SAUGATUCK DUNES COASTAL ALLIANCE v SAUGATUCK TOWNSHIP
Nos. 160358 and 160359
Michigan Supreme Court
July 22, 2022
WELCH, J.
Chief Justice: Bridget M. McCormack; Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch; Reporter of Decisions: Kathryn L. Loomis
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
SAUGATUCK DUNES COASTAL ALLIANCE v SAUGATUCK TOWNSHIP
Docket Nos. 160358 and 160359. Argued on application for leave to appeal October 7, 2021. Decided July 22, 2022.
Appellant, Saugatuck Dunes Coastal Alliance, brought two separate actions in the Allegan Circuit Court against Saugatuck Township, the Saugatuck Township Zoning Board of Appeals (the ZBA), and North Shores of Saugatuck, LLC, appealing the ZBA’s decision that appellant lacked standing to appeal the zoning decision of the Saugatuck Township Planning Commission (the Commission) concerning a proposed residential site condominium project on property owned by North Shores. North Shores applied for approval of a planned unit development that would include condominium units with a private marina, which required special use approval. The Commission granted conditional, preliminary approval, and appellant appealed the approval to the ZBA, invoking Saugatuck Township Ordinance, § 40-72 and the Michigan Zoning Enabling Act (the MZEA),
In an opinion by Justice WELCH, joined by Chief Justice MCCORMACK and Justices BERNSTEIN, CLEMENT, and CAVANAGH, the Supreme Court, in lieu of granting leave to appeal, held:
The MZEA does not require an appealing party to own real property and to demonstrate special damages only by comparison to similarly situated real-property owners; Olsen, 325 Mich App 170, Joseph v Grand Blanc Twp, 5 Mich App 566 (1967), and related Court of Appeals decisions were overruled to the limited extent that they required (1) real-property ownership as a prerequisite to being “aggrieved” by a zoning decision under the MZEA and (2) special damages to be shown only by comparison to similarly situated real-property owners. Additionally, “aggrieved” has the same meaning in
1.
2. To be a “party aggrieved” under
3. Several well-established principles that are relevant to the standing analysis were reaffirmed. Under the current MZEA, mere ownership of real property that is adjacent to a proposed development or that is entitled to statutory notice, without a showing of special damages, is not enough to show that a party is aggrieved. Additionally, generalized concerns about traffic congestion, economic harms, aesthetic harms, environmental harms, and the like are not sufficient to establish that one has been aggrieved by a zoning decision; however, a specific change or exception to local zoning restrictions might burden certain properties or individuals’ rights more heavily than others. Further, unlike in an original lawsuit, a circuit court sits as an appellate body with a closed record when reviewing an appeal brought under
4. The term “aggrieved” must be given the same meaning in both
Olsen, Joseph, and related Court of Appeals decisions are overruled to the limited extent that they (1) require real-property ownership as a prerequisite to being “aggrieved” by a zoning decision under the MZEA and (2) require special damages to be shown only by comparison to similarly situated real-property owners; Part IV of the Court of Appeals opinion is vacated; Allegan Circuit Court’s judgment regarding standing is vacated; and the cases are remanded to the Allegan Circuit Court for reconsideration of appellant’s arguments regarding standing under
Justice VIVIANO, joined by Justice ZAHRA, dissenting, would have held that to appeal the decision of the ZBA, plaintiff needed to show that its members would suffer some harms that were different from the harms suffered by similarly situated community members and that the Court of Appeals correctly determined that plaintiff had not made that showing because the harms alleged were either common to other similarly situated community members or were not damages as a result of the decision of the Commission or the ZBA. The Court of Appeals in this case correctly understood that whether a party has standing is a distinct inquiry from whether a party is “aggrieved” for purposes of the MZEA. And because there has been long and consistent interpretation of the phrase “party aggrieved” in Michigan zoning jurisprudence, it was not only proper, but necessary, for the Court of Appeals to consider that caselaw in determining whether plaintiff was a “party aggrieved” under
SAUGATUCK DUNES COASTAL ALLIANCE, Plaintiff-Appellant, v SAUGATUCK TOWNSHIP, SAUGATUCK TOWNSHIP ZONING BOARD OF APPEALS, and NORTH SHORES OF SAUGATUCK, LLC, Defendants-Appellees.
Nos. 160358-9
Michigan Supreme Court
FILED July 22, 2022
OPINION
BEFORE THE ENTIRE BENCH
This case requires us to determine what it means to be aggrieved for purposes of appealing certain land-use decisions to a zoning board of appeals,
Appellant, Saugatuck Dunes Coastal Alliance,1 argues that the lower courts erred when they found that the Michigan Zoning Enabling Act (MZEA),
As explained later in this opinion, to be a “party aggrieved” under
It is not clear whether the lower courts would have reached the same result as to appellant’s standing in the absence of errors in then-binding precedent. Accordingly, we vacate Part IV of the Court of Appeals opinion and the Allegan Circuit Court’s judgments as to standing and remand both cases to the circuit court for reconsideration of appellant’s standing arguments under
I. FACTUAL AND PROCEDURAL BACKGROUND
At issue are two separate zoning decisions the Commission made concerning a proposed residential site condominium project that includes a marina and boat basin with boat slips2 on property owned by North Shores of Saugatuck, LLC (North Shores). North
Shores owns approximately 300 acres of land with frontage on the north shore of the Kalamazoo River and on Lake Michigan. The proposed development that is the subject of the appeal occupies a residentially zoned subset of the larger parcel that North Shores refers to as the “Harbor Cluster.”
