EARL L. ANSELL, JEANNE ANSELL, DELORES HAWTHORNE, DOUGLAS G. SMITH, VIRGINIA A. SMITH, ROBERT CHARLES VERTZ, PENNY JEAN VERTZ, JOHN GAVRE, CRISTILYN CURRIE, LARRY DEAN KELLEY, DEBBIE TATROW, BRENN ALBERT KURTH, MICHELLE KURTH, CYNTHIA SKINNER, HARRY WHALING, and DAVID WILKOWSKI, Appellants, v DELTA COUNTY PLANNING COMMISSION, COUNTY OF DELTA, HERITAGE SUSTAINABLE ENERGY, LLC, and HERITAGE GARDEN WIND FARM, LLC, Appellees.
No. 345993
STATE OF MICHIGAN COURT OF APPEALS
June 4, 2020
FOR PUBLICATION. Delta Circuit Court LC No. 18-023775-AA. 9:00 a.m.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Before: STEPHENS, P.J., and SERVITTO and KRAUSE, JJ.
Appellants, residents of Delta County, appeal as of right the circuit court order dismissing appellants challenges to zoning decisions by the Delta County Planning Commission due to lack of jurisdiction. We affirm.1
This case arises from the Delta County Planning Commission‘s decision to grant conditional use permits to appellees Heritage Sustainable Energy and Heritage Garden Wind Farm (Heritage) for the construction of 36 wind turbines2 on the Garden Peninsula in Delta County.
Heritage submitted applications to the appellee planning commission in October 2017. The planning commission held public hearings on the applications on December 4 and 12, 2017, January 15 and 23, 2018, and February 5, 2018. The planning commission announced its decisions in favor of Heritage on January 23 and February 5, 2018, and the conditional use permits followed.
Appellants appealed the planning commission‘s grant of the permit applications to the Delta County circuit court, filing notices of appeal on February 26, 2018. On September 17, 2018, an appeal hearing was held in the circuit court. Appellants argued the planning commission granted the applications in error where the applications failed to comply with multiple provisions of Delta County‘s Zoning Ordinance No. 76-2. Appellants further argued how specific violations related to noise, vibrations, light pollution, property values, aesthetics, and environmental concerns affected residents living in the county. Heritage argued that appellants lacked standing to challenge the planning commission‘s decision and therefore, could not invoke the circuit court‘s appellate jurisdiction, because appellants were not “aggrieved parties” under the Michigan Constitution and court rules. Appellants responded that they were not required to prove they were aggrieved parties where their appeal was from a decision of the planning commission and not the Zoning Board of Appeals. They argued that even if the standing requirement had applied, they had an interest in the litigation and would suffer an adverse impact from the planning commission‘s decision.
The circuit court agreed with Heritage that it lacked jurisdiction to hear the appeal because appellants lacked standing. It found that case law concerning an appeal from a township board where no appeal to the zoning board of appeals existed, and the appellate court rules, both explicitly limited the exercise of appellate jurisdiction to aggrieved parties. The court determined that appellants had not established that they were aggrieved parties because they had not shown special damages or a unique harm uncommon to all other property owners. The circuit court dismissed the appeal in its entirety without reaching the merits of appellants’ claims regarding the planning commission‘s grant of Heritage‘s permit applications. This appeal followed.
II. STANDARD OF REVIEW
Zoning decisions are appealable by right to the circuit court.
III. ANALYSIS
The circuit court held that the “aggrieved party” standard, applicable to appeals of decisions of the zoning board of appeals under
Under the Michigan Zoning Enabling Act (ZEA),
Under the Michigan Court Rules, “[t]he circuit court has jurisdiction of an appeal of right filed by an aggrieved party from . . . a final order or decision of an agency from which an appeal of right to the circuit court is provided by law.”
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This
review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record....
