Circuit court review of ZBA decisions
When your zoning board of appeals is not the last stop on the road to a zoning ordinance determination.
October 17, 2017 - Author: Wendy K. Walker, Michigan State University Extension
Michigan’s Zoning Enabling Act provides for judicial review of the decisions made by a municipal zoning board of appeals (ZBA). Under MCL 125.3606(1), any party aggrieved by a ZBA decision may appeal to the circuit court for the county in which the property is located. This right of review is also found in the Michigan Constitution, which states that “all final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts.”
Any decision made by a ZBA is subject to review by the circuit court on appeal, such as zoning ordinance and map interpretations and variances granted or denied. The circuit court is also the next stop for appeal of a ZBA’s own quasi-judicial review of decisions made by the zoning administrator, planning commission, or legislative body (when acting in an administrative capacity). These matters include zoning permits, special land uses, site plans, and enforcement actions. (For more information on appeals initially heard by the ZBA, see the Michigan State University Extension article, How to handle appeals of administrative decisions.)
To be considered “aggrieved” by a ZBA decision, the party must have "suffered some special damages not common to other property owners similarly situated." Unger v Forest Home Twp, 65 MichApp. 614, 617; 237 NW2d 582 (1975). Under this test, the owner of the subject property obviously has the right to file an appeal. But Michigan courts have held that a neighbor complaining of a likely increase in traffic volume, or a loss of aesthetic value, or general economic damages, does not qualify as an aggrieved party.
Timing is critical to exercising the aggrieved party’s right to appeal a ZBA decision. Under MCL 125.3606(3), an appeal must be filed by the earlier of:
- 30 days after the ZBA issues its decision in writing signed by the chairperson, if there is a chairperson, or signed by the members of the ZBA, if there is no chairperson, or
- 21 days after the ZBA approves the minutes of its decision.
It is good practice for a ZBA to promptly issue signed, written decisions to start the clock ticking on the appeal deadline. If a ZBA does not do so and meets infrequently, an appeal could be filed long after the ZBA believes that an issue has been resolved.
The circuit court’s review is limited to the record already made before the ZBA, which only takes in the application and material submitted to the ZBA, the minutes of all proceedings, and any determination of the ZBA. MCR 7.122(E)(1). New evidence cannot be considered on appeal. The municipality’s clerk must file the record with the court within 28 days of the claim of appeal being served.
Under MCL 125.3606(1), the circuit court reviews the ZBA decision to ensure it meets the following requirements:
(1) Complies with the constitution and laws of the state;
(2) Is based upon proper procedure;
(3) Is supported by competent, material, and substantial evidence on the record; and
(4) Represents the reasonable exercise of discretion granted by law to the zoning board of appeals.
The circuit court gives deference to the ZBA’s finding of facts if found to be procedurally proper. The court will look in the record for acceptable evidence that reasonably establishes the material facts. In other words, the ZBA’s decision cannot be based on unsupported facts or speculation. In reviewing whether a ZBA decision represents the reasonable exercise of discretion, the court will always check to see that the ZBA followed the standards applicable to the type of decision.
The circuit court may affirm, reverse or modify the ZBA’s decision. The court may also order further proceedings by the ZBA if it finds the record is inadequate for its review. Remember that the role of the court in the appeal process is to determine whether the decision was legal, procedurally proper, supported by evidence and reasonable. The court is not free to substitute its own judgment for the ZBA’s even if the court would have reached a different result.
Being served with a claim of appeal is not the end of the world, but the municipality should immediately contact its attorney to discuss the process and identify the deadlines that must be met. (See also the MSU Extension article, When to call an attorney for planning and zoning issues.) General questions about ZBAs and appeals can be directed to a MSU Extension land use educator.