103 Mich. App. 205 | Mich. Ct. App. | 1981
Lead Opinion
The Detroit Board of Zoning Appeals denied plaintiff a use variance for property at 1060 23rd Street. Plaintiff appealed to the circuit court by way of a complaint against the city, without naming any area landowners. Ammex, Inc., an area landowner, within 300 feet of plaintiff’s property, sought intervention and was allowed to intervene by an order dated December 8, 1978. Thereafter, the plaintiff and the city agreed to a consent judgment which was entered on May 18, 1979. Ammex appeals.
The intervention of Ammex in the plaintiff’s circuit court action was by right, D'Agostini v City of Roseville, 396 Mich 185; 240 NW2d 252 (1976), as the circuit judge recognized by his order of December 8, 1978. Thereafter, a valid consent judgment required the consent of all parties. In this case, Ammex not only did not consent, it
The obligation of the circuit judge on an appeal from a Zoning Board of Appeals is clearly spelled out in the recent case of Ed Zaagman, Inc v City of Kentwood, 406 Mich 137; 277 NW2d 475 (1979). That obligation was not met in this case.
Reversed and remanded.
Dissenting Opinion
(dissenting). I dissent. In my opinion, Ammex lacks standing to appeal the entry of the consent judgment.
MCL 125.585; MSA 5.2935 gives all owners of property located within 300 feet of plaintiffs realty the right to receive notice of, and to intervene in, proceedings before the Zoning Board of Appeals. However, this does not necessarily mean that all such property owners are entitled to seek review of zoning actions. MCL 125.591; MSA 5.2941 requires that a party also be "aggrieved” to be entitled to institute appellate review. Western Michigan University Board of Trustees v Brink, 81 Mich App 99, 101-102; 265 NW2d 56 (1978).
In Western Michigan University Board of Trustees, supra, 105, we said that a zoning board’s decision to allow the expansion of a nonconforming use which increased the value of the property and, thus, made it more expensive to purchase was not appealable by plaintiff, a prospective buyer. There, as here, plaintiff owned property within 300 feet of the subject realty. This Court held, however, that plaintiff was not an aggrieved party and had no legally protectable interest in restraining the expansion of the nonconforming use in the property.
In Comment, Standing to Appeal Zoning Deter
"It is uniformly held that a person who objects to the grant of a variance solely on the ground that it will create competition with his business is not 'aggrieved.’ An individual cannot be aggrieved 'merely because a variance, even if improvidently granted, will increase competition in [his] business.’ Any injury to the competitor’s business stemming from the variance is viewed as damnum absque injuria. Naturally, a competitor could be 'aggrieved’ if he also had an interest, apart from his business interest, that would be adversely affected. For example, a competitor might own residential property within the zoned area. His standing should therefore be determined by the usual 'special damage’ inquiry applicable to other third-party appellants,”
In the instant case, Ammex’s sole interest in continuing the residential zoning of plaintiffs property is to restrain competition. Ammex’s property will not decline in value or be otherwise adversely affected solely due to the inherent nature of the land use. If the market value of Ammex’s property declines, it will be entirely the product of the necessity of competition with plaintiff. I do not believe the courts should be used as an instrument to restrain competition.
I would affirm.