North Shores applied for approval of a planned unit development.3 The planned unit development would include 23 residential site condominium units4 surrounding
A. PLANNING COMMISSION AND ZONING BOARD OF APPEALS DECISIONS
The Commission granted conditional, preliminary approval of the proposed planned unit development and the special use approval for the marina on April 26, 2017. Invoking Saugatuck Township Ordinance, § 40-72 and the MZEA, appellant appealed these preliminary approvals to the ZBA in June 2017 and provided supplemental arguments in September 2017. With the supplemental arguments, appellant attached affidavits from some of its members to establish standing to appeal under
At a hearing on October 11, 2017, the ZBA heard comments from the public, including from members of appellant and from appellant’s counsel. The ZBA adopted a resolution that relied on Unger v Forest Home Twp, 65 Mich App 614; 237 NW2d 582 (1976), and decided that appellant lacked standing to appeal the Commission’s decision. The ZBA framed the allegations raised by appellant’s members as complaints that might be true of any proposed development in the area and found that appellant had not demonstrated any special damages—environmental, economic, or otherwise—that would be different from those sustained by the general public as a result of the proposed
development. Appellant appealed the ZBA’s decision in the Allegan Circuit Court and added two original claims: one for declaratory and injunctive relief and another seeking abatement of an alleged nuisance.
While the first appeal was pending, North Shores obtained various state and federal approvals and applied to the Commission for final approval of the planned unit development, which included the marina. The Commission granted final approval on October 23, 2017. Appellant appealed this decision to the ZBA in a written statement dated December 7, 2017. Prior to the public hearing scheduled for April 9, 2018, appellant again submitted a letter providing a detailed basis for its standing and the alleged merits of its appeal. The letter raised arguments regarding the depositing of dredge spoils within 300 feet of some members’ property and the potential adverse
B. CIRCUIT COURT DECISIONS
The appeal from the October 11, 2017 ZBA decision was assigned Case No. 17-058936-AA. In that case, the circuit court incorporated by reference a prior circuit court opinion addressing appellant’s standing to appeal a different land-use decision involving different portions of property that North Shores now owns. Relying on this prior opinion and its analysis of Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010), the circuit court affirmed the ZBA’s decision and dismissed the appeal on February 6, 2018. The circuit court did not, however, address the original claims that appellant raised in this case. The appeal from the April 9, 2018 ZBA decision was assigned Case No. 18-059598-AA. On November 14, 2018, relying on the oral statements made on the record, the circuit court affirmed the ZBA’s decision and dismissed the appeal.
C. COURT OF APPEALS DECISION
Appellant appealed both circuit court decisions in the Court of Appeals, and the Court of Appeals consolidated the cases.6 Saugatuck Dunes Coastal Alliance v Saugatuck Twp, unpublished order of the Court of Appeals, entered January 22, 2019 (Docket Nos. 342588, 346677, and 346679).7 After determining that it had jurisdiction, the Court of Appeals affirmed the circuit court’s and ZBA’s decisions holding that appellant lacked standing to appeal because appellant was not a “party aggrieved” by the approvals. Saugatuck Dunes Coastal Alliance v Saugatuck Twp, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2019 (Docket Nos. 342588 and 346677), pp 3-5.
The panel relied on Olsen, 325 Mich App 170, and
Olsen, 325 Mich App at 180. But under
The panel echoed Olsen’s holding that ownership of adjacent land, entitlement to notice, “ ‘[i]ncidental inconveniences, such as increased traffic congestion, general aesthetic and economic losses, population increases, or common environmental changes’ were all deemed inadequate to establish that a party is ‘aggrieved.’ ” Id. at 5, quoting Olsen, 325 Mich App at 185. “Ecological harms” and “[c]oncerns over potential harms are also insufficient, at least where there is some basis, such as health and building permit requirements, to conclude that the potential is unlikely to become actual.” Saugatuck Dunes Coastal Alliance, unpub op at 5, citing Olsen, 325 Mich App at 186-187. The panel did not read Olsen to preclude “any possibility that such harms could result in a party being aggrieved” if it was “specifically or disproportionately” affected “in a manner meaningfully distinct from ‘other property owners similarly situated.’ ” Saugatuck Dunes Coastal Alliance, unpub op at 5. But the panel concluded that appellant’s arguments were incorrect to the extent that they referred “to injuries that differ from ‘the public at large.’ ” Id. While recognizing that appellant submitted affidavits “apparently tending to show that the affiants will suffer harms distinct from the general public,” id., the Court reasoned that appellant had not met the standard established by Olsen:
Plaintiff has not shown, however, that the affiants will suffer harms distinct from other property owners similarly situated. A party generally cannot show a sufficiently unique injury from a complaint that “any member of the community might assert.” Olsen, 325 Mich App at 193. We reiterate that we do not consider whether plaintiff might have standing in an appropriate procedural context. However, some of the affiants are not even actual owners of nearby property; and otherwise all of the articulated concerns are either speculative, broad environmental policy matters, or pertain to harms that could be suffered by any nearby neighbor, business, or tourist. Irrespective of the seriousness of those harms, or of whether those harms might differ from the citizenry at large, the trial court properly concluded that plaintiff was not an aggrieved party pursuant to MCL 125.3605, so plaintiff’s appeals were correctly dismissed. See id. at 194. [Saugatuck Dunes Coastal Alliance, unpub op at 5 (emphasis added).]
However, the panel remanded Docket No. 342588 to the circuit court for plenary consideration of the original claims that appellant had raised in that case.
