Summary of a Recent
Judicial
Development in
Agriculture and Urbanization
Appellate Court Affirms Decision Allowing
Issuance of a Use Variance
Brandy L. BrownNational AgLaw Center Graduate Fellow
The Michigan Court of Appeals has affirmed a trial court's decision that affirmed a township zoning board of appeals decision to grant a use variance for a 250-unit residential development in an area zoned for agricultural use. Janssen v. Holland Charter Twp. Zoning Bd. of Appeals, 651 N.W.2d 464, 464-69 (Mich. Ct. App. 2002). The court ruled that the zoning board's decision did not constitute impermissible rezoning and that the evidence presented was sufficient to justify the board's decision to issue the variance. See id.
In September 1996, Baker Brokerage and Henry and Doris Pyle ("applicants") filed a rezoning application with the Holland Charter Township Zoning Board ("Zoning Board") requesting that several parcels of land, totaling approximately 115 acres be rezoned. See id. at 466. The land had been zoned as an A-Agricultural Zoning District. See id. The applicants wanted the land to be rezoned as an R-1 Single Family Residential Zoning District. See id.
The township's planning commission recommended to the zoning board that the application be denied. See id. The applicants subsequently amended their application by removing one fifteen-acre parcel. See id. This amendment left two contiguous parcels that consisted of approximately one hundred acres of land. See id. The planning commission recommended that the amended application be denied as well. See id.
The applicants subsequently filed a "use variance request" with the zoning board. See id. The applicants wanted "to have the density requirements changed so as to allow them to build a 400-unit residential development on the property." Id. Vistiana Properties, L.L.C., also an applicant, subsequently purchased the property. See id. The applicants then filed "an amended use variance petition which reduced the total units from 400 to 250." Id.
The zoning board granted this amended application. See id. Two rural landowners, John and Sally Janssen, plaintiffs, filed suit in circuit court against the zoning board. See id. The circuit court upheld the zoning board's decision. See id. The plaintiffs appealed the circuit court's decision to the Michigan Court of Appeals. See id.
The plaintiffs argued that "the circuit court erred in concluding that [the zoning board's] decision to grant the use variance did not constitute impermissible rezoning because a one hundred-acre parcel is too large a parcel of land to be the subject of a use variance." Id. The plaintiffs also contended that the zoning board's "decision to grant the use variance was not supported by competent, material, and substantial evidence on the record." Id. at 467. The Michigan Court of Appeals rejected both of these arguments. See id. at 466-68.
The court explained that "[t]he rules that determine when a zoning board of appeals may grant a use variance make no mention of the size of a parcel. A township board of appeals is a municipal administrative body whose duties include, among other functions, the granting of variances." Id. at 466 (citing Mich. Comp. Laws § 125.293 and Sun Communities v. Leroy Twp., 617 N.W.2d 42 (Mich. Ct. App. 2000)). The court stated that § 125.293 provides, in part, that:
Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the zoning ordinance, the board of appeals in passing upon appeals may vary or modify any of its rules or provisions so that the spirit of the ordinance is observed, pubic safety secured and substantial justice done.
Id. (quoting Mich. Comp. Laws § 125.293).
The court stated that the Holland Charter Township's zoning ordinance provides, in part, that:
The board of appeals shall have all powers and jurisdiction granted by the zoning act, all powers and jurisdiction prescribed in other articles of the ordinance and the . . . . jurisdiction and power to authorize, upon appeal, a variance or modification of this ordinance where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the this ordinance so that the spirit of this ordinance shall be observed, public safety secured and substantial justice done.
Id. at 467 (quoting Holland Charter Township Zoning Ordinance §20.2).
The appellate court stated that the laws governing the issuance of use variances did not mention of the size of the parcel. See id. The court's rationale was based on the fact that neither state nor local laws placed any size restrictions or limits on the size of the parcel. See id.
The court concluded that "[t]he plain and ordinary language of both the statute and the ordinance do not set forth any limitations based on the size of the property owner's parcel of land." Id. The court stated that "[t]o conclude, as the appellants urge, that the granting of a use variance to a large parcel of land constitutes de facto rezoning, we would have to, in effect, add an exclusion for such parcels to the above statute and the ordinance." Id. The court added that to do this would be "'beyond our authority because courts may not legislate.'" Id. (quoting Brandon Charter Twp. v. Tippett, 616 N.W.2d 243 (Mich. Ct. App. 2000)).
