Kopietz v. Zoning Bd. of Appeals for City of Village of Clarkston, Docket No. 168097

• Citation: 535 N.W.2d 910,211 Mich.App. 666
• Decision Date: 27 June 1995
• Docket Number: Docket No. 168097
• Parties: Floyd C. KOPIETZ and Joan M. Kopietz, Petitioners-Appellants, v. ZONING BOARD OF APPEALS FOR the CITY OF the VILLAGE OF CLARKSTON and the City of the Village of Clarkston, Respondents-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 910

535 N.W.2d 910

211 Mich.App. 666

Floyd C. KOPIETZ and Joan M. Kopietz, Petitioners-Appellants, v. ZONING BOARD OF APPEALS FOR the CITY OF the VILLAGE OF

CLARKSTON and the City of the Village of

Clarkston, Respondents-Appellees.

Docket No. 168097.

Court of Appeals of Michigan.

Submitted Feb. 8, 1995, at Lansing.

Decided June 27, 1995, at 9:15 a.m.

Released for Publication Aug. 30, 1995.

Booth, Patterson, Lee, Need & Adkison, P.C. by Phillip G. Adkison, Waterford, for petitioners.

Thomas J. Ryan, P.C. by Thomas J. Ryan, Sylvan Lake, for Zoning Bd. of Appeals for City of Village of Clarkston and City of Village of Clarkston.

Before FITZGERALD, P.J., and TAYLOR and MARKMAN, JJ.

TAYLOR, Judge.

Petitioners appeal as of right an order of the Oakland Circuit Court affirming a decision of the Zoning Board of Appeals for the City of the Village of Clarkston (ZBA) to deny petitioners' request to change an existing funeral home into a bed and breakfast establishment. We reverse and remand.

This appeal is the second case involving petitioners and the City of the Village of Clarkston concerning the City of the Village of Clarkston Construction, Development, and Land Use Code (hereinafter the ordinance). Petitioners' first petition involved structural alterations to the building in question. The ZBA denied the petition and petitioners appealed that denial to the Oakland Circuit Court. While that case was pending before Judge Hilda Gage, petitioners filed a second petition requesting a change in the nonconforming use with no structural alterations. Following a June 25, 1992, public hearing regarding the issue, the ZBA denied the petition because the proposed bed and breakfast would constitute a commercial use in an existing residential district and the ZBA felt that the proposed nonconforming use was not more appropriate than the previous nonconforming use. The ZBA reasoned that denial of the petition was supported by the fact that the building was originally a single-family home, the City of the Village of Clarkston City Council turned down another bed and breakfast request across the street, and the city council did not approve a bed and breakfast amendment of the zoning ordinance.

Petitioners also appealed the denial of their second petition to the Oakland Circuit Court. This appeal was assigned to Judge Edward Sosnick. In an opinion dated June 23, 1993, Judge Sosnick affirmed the decision of the ZBA, but remanded to the ZBA to detail specific reasons for the ZBA's findings. On August 20, 1993, Judge Robert C. Anderson, acting for Judge Sosnick, entered an order implementing the court's opinion of June 23, 1993. With regard to the companion matter pending before Judge Gage, the parties have not informed this Court of the status of that case, but we note from respondents' exhibits that Judge Gage must have also remanded to the ZBA for further factfinding because on November 23, 1993, the ZBA addressed both remands and made findings of fact and gave specific reasons why the proposed bed and breakfast use is not more appropriate than the previous nonconforming use.

In denying the petitions, the ZBA found that the city ordinance is in agreement with the public policy of the State of Michigan to allow nonconforming uses to continue but not to encourage their survival. Pursuant to the order on remand, the ZBA made six specific findings regarding the inappropriateness of the proposed bed and breakfast use. First, the ZBA reasoned that the city would be taking advantage of the opportunity to bring this property into conformance as a residentially zoned use. Second, that there was no need for an expansion of commercial property in the residentially zoned district. Third, that to allow the nonconforming bed and breakfast would be contrary to the goal of maintaining the historical and residential character of this area. Fourth, that the city did nothing to cause the prior use as a funeral home to cease to exist and the city was within its rights to ask that the use be consistent with the current zoning. Fifth, that the city council had considered this issue and had decided not to locate bed and breakfast establishments in residential zones. Sixth, that, on July 16, 1973, a signed agreement had been entered into with the city providing that the use of the property would revert to a single-family residence when it was no longer used as a funeral home. ¹

This appeal deals only with petitioners' second petition, which is distinguished from the first because no structural alterations were sought. In considering the merits of this appeal, we will consider the reasons given by the ZBA at both the June 25, 1992, and the November 23, 1993, ZBA meetings.