II. ANALYSIS
We directed the parties to address three issues. Saugatuck Dunes Coastal Alliance v Saugatuck Twp, 505 Mich 1056, 1056 (2020). First, whether the “ ‘party aggrieved’ standard of
A. ZONING APPEALS UNDER THE MZEA
Local governments have no inherent power to regulate land use, but the “Legislature has empowered local governments to zone for the broad purposes identified in” the MZEA at
Several provisions of the MZEA address the appellate process. “For special land use and planned unit development decisions, an appeal may be taken to the zoning board of appeals only if provided for in the zoning ordinance.”
zoning ordinance allows for an appeal from a planned unit development or special-landuse decision to a zoning board of appeals,
An appeal to the zoning board of appeals may be taken by a person aggrieved or by an officer, department, board, or bureau of this state or the local unit of government. . . . The zoning board of appeals shall state the grounds of any determination made by the board. [
MCL 125.3604(1) (emphasis added).]
(1) Any party aggrieved by a decision of the zoning board of appeals may appeal to the circuit court for the county in which the property is located. The circuit court shall review the record and decision to ensure that the decision meets all of the following requirements:
(a) Complies with the constitution and laws of the state.
(b) Is based upon proper procedure.
(c) Is supported by competent, material, and substantial evidence on the record.
(d) Represents the reasonable exercise of discretion granted by law to the zoning board of appeals. [Emphasis added.]
Zoning statutes in Michigan have a long history of making the ability to appeal an administrative zoning decision contingent on establishing that one was “aggrieved” by the decision. The Legislature included this requirement in the MZEA when it repealed the City and Village Zoning Act, the Township Zoning Act, and the County Zoning Act. 2006 PA 110. Each of those prior laws used the term “person aggrieved” to describe who could appeal a local zoning decision.9 Despite the prevalence of the terms “person aggrieved” and “party aggrieved” in Michigan’s zoning laws for the better part of a century, our Legislature has never defined what it means to be aggrieved by a zoning decision.10 That task now falls to this Court.
1. HISTORICAL UNDERSTANDING OF THE TERM “AGGRIEVED”
We do not approach our task with a blank slate. The meaning of “aggrieved” has been developing in the Court of Appeals for decades. Many of the seminal cases addressing the meaning of “aggrieved” under prior zoning statutes were never appealed to this Court. This is the first opportunity for us to decide this issue on the merits. In 1965, the Court of Appeals recognized a national consensus “that to have any status in court to attack the actions of a zoning board of appeals, the party must be an aggrieved party, and said party must be more than a resident of the city.”11 Marcus v Busch, 1 Mich App 134, 136; 134 NW2d 498 (1965), citing 58 Am Jur, Zoning, § 253 (1956); Anno: Construction and Application of Provisions for Variations in Application of Zoning Regulations and Special Exceptions Thereto, 168 ALR 133 (1947); 8 McQuillin, Municipal Corporations, § 25.292 (3d ed rev 1957).
A few years later, the Court of Appeals decided Joseph v Grand Blanc Twp, 5 Mich App 566; 147 NW2d 458 (1967). Joseph concerned a township resident’s original action challenging the adoption of an ordinance that rezoned certain property within the township. Id. at 569-570. The plaintiff, who owned land about one mile from the rezoned property, had not alleged special damages. Id. The Court acknowledged that Marcus held that in the absence of special damages, the plaintiff could not contest the decision in court. Id. at
570-571. The Court then linked its special-damages analysis to property ownership specifically:
In order to maintain this action, plaintiff, a nonabutting property owner, must allege and prove that he has suffered a substantial damage which is not common to other property owners similarly situated. Victoria Corporation v. Atlanta Merchandise Mart, Inc. (1960), 101 Ga App 163 (112 SE2d 793). See comment in 64 MLR 1070, 1079. In his complaint, plaintiff claims that because of this rezoning, traffic will be increased on the dirt road fronting on his property; because of this, he will suffer economic and aesthetic losses. The record further discloses that the question of whether or not plaintiff suffered special damage was before the court for a period in excess of 5 months, during which time special damages could have been alleged.
Other jurisdictions have held that a mere increase in traffic with its incidental inconvenience did not constitute a substantial damage and, therefore, the plaintiff was not considered to be an aggrieved party. The reasoning in the cases is that such increase in traffic congestion, with its attendant difficulties for property owners whose property fronts on the street, is a matter which addresses itself to the police authorities of the municipality rather than to the zoning authorities. [Joseph, 5 Mich App at 570-571 (citation omitted; emphasis added).]
The addition of a “property ownership” requirement for zoning appeals was not analyzed in any way in Joseph. While Joseph involved a property owner challenging a rezoning decision, there was no discussion about why property ownership was itself key to one’s ability to contest a zoning decision or how that requirement could be derived from any of Michigan’s zoning statutes that were then in effect. Over time, Joseph repeatedly has been cited for the proposition that to be “aggrieved” by a zoning decision for purposes of an appeal, a comparison to other property owners is required, which implicitly requires the complaining party to be a property owner. As the quotation above shows, Joseph’s standard came from a single Georgia Court of Appeals decision and a student-authored law-review comment. Both were questionable sources of authority for Michigan law then, and they remain questionable today.12
The Court of Appeals in this case relied on the recent decision in Olsen, 325 Mich App 170. Olsen concerned an appeal from an original variance decision by a zoning board of appeals and addressed the “party aggrieved” standard in
Given the long and consistent interpretation of the phrase “aggrieved party” in Michigan zoning jurisprudence, we interpret the phrase “aggrieved party” in § 605 of the MZEA consistently with its historical meaning. Therefore, to demonstrate that one is an aggrieved
party under MCL 125.3605 , a party must “allege and prove that he [or she] has suffered some special damages not common to other property owners similarly situated[.]” Unger, 65 Mich App at 617. Incidental inconveniences such as increased traffic congestion, general aesthetic and economic losses, population
increases, or common environmental changes are insufficient to show that a party is aggrieved. See id.; Joseph, 5 Mich App at 571. Instead, there must be a unique harm, dissimilar from the effect that other similarly situated property owners may experience. See Brink, 81 Mich App at 103 n 1. Moreover, mere ownership of an adjoining parcel of land is insufficient to show that a party is aggrieved, Village of Franklin, 101 Mich App at 557-558, as is the mere entitlement to notice, Brink, 81 Mich App at 102-103. [Olsen, 325 Mich App at 185.]
