Risko v. Grand Haven Zoning Bd.

• Decision Date: 16 June 2009
• Docket Number: Docket No. 282701.
• Citation: 284 Mich. App. 453,773 N.W.2d 730
• Parties: RISKO v. GRAND HAVEN CHARTER TOWNSHIP ZONING BOARD OF APPEALS.
• Court: Court of Appeal of Michigan — District of US

773 N.W.2d 730

284 Mich. App. 453

RISKO v. GRAND HAVEN CHARTER TOWNSHIP ZONING BOARD OF APPEALS.

Docket No. 282701.

Court of Appeals of Michigan.

Submitted June 1, 2009, at Grand Rapids.

Decided June 16, 2009, at 9:05 a.m.

Rhoades McKee PC (by Gregory G. Timmer), Grand Rapids, and Bolhouse, Vander Hulst, Risko & Baar, PC (by Joel W. Barr), Norman, OK, for the petitioners.

Scholten Fant (by Bruce P. Rissi), Grand Haven, for the respondent.

Before: BECKERING, P.J., and WILDER and DAVIS, JJ.

DAVIS, J.

Respondent, Grand Haven Charter Township Zoning Board of Appeals (the Board), appeals by leave granted the trial court's order reversing the Board's denial of petitioners' application for a nonuse variance. We reverse.

Petitioners seek to construct a single-family residence on a lot in Grand Haven Charter Township (the Township). The Township zoning ordinance at issue requires a 50-foot setback. The lot is zoned R-1 residential, is 2.46 acres in size, and is 525 feet wide and 189.25 feet deep. However, it is located in a "critical dune zone" and only a portion of it is actually buildable. Petitioners commissioned architectural plans for which they obtained the approval of the Michigan Department of Environmental Quality (MDEQ). Those plans included an attached, two-stall garage that would encroach onto the 50-foot setback area by 9.5 feet. Petitioners applied for a variance from the zoning setback requirement. Petitioners' application stated that the encroachment was necessary because the critical dunes in the rear lot area forced part of the structure to be moved closer to the property line.

Section 26.05 of the Township zoning ordinance provides standards for use by the Board in determining whether an applicant's variance should be granted. The section states:

1. Except as otherwise provided, to authorize a non-use or dimensional variances from the strict applications of the provisions of this Ordinance, the Zoning Board of Appeals shall apply the following standards and shall make an affirmative finding as to each of the matters set forth in each of such standards:

A. That there are exceptional or extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same zoning classification...

B. That such variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity, provided that possible increased financial return shall not of itself, be deemed sufficient to warrant a variance.

C. That authorization of such variance will not be of substantial detriment to adjacent property, and will not materially impair the intent and purpose of this Ordinance or the public health, safety, and general welfare of the community.

D. That the condition or situation of the specific piece of property or the intended use of said property for which the variance is sought, is not of so general or recurrent a nature as to make reasonably practical the formulation of a general regulation for such condition or situation, a part of this Ordinance.

The parties agree that petitioners' application satisfied the third and fourth standards in this section, and those standards are not at issue in this appeal. Petitioners claimed that the first two standards were met because exceptional and extraordinary circumstances were present on the lot at issue because of the protected sand dunes and the need for a special MDEQ permit. Further, petitioners claimed that the variance was necessary to preserve the enjoyment of a substantial property right (use of a two-car garage) that others in the zoning area enjoyed.

Patrick B. Waterman, Grand Haven Township Director of Community Development,¹ wrote a memorandum to the Board recommending approval of petitioners' request for a variance. At the Board meeting to address the variance request, several residents expressed objections to the proposed variance. Petitioners stated that, if the Board rejected the variance, they would have to wait for another MDEQ approval and obtain a new architectural design. The Board reached its decision as described in the minutes:

After much deliberation, the board determined that although there were in fact unique circumstances applicable to this property (i.e. the excessive dune slopes in the rear yard and the MDEQ building restrictions), they felt that the owner had alternate design options which would enable him to construct a new home and attached garage without the need for a variance. Specifically, it was determined that there appeared to be adequate room to construct a side-loading garage, which would eliminate the front yard encroachment. The alternate design options were available to the owner because the lot was exceptionally wide when compared to a typical R1 lot, which eliminated the probability of any side yard encroachments. It was on this basis that the board believed the request failed to meet the four variance standards. [Emphasis in original.]

