Frericks v. Highland Tp.

• Decision Date: 13 March 1998
• Docket Number: Docket No. 192224
• Citation: 579 N.W.2d 441,228 Mich. App. 575
• Parties: Donald FRERICKS and Phyllis Frericks, Plaintiffs-Appellants/Cross-Appellees, v. HIGHLAND TOWNSHIP, Highland Township Planning Commission, and Township Board of Highland Township, Defendants-Appellees/Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 441

579 N.W.2d 441

228 Mich.App. 575

Donald FRERICKS and Phyllis FrericksPlaintiffs-Appellants/Cross-Appellees, v.HIGHLAND TOWNSHIP, Highland Township Planning Commission and Township Board of Highland TownshipDefendants-Appellees/Cross-Appellants.

Docket No. 192224.

Court of Appeals of Michigan.

Submitted Jan. 6, 1998, at Lansing.

Decided March 13, 1998, at 9:10 a.m.

Released for Publication June 17, 1998.

Campbell, Keenan, Harry, Cooney and Karlstrom by Richard A. Campbell, Clarkston, for Plaintiffs-Appellants/Cross-Appellees.

Dickinson, Wright, Moon, Van Dusen & Freeman by Charles T. Harris and Robert E. Carr, Bloomfield Hills, for Defendants-Appellees/Cross-Appellants.

Before FITZGERALD, P.J., and O'CONNELL and WHITBECK, JJ.

PER CURIAM.

In this zoning dispute, plaintiffs appeal as of right from a judgment upholding the validity of several sections of Highland Township's zoning ordinance, but declaring that the rezoning of plaintiffs' property to R-1-A (residential single-family district with a minimum lot size of three acres) was invalid and providing that the Highland Township Board is free to rezone the property.Defendants cross appealed from the judgment and a separate order denying their motion for costs and attorney fees, but withdrew the cross appeal at oral argument.We affirm.

I.UNDERLYING FACTS

Plaintiffs own a parcel of vacant land in Highland Township containing about one hundred acres with ponds and wetlands.When plaintiffs purchased the property on January 9, 1991, it was zoned A-1 (agricultural district with a minimum lot size of ten acres).At the same time, plaintiffDonald Frericks' company, Frericks Homes, Inc., filed an application with the Highland Township Planning Commission to have the property rezoned to R-1-B (residential single-family district with a minimum lot size of 1-1/2 acres).The planning commission rejected the request for rezoning to R-1-B and, instead, voted on April 21, 1991, to recommend rezoning the property to R-1-A (residential single-family district with a minimum lot size of three acres).The township board then voted on August 14, 1991, to rezone the property to R-1-A.

In response to the township board's decision, plaintiffs filed the instant action against Highland Township, the township board, and the planning commission, seeking a declaration that Highland Township's zoning ordinance is unconstitutional on its face and as applied to plaintiffs' situation.Plaintiffs also sought a declaration that rezoning the property to R-1-A would be an unconstitutional taking of their property for which just compensation should be paid and challenged the validity of other sections of Highland Township's zoning ordinance.

At trial, plaintiffs did not pursue their request for rezoning to R-1-B.Instead, plaintiffs fashioned their proofs so as to compare the economic viability of a proposed development with twenty-nine lots under the approved R-1-A zoning for their property to a proposed denser development with 106 lots, which would fall within a zoning classification of R-1-C (residential single-family district with a minimum lot size of 25,000 square feet if adjacent to a major thoroughfare and 20,000 square feet in other locations), notwithstanding a recent amendment of Highland Township's zoning ordinance to prohibit the creation of future R-1-C residential districts.The amendment had been approved by the township board in June of 1991(between the date on which Frericks Homes, Inc., filed an application for rezoning with the planning commission and the date on which the township board voted to approve the R-1-A zoning classification).By contrast, defendants suggested that a planned residential development under a zoning classification of R-1-A would be economically viable.Neither party's proposed development had actually been subjected to the local administrative review procedures set forth in the zoning ordinance for approving site plans.

