Knowing Your Zoning Appeal Deadlines Could be the Difference Between Development and Disappointment

Whether your next real estate project involves new construction, significant renovation, or even just changing the use of an existing building, there is a good chance you will need some type of municipal approval(s) before you can get started. Obtaining approvals like special use permits and variances can be a time-consuming and expensive effort, especially if your proposed project is met with public opposition or, worse yet, opposition from members of the municipal board or commission that will decide the fate of your project.

City councils, planning commissions, and zoning boards are comprised of citizens from any variety of backgrounds and they are inherently political bodies, whether their members are elected themselves, or appointed by those elected into office. As such, there can often be a variety of factors influencing their decisions on zoning applications—e.g., personal relationships, political pressures, undisclosed business interests, etc. Whether guided by one of these factors, or by an honest mistake in the interpretation of their zoning ordinance, zoning bodies sometimes deny an application that should rightfully have been approved. Thankfully, when that happens, applicants have the right to appeal the flawed decision to their local Circuit Court. However, like most things in life, when it comes to appealing zoning decisions, timing can be everything.

The importance of this last point was highlighted by a recent case from the Michigan Court of Appeals. In Quality Market v Detroit Board of Zoning Appeals, unpublished per curiam opinion of the Court of Appeals, issued December 19, 2019 (Docket No. 346014), the zoning applicant, Quality Market (the “Market”) purchased a certain type of liquor license from a former liquor retailer in their neighborhood. However, due to the Market’s close proximity to a school and location in a residential zoning district, the Market needed to obtain both use approval and a spacing variance from the City of Detroit (the “City”) before it could utilize its newly acquired liquor license. The Market was granted its requested use approval on the condition that it also obtain a spacing variance from City’s Board of Zoning Appeals (“BZA”).

Following a public hearing before the BZA on February 20, 2018, where members of the neighborhood appeared and voiced opposition to the requested variance, the BZA denied the Market’s request. The BZA’s denial was reflected in their meeting minutes, which were formally approved on February 27, 2018. The BZA then issued a written denial of the Market’s request on March 15, 2018, including the following incorrect guidance for appeal, “[a]n appeal from a decision of the Board shall be filed within 30 days after the Board issues its decision in writing signed by the chairperson.”

As mentioned above, following the denial of their zoning application, the Market had the right to appeal the BZA’s decision to the Circuit Court. Section 606(3) of the Michigan Zoning Enabling Act (MCL 125.3101, et. seq.) provides the following relevant time periods for Circuit Court appeals:

An appeal from a decision of a zoning board of appeals shall be filed within whichever of the following deadlines comes first:

(a) Thirty days after the zoning board of appeals issues its decision in writing signed by the chairperson, if there is a chairperson, or signed by the members of the zoning board of appeals, if there is no chairperson.

(b) Twenty-one days after the zoning board of appeals approves the minutes of its decision.

The Market filed their Circuit Court appeal on April 6, 2018, believing that their appeal was timely based on the erroneous instruction provided in the BZA’s written decision.

The BZA filed a motion to dismiss the Market’s appeal on the basis that the appeal was untimely. The Circuit Court denied the BZA’s motion and later even reversed the BZA’s decision, finding that the denial of the Market’s variance request was not supported by the evidence in the record. However, on further appeal to the Michigan Court of Appeals (“COA”), the COA held that, even though the BZA’s written decision was not a “model of clarity” with respect to the deadline for appeal, the plain language of Section 606(3) mandates that “the deadline for filing a claim of appeal is calculated from ‘whichever deadline comes first.’” The Market argued that the BZA’s written decision was misleading as to the appeal deadline and therefore the BZA should not be able to argue that the Market’s appeal was untimely. The COA disagreed and held that, because the BZA formally approved the meeting minutes reflecting the denial, Section 606(3) unambiguously required that the applicable deadline was 21 days from the minutes being approved (i.e., March 20, 2018) and thus the Market’s appeal was untimely and must be dismissed.

While your ultimate success on appeal of a zoning decision depends on much more than timing—i.e., the substance of the record supporting the zoning authority’s decision—the lesson to be taken away from this case is clear; zoning appeals must always be filed within the proscribed statutory timelines and applicants cannot rely on statements from the zoning authority as to when appeals may be filed. As demonstrated by the Market’s appeal, even an otherwise successful appeal will not survive if it is filed after the applicable deadline.

If your zoning request is denied, your attorney should take action immediately and, if you did not use counsel in the application process, you should promptly notify your attorney so that you can ensure that the Circuit Court will have jurisdiction to hear your appeal. Failing to understand your applicable deadlines could be the difference between a successful development and a bitter disappointment.

If you have questions about the matters raised in this alert, please contact Michael Vogt (Co-Chair of the State Bar of Michigan’s Land Use & Zoning Committee) at mvogt@dykema.com or 248-203-0739, or your regular Dykema contact.