In Carleton Sportsman‘s Club, this Court held, “where a township zoning ordinance does not provide for review of a request for special land-use permit by a zoning board of appeals, the township board‘s decision is final and subject to appellate review by the circuit court pursuant to
A plain reading of provisions of the ZEA, our court rules, and caselaw support the conclusion that only an aggrieved party may appeal the final determination under a zoning ordinance. “Municipalities have no inherent power to regulate land use through zoning.” Olsen, 325 Mich App at 179. The Legislature granted local units of government this authority through enactment of the ZEA. Id. The ZEA provides for the creation of a zoning commission in each municipality, but also allows for the continuation of the exercise of powers by township zoning boards and planning commissions established before the act went into effect. The creation of a planning commission under the act did not also create a requirement for the establishment of a zoning board of appeals. Nicholas v Charter Tp of Watertown, 43 Mich App 510, 512; 204 NW2d 365 (1972);
Appellants’ reliance on Brown v East Lansing Zoning Bd of Appeals, 109 Mich App 688, 699; 311 NW2d 828 (1981), for a different standard for determination of standing to appeal and jurisdiction to hear an appeal is unavailing. The statute interpreted in that case, MCL 125.585(6), has since been repealed.3 In its place, the Legislature enacted
To have the status of “aggrieved party” for purposes of obtaining the circuit court‘s appellate review of a decision under a zoning ordinance, “a party must allege and prove that he or she has suffered some special damages not common to other property owners similarly situated.”
Olsen, 325 Mich App at 185 (quotation marks and citation omitted). “Incidental inconveniences such as increased traffic congestion, general aesthetic and economic losses, population increases, or common environmental
The circuit court held that appellants lacked standing to challenge the planning commission‘s decision to grant Heritage‘s permit applications where they failed to establish having suffered special damages or a unique harm not common to other property owners similarly situated. We acknowledge that Olsen distinguished between being aggrieved for purposes of appeal and having standing to litigate in the first instance. However, Olsen noted that, “[i]n either situation, a party must establish that they have special damages different from those of others within the community.” Olsen, 325 Mich App at 193, citing Lansing Sch Ed Ass‘n v Lansing Bd of Ed, 487 Mich 349, 372; 792 NW2d 686 (2010). In challenging the circuit court‘s conclusions, appellants here point to their participation in the proceedings below, and their raising concerns over how the proposed wind turbines would impact the environment, public health, property values, and the general aesthetic character of the area. Such concerns, however, do not show that appellants stand to suffer any greater negative impacts from the proposals than do their neighbors or others in the community. Heritage‘s site map, whose accuracy is not in dispute, illustrates the locations of the proposed wind turbines along with the residences of the various appellants. The map does not bring to light any special proximity of appellants to the proposed turbines, but instead suggests that appellants happen to be residents scattered about the community whose objections to the challenged zoning permits are more apparently driven by concerns of a general nature than by expected consequences of operation of the turbines peculiar to themselves.
Appellants also expressed concerns over the noise and “shadow flicker” that the turbines should be expected to produce. Appellants assert that the proposed turbines are to be located close enough to their residences that the noise and flicker the turbines generate will exceed what is allowed under the applicable ordinance provisions, and thus constitute “special damages” that arise to individual claims for recovery under private nuisance law. A violation of a zoning ordinance constitutes a public nuisance, and thus itself “gives no right of action to an individual and must be abated by the appropriate public officer.” Towne v Harr, 185 Mich App 230, 232; 460 NW2d 596 (1990). However, a private individual who can “show damages of a special character distinct and different from the injury suffered by the public generally” may bring an action to abate a public nuisance arising from the violation of a zoning ordinance. Id. Appellants in this case fail to specify who amongst them will clearly experience such noise or flicker above ordinance levels in connection with a particular proposed turbine. Accordingly, appellants also fail to distinguish themselves in this regard from the unsuccessful appellants in Olsen who were “asserting only the complaints of anticipated inconvenience and aesthetic disappointment that any member of the community might assert.” Olsen, 325 Mich App at 193. See also id. at 181, quoting Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 291; 715 NW2d 846 (2006) (“‘one must have some interest of a pecuniary nature in the outcome of the case, and not a mere possibility arising from some unknown and
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Deborah A. Servitto
/s/ Amy Ronayne Krause