Olsen, thus, followed the precedent of linking a person’s ability to appeal a zoning decision to real-property ownership and comparison of the alleged harms to other property owners similarly situated. The Olsen panel went on to agree with the township that the appellees lacked standing to appeal in the circuit court. Id. at 193. In doing so, the panel rejected the appellees’ argument that they could rely on the prudential standard for standing adopted in Lansing Sch, 487 Mich 349, because the appellees had appealed a zoning board of appeals’ decision under the MZEA rather than commencing an original action. Olsen, 325 Mich App at 193.
2. “PARTY AGGRIEVED” UNDER MCL 125.3605
We specifically requested briefing on whether the “party aggrieved” standard in
Over time, the term “aggrieved” in the MZEA has become inappropriately intertwined with real-property ownership to a point where judicial decisions have begun to suggest that only real-property owners have the ability to appeal a zoning decision. In nearly every case already discussed in this opinion, the parties seeking to appeal a zoning decision premised their right to appeal primarily or solely on their ownership of real property near or adjacent to the land subject to the challenged decision. This context makes it unsurprising that most Court of Appeals decisions have focused on real-property ownership and the harms experienced by such property owners. But there is no indication in the text of the MZEA that the Legislature intended to grant the right to
We take this opportunity to set Michigan zoning law back on its proper trajectory. By requiring one to be a “party aggrieved” by a zoning decision under
The first part of this key phrase is easy enough to parse. To be a “party”14 under
There is no reference to an appellant’s property ownership in
This makes sense because zoning ordinances affect all who reside or do business within the local jurisdiction or community regardless of whether they own real property in that location. Zoning ordinances control land use, which affects where people can live and where businesses can operate. If being aggrieved by a zoning decision under the MZEA required proof of “ ‘special damages not common to other property owners similarly situated,’ ” Olsen, 325 Mich App at 185 (emphasis added), quoting Unger, 65 Mich App at 617, then all renters of real property (including business owners who lease space) within a jurisdiction would be effectively excluded from appealing zoning decisions.16 We can assume that this is no small group of hypothetical individuals or businesses.17 It is unlikely
that the Legislature intended to completely exclude leaseholders from those who may obtain judicial review of a zoning board of appeals’ administrative decisions by mere implication.
The Legislature, in fact, has specifically required “property ownership” as a statutory criterion in other parts of the MZEA. For example,
The Legislature omitted mention of ownership or occupancy status when describing the class of individuals or entities that are entitled to appeal a decision under
a. PROPERTY OWNERSHIP IS NOT REQUIRED TO APPEAL ZONING DECISIONS
As already discussed, Court of Appeals precedent incorrectly imposed an extra-statutory property-ownership limitation on the term “aggrieved” within the MZEA. While the purported requirement dates back to Joseph, that decision was
we decline to recognize an extra-statutory property-ownership requirement merely because a mistake has been repeated over time.19
b. WHAT IT MEANS TO BE AGGRIEVED BY A ZONING DECISION
We must decide the standard for determining when a potential appellant has
“aggrieved” had a settled meaning in Michigan outside the zoning context. Nearly 100 years ago, we stated that “ ‘[t]he question of who may be aggrieved was settled in Labar v. Nichols, 23 Mich. 310 [(1871)]. To be aggrieved, 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 future contingency.’ ” George Realty Co v Paragon Refining Co of Mich, 282 Mich 297, 301; 276 NW 455 (1937). It is not clear why the Joseph, Unger, and later decisions failed to mention this precedent when interpreting the term “aggrieved” within the context of zoning appeals.21 More recently, in the context of establishing standing to appeal a judicial decision, we reiterated that
standing refers to the right of a party plaintiff initially to invoke the power of the court to adjudicate a claimed injury in fact. In such a situation it is usually the case that the defendant, by contrast, has no injury in fact but is compelled to become a party by the plaintiff’s filing of a lawsuit. In appeals, however, a similar interest is vindicated by the requirement that the party seeking appellate relief be an “aggrieved party” under
MCR 7.203(A) and our case law. This Court has previously stated, “To be aggrieved, 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 future contingency.” In re Estate of Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948), citing In re Estate of Matt Miller, 274 Mich 190, 194; 264 NW 338 (1936). An aggrieved party is not one who is merely disappointed over a certain result. Rather, to have
standing on appeal, a litigant must have suffered a concrete and particularized injury, as would a party plaintiff initially invoking the court’s power. The only difference is a litigant on appeal must demonstrate an injury arising from either the actions of the trial court or the appellate court judgment rather than an injury arising from the underlying facts of the case. [Federated Ins Co, 475 Mich at 290-292 (citations omitted).]22
Additionally, Black’s Law Dictionary defines “aggrieved” as “([o]f a person or entity) having legal rights that are adversely affected; having been harmed by an infringement of legal rights” and defines “aggrieved party” as “[a] party entitled
We are tasked with now determining what it means to be aggrieved by a zoning decision. Synthesizing concepts from caselaw and Black’s Law Dictionary, as a general matter, to be aggrieved by a legal determination, one must have a protected interest or a protected personal, pecuniary, or property right that is or will be adversely affected by the substance and effect of the challenged decision. Moreover, despite some disagreements with prior Court of Appeals precedent, we agree with the longstanding requirement that a party appealing under the MZEA must demonstrate special damages as a part of demonstrating aggrieved-party status. This is a derivative of the requirement that the complaining party demonstrate injury to a protected right or interest. Such a requirement is necessary to balance the rights of private-property owners seeking zoning approval and
the interests of third parties seeking to ensure that local zoning ordinances are correctly and lawfully administered. Requiring an appellant to demonstrate special damages also aligns with how a majority of other jurisdictions have construed the requirement of being aggrieved in their zoning statutes.23 This requirement also aligns with the observations offered in a leading legal encyclopedia:
To maintain standing to challenge a zoning decision as an aggrieved person, a person must have and maintain a specific, personal, and legal interest in the subject matter of the appeal throughout the course of the appeal and must present proof of the adverse effect the changed status has or could have on the use, enjoyment, and value of his or her property. The zoning board decision must not only affect a matter in which the protestant has a specific interest or property right, but he or she must also be personally and specially affected in a way different from that of the public generally. [83 Am Jur 2d, Zoning and Planning (November 2021 update), § 882 (citations omitted).]
