27 N.W.3d 329
Mich. Ct. App.2023Background
- Plaintiffs Frank Sakorafos and Elaine Tsapatoris own property adjacent to Dandy Acres/The Dog Lodge, a veterinary clinic and commercial kennel operating since about 2013–2014.
- Township zoning officials advised Dandy Acres in 2015–2017 that the kennel required special land‑use approval and dimensional variances; planning commission recommended denial of the 2017 applications; Township later treated boarding as a nonconforming use and then asserted laches in 2020.
- Plaintiffs sued (Aug. 2021) alleging: Count I abatement of nuisance per se, Count II nuisance damages, Count III civil conspiracy, Count IV deprivation of civil rights, Count V mandamus, and Count VI asking for appointment of a prosecutor to abate the nuisance.
- Defendants moved for summary disposition (standing, governmental immunity, statute of limitations, failure to state a claim). The trial court granted dismissal under MCR 2.116(C)(5),(7),(8), finding plaintiffs lacked standing (applied aggrieved‑party test), damages not available for nuisance, conspiracy failed, and mandamus unavailable.
- On appeal the Court of Appeals: vacated the dismissal of the nuisance claim against Dandy Acres (trial court applied wrong standing test), remanded for reconsideration and for assessment of plaintiffs’ asserted right under the Township’s pre‑amendment §11.04; affirmed dismissal of mandamus and related civil‑rights claims; otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue to abate nuisance per se under MCL 125.3407 | Adjacent owners have standing under MZEA because zoning violations are nuisances per se and plaintiffs suffered special damages distinct from the public | Plaintiffs lack "special/unique" damages; their harms are shared by other residents; trial court properly dismissed | Trial court erred by applying the "aggrieved‑party" test. Standing requires showing damages of a special character distinct from the public; adjacent owners can satisfy that. Dandy Acres' dismissal vacated and remanded to apply correct test |
| Standing under Lyon Township Ord. §11.04 (private right to sue) and mid‑litigation amendment | Pre‑amendment §11.04 expressly allowed "any person aggrieved" to sue, so plaintiffs had an independent municipal‑ordinance basis to sue | Township amended §11.04 (removing private‑suit language) and contends the amendment applies to the trial court decision | Remanded for trial court to decide which version governs and whether amendment was a bad‑faith litigation tactic (timing suggests possible bad faith). Trial court failed to address this |
| Mandamus / deprivation of civil rights (Counts IV–V) | MCL 125.3407 requires municipalities to designate enforcers and to enforce zoning; plaintiffs seek mandamus to compel enforcement | Township enforcement is discretionary; no clear ministerial duty; laches may bar enforcement; mandamus inappropriate | Trial court did not abuse discretion in denying mandamus. Municipal enforcement has discretionary elements; mandamus requires a clear, ministerial duty and no other remedy, which plaintiffs did not establish |
| Availability of monetary damages for nuisance per se and civil conspiracy (including governmental immunity for supervisor) | Plaintiffs sought damages and conspiracy relief against Dandy Acres and Supervisor Dolan | Damages are not available for nuisance per se; conspiracy claim fails without underlying tort; Dolan protected by governmental immunity | Trial court correctly dismissed the damages count and conspiracy insofar as barred by governmental immunity for Dolan. Because nuisance dismissal against Dandy Acres was vacated, related conspiracy claims may need reconsideration on remand as to Dandy Acres |
Key Cases Cited
- Township of Fraser v. Haney, 509 Mich 18 (2022) (zoning violations constitute a nuisance per se under MZEA)
- Soupal v. Shady View, Inc., 469 Mich 458 (2003) (zoning violations can be abated as public nuisances)
- Ansell v. Delta County Planning Comm., 332 Mich App 451 (private parties may abate public nuisances when they show damages of a special character)
- Saugatuck Dunes Coastal Alliance v. Saugatuck Township, 509 Mich 561 (2022) (defines "aggrieved party" test for zoning appeals)
- Towne v. Harr, 185 Mich App 230 (private action to abate public nuisance requires special damages distinct from the public)
- Travis v. Preston, 249 Mich App 338 (adjacent property owners can have standing where nuisance impacts are local and distinct)
- Southfield Ed. Ass'n v. Bd. of Ed. of Southfield Pub. Schs., 320 Mich App 353 (mandamus standards: clear legal right, clear duty, ministerial act, no other adequate remedy)