Specifically, the Board voted that petitioners had failed to meet standards 1 and 2 of the zoning ordinance set forth above. However, in the trial court, respondent conceded that its sole basis for ultimately denying the variance application was that petitioners could change their proposed design to relocate the garage so that a variance was unnecessary. It appears from the minutes that respondent found the first standard to be met.

On appeal to the circuit court, petitioners argued that changing their plans would require significant additional expense and delay. Furthermore, petitioners argued that the Board's decision amounted to the imposition of a fifth standard with no support in any law: that no alternative design existed that would not require the variance. Petitioners also pointed out other instances of variance applications being granted with no consideration of the possibility of alternative designs, and they argued that this amounted to an abuse of discretion because standards were not being applied uniformly. Respondent did not dispute that petitioners had a substantial property right to a two-stall garage on property zoned as residential, but argued that petitioners did not have a right to any particular, specific design or location thereof.

The circuit court reversed the Board's decision from the bench and held:

The evaluation whether these factors were met for purposes of determining whether there exists a practical difficulty in complying with the zoning ordinance does appear to add a requirement by the zoning board to evaluate alternate possibilities or other suitable locations for the portion of the home that extended into the front yard setback. That's not a [proper] consideration in the cases that involve these issues. [Emphasis added.]

The circuit court continued:

In this case, the zoning board appeared to specifically rely upon the fact that there was a wider building envelope and that the applicant could go back and redesign the house and resubmit the redesign for MDEQ approval and build within the existing envelope without violating any setback requirements. However, the result of the zoning board's decision here to require potentially a resurvey, redesign by an architect, resubmission to MDEQ with the cost associated with each stage of that process and the delay required by each stage of that process does impose practical difficulties. [Emphasis added.]

The circuit court also held that the Board had not reasonably exercised its discretion because it had applied the zoning ordinance unequally to similarly situated variance applicants.

This Court reviews de novo the circuit courts decision in an appeal from a zoning board, "while giving great deference to the trial court and zoning board's findings." Norman Corp. v. City of East Tawas, 263 Mich.App. 194, 198, 687 N.W.2d 861 (2004). When reviewing a zoning board's denial of a variance "this Court must review the record and ... [the board's decision] ... to determine whether it (1) comports with the law, (2) was the product of proper procedure, (3) was supported by competent, material, and substantial evidence on the record, and (4) was a proper exercise of reasonable discretion." Id. at 202, 687 N.W.2d 861, citing MCL 125.585(11) (now repealed and replaced by MCL 125.3606[1]). "The interpretation of a zoning ordinance presents a question of law subject to review de novo." Brandon Charter Twp. v. Tippett, 241 Mich.App. 417, 427, 616 N.W.2d 243 (2000). Constitutional questions involving equal protection claims are reviewed de novo by this Court. See Houdek v. Centerville Twp., 276 Mich.App. 568, 573, 741 N.W.2d 587 (2007).

As we alluded to earlier, we reject respondent's argument that its denial was based in part on the first standard, that the petitioners' case did not present exceptional or extraordinary circumstances. The minutes of the Board meeting and respondent's own concessions contradict such an argument. We conclude that the Board's decision to deny the variance request was based on a finding that petitioners could enjoy their right to a home with a two-stall garage on their property without obtaining a variance. We decline to consider any argument by respondent that petitioners' hardship is self-inflicted because, although one Board member did discuss that likelihood, the minutes reflect that self-imposed hardship was not a basis for its denial of the variance. The sole issue is whether, under the circumstances, the 9.5-foot setback "variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district."

Significantly, petitioners did not refute the Board's finding that petitioners' property would accommodate an MDEQ-approved home with a two-stall garage without needing the variance. The evidence indicates that doing so would require additional...