Based on our review of the statutes and other available authority, we hold that to be a “party aggrieved” under
- First, the appellant must have participated in the challenged proceedings by taking a position on the contested decision, such as through a letter or oral public comment.
- Second, the appellant must claim some legally protected interest or protected personal, pecuniary, or property right that is likely to be affected by the challenged decision.
- Third, the appellant must provide some evidence of special damages arising from the challenged decision in the form of an actual or likely
injury to or burden on their asserted interest or right that is different in kind or more significant in degree than the effects on others in the local community.
We use “others in the local community” to refer to persons or entities in the community24 who suffer no injury or whose injury is merely an incidental inconvenience and exclude those who stand to suffer damage or injury to their protected interest or real property that derogates from their reasonable use and enjoyment of it.25 Factors that can be relevant to this final element of special damages include but are not limited to: (1) the type and scope
of the change or activity proposed, approved, or denied; (2) the nature and importance of the protected right or interest asserted; (3) the immediacy and degree of the alleged injury or burden and its connection to the challenged decision as compared to others in the local community; and (4) if the complaining party is a real-property owner or lessee, the proximity of the property to the site of the proposed development or approval and the nature and degree of the alleged effect on that real property.26
We reaffirm several well-established principles that are relevant to the standing analysis. Under the current MZEA, mere ownership of real property that is adjacent to a proposed development or that is entitled to statutory notice, without a showing of special damages, is not enough to show that a party is aggrieved. See Olsen, 325 Mich App at 185; Village of Franklin, 101 Mich App at 557-558; Brink, 81 Mich App at 102-103. It also remains true that generalized concerns about traffic congestion, economic harms, aesthetic harms, environmental harms, and the like are not sufficient to establish that one has been aggrieved by a zoning decision. See Olsen, 325 Mich App at 185; Unger, 65 Mich App at 617. But we caution courts and zoning bodies against an overbroad construction of allegations as mere generalizations to avoid addressing the merits of an appeal. While generalized concerns are not sufficient, a specific change or exception to local zoning restrictions might burden certain properties or
likely will have standing to appeal under
Further, unlike in an original lawsuit, a circuit court sits as an appellate body with a closed record when reviewing an appeal brought under
3. INTERPLAY BETWEEN MCL 125.3604(1) AND MCL 125.3605
We also requested briefing as to whether there is a substantive difference between the “person aggrieved” standard in
in
Appellant meets the broad definition of “person” under
We also agree with the parties’ arguments that “aggrieved” must be given the same meaning in both
III. CONCLUSION
We overrule Olsen, Joseph, and related Court of Appeals decisions to the limited extent that they (1) require real-property ownership as a prerequisite to being “aggrieved” by a zoning decision under the MZEA and (2) require special damages to be shown only by comparison to other real-property owners similarly situated. Real-property ownership is not a requirement to appeal under the MZEA, and whether someone is “aggrieved” for purposes of claiming an appeal under the MZEA should be determined using the analysis laid out in Part II(B)(2)(b) of this opinion. It is not clear whether the lower courts would have reached the same result as to standing in the absence of the errors in existing precedent. Accordingly, we decline to decide whether the Court of Appeals erred when it affirmed the circuit court’s decisions. Instead, we vacate Part IV of the Court of Appeals opinion, vacate the Allegan Circuit Court’s judgment regarding standing, and remand both cases to the circuit court for reconsideration of appellant’s arguments regarding standing under
Elizabeth M. Welch
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
SAUGATUCK DUNES COASTAL ALLIANCE, Plaintiff-Appellant, v. SAUGATUCK TOWNSHIP, SAUGATUCK TOWNSHIP ZONING BOARD OF APPEALS, and NORTH SHORES OF SAUGATUCK, LLC, Defendants-Appellees.
VIVIANO, J. (dissenting).