Petitioners argue that the Clarkston zoning ordinance is an unconstitutional delegation of legislative power because it does not provide reasonably precise standards to guide the ZBA in the performance of its delegated legislative tasks. We disagree.

An ordinance is presumed to be constitutionally valid and the party attacking it bears the burden of proving it is constitutionally infirm. Cryderman v. Birmingham, 171 Mich.App. 15, 22-23, 429 N.W.2d 625 (1988). Further, due process necessitates the existence of standards as reasonably precise as the subject matter requires or permits to be utilized by administrative agencies in the performance of delegated legislative tasks. Adkins v. Dep't of Civil Service, 140 Mich.App. 202, 213-214, 362 N.W.2d 919 (1985). A purpose of this requirement is to close the door to favoritism, discrimination, and arbitrary uncontrolled discretion on the part of administrative agencies, and to provide adequate protection to the interest of those affected. Id. at 213, 362 N.W.2d 919.

The ordinance at issue in this case provides:

If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may be changed to another nonconforming use provided that the Board of Appeals, by making findings in the specified case, shall find that the proposed use is more appropriate to the district than the existing nonconforming use. For any such change, the Board of Appeals may require appropriate conditions and safeguards in accord with the purposes and intent of this ordinance. [City of the Village of Clarkston Zoning Ordinance, § 910.04(3) (emphasis added).]

Petitioners contend that the ordinance lacks standards to guide the ZBA in determining whether a proposed use is "more appropriate to the district" than the use it will replace. However, we find that "the standards prescribed for guidance are as reasonably precise as the subject matter requires or permits." Osius v. St. Clair Shores, 344 Mich. 693, 698, 75 N.W.2d 25 (1956). Under § 910.04(3), the ZBA is required to make a disinterested determination whether the proposed use is more appropriate to the district than the existing nonconforming use. In this case, the specific inquiry would be whether use as a bed and breakfast is closer to the desired residential use than is the former use as a funeral home. In making this determination, the ZBA would look to the characteristic uses of a funeral home, the characteristic uses of a bed and breakfast, and compare these with the characteristic uses of a residential home. If use as a bed and breakfast is determined to be closer to the desired residential use, then it is a move "up the use chain" and would satisfy the ordinance.

The fact that each characteristic to be considered is not described in the ordinance is not fatal because the "more appropriate" standard gives adequate guidance for impartial objective, decision making. As this Court explained in Village of Holly v. Gromak, 81 Mich.App. 241, 265 N.W.2d 107 (1978), in discussing an ordinance very similar to the Clarkston ordinance, it would be impractical to attempt to formulate a rule that describes the weight to be given to each fact in all circumstances. Id. at 247, 265 N.W.2d 107. The Clarkston ordinance establishes standards to guide the ZBA's determination that are as precise as the subject matter permits. When these standards are properly applied, they are capable of producing principled, focused, even-handed decisions by the administrative agency. Accordingly, we conclude that the ordinance passes constitutional muster. Adkins, supra; Osius, supra.

Having concluded that the standards in the ordinance are sufficient, we must next consider whether in the application of these standards the decision of the ZBA was supported by competent, material, and substantial evidence on the record. Petitioners argue that the evidence did not reach that plane and that, accordingly, the ZBA decision was an unreasonable exercise of discretion. We agree.

Pursuant to the clear terms of the ordinance, the ZBA should have decided whether the proposed nonconforming use, the bed and breakfast, moves in the direction of diminishing nonconformity. The ZBA did not employ this analysis on either occasion it considered petitioners' petition. Rather, the ZBA considered factors that were, in large part, irrelevant. For example, the ZBA improperly considered that, before zoning, the building had originally been a single-family home, and ignored the fact that the building was used as a funeral home when zoning was enacted in 1973. ² The ZBA also improperly considered that the city council had decided not to locate another bed and breakfast in that residential zone, and finally, that the ZBA was not disposed to locating commercial property in this area. While the ZBA can consider many factors in its decision regarding the appropriateness of a proposed nonconforming use, its endeavor cannot descend into a discriminatory exercise that loses sight of the lodestar for the ZBA decision-making process; namely, whether the new use is more appropriate. As the above examples indicate, this is exactly what happened in this case.

Interestingly, respondents' arguments on appeal...