How to handle appeals of administrative decisions
The zoning board of appeals is the only entity authorized to hear appeals on the administration and enforcement of the zoning ordinance at the local level. When doing so, careful considerations must be made.
The typical zoning board of appeals (ZBA) meets infrequently, perhaps only once or twice a year, and, when they do meet, the agenda item they see most often is a dimensional variance request. In those instances, the ZBA’s job is to determine whether the applicant is proving a practical difficulty for a dimensional variance request.
Less frequently, a ZBA hears appeals of administrative decisions. The ZBA is the only entity authorized to hear appeals on the administration and enforcement of the zoning ordinance at the local level. The ZBA can hear appeals of decisions made by the zoning administrator, the planning commission or administrative decisions made by the legislative body. It is worth clarifying this last point – only where the legislative body is making a final administrative decision, such as approval of a special land use permit or site plan, can the ZBA hear an appeal of action taken by the legislative body. If instead the legislative body is making a legislative decision, such as adopting an amendment to the zoning ordinance, the ZBA has no authority to hear an appeal. In this case, a citizen upset with the legislative decision might consider a zoning petition. See the MSU Extension article Zoning petitions: What are citizens’ options? for more information.
An appeal to the zoning board of appeals may be taken by a person aggrieved by an administrative decision or by an officer, department, board, or bureau of the state or the local unit of government. To be an aggrieved person, one must allege and prove that he or she has suffered some special damages not common to other property owners similarly situated (Joseph v. Grand Blanc Twp, 5 Mich. App. 566 (1967)). If not an aggrieved person, a government official or body can appeal an administrative decision to the ZBA. Yes, even the legislative body of the unit of government can appeal a decision made by its own zoning administrator or planning commission to the ZBA.
Administrative decisions that can be appealed to the ZBA include:
- Zoning (also known as land use) permits issued or denied by the zoning administrator
- Zoning enforcement actions taken by the zoning administrator
- Special land use permits approved or denied (if allowed by the local ordinance) by the zoning administrator, planning commission or legislative body
- Site plans approved or denied by the zoning administrator, planning commission or legislative body
When the ZBA does hear an appeal of an administrative decision, members must understand they are not issuing a new decision. Instead, the ZBA is reviewing the administrative decision to determine whether it was based on the standards in the zoning ordinance and is therefore a defensible decision. This is somewhat of a different mindset, as compared to deciding a more typical dimensional variance request where the decision is brand new and the ZBA’s own to make.
When reviewing the previous decision, the ZBA shall only review the original information presented to the administrative official or body when the original decision was made. Based on those facts, the ZBA will decide whether the individual or body correctly applied the proper ordinance standards and acted within the scope of his/her/its authority. If instead new information is presented that the administrative official or body did not have available to them, the appeal should be sent back to that individual or body, similar to a higher court remanding a case back to a lower court.
The ZBA has the authority to reverse or affirm, in whole or in part, or modify the administrative decision being appealed. In so doing, the ZBA can also issue, or direct the issuance of, a permit. When making its decision, the ZBA must include the facts and reasons for arriving at its decision. See the article Administrative decisions require careful application to ordinance standards: Part 2 for more information.
The decision of a ZBA is final. It cannot be overridden by any local government body. A party aggrieved by the decision may however appeal to the circuit court for the county in which the property is located.
Additional details on the roles and authority of ZBAs in Michigan are included in Article VI of the Michigan Zoning Enabling Act. Local governments should discuss cases involving administrative appeals with their municipal attorney, hopefully someone who is well-versed in land use planning and zoning law. General questions about ZBAs and administrative appeals can be directed to a Michigan State University Extension land use educator.
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