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Every year Michigan courts decide cases involving zoning and planning. 2020 was no different with several interesting cases deciding important zoning and planning concepts. Not all of these decisions created new law, but highlight important zoning and planning concepts that Townships deal with daily. This month’s E-Letter specifically highlights zoning and planning decisions related to medical marihuana licensing and regulation, residents’ ability to appeal zoning decisions of the Township, and limitations on expanding nonconforming buildings and uses.
A Post-DeRuiter Application of Locational Restrictions on Primary Caregivers
As 2020 squeaked to a close, the Michigan Court of Appeals issued another case regarding medical marihuana caregivers. The decision strengthens Township zoning provisions regulating primary caregivers. This use has continued to expand despite early industry impressions that the expansion of commercial medical and adult-use marihuana would reduce interest in caregiver operations. Instead, many communities continue to see expanding networks of caregiver operations. Many reasons for this development exist and vary across municipalities. Namely, investment costs and regulatory oversight of commercial operations seem to have reduced or slowed a complete transition to a commercial marihuana market in the State.
The continued use of caregiver operations has highlighted conflicts between the Michigan Medical Marihuana Act (“MMMA”) and The Michigan Zoning Enabling Act (“MZEA”). Although early legal battles resulted in decisions favoring preemption of local controls on MMMA activities, in the last 9 months the tide has shifted towards local zoning control of caregiver operations.
The MZEA grants municipalities the ability to regulate, through zoning ordinances, the development and use of land within its boundaries, but this authority may be preempted if a zoning regulation conflicts with state law. With the ever-growing prevalence of marihuana-related land uses, courts have been required to examine the extent to which the MMMA preempts local zoning controls. This issue came to a head in the 2018 case DeRuiter v Byron Twp, 325 Mich App 275 (2018), where the Court of Appeals ruled that a zoning ordinance could not impose any conditions or regulations on persons engaged in the MMMA-compliant use of marihuana. But in 2020, the Supreme Court reversed this decision, confirming that municipalities maintained zoning control over MMMA-related land uses. Such regulations, however, may not be unreasonable or inconsistent with state law. DeRuiter v Byron Twp, 505 Mich 130 (2020). Following the Michigan Supreme Court’s decision, the full scope of municipal zoning authority in the context of MMMA uses continues to be developed.
Eight months later, the Court of Appeals applied the Supreme Court’s DeRuiter decision, affirming a township’s zoning ordinance restrictions on primary caregivers. In Charter Twp of Ypsilanti v Pontius, the Court of Appeals reviewed a zoning ordinance that restricted primary caregivers from operating in residential zoning districts and allowed such uses only in districts zoned for light industrial use. The Court of Appeals initially decided this case before Supreme Court’s DeRuiter decision, ruling first against the township. In revisiting the issue on remand, the Court of Appeals held that the township zoning ordinance’s restrictions on primary caregivers were not preempted by the MMMA. The Court concluded that these were merely “local restrictions” enabled by the MZEA, and rather than conflicting directly with the MMMA, the restrictions actually added to and complemented the limitations imposed by the MMMA. The Court of Appeals noted that if the zoning ordinance had completely prohibited the medical use of marihuana it more than likely would have been preempted, but because the zoning ordinance merely regulated where primary caregivers could operate it was upheld.
Pontius upholds municipal zoning authority against the MMMA and instructs how municipalities can permissibly regulate primary caregivers within their jurisdiction. Even with this favorable holding, municipalities should take care not to completely bar MMMA-authorized operations or the lawful cultivation of marihuana for personal use, as such regulation would likely be preempted by the MMMA and the Michigan Regulation and Taxation of Marihuana Act.
Charter Twp of Ypsilanti v Pontius, unpublished per curiam decision of the Court of Appeals, issued Dec 29, 2020 (Docket No 340487).
Zoning Board of Appeals Decides Eligibility for a Medical Marihuana License – Interpreting Drug Free Zones
State law changes regarding marihuana and related land uses have brought a number of new issues before municipal Zoning Boards of Appeals (“ZBA”), including the determination of whether an applicant is eligible for a marihuana license. In The Jazz Club 2, LCC v City of Detroit Bd of Zoning Appeals, an applicant sought a conditional use permit to continue to operate a medical marihuana caregiver operation within 1,000 feet of a vacant piece of land the City planned to develop into a greenway that would connect to a nearby park. The City denied issuing a conditional use permit because its zoning ordinance established drug-free zones within 1,000 feet of an “outdoor recreation facility.” An “outdoor recreation facility” included a “park,” and the City reasoned that the proposed greenway would be part of its park system. The applicant appealed this determination to the ZBA, which affirmed the denial, then to the Circuit Court, which likewise affirmed the denial, despite the applicant arguing a “greenway” did not fall under the drug-free zone limitations under the zoning ordinance.