The majority’s decision today to redefine what it means to be a “party aggrieved” for purposes of the Michigan Zoning Enabling
I. FACTS AND PROCEDURAL HISTORY
In 2017, the Saugatuck Township Planning Commission provided conditional approval and final approval for a condominium development proposed by defendant North Shores of Saugatuck, LLC (North Shores). Plaintiff, the Saugatuck Dunes Coastal Alliance, appealed those decisions to the Saugatuck Township Zoning Board of Appeals (the ZBA). Plaintiff submitted evidence in the form of written statements and testimony at the ZBA hearing that it contended gave it standing to appeal the decisions of the Planning Commission. The ZBA concluded that plaintiff lacked standing in two separate resolutions. Plaintiff appealed both resolutions in the circuit court, which affirmed both decisions of the ZBA. Plaintiff appealed both circuit court decisions in the Court of Appeals, which consolidated the cases. The Court of Appeals affirmed the circuit court’s decisions but remanded one case to the circuit court for it to consider the original claims plaintiff had raised in that case. Saugatuck Dunes Coastal Alliance v Saugatuck Twp, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2019 (Docket Nos. 342588 and 346677). Plaintiff then sought leave to appeal in this Court.
II. LEGAL ANALYSIS
A. “PARTY AGGRIEVED” AS USED IN MICHIGAN’S ZONING STATUTES IS A LEGAL TERM OF ART
To properly interpret “aggrieved” in the MZEA, a brief overview of the history of the appeal provisions in Michigan’s various zoning statutes is necessary. Michigan did not always have a single consolidated law governing local zoning, such as the MZEA. Previously, the state had three separate zoning statutes: (1) the City and Village Zoning Act, 1921 PA 207, later codified at
The City and Village Zoning Act used the term “person aggrieved” when providing for appeals to the ZBA, former
A host of cases before and after the 1979 amendments examined the “aggrieved” person or party standard. One case addressed zoning appeals and aggrieved-party status without looking to the statutes. In Marcus v Busch, 1 Mich App 134, 136; 134 NW2d 498 (1965), the Court of Appeals observed that “[t]he consensus of authority throughout the country is that to have any status in court to attack the actions of a zoning board of appeals, the party must be an aggrieved party, and said party must be more than a resident of the city.” Rather than determining whether the plaintiffs were aggrieved parties, the Court of Appeals remanded the case to the circuit court to make that determination. Id.
Two years later, the Court of Appeals in Joseph v Grand Blanc Twp, 5 Mich App 566, 570-571; 147 NW2d 458 (1967), relied on Marcus and other caselaw for the proposition that “[i]n order to maintain this action, plaintiff, a nonabutting property owner, must allege and prove that he has suffered a substantial damage which is not common to other property owners similarly situated.” The Court determined that the plaintiff, who was merely a resident of the township, was not an “aggrieved party” because he had not alleged any special damages “different in kind from those suffered by the community . . . .” Id. at 571. This caselaw was cited in Unger v Forest Home Twp, 65 Mich App 614, 617-618; 237 NW2d 582 (1975), to reject the appellant’s challenge of the issuance of a building permit for a condominium complex: while he claimed to own real property that bordered the land in question, he had not shown any special damages. For that reason, his allegations were insufficient to establish standing. Id. at 618. The Court of Appeals also rejected the appellant’s argument that the township’s zoning ordinance gave standing to any township property owner, noting that the ordinance was in conflict with
In Western Mich Univ Bd of Trustees v Brink, 81 Mich App 99; 265 NW2d 56 (1978), the Court of Appeals addressed an appeal of a ZBA decision in the circuit court under the City and Village Zoning Act. The Kalamazoo Zoning Board of Appeals had granted the defendant’s petition to expand a nonconforming use. Id. at 100. The plaintiff had wanted to purchase Brink’s property. Id. at 104. Unlike the three cases discussed above, the Court in this case did look to the zoning statute to determine who may appeal a
ZBA decision in the circuit court, noting that
Similarly, in Village of Franklin v Southfield, 101 Mich App 554, 556-558; 300 NW2d 634 (1980), the Court of Appeals applied the “party aggrieved” language from
The following year, in Brown v East Lansing Zoning Bd of Appeals, 109 Mich App 688, 699; 311 NW2d 828 (1981), the Court of Appeals applied the “person having an interest affected” standard after recognizing that it was a less-stringent standard than the “party aggrieved” standard. See also Olsen v Chikaming Twp, 325 Mich App 170, 189; 924 NW2d 889 (2018) (noting that Brown involved the more-permissive “person having an interest affected” standard). In Brown, the Court of Appeals determined that “active opposition” to a variance and participation in ZBA hearings was sufficient to demonstrate that an individual has an “interest affected” by a decision to grant a variance. Brown, 109 Mich App at 699, quoting
In 2006, the Legislature repealed the separate zoning acts and adopted the MZEA.
“The decision of the zoning board of appeals shall be final. A party aggrieved by the decision may appeal to the circuit court for the county in which the property is located as provided under section 606.”
Thus, the Legislature abandoned the “person having an interest affected” standard that had been in the original Township Zoning Act and County Zoning Act and the amended City and Village Zoning Act; instead, the Legislature adopted a “party aggrieved” standard similar to that in the original City and Village Zoning Act for appeals to circuit court from ZBA decisions pertaining to nonconforming uses.1
The Court of Appeals properly recognized the Legislature‘s adoption of the “party aggrieved” standard in Olsen, 325 Mich App 170, in which the Court sought to interpret the phrase “party aggrieved” in
Given the long and consistent interpretation of the phrase “aggrieved party” in Michigan zoning jurisprudence, we interpret the phrase “aggrieved party” in § 605 of the MZEA consistently with its historical meaning. Therefore, to demonstrate that one is an aggrieved party under
MCL 125.3605 , a party must “allege and prove that he [or she] has suffered some special damages not common to other property owners similarly situated[.]” Unger, 65 Mich App at 617. Incidental inconveniences such as increased traffic congestion, general aesthetic and economic losses, population increases, or common environmental changes are insufficient to show that a party is aggrieved. See id.; Joseph, 5 Mich App at 571. Instead, there must be a unique harm, dissimilar from the effect that other similarly situated property owners may experience. See Brink, 81 Mich App at 103 n 1. Moreover, mere ownership of an adjoining parcel of land is insufficient to show that a party is aggrieved, Village of Franklin, 101 Mich App at 557-558, as is the mere entitlement to notice, Brink, 81 Mich App at 102-103. [Olsen, 325 Mich App at 185 (alterations in original).]
