Janssen v. HOLLAND CHARTER TP. ZON. BD.

• Decision Date: 12 June 2002
• Docket Number: Docket No. 226452.
• Citation: 651 N.W.2d 464,252 Mich. App. 197
• Parties: John W. JANSSEN, Sally A. Janssen, J & S Farms LLC, David L. Pyle, Anne E. Pyle, Alvern Poest, and Jack L. Dewitt, Appellants, v. HOLLAND CHARTER TWP ZONING BOARD OF APPEALS, Barker Brokerage & Development Inc, Vistiana Properties, LLC, Henry A. Pyle, and Doris J. Pyle, Appellees.
• Court: Court of Appeal of Michigan — District of US

651 N.W.2d 464

252 Mich. App. 197

John W. JANSSEN, Sally A. Janssen, J & S Farms LLC, David L. Pyle, Anne E. Pyle, Alvern Poest, and Jack L. Dewitt, Appellants, v. HOLLAND CHARTER TWP ZONING BOARD OF APPEALS, Barker Brokerage & Development Inc, Vistiana Properties, LLC, Henry A. Pyle, and Doris J. Pyle, Appellees.

Docket No. 226452.

Court of Appeals of Michigan.

Submitted February 6, 2002, at Grand Rapids.

Decided July 12, 2002, at 9:00 a.m.

Released for Publication September 24, 2002.

Warner Norcross & Judd, L.L.P. by John H. Logie, Mark K. Harder, and Christopher R. Uzpen, Holland, for John W. Janssen and others.

Scholten and Fant, P.C. by Ronald A. Bultje and Linda S. Howell, Grand Haven, for Holland Charter Township Zoning Board of Appeals.

Cunnigham Dalman, P.C. by Andrew J. Mulder and Susan E. Vroegop, Holland, for Barker Brokerage & Development, Inc. and others.

Before: RICHARD ALLEN GRIFFIN, P.J., and HOLBROOK, and HOEKSTRA, JJ.

PER CURIAM.

John W. Janssen and others appeal by leave granted from the March 22, 2000, order of the circuit court affirming the decision of defendant Holland Charter Township Zoning Board of Appeals (ZBA) granting a use variance permitting the construction of a 250-unit residential development in an area zoned agricultural. We affirm.

In September 1996, appellees Henry A. and Doris J. Pyle and Baker Brokerage & Development, Inc., filed an application with the Holland Charter Township Board requesting that certain parcels of property consisting of approximately 115 acres be rezoned from the A-Agricultural Zoning District to the R-1 Single Family Residential Zoning District. The township's planning commission voted to recommend that the board deny the rezoning application. Subsequently, these appellees amended their application by removing one fifteen-acre parcel, which left two contiguous parcels consisting of approximately one hundred acres. Again, the planning commission voted to deny the amended petition. Thereafter, the Pyles and Baker filed a use variance request with the ZBA. They sought to have the density requirements changed so as to allow them to build a 400-unit residential development on the property. After appellee Vistiana Properties, LLC, purchased the property, it and the Pyles filed an amended use variance petition, in which they reduced the number of residential units from 400 to 250. Eventually, after holding public hearings, the ZBA granted the use variance petition. Appellants then contested the ZBA's decision in the circuit court, and the court upheld the ZBA's decision.

Appellants first argue that the circuit court erred in concluding that defendant ZBA's decision to grant the use variance did not constitute impermissible rezoning because a one hundred-acre parcel is too large a parcel of land to be the subject of a use variance. Upon review de novo, we disagree. Bennett v. Weitz, 220 Mich.App. 295, 299, 559 N.W.2d 354 (1996).

The rules that determine when a zoning board of appeals may grant a use variance make no mention of the size of a parcel. A township zoning board of appeals is a municipal administrative body whose duties include, among other functions, the granting of variances. M.C.L. § 125.293; Sun Communities v. Leroy Twp., 241 Mich.App. 665, 670, 617 N.W.2d 42 (2000). M.C.L. § 125.293 provides, in pertinent part, as follows:

Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the zoning ordinance, the board of appeals in passing upon appeals may vary or modify any of its rules or provisions so that the spirit of the ordinance is observed, public safety secured, and substantial justice done.

Likewise, Holland Charter Township's zoning ordinance provides as follows:

Sec. 20.2 Jurisdiction and powers.

The board of appeals shall have all powers and jurisdiction granted by the zoning act, all powers and jurisdiction prescribed in other articles of the ordinance and the following specific powers and jurisdiction....

C. The jurisdiction and power to authorize, upon appeal, a variance or modification of this ordinance where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this ordinance so that the spirit of this ordinance shall be observed, public safety secured and substantial justice done.

The plain and ordinary language of both the statute and the ordinance do not set forth any limitations based on the size of the property owner's parcel of land. To conclude, as appellants urge, that the granting of a use variance to a large parcel of land constitutes de facto rezoning, we would have to, in effect, add an exclusion for such parcels to the above statute and ordinance. "This, however, is beyond our authority because courts may not legislate." Brandon Charter Twp. v. Tippett, 241 Mich.App. 417, 423, 616 N.W.2d 243 (2000).

Appellants next contend that the ZBA's decision to grant the use variance was not supported by competent, material, and substantial evidence on the record. We disagree. The 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. Reenders v. Parker, 217 Mich.App. 373, 378, 551 N.W.2d 474 (1996).

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 is secured, and substantial justice is done. M.C.L. § 125.293; Dowerk v. Oxford Charter Twp., 233 Mich.App. 62, 70, 592 N.W.2d 724 (1998). To conclude that a property owner has established unnecessary hardship, a zoning board of appeals must find on the basis of substantial evidence that (1) the property cannot reasonably be used in a manner consistent with existing zoning, (2) the landowner's plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning, (3) a use authorized by the variance will not alter the essential character of a locality, and (4) the hardship is not the result of the applicant's own actions. Johnson v. Robinson Twp., 420 Mich. 115, 125-126, 359 N.W.2d 526 (1984); Puritan-Greenfield Improvement Ass'n v. Leo, 7 Mich.App. 659, 672-673, 677, 153 N.W.2d 162 (1967). We conclude that the Pyle appellees presented sufficient evidence to establish each of these criteria.

"Whether property used in trade or business or held for the production of income can reasonably be used for a purpose consistent with existing zoning will, no doubt, ordinarily turn on whether a reasonable return can be derived from the property as then zoned." Puritan-Greenfield at 673-674, 153 N.W.2d 162.¹ Contrary to appellants' argument on appeal, the ZBA's conclusion that appellee Vistiana could not receive a reasonable economic return was not based on some "hypothetical value." Rather, the ZBA's finding was based on an analysis of the rental income received and the taxes assessed on the property as zoned. In concluding that the applicants established by substantial evidence that they could receive no reasonable economic return for the property as zoned, the ZBA noted that the annual rental income for the farm was $6,000, and the annual rental income for the two residences on the property yielded $12,900. The ZBA further pointed out that the 1998 taxes on the property amounted to $7,867.42. Thus, the ZBA concluded that the applicants could not realize a reasonable economic return, given the rental income from leasing the farm and the two houses. We hold that the ZBA's conclusion that the property cannot reasonably be used in a manner consistent...