose "specific interest or property rights are specially damaged, in contrast to any effect suffered by the public generally, is entitled to challenge a zoning authority's decision").
Whether an appellant satisfies the aggrieved-party requirement under MCL 125.3605 is a fact-specific inquiry. Unlike in Olsen, 325 Mich.App. at 186, in which the appellees opposed a zoning variance because of anticipated ecological and aesthetic harms, in this case, plaintiff outlined specific harms singular and unique to her that she suffered in her affidavit, like being subjected to loud cars and drunken parties, garbage that piled over onto her property, dogs running loose onto her property, and even neighbors defecating on her land. Plaintiff's property was both adjacent to and uphill from the Steenstra parcels which caused her to be constantly bombarded by the disturbances on the Steenstra parcels. By contrast, other neighbors were sufficiently separated from the Steenstra parcel by distance and dense forest which muffled the noise and provided a barrier to infiltration by the Steenstra parcel's residents' garbage and animals, and straying residents who apparently used plaintiff's land as a toilet. The record reflects that plaintiff alleged and attested to suffering unique harms dissimilar to similarly situated property owners.
Defendants argue that plaintiff's affidavit discusses only general harm caused by disruptive residents of the Steenstra property and that none of the alleged harm stems directly from the Zoning Administrator's decision to grant a zoning permit to Steenstra to rebuild the blue building. Defendants also argue that plaintiff's complaints did not relate to issues with parcel 1, for which the Zoning Administrator issued the zoning permit that the ZBA affirmed, and that the zoning permit did not change the nature or character of the property's residential use. Plaintiff, however, outlined the concerns with parcel 2 of the Steenstra property to show that the problems would only be exacerbated by the addition of more renters. The blue building on parcel 1 had been vacant for a period of at least 10 years, and the zoning permit allowed Steenstra to build eight new rental units, for a possible total of 32 additional people to live on the property. The presence of loud cars, unrestrained dogs, drunken parties, domestic altercations, and the already overflowing garbage very likely would be exacerbated by an increase in population. Overall, plaintiff has demonstrated harm unique from similarly situated property owners that would be worsened by the addition of more rental units on parcel 1. Therefore, the circuit court erred by finding that plaintiff was not an aggrieved party under the standard outlined in Olsen, 325 Mich.App. at 185.
We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction.
Because the circuit court held that plaintiff lacked aggrieved-party status, it did not address the additional issue she raises on appeal, i.e., whether the ZBA erred by concluding that the gap in zoning laws made the use of the Steenstra parcels legal. Accordingly, we direct the court to consider this issue on remand.
James Robert Redford, Kirsten Frank Kelly, Anica Letica