Applying the principles from cases that had interpreted the phrase “aggrieved party” to the facts at issue, the Court concluded that the appellees had failed to show that they were aggrieved parties for purposes of the MZEA. Olsen, 325 Mich App at 186. The appellees had alleged that “they would suffer aesthetic, ecological, practical, and other alleged harms from the grant of the zoning variance,” but the Court held that these alleged harms did not show ” ‘special damages not common to other property owners similarly situated[.]’ ” Id. (alteration in original), quoting Unger, 65 Mich App at 617. The Court of Appeals specifically distinguished Brown, finding it “unpersuasive” on the ground that the “interest affected by the zoning ordinance” standard was “a more permissive threshold” than the “aggrieved person” threshold the MZEA incorporated. Olsen, 325 Mich App at 189. The panel concluded:
[W]e reiterate that the inquiry here involves not an application of concepts of standing generally, but a specific assessment of whether, under the MZEA, appellees have established their status as aggrieved parties empowered to challenge a final decision of the ZBA. We conclude that appellees are not parties “aggrieved” under
MCL 125.3605 , having failed to demonstrate special damages different from those of others within the community. [Olsen, 325 Mich App at 194.]
Just as in Olsen, the Court of Appeals in this case correctly understood that whether a party has standing is a distinct inquiry from whether a party is “aggrieved” for purposes of the MZEA.2 And because
B. THE COURT OF APPEALS CORRECTLY INTERPRETED “PARTY AGGRIEVED”
In light of this history, the first problem with the majority opinion is readily apparent: it goes to great lengths to rid Michigan caselaw of a rule that has never existed. The Court of Appeals has never held that a person must be a property owner to appeal a zoning decision or that, to determine aggrieved status, the appellant must be compared to property owners. Indeed, had the Court of Appeals made such an assertion, it would have been dicta, since none of the appellants in those cases was a nonproperty owner. Rather, in the cases discussed above, the Court of Appeals merely recognized that the parties challenging the ZBA decisions were, in fact, property owners. Therefore, those cases stand for the proposition that when a party challenging a ZBA decision is a property owner, the comparison is to other similarly situated property owners.3 Nothing in Joseph or its progeny ever held that a nonproperty owner may not be a “party aggrieved.”
Nor do the cases hold that the “similarly situated” component of the test requires comparing the appellant to property owners. That is, although the Court of Appeals asked in those cases whether the appellant had suffered injuries different from those experienced by similarly situated property owners, this was again because the appellants in those cases were property owners. The very nature of a “similarly situated” test entails comparing the appellant to individuals or entities who are, in fact, similarly situated (not just to property owners). The Court of Appeals caselaw appears to recognize this. In Olsen, 325 Mich App at 186, for example, the Court determined that the parties were not aggrieved because they “failed to show that they suffered a unique harm different from similarly situated community members . . . .” (Emphasis added.) Even Joseph, 5 Mich App at 571, concluded by noting that any damages alleged by the plaintiff were not “different in kind from those suffered by the community . . . .”4 As a result,
Second, and more importantly, even if the majority is correct that Joseph and the cases that relied on it incorrectly defined “aggrieved” for purposes of zoning law, our role in this case is not to determine whether “aggrieved” was properly understood in those cases but to determine what the Legislature meant when it used the term “party aggrieved” in the MZEA. For zoning in townships, the Legislature made the conscious choice to change from a standard that looked at whether one has “an interest affected” and to return to a standard that looked at whether one is “aggrieved.” Significantly, the Legislature had previously used an “aggrieved” standard in the state‘s zoning laws. “[C]ourts must pay particular attention to statutory amendments, because a change in statutory language is presumed to reflect either a legislative change in the meaning of the statute itself or a desire to clarify the correct interpretation of the original statute.” Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009); see also Scalia & Garner: Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 73 (” ‘[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.’ “), quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum L Rev 527, 537 (1947).
The Legislature‘s use of old legislation to craft new legislation is not an uncommon occurrence and can aid courts in the proper interpretation of new or revised legislation.
Most statutes have had many precursors because legislatures avoid the sudden, sporadic, and unexpected enactment of unprecedented legislation. A particular act usually expands or restricts the regulation of former acts, but seldom breaks with the principle of regulation expressed by its predecessors. . . .
Thus, a full appreciation of any specific enactment requires an examination of all legislation in a particular field. . . . Such an inquiry will usually reveal a legislative common law of surprising consistency and continuity, may help disclose the “legislative intent” behind a particular statute, and also can pave the way for constructive judicial use of legislative as well as case law precedents. [2A Singer & Singer, Sutherland Statutory Construction (7th ed, November 2021 update), § 45:10 (citations omitted).]
