2.9Appeals of Zoning Ordinance Determinations1

[A]ppeals to the circuit court from a determination under a zoning ordinance by any officer, agency, board, commission, or zoning board of appeals, and by any legislative body of a city, village, township, or county authorized to enact zoning ordinances” are governed by MCR 7.122. MCR 7.122(A)(1). Unless provided otherwise in MCR 7.122, the rules set out in MCR 7.101MCR 7.115 apply. MCR 7.122(A).2 MCR 7.122 does not preclude a party from filing a complaint for relief relating to a determination under a zoning ordinance. MCR 7.122(A)(2). An appeal under MCR 7.122 is an appeal of right. MCR 7.122(A)(3).

A.Standing

“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 [MCL 125.3606].” MCL 125.3605. “[T]he ‘aggrieved party’ standard, which applies to appeals . . . under MCL 125.3605, also applie[s] to appeals of zoning decisions where there [is] no provision for review by a zoning board of appeals.” Ansell v Delta Co Planning Comm, 332 Mich App 451, 456 (2020) (finding “appellants were obliged to show themselves to be parties aggrieved by the zoning decisions below in order to invoke judicial review in the circuit court”).

“Neither the [Michigan Zoning Enabling Act3] nor any of Michigan’s previous zoning statutes explicitly require one to own real property in order to be ‘aggrieved’ by local land-use decisions or to prove ‘aggrieved’ status by comparison to other property owners who are similarly situated.” Saugatuck Dunes Coastal Alliance v Saugatuck Twp, 509 Mich 561, 586 (2022). “[T]o be a ‘party aggrieved’ under MCL 125.3605 and MCL 125.3606, the appellant must meet three criteria.” Id. at 595 (holding that “‘aggrieved’ must be given the same meaning in both MCL 125.3604(1) and MCL 125.3605”). “First, the appellant must have participated in the challenged proceedings by taking a position on the contested decision, such as through a letter or oral public comment.” Saugatuck, 509 Mich at 595. “Second, the appellant must claim some legally protected interest or protected personal, pecuniary, or property right that is likely to be affected by the challenged decision.” Id. at 595. “Third, the appellant 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.” Id. at 595. “Factors that can be relevant to this final element of special damages include but are not limited to: (1) the type and scope of the change or activity proposed, approved, or denied; (2) the nature and importance of the protected right or interest asserted; (3) the immediacy and degree of the alleged injury or burden and its connection to the challenged decision as compared to others in the local community; and (4) if the complaining party is a real-property owner or lessee, the proximity of the property to the site of the proposed development or approval and the nature and degree of the alleged effect on that real property.” Id. at 596.

The Saugatuck Court reaffirmed that “mere ownership of real property that is adjacent to a proposed development or that is entitled to statutory notice, without a showing of special damages, is not enough to show that a party is aggrieved.” Saugatuck, 509 Mich at 596. The Court also stated that “generalized concerns about traffic congestion, economic harms, aesthetic harms, environmental harms, and the like are not sufficient to establish that one has been aggrieved by a zoning decision.” Id. at 597. However, the Court cautioned that “a specific change or exception to local zoning restrictions might burden certain properties or individuals’ rights more heavily than others.” Id. at 597. “A party who can present some evidence of such disproportionate burdens likely will have standing to appeal under MCL 125.3605 and MCL 125.3606.” Saugatuck, 509 Mich at 597 (noting that “it is possible that an individual or entity could be a ‘person’ under MCL 125.3604(1)” pursuant to the definition contained in MCL 125.3102(q), but not a ‘party’ for purposes of MCL 125.3605” unless they also participated in lower proceedings concerning the development).

“The aggrieved party standard required by MCL 125.3605 is limited to the context of who may appeal the administrative actions of zoning officials as discussed in that statutory section.” Sakorafos v Lyon Twp, ___ Mich App ___, ___ (2023). “The requirement of showing aggrieved party status does not apply to a plaintiff bringing a claim of nuisance per se under MCL 125.3407.” Sakorafos, ___ Mich App at ___ (“[s]tanding is thus measured by a different standard than that used to measure aggrieved party status”). Thus, “a plaintiff’s injury need not be unique in the community to confer standing to abate a nuisance per se.” Id. at ___. The “correct standard is whether plaintiffs can show damages of a special character distinct and different from the injury suffered by the public generally.” Id. at ___ (quotation marks and citation omitted). The Sakorafos Court held that the trial court clearly erred when it “applied the aggrieved party test applicable to a party seeking to appeal a zoning decision under MCL 125.3605.” Sakorafos, ___ Mich App at ___ (noting that “the trial court . . . conflated the test for standing with that of aggrieved party status” by concluding that the plaintiffs “lacked standing to initiate suit for nuisance” because they “had not demonstrated unique damages as described in the aggrieved party test”). Further, “although MCL 125.3407 provides for the enforcement of a zoning ordinance, a municipality has discretion in doing so and courts generally will not interfere with the municipality’s decisions.” Sakorafos, ___ Mich App at ___. The Court of Appeals opined that “the Township has discretion in the enforcement of its ordinances, and plaintiffs’ ability to seek abatement of the nuisance per se created by the alleged zoning violation provides an equitable remedy to achieve enforcement of the ordinance.” Id. at ___ (holding that the trial court “did not err by determining that plaintiffs are not entitled to a writ of mandamus”).

