City of Detroit v. City of Detroit Bd. of Zoning Appeals

• Decision Date: 23 October 2018
• Docket Number: No. 339018,339018
• Citation: 326 Mich.App. 248,926 N.W.2d 311
• Parties: CITY OF DETROIT, Petitioner-Appellant, v. CITY OF DETROIT BOARD OF ZONING APPEALS, Respondent-Appellee, and International Outdoor Inc., Intervenor-Appellee.
• Court: Court of Appeal of Michigan — District of US

326 Mich.App. 248

926 N.W.2d 311

CITY OF DETROIT, Petitioner-Appellant,

v. CITY OF DETROIT BOARD OF ZONING APPEALS, Respondent-Appellee,andInternational Outdoor Inc., Intervenor-Appellee.

No. 339018

Court of Appeals of Michigan.

Submitted August 15, 2018, at Detroit.

Decided October 23, 2018, 9:15 a.m.

City of Detroit Law Department (by Charles N. Raimi, Deputy Corporation Counsel, and Sheri L. Whyte, Senior Assistant Corporation Counsel) for the city of Detroit.

Lewis & Munday, PC, Detroit (by Reginald G. Dozier and Samuel E. McCargo ) for the city of Detroit Board of Zoning Appeals.

Bodman PLC, Troy (by J. Adam Behrendt ) for International Outdoor Inc.

Before: Cameron, P.J., and Ronayne Krause and Tukel, JJ.

Cameron, P.J.

The city of Detroit (the City) appeals the circuit court order affirming the decision of the City’s Board of Zoning Appeals (the BZA) to grant a use variance to International Outdoor Inc. (IO) for the erection of a billboard. On appeal, the City argues that the BZA did not have the authority to grant a use variance in an area of Detroit designated as the Grand Boulevard overlay zone, which bans off-site advertising signs. Even if the BZA did have the authority, the City argues that IO could not prove that the ordinance imposed an unnecessary hardship because IO "purchased the hardship," i.e., it purchased the property with knowledge that the ordinance banned off-site advertising signs. We conclude that the BZA had the authority to grant a use variance in the overlay zone and that the BZA did not err when it granted IO’s request for a use variance based on unnecessary hardship. Because neither IO nor its predecessor in title created the hardship by partitioning, subdividing, or otherwise physically altering the land after the enactment of the ordinance, the BZA could grant the use variance. Therefore, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1999, the City amended its zoning ordinance to ban off-site advertising signs in a portion of the City referred to as the Grand Boulevard overlay zone. See Detroit Zoning Ordinance, § 61-6-65.¹ In 2011, IO purchased a small parcel of vacant property in Detroit that was located within the overlay zone and was zoned as a B4 general business district. The property measured 30 feet wide and 184 feet long with an area of 5,520 square feet. In 2015, IO submitted an application for a permit to erect a billboard on the property. The City’s planning department denied the application, referring to the advertising restrictions in the Grand Boulevard overlay zone.

IO appealed to the BZA, seeking a hardship variance.² IO claimed that the City’s ordinance scheme rendered the property unfit for any reasonable or economically feasible use because of its size and shape. IO’s assertion was not disputed, but at the BZA hearing, several board members expressed their concern that IO, as a billboard company, purchased the property with the intent of one day erecting a billboard, though it knew the property was located within the overlay zone. IO’s attorney explained that "there is no feasible or economic or functional use of this property because of the size" and that no one "will ... be able to put any use on this; it would not meet parking, would not meet open space, landscaping, any type of requirement this site could not meet." Instead, IO’s attorney asserted, the only possible uses for the property would be to either erect a billboard or a cell tower—neither of which was currently allowed on the property. One board member also questioned whether the BZA had the authority to grant a variance in an overlay zone—which might have higher authority over other ordinances. In response, IO’s attorney explained that "[i]t’s not higher; it is an ordinance, period. It is not a statute.... If you applied that standard, then there would be no such thing as a dimensional or a hardship variance, you would always say, that’s what the code says, ... we’re inflexible to it." Another board member interjected and asserted that the BZA’s purpose is to consider when to "override the overlay districts and the signs." Before turning to a vote, a third board member made one final observation:

Just, before we get a motion on the floor, the observation that I want to make here is that if we were to approve this as a hardship, virtually any property developer, um, in—virtually any property developer in the city could purchase a subsection of a piece of land in an overlay district and claim that they have a hardship because there is no other use that they can make of this land other than whatever it is that they bought it for; in this case, a billboard. ... I think that what this does is it creates a precedent that virtually obsolesces the concept of an overlay.