The Court of Appeals reversed the Circuit Court, reasoning that the zoning ordinance did not define the term “greenway,” and that the definition of a “park” (from past caselaw and dictionary definitions) did not refer to the term either. The Court of Appeals determined that this omission should be treated as intentional, as the City could have expressly included “greenways” as outdoor recreational facilities or parks if it intended to treat them as such. The current, rather than proposed, use of the current location also seemed to carry weight in the Court’s decision, as the vacant lot had been used by the public to dump garbage, vehicles, and even “the occasional dead body.” The City’s Improvement Plan also had zero consideration displaying that the area was meant as an outdoor reactional facility or a park. For those reasons, the Court of Appeals reversed the decision of the Circuit Court.
This case not only demonstrates how various municipal zoning bodies are being asked to consider marihuana uses, but also the importance of using precise terms within zoning ordinances that avoid ambiguity. If a term may create ambiguity, including in the context of marihuana licensing, townships should consider defining those terms. Although courts generally defer to the ZBA, unexpected results may occur when undefined terms create ambiguity. Defined terms and consistent application of such terms throughout the zoning ordinance will assist in reducing the result shown in this case. If the City had defined the term “greenway,” the ZBA’s decision to deny the marihuana license application would likely have been upheld.
The Jazz Club 2, LCC v City of Detroit Bd of Zoning Appeals, unpublished per curiam decision of the Court of Appeals, issued Jan 9, 2020 (Docket No 343872).
Appeals of ZBA Decisions Must be Timely Filed
An individual appealing a ZBA decision to the Circuit Court must timely file the appeal within statutory timelines. Under MCL 125.3606, an aggrieved party must appeal a ZBA decision to the Circuit Court within 30 days after the ZBA issues a written decision signed by the chairperson or members of the ZBA, or within 21 days after the ZBA approves the minutes of the decision, whichever occurs first. If an appeal is not timely filed, the Circuit Court cannot exercise jurisdiction over the case and the would-be appellant is left with no means to challenge the decision.
In Quality Mkt v City of Detroit Bd of Zoning Appeals, a convenience store sought to add a Specially Designated Distributor license to allow for the sale of carry-out liquor. Because the store was located within 500 feet of a school and a residentially zoned area, it had to request a zoning variance from the ZBA in order to add the license. The ZBA denied the request, approved the meeting minutes from its decision on February 27th, and issued a written decision on March 15th. The store appealed the decision to the Circuit Court on April 6th. The Circuit Court denied a motion to dismiss by the ZBA on the basis that the appeal was untimely and reversed the ZBA’s decision on the grounds that it was not supported by substantial evidence. The Court of Appeals, however, reversed the Circuit Court’s decision.
The Court of Appeals reasoned that because the minutes were approved by the ZBA on February 27th and the appeal was not filed until April 6th, the appeal was not filed timely under MCL 125.3606, which required a filing within 21 days after the minutes were approved. The store argued that the language of that statute should be construed to impose a 30-day deadline in all instances and that the written decision by the ZBA was misleading as to when an appeal must be filed, but the Court did not find these arguments persuasive. The Circuit Court only has jurisdiction to review the ZBA appeal if it is timely filed.
In light of this strict timeline, ZBAs will need to consider how they are deciding cases brought before them. In many instances, the ZBA may not only keep minutes, but also issue a decision as to a particular case. As soon as these actions are taken, the clock begins to run on an aggrieved party’s right to appeal that decision to the Circuit Court. If an aggrieved party fails to file an appeal within the allotted timeframe, a circuit court should dismiss the appeal as untimely.
Quality Mkt v City of Detroit Bd of Zoning Appeals, unpublished opinion of the Court of Appeals, issued Feb 11, 2020 (Docket No 346014).