Although “the right to appeal a zoning decision does not restrict the right of a party to bring a separate complaint for relief relating to a zoning determination under certain circumstances” under MCR 7.122(A)(2), a “circuit court correctly concluded that the gravamen of plaintiffs’ original action . . . [was] to overturn the [Township Board’s] decision approving [plaintiff’s] site plan and special use of the property, i.e., a de facto appeal of the [Township Board’s] decision.” Zelasko v Bloomfield Twp, ___ Mich App ___, ___ (2023) (noting that plaintiffs did not assert separate causes of action and “merely allege[d] defects in the [Township Board’s] decision and the decision-making process in approving [plaintiff’s] site plan and special use”).

B.Time Requirements and Subject Matter Jurisdiction

Time requirements. The time for filing an appeal is governed by the statute applicable to the appeal. MCR 7.122(B). If the applicable statute does not specify a time, “the appeal must be filed within 30 days after the certification of the minutes of the board or commission from which the appeal is taken or within 30 days after the board or commission issued its decision in writing, whichever deadline comes first.” Id. See also MCL 125.3606.

Subject matter jurisdiction. Because the “time limit for filing an appeal in circuit court is jurisdictional,” circuit courts lack “jurisdiction over an untimely claim of appeal.” Zelasko v Bloomfield Twp, ___ Mich App ___, ___ (2023) (citing MCR 7.104(A) and Quality Market v Detroit Bd of Zoning Appeals, 331 Mich App 388, 393-394 (2019)). In Zelasko, the Court of Appeals observed that the “plaintiffs could not invoke the circuit court’s subject matter jurisdiction to review the decision of the Township Board by filing an original action in the circuit court,” concluding that “[b]ecause plaintiffs’ original action in the circuit court was simply a challenge to the Board’s decision outside of the appellate process, plaintiffs’ complaint was an impermissible collateral attack of the Township Board’s decision.” Zelasko, ___ Mich App at ___. Indeed, “plaintiffs only could invoke the circuit court’s subject matter jurisdiction to review the [Township Board’s] decision by appeal of that decision to the circuit court.” Id. at ___. Thus, “[b]ecause plaintiffs did not challenge the [Township Board’s] decision by filing a timely appeal to the circuit court, the circuit court correctly concluded that it lacked subject matter jurisdiction over the dispute.” Id. at ___.

C.Manner of Filing

“The claim of appeal shall conform to the requirements of MCR 7.104(C)(1), except that:

(a) the party aggrieved by the determination shall be designated the appellant; and

(b) the city, village, township, or county under whose ordinance the determination was made shall be designated the ‘appellee,’ except that when a city, village, township, county, or an officer or entity authorized to appeal on its behalf, appeals a determination as an aggrieved party, then the appellee(s) shall be designated as the board, commission, or other entity that made the determination and the party that prevailed before the board, commission, or other entity that made the determination.” MCR 7.122(C)(1).

“The claim of appeal must:

(a) state ‘[Name of appellant] claims an appeal from the decision on [date] by [name of the officer or entity]’; and

(b) include concise statements of the following:

(i) the nature of the determination by the officer or entity;

(ii) the statute authorizing the officer or entity’s proceedings and determination;

(iii) the statute or constitutional provision under which the appeal is taken;

(iv) the facts on which venue[4] is based;

(v) the grounds on which relief is sought, stated in as many separate paragraphs as there are separate grounds alleged; and

(vi) the relief sought.” MCR 7.122(C)(2).

The appeal must be signed as set forth in MCR 7.104(C)(3). MCR 7.122(C)(3). The appellant must attach a copy of the order and/or minutes of the officer or entity from which the appeal is taken, or otherwise indicate there is no document to attach. MCR 7.122(C)(4). The parties must file briefs that comply with MCR 7.111 unless the court orders otherwise. MCR 7.122(F).

D.Bond

A bond is not required unless otherwise ordered by the court. MCR 7.122(D).

E.Record on Appeal

“The record includes the original or a copy certified by the city, village, township, or county clerk of the application, all documents and material submitted by any person or entity with respect to the application, the minutes of all proceedings, and any determination of the officer or entity.” MCR 7.122(E)(1). “Motions regarding the contents of the record or to prepare a transcript of proceedings before the officer or entity must be filed within 21 days after transmission of the record to the court.” MCR 7.122(E)(6).

F.Standard of Review

Appeals under MCL 125.3606. For an appeal from a city, village, township, or county board of zoning appeals, the court must review the record and decision to ensure that the decision:

 is in compliance with the constitution and statutes of Michigan;

complies with proper procedure;

is supported by competent, material, and substantial evidence; and

is representative of a reasonable exercise of discretion by the zoning board of appeals as provided by law. MCL 125.3606(1); MCR 7.122(G)(1)(a).

“If the court finds the record inadequate to review the decision or finds that additional material evidence exists that with good reason was not presented, the court shall order further zoning board of appeals proceedings on conditions that the court considers proper.” MCR 7.122(G)(1)(b). “The zoning board of appeals may modify the findings and decision as a result of the new proceedings or may affirm the original decision.” Id.

The court may either affirm, reverse, or modify the board’s decision. MCR 7.122(G)(1)(c). The court must serve a copy of its order resolving the appeal on all parties. MCR 7.122(H).

Other appeals. “In an appeal from a final determination under a zoning ordinance where no right of appeal to a zoning board of appeals exists, the court shall determine whether the decision was authorized by law and the findings were supported by competent, material, and substantial evidence on the whole record.” MCR 7.122(G)(2).

1   See the Michigan Judicial Institute’s Zoning Ordinance Determination Appeals Table.

2    See Part A for discussion of MCR 7.101MCR 7.115 as generally applicable to appeals to the circuit court. Note, however, that Part A does not include discussion of the rules that apply only to appeals from agencies.

3   MCL 125.3101 et seq.

4   See Section 2.1(D) for information on venue.