Like all laws, rules, and regulations, zoning ordinances in Michigan are not self-executing. Someone must interpret, apply, and enforce the rules that govern land use in a given locality for them to have any effect. This includes deciding whether to grant variances, issue or deny land use permits, or approve or reject a proposed development, among other actions. When a property owner or other person aggrieved by an administrator’s zoning decision seeks to challenge or reverse that decision, Michigan law allows them to do so by appealing to the local Zoning Board of Appeals (ZBA).
But not every person opposed to a zoning administrator’s actions can appeal to a ZBA, nor is every decision appealable. If you wish to appeal an administrative zoning decision, here is what you need to know.
What Is a ZBA?
As the name implies, a Zoning Board of Appeals’ primary role is to hear appeals of administrative zoning decisions. A ZBA can hear appeals of decisions made by a zoning administrator, a planning commission, or administrative decisions made by the local legislative body, such as denial of a special use permit or site plan.
Who Can Appeal to a ZBA?
As set forth in Sec. 604(1) of the Michigan Zoning Enabling Act (MZEA), an appeal to the ZBA may be taken only by “a person aggrieved or by an officer, department, board, or bureau of this state or the local unit of government.”
While the Michigan legislature has never defined what it means to be “aggrieved” by a zoning decision, it takes more than simply being upset about it to have the standing to appeal to the ZBA. A property owner whose right to use their property as they desire hinges on the decision would certainly qualify as a “person aggrieved.” But Michigan courts have held that “neither the MZEA nor any of Michigan’s previous zoning statutes explicitly require one to own real property to be “aggrieved” by local land-use decisions or to prove “aggrieved” status by comparison to other property owners who are similarly situated.”
The Michigan Supreme Court has held that to qualify as a “person aggrieved,” a person must meet these three criteria:
- They must have participated in the challenged proceedings by taking a position on the contested decision, such as through a letter or oral public comment.
- They must claim some legally protected interest or protected personal, financial, or property right that is likely to be affected by the challenged decision.
- They 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.
What Administrative Decisions Can Be Appealed to a ZBA?
Administrative decisions that can be appealed to a ZBA include:
- Issuance or denial of zoning (also known as land use) permits.
- Zoning enforcement actions.
- Approval or denial of special land use permits.
- Approval or denial of Planned Unit Developments.
- Approval or denial of site plans.
How Does An Appeal to the ZBA Work?
Presuming the appellant has standing as a “person aggrieved,” they begin the appeals process by filing a notice of appeal with the body or officer from whom the appeal is taken and with the ZBA specifying the grounds for the appeal. The time for filing an appeal to the ZBA can be as short as 21 days from the date of the administrative decision being appealed, so it is critical to act quickly and consult with a zoning attorney as soon as possible after the administrator issues their decision.
The ZBA will review the administrative decision de novo, meaning they will review the original information presented to the administrative official or body, the minutes, findings, and notes documenting the original decision, and any additional relevant evidence presented.
Although the ZBA may reverse, affirm, or modify the administrative decision in whole or part, its powers are generally limited to determining whether the official or body that made the underlying decision acted properly.
An appellant who disagrees with the ZBA’s final decision can then appeal that decision to the local circuit court.
An adverse zoning decision can significantly impact a property’s use, enjoyment, and value. As such, owners and others aggrieved by such a decision should retain experienced counsel when appealing to a ZBA. If you have questions about zoning appeals or need assistance with an appeal, please contact Jacob Eccleston at Kreis Enderle today.