Ultimately, the BZA voted to grant the variance, and the City appealed that decision in the circuit court.³

The circuit court affirmed the BZA’s decision. In its holding, the court explained that while IO bought the property with knowledge of the ban on off-site advertising signs, there was no evidence that IO took any action that physically altered the property to create the hardship now at issue. According to the court, "[c]urrent Michigan law does not support [the City’s] argument that the Self-Created Hardship Rule bars [IO’s] variance request and the [c]ourt declines to expand Michigan law at this time." The City now appeals the circuit court’s decision, claiming that the BZA did not have the authority to grant the variance in an overlay zone and that even if it did, IO’s act of purchasing the property created the hardship at issue.

II. STANDARD OF REVIEW

We review de novo the underlying interpretation and application of an ordinance. Great Lakes Society v. Georgetown Charter Twp. , 281 Mich. App. 396, 407, 761 N.W.2d 371 (2008). MCL 125.3606 provides, in pertinent part, the standard used to review the decision of a zoning board of appeals:

(1) Any party aggrieved by a decision of the zoning board of appeals may appeal to the circuit court for the county in which the property is located. The circuit court shall review the record and decision to ensure that the decision meets all of the following requirements:

(a) Complies with the constitution and laws of the state.

(b) Is based upon proper procedure.

(c) Is supported by competent, material, and substantial evidence on the record.

(d) Represents the reasonable exercise of discretion granted by law to the zoning board of appeals. [ MCL 125.3606(1).]

In other words, "[t]he decision of a zoning board of appeals should be affirmed unless it is contrary to law, based on improper procedure, not supported by competent, material, and substantial evidence on the record, or an abuse of discretion." Janssen v. Holland Charter Twp. Zoning Bd. of Appeals , 252 Mich. App. 197, 201, 651 N.W.2d 464 (2002) ; see also MCL 125.3606(1).

III. THE BZA’S AUTHORITY TO GRANT THE USE VARIANCE

Initially, the question turns on whether the BZA had authority to grant a use variance in the overlay zone. After review of the prevalent statutes and caselaw, we conclude that the BZA had the authority to grant IO’s variance request. MCL 125.3604 defines a board’s authority to grant a use variance, providing, in pertinent part:

(7) If there are practical difficulties for nonuse variances as provided in subsection (8) or unnecessary hardship for use variances as provided in subsection (9) in the way of carrying out the strict letter of the zoning ordinance, the zoning board of appeals may grant a variance in accordance with this section, so that the spirit of the zoning ordinance is observed, public safety secured, and substantial justice done....

* * *(10) The authority granted [to cities and villages under this ordinance] is subject to the zoning ordinance of the local unit of government otherwise being in compliance with subsection (7) and having an ordinance that requires a vote of 2/3 of the members of the zoning board of appeals to approve a use variance.

(11) The authority to grant use variances [to cities and villages under this ordinance] is permissive, and this section does not require a local unit of government to adopt ordinance provisions to allow for the granting of use variances. [ MCL 125.3604(7), (10), and (11).]

We have held that "[a] township zoning board of appeals has the authority to vary or modify any zoning ordinance to prevent unnecessary hardship if the spirit of the ordinance is observed, the public safety if secured, and substantial justice is done." Janssen , 252 Mich. App. at 201, 651 N.W.2d 464 (emphasis added).

At issue in this case is Detroit’s ordinance banning advertising signs within the Grand Boulevard overlay zone:

Sec. 61-6-65. Advertising signs within the area bounded by Grand Boulevard.

It shall be unlawful to construct, erect, paint, fasten, or affix any new advertising sign, whether billboard or painted wall graphic, on any zoning lot abutting or within the area bounded by East Grand Boulevard, the Detroit River, and West Grand Boulevard. This prohibition in no way limits the right to periodically alter the advertising display on billboards approved for "changeable copy" or to repaint the display on duly licensed painted wall graphics. No lawfully existing advertising sign within said area shall be enlarged or expanded, except upon approval of the Board of Zoning Appeals as provided for in Sec. 61-15-16 of this Code. [Detroit Zoning Ordinance, § 61-6-65.]^[4]

With this backdrop, we acknowledge that the BZA has broad power under Detroit’s ordinances to provide relief for any landowner who proves an economic hardship:

Sec. 61-4-127. Additional forms of relief.

The Board of Zoning Appeals may adopt any legally available incentive or measure that is reasonably necessary to offset any denial of reasonable economic use, and may condition such incentives upon approval of specific development plans. Where the Board of Zoning Appeals finds that the denial of the application would create a substantial economic

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