Absent any evidence that the Legislature thought those cases had been wrongly decided when it adopted the MZEA, the word “aggrieved” in
Thus, the question at issue is not whether Joseph and its progeny were correct; the question is what the Legislature intended when it chose to use the phrase “party aggrieved” in
In 2006, the phrase “party aggrieved” had acquired a particular meaning within zoning law—that given to it in Joseph, Unger, Brink, and Village of Franklin: when an individual challenges a ZBA decision, a party aggrieved was one who suffered some special damages not common to other similarly situated community members. As noted, because “party aggrieved” had received past judicial interpretation, it is presumed that the Legislature intended “party aggrieved” to have the same meaning given to it in prior zoning caselaw. See People v Wright, 432 Mich 84, 92; 437 NW2d 603 (1989).5 Absent any evidence to the contrary, the presumption that the Legislature intended “party aggrieved” to have the meaning consistently given to it by Michigan courts should stand. Regardless of whether it was originally proper to define “party aggrieved” to require a party to show that he or she “suffered some special damages not common to other property owners similarly situated,” Unger, 65 Mich App at 617, that requirement would have been part of the Legislature‘s understanding of the phrase “party aggrieved” when it enacted the MZEA.
C. THE MAJORITY‘S STANDARD WILL UNSETTLE AN AREA OF THE LAW THAT HAS BEEN SETTLED FOR DECADES
The majority, in rejecting the proper interpretation of the statute, adopts one that is troublesome in both its development and effects. In establishing the three new “party aggrieved” criteria, the majority appears to have spliced together bits and pieces from a number of other authorities. How exactly the majority arrived at these three criteria is not entirely clear. The majority discusses a number of cases—some pertaining to zoning law and others not—and statutes from other jurisdictions, but it does not cite specific authority for establishing the three criteria in our state. And the factors the majority announces for determining whether special damages exist, which appear to have been created out of whole cloth, are not discussed anywhere else in the majority‘s opinion. Thus, when courts have questions about how the criteria and factors should
Beyond the confusion created by the majority‘s method in establishing the criteria, the criteria themselves are problematic in a number of ways. First, the majority does away with the requirement that the harm suffered must be different from the harm suffered by those who are similarly situated. The “similarly situated” requirement ensures that only those who suffer damages different from those damages suffered by the community in general may appeal a zoning decision. See Boerner, Standing to Appeal Zoning Determinations: The “Aggrieved Person” Requirement, 64 Mich L Rev 1070, 1079-1080 (1966); Miller v Fulton Co, 258 Ga 882, 883; 375 SE2d 864 (1989).6 This Court‘s opinion in Spiek v Dep‘t of Transp, 456 Mich 331, 349; 572 NW2d 201 (1998), addressing an inverse-condemnation suit, demonstrates why such a requirement is necessary:
Where harm is shared in common by many members of the public, the appropriate remedy lies with the legislative branch and the regulatory bodies created thereby, which participate extensively in the regulation of vibrations, pollution, noise, etc., associated with the operation of motor vehicles on public highways. Only where the harm is peculiar or unique in this context does the judicial remedy become appropriate.
The same principle applies to zoning decisions appealed to and from a ZBA. If the basis for the appeal is that the underlying zoning ordinance is allowing for harm shared by many community members, the appropriate remedy is to have those community members urge the legislative body of the municipality to change the zoning ordinance. In any event, it seems inescapable that one person‘s special damages will likely be different in kind or more significant in degree than at least one other person‘s when the comparison is to everyone else in the community. Thus, by changing the relevant comparison to “others in the local community” instead of those who are “similarly situated,” the majority‘s standard significantly broadens who can qualify as “aggrieved.”
Second, the majority‘s expansion of what constitutes “special damages” also has the potential to dramatically expand who qualifies as “aggrieved.” Joseph required the special damages to be “different in kind from those suffered by the community . . . .” Joseph, 5 Mich App at 571. The majority‘s third factor expands this, making one aggrieved if the special damages are “different in kind or more significant in degree than the effects on others in the local community.” (Emphasis added.) It will almost always be possible to find “others in the local community” who have not suffered the same kind of damages or who have suffered them to a lesser degree. This hollows out the special-damages requirement and disregards its origins. The special-damages requirement comes from public-nuisance law. See 4 Rathkopf, The Law of Zoning and Planning (4th ed, June 2022 update), § 63:14. In Michigan, to bring an action to abate a public nuisance, one has to show ” ‘damage of a special character, distinct and different from the injury suffered by the public generally.’ ” Morse v Liquor Control Comm, 319 Mich 52, 59; 29 NW2d 316 (1947), quoting 39 Am Jur, p 378, overruled in part on other grounds by Bundo v Walled Lake, 395 Mich 679, 691-692 (1976). Joseph‘s focus
The majority‘s unsupported and unexplained addition of “degree” of harm to the inquiry is likely to have significant effects on zoning law in Michigan. Burdens and injuries to interests or rights will typically be more significant for those who are closer to the property for which a zoning decision was made. The degree of harm will typically continue to decrease for those farther and farther from the property at issue. Thus, the majority‘s standard will likely give “aggrieved” status to all but the most remote individual or entity who is least harmed by a zoning decision—as long as they will actually or likely suffer an injury.
The practical effect of the majority‘s new standard is that the threshold for who qualifies as “aggrieved” will be significantly more permissive. The majority ignores the Legislature‘s decision to abandon a “more permissive” standard for a narrower one and in the process upends decades of stability in Michigan zoning law.7
III. CONCLUSION
To appeal the decision of the ZBA, plaintiff needed to show that its members would suffer some harms that were different from harms suffered by similarly situated community members. The Court of Appeals was correct in determining that plaintiff had not made such a showing. The harms alleged were either common to other similarly situated community members or were not damages as a result of the decision of the Planning Commission or the ZBA. Therefore, I would affirm the judgment of the Court of Appeals.
David F. Viviano
Brian K. Zahra