Following the close of proofs with respect to the parties' proposed uses of the property and other issues, the matter was adjourned for the parties to submit posttrial briefs with regard to the applicable law and proposed findings.The trial court then entered written findings of fact and conclusions of law.The trial court upheld the validity of certain sections of Highland Township's zoning ordinance relating to water distribution systems, setback requirements, and buildable areas.The trial court determined that the only basis that the plaintiffs had for relief was that the minimum lot size of three acres pursuant to the zoning classification of R-1-A was unreasonable and arbitrary because this lot size was not necessary to protect Highland Township's legitimate concerns about pollution, septic systems, increased traffic, the threat of inadequate fire protection, and conformance to the master plan.At the same time, the trial court found that plaintiffs' proposed development of 106 lots was unreasonable and upheld the validity of the amendment of the Highland Township zoning ordinance that prohibited the creation of new R-1-C lots.The trial court also declared that the township board was free to rezone plaintiffs' property.

II.REGULATORY SECTIONS OF HIGHLAND TOWNSHIP'S ZONING ORDINANCE

We first address plaintiffs' claims concerning the validity of the sections of Highland Township's zoning ordinance relating to water distribution systems, setback requirements and buildable areas.As a threshold matter, we note that the proceedings before the planning commission and township board during 1991 concerned only a rezoning request.Further, the trial evidence indicated that township proceedings regarding a rezoning request do not involve the type of detail that would be involved at the site-plan review of a development by either the planning commission or the applicant.Nor do rezoning proceedings address whether variances would have been granted for plaintiffs, notwithstanding the fact that both variances and zoning ordinances are mechanisms used by local governments to regulate land.See generallyParagon Properties Co. v. Novi, 452 Mich. 568, 574-575, 550 N.W.2d 772(1996).

We do not agree with plaintiffs' position that variance mechanisms for regulating land are irrelevant in determining the scope of our judicial review.A land use variance is, in essence, a license to use property in a way that would not be permitted under a zoning ordinance.Paragon Properties Co, supra at 575, 550 N.W.2d 772.While we agree with plaintiffs' claim that article XX of Highland Township's zoning ordinance does not empower the Highland Township Board of Zoning Appeals to issue use variances, ¹we note that § 2004-2(a) specifically defines the phrase "use variance" as "1) any variance which permits a use not specifically permitted by this ordinance for the district in which it located, and 2) any variance which permits in an agricultural or residential district a residential use with a twenty (20) percent or greater reduction in the required lot or buildable area."Section 2004-2(c) provides that any other variance will be a dimensional variance and authorizes the Highland Township Board of Appeals to approve dimensional variances upon a finding that strict application of the regulations will result in peculiar or exceptional practical difficulties.

We can discern no meaningful distinction between a "use" variance and a "dimensional" variance insofar as each allows landowners to use land in a manner that would not otherwise be permitted under a strict application of the zoning ordinance.²Hence, while the Highland Township Board of Zoning Appeals is not empowered to authorize a "use" variance in a zoning district classification that does not permit such a variance, the board of appeals can have an effect on particular allowable developments.This effect may include the specific regulatory requirements challenged by plaintiffs in this appeal.

In sum, this appeal requires this Court to determine the validity of certain sections of a zoning ordinance concerned with details of a site plan that have not yet been applied to plaintiffs' property or subjected to the township's variance procedures.We will not disturb the trial court's findings of facts unless clearly erroneous.MCR 2.613(C).However, we review questions of law de novo.Westchester Fire Ins. Co. v. Safeco Ins. Co., 203 Mich.App. 663, 667, 513 N.W.2d 212(1994).Examined in this context, we are not persuaded that plaintiffs have demonstrated any basis for relief.

A.THE "NATURAL HAZARD AREA" REGULATION IN § 1714

The "natural hazard areas" regulation challenged by plaintiffs is part of article XVII of Highland Township's zoning ordinance.Section 1700 of this article provides:

Whenever any provision of this Ordinance imposes more stringent requirements, regulations, restrictions or limitations than are imposed or required by the provisions of any other law or ordinance, then the provisions of this Ordinance shall govern.Whenever the provisions of any other law or ordinance impose more stringent requirements than are imposed or required by this Ordinance, then the provisions of such law or ordinance shall govern.

Section 1714 establishes the natural hazard area regulation.The stated intent of this section is to "protect environmentally sensitive natural resources ... from unnecessary developmental encroachment."The definition of "natural hazard areas" in § 1714-2 includes (a) lake margins, (b) stream valley flood plain areas, (c) permanent marsh and swamp areas, (d) high water table areas, and (e) steep land areas.Section 1714-3 provides that "[n]atural hazard areas shall not be counted toward meeting the minimum buildable area requirements of this ordinance."Section 1714-4 provides for the determination and location of natural hazard areas to be made during the site-plan review and other development application review.Further, § 1714...