“Aggrieved Party” Standard Expanded to Appeals of all Zoning Decisions
Knowing when to file an appeal of a ZBA decision is important. But, who can appeal zoning decisions has always been a contentious issue. ZBAs generally function as the final step in the administrative zoning process, as they are vested with the authority to hear appeals from zoning administrators and planning commissions. After a ZBA renders a zoning decision, Michigan law provides that the decision can be appealed to a circuit court by an “aggrieved party,” which requires a showing of special damages or a unique harm uncommon to other property owners. See MCL 125.3605. However, until recently it was unclear whether this “aggrieved party” requirement would also apply to appeals of final zoning decisions made by other bodies (such as a planning commission).
In Ansell v Delta Cty Planning Comm’n, a county planning commission granted conditional use permits for a wind farm company to construct 36 wind turbines. County residents appealed this decision to the Circuit Court, arguing that the decision violated the zoning ordinance. The wind farm company argued that these residents did not have standing because they were not “aggrieved parties” to the decision, as required by Michigan law. The residents contended that this requirement did not apply to them because it only applied to appeals from a ZBA, and their appeal was from a planning commission. The Circuit Court agreed with the wind park company that the residents lacked standing, and the Court of Appeals followed suit, affirming the Circuit Court’s decision.
The Court of Appeal’s decision relied on support from prior cases, court rules, and the MZEA, which all favor the application of the “aggrieved party” standard for any appeal of a final determination made under a zoning ordinance. The Court of Appeals concluded that the plaintiffs were not “aggrieved parties” because they did not suffer any greater impacts when compared to their neighbors or others in the community.
This holding is beneficial to municipalities, as it requires a heightened showing of harm as a prerequisite to any appeal of a final zoning determination, regardless of whether that decision originated from a ZBA.
Ansell v Delta Cty Planning Comm’n, issued June 4, 2020 (Docket No 345933).
Extensions of Nonconforming Buildings
When a ZBA decision is successfully appealed to a circuit court, the Court must next determine whether the decision from the ZBA (1) complied with the constitution and laws of the state; (2) was based upon proper procedure; and (3) was supported by competent, material, and substantial evidence on the record. If the ZBA’s decision does not comply with one of these three requirements, a reviewing court will likely reverse.
In Randazzo v Lake Twp, the Court of Appeals addressed whether a ZBA decision related to an extension of a previously nonconforming building met this third requirement. In Randazzo, landowners applied for a land use permit to add an additional level to their single-family dwelling, which had a preexisting nonconformity with the Township’s setback requirements. The Township zoning administrator denied the application on the basis that the addition would violate the zoning ordinance’s prohibition on enlarging or altering a nonconforming building “in a way that increases its nonconformity.” The landowners appealed the zoning administrator’s decision and argued that the addition would not add to the nonconformity. The ZBA denied the landowners’ appeal. The landowners appealed that determination to the Circuit Court, which reversed the ZBA’s decision on the basis that the ZBA misinterpreted the zoning provision at issue.
When the Township appealed the Circuit Court’s ruling to the Court of Appeals, it affirmed the Circuit Court’s decision. The Court of Appeals reasoned that because the proposed addition to the property would not increase the nonconformity of the dwelling, “the ZBA’s finding was therefore not supported by competent, material, and substantial evidence.” The Township argued that the drafters of the ordinance intended that no expansion could be made to a nonconforming structure, but the Court found that the plain language restricted only expansions that increased the nonconformity, so an expansion that maintained the nonconformity would be permissible.
Given that the language at issue in Randazzo is commonly encountered in zoning ordinances, municipalities should be aware of this construction and take care in determining whether a proposed expansion of a nonconforming building, maintaining a nonconformity, or reducing a nonconformity are clearly addressed in the zoning ordinance. Failing to clarify such provisions and classify permissible expansions (if any) of a nonconforming structure or use could result in costly litigation and the reversal of a ZBA determination.
Randazzo v Lake Twp, unpublished per curiam decision of the Court of Appeals, issued Nov 12, 2020 (Docket No 348559).
– Christopher Patterson and Jacob Witte
2020 Year in Review: Recent Decisions Impacting Zoning and Planning | Friday, February 19th, 12 – 1 p.m.
Join us for a free webinar discussing these notable decisions and more that directly impact township zoning and planning. These decisions may require townships to review current zoning ordinance provisions or consider changing current practices to align with these decisions. Attorneys Chris Patterson and Jacob Witte will discuss these decisions in further detail and address your questions in this upcoming webinar.
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This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
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