Dеfendant, Flint Charter Township, appeals by leave granted from the February 4, 1998, writ of mandamus, issued by the Genesee Circuit Court, that directs defendant to grаnt a zoning variance to plaintiff. We reverse.
Plaintiff, Myong Choe, operated a massage parlor on Miller Road in defendant
Plaintiff filed a complaint in the circuit court on March 6, 1996, seeking both a writ of mandamus and monetary damages. Plaintiff alleged that “statements made by members of the . . . Board” demonstrated that she was the victim of discrimination on the basis of her age, gender, race, ethnicity, and religion.
The trial court heard oral arguments on September 24, 1996. In an opinion dated November 18, 1997, the court granted plaintiff’s request for a writ of mandamus and ordered defendant to issuе the variance. The court provided only one sentence of explanation: “After researching this issue and reviewing the briefs of counsеl the court is satisfied that the Plaintiff has complied with all requirements and as a result should be granted a variance.” The court subsequently issued a Februаry 4, 1998, order directing that the matter be set for a juiy trial concerning the issue of damages. This Court granted defendant’s application for leave to appeal.
Defendant argues that the trial court erred in granting plaintiff’s petition for a writ of mandamus because the decision of thе board of áppeals was based on competent, material, and substantial evidence and because a writ of mandamus is not a pеrmissible remedy where an appeal as of right is available to the party seeking the writ. As set forth below, we agree that a writ of mandamus was not an appropriate remedy in this case.
Generally, “[t]he grant or denial of a variance is a discretionary action” and therefore is not subject to reversal through a writ of mandamus.
Dowerk v Oxford Charter Twp,
However, under the current court rules, writs of mandamus directed against inferior tribunals have given way to ordеrs of superintending control. MCR 3.302 provides in pertinent part:
(A) Scope. A superintending control order enforces the superintending control рower of a court over lower courts or tribunals.
(B) Policy Concerning Use. If another adequate remedy is available to the party seеking the order, a complaint for superintending control may not be filed. See subrule (D)(2), and MCR 7.101(A)(2), and 7.304(A).
(C) Writs Superseded. A superintending control order replaces the writs of certiorari and prohibition and the writ of mandamus when directed to a lower court or tribunal.
(D) Jurisdiction.
(1) The Supreme Court, the Court of Appeals, and the circuit court have jurisdiction to issue superintending control orders to lower courts or tribunals. . . .
(2) When an appeal in the Supreme Court, the Court of Appeals, the circuit court, or the recorder’s court is available, that method of review must be used. If superintending cоntrol is sought and an appeal is available, the complaint for superintending control must be dismissed.
This Court has explained, “In substituting superintending control for certiorari, mandamus, and prohibition, the intention was to eliminate frequent mistakes in the choice of remedies.”
Lorland Civic Ass’n v DiMatteo,
Because, under MCR 3.302(C), a superintending control order replaces the writ of mandamus when directed to a lower court or tribunal, a municipal zoning authority is subject to the circuit court’s superintending control, not its power of mandamus. See Krohn, supra. Therefore, we hold that the trial court erred in issuing a writ of mandamus requiring defend ant to grant plaintiffs request for a variance. Moreover, we caution the bench and bar in the future to take care to distinguish petitions for mandamus from those for superintending control.
Given the historical recognition our Supreme Court has afforded writs of mandamus as a vehicle for relief from adverse zoning decisions, the fact that superintending cоntrol and mandamus are closely related actions, and this Court’s failure to distinguish between the two actions in zoning cases, we believe that to rеverse here solely because the trial court issued a writ of mandamus instead of an order of superintending control would be to elevate form over substance. Nevertheless, we find that reversal is warranted because neither superintending control nor mandamus is an approрriate remedy where the issue concerned is subject to resolution on appeal. See MCR 3.302(D)(2);
Lake Angelo Associates v White Lake Twp,
Reversed. Plаintiff has twenty-one days from the date of the release of this opinion to file a claim of appeal from the board of appеals’ denial of her peti tion for a variance in the circuit court. 2 We do not retain jurisdiction.
Notes
Plaintiff asserts that she offers legitimate massage therapy, and nothing in the record suggests that the reality might be otherwise.
Plaintiff asserts on appeal that she has made out a prima facie case that defendant’s entire zoning scheme is unconstitutional because massage services are completely excluded. However, in the trial court, plaintiff did not present a facial challenge to the zoning ordinance on the basis that it was exclusionary, but rather argued that the exclusionary еffect of the ordinance militated in favor of her entitlement to a variance. Because plaintiff’s argument on appeal is a nеw one, and defendant has had no opportunity to defend the ordinance’s constitutionality, we decline to address the issue. Plaintiff is, of course, free to challenge the constitutionality of the zoning ordinance in an appeal to the circuit court.