In a case of first impression, the Michigan Court of Appeals ruled that a provision of the Zoning Enabling Act (“ZEA”), which requires parties appealing a zoning board of appeals decision to be “aggrieved” by the decision, also requires landowners be “aggrieved” in order to appeal a municipal zoning commission’s decision. As a result, any private individual who wishes to appeal a decision of the zoning board of appeals, or a municipal zoning commission, must show “special damages”—i.e., those damages that are distinct and different from the injury suffered by the public generally.
Facts of the Case
The published per curiam decision of the Michigan Court of Appeals is Ansell v Delta County Planning Commission, ___ NW2d ___ (June 4, 2020).
In 2017 Heritage Sustainable Energy and Heritage Garden Wind Farm (collective, “Heritage”) submitted applications to the Delta County Planning Commission’s (“Commission”) for conditional use permits to construct 36 wind turbines on the Garden Peninsula in Delta County. The Commission, after five public hearings, granted the conditional use permits.
Residents of Delta County disagreed with the Commission’s decision and filed an action in the Delta County Circuit Court, appealing the Commission’s decision. The Residents argued that the Commission’s decision was erroneous because the applications for those conditional use permits failed to comply with particular parts of the Delta County Zoning Ordinance, and because the noise, vibrations, light pollution, property values, aesthetics, and environmental concerns affected them as residents.
Heritage argued that the Residents lacked standing to bring the lawsuit challenging the Commission’s decision, because they were not “aggrieved parties” under the Michigan Constitution and Court Rules. The Residents argued that they need not prove they are “aggrieved parties” to challenge a decision of the Commission, as opposed to a decision by the Zoning Board of Appeals. The Circuit Court agreed with Heritage, and the Michigan Court of Appeals affirmed the decision.
Decision by the Michigan Court of Appeals
The Michigan Court of Appeals explained that under the Michigan Zoning Enabling Act, only aggrieved party may appeal a decision of the Zoning Board of Appeals to the Circuit Court. And the Court of Appeals noted that the Michigan Court Rules provides that the Circuit Court’s jurisdiction is limited to “aggrieved parties” as well. The Court of Appeals explained that a Circuit Court’s review of a zoning board of appeals and a municipal zoning commission is the same and that previous caselaw held that in cases “where a township zoning ordinance does not provide for review of a request for special land use permit by a zoning board of appeals, the township board’s decision is final and subject to appellate review by the circuit court” Ansell, supra, citing Carleton Sportsman’s Club v Exeter Twp., 217 Mich App 195, 200; 550 NW2d 867 (1996).
As a result, the Court of Appeals affirmed the Circuit Court’s finding that it lacked jurisdiction, as the Residents did not articulate “special damages” to qualify as “aggrieved parties.” Importantly, however, in a subsequent case, Connell v Lima Township, ___ NW2d ___ (March 4, 2021), the Michigan Court of Appeals found that a Circuit Court action to challenge a Township’s decision to rezone property—unlike an appeal of the Township’s decision to the Board of Appeals—does not require plaintiffs to articulate special damages to qualify as an aggrieve party.
Aggrieved Parties: What are Special Damages?
To qualify as an “aggrieved party” the Michigan Court of Appeals has been clear: “a party must allege and prove that he or she has suffered some special damages not common to other property owners similarly situated.” Ansell, supra, citing Olsen v Chikaming Twp., 325 Mich App 170, 180-181; 924 NW2d 889 (2018). Those “special damages” must be harm that is unique, “dissimilar from the effect that other similarly situated property owners may experience. Id.
Courts have found that “[i]ncidental inconveniences such as increased traffic, congestion, general aesthetic and economic losses, population increases, or common environmental changes” are not special damages that make one an aggrieved party. Id. Further, the harm must be “unique . . . dissimilar from the effect that other similarly situated property owners experience.” Olsen, 325 Mich App at 185, citing Western Mich. Univ Bd of Trustees v Brink, 81 Mich App 99, 103 n 1; 265 NW2d 56 (1978). “Moreover, mere ownership of an adjoining parcel of land is insufficient to show that a party is aggrieved.” Id., citing Village of Franklin v Southfield, 101 Mich App 554, 557-558; 300 NW2d 634 (1980).
So what have Courts found to constitute special damages?
- In Baker v Township of Bainbridge (unpublished), the Court held that while aesthetic, ecological and practical harms are insufficient to show special damages, the Plaintiff, who was complaining of a car dealership on land zoned for agricultural use, was an aggrieved party, because there was no other similarly situated property, and Plaintiff’s affidavit set forth specific, unique claims because her home alone was right next to and directly overlooked the car repair facility and would be so situated to the proposed car dealership.
- In Deer Lake Pro Owners Ass’n v Independence Charter Twp. (unpublished), the Court held that property owners abutting Deer Lake were aggrieved parties to challenge the Knolls Homeowners Association’s grant of a special land use to dock up to 10 boats on 4 seasonal docks on a 5.02 acre lakefront out-lot owned by the Knolls. The Court found that because the property owners’ alleged the additional docks may disrupt or destroy the shoreline and its ecosystem, and because they are riparian owners who share the shoreline, they have an interest beyond that of the general public, and even other similarly situated neighbors.
- In Kingsbury Country Day School et al v Addison Township et al (unpublished), the Court held that Plaintiffs—a school located adjacent to property in which Addison Township had granted a nonuse variance that permitted Verizon Wireless to place a cellular tower—were aggrieved parties to challenge the nonuse variance. The Court found that Plaintiffs had alleged special damages by pleading allegations that the cellular tower was a fall risk to the school, and that the school—and the students attending the school—were at heightened risk if the cellular tower were to collapse, and that enrollment could decline as a result of the fall risk. These potential harms, the Court found, were unique and dissimilar from effects that other property owners may experience as a result of the cellular tower.
Individuals wishing to challenge a decision of the zoning board of appeals, or a municipal zoning commission, must show “special damages”—i.e., those damages that are distinct and different from the injury suffered by the public generally. These special damages must be unique and are often difficult to articulate. Aggrieved individuals should retain competent counsel as soon as possible to discuss their rights and whether they have standing to challenge any zoning decision.