Next, the court examined the plaintiffs' argument that the zoning board's decision was unsupported by "competent, material, and substantial evidence on the record." Id. The court explained that a zoning board's decision "should be affirmed unless it is contrary to law, based on improper procedure, not supported by competent, material, and substantial evidence on the record, or an abuse of discretion." Id. (citing Reenders v. Parker, 551 N.W.2d 474 (Mich. Ct. App.1996)). The court also explained that "[a] township board of appeals has the authority to vary or modify any zoning ordinance to prevent unnecessary hardship if the spirit of the ordinance is observed, the public safety is secured, and substantial justice is done." Id. (citing Mich. Comp. Laws § 125.293 and Dowerk v. Oxford Charter Twp., 592 N.W.2d 724 (Mich. Ct. App.1998)). The court stated that to determine that a property owner has established "unnecessary hardship," a zoning board must determine on the basis of substantial evidence that:
(1) the property cannot reasonably be used in a manner consistent with existing zoning, (2) the landowner's situation is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning, (3) a use authorized by the variance shall not alter the essential character of a locality, and (4) the hardship is not the result of the applicant's own actions.
Id. (quoting Johnson v. Robinson Twp., 359 N.W.2d 526 (Mich. 1984) and Puritan-Greenfield Improvement Ass'n. v. Leo, 153 N.W.2d 162 (Mich. Ct. App.1967)).
The court concluded that the appellees "presented sufficient evidence to establish each of these criteria." Id. With respect to the first factor, the court noted that "'[w]hether property used in trade or business or held for the production of income can reasonably be used for a purpose consistent with existing zoning will, no doubt, ordinarily turn on whether a reasonable return can be derived from the property as then zoned.'" Id. (quoting Puritan-Greenfield, 153 N.W.2d at 162).
The court noted that the zoning board's decision was based upon "an analysis of the rental income received and the taxes assessed on the property as zoned." Id. The court also noted, "[i]n concluding that the applicants established by substantial evidence that they could receive no reasonable economic return for the property as zoned, the [zoning board] noted that the annual rental income for the farm was $6,000, and the annual rental income for the two residences on the property yielded $12,900." Id. The court added that the zoning board thus "concluded that the applicants could not realize a reasonable economic return, given the rental income from leasing the farm and the two houses." Id. The court concluded that the zoning board's determination that "the property cannot reasonably be used in a manner consistent with existing zoning was supported by competent, material, and substantial evidence on the record." Id. (citing Reenders, 551 N.W.2d at 474). The court also concluded that this same evidence supported the zoning board's decision that the hardship did not result from the applicants' own actions. See id. at 468.
Next, the court stated that the zoning board's determination "that the use authorized by the variance would not alter the essential character of the locality" was supported by competent, material, and substantial evidence. Id. The court stated that the locality's essential character was preserved because when the zoning board granted the use variance, it explained that the proposed development would provide "'a large area of open space around the perimeter of the property, thereby maintaining a buffer area between the proposed residential uses and the surrounding agricultural property.'" Id. The court stated that the zoning board also ensured the locality's essential character when it required that deeds conveying an interest in the subject property to inform purchasers of the neighboring farming activities. See id.
Finally, the court examined whether the applicants' plight was unique to the property. See id. The court noted that when the variance was granted the township's master plan envisioned that the subject land would eventually be used for residential purposes. See id. at 469. The court also noted that prior to the applicants' request, there had been approximately 50 instances where residential uses were allowed in areas that had previously been zoned agricultural. See id. The court stated that "[w]e believe that this shows that at the time the variance was sought, the hardship alleged was not due to the general conditions then existing in the area. In other words, the remedy does not necessarily lie in amendment of the zoning ordinance itself." Id. The court concluded that in light of the township's master plan "recognition of potential future growth specifically on lands zoned agricultural, we believe that restrained and managed development, in part through the issuance of use variances as the changing conditions create unique hardships for those remaining agricultural lands, is a reasoned approach." Id. The court added that this approach "satisfies the goals of upholding the spirit of the ordinance, protects public safety, and assures that substantial justice is done." Id. (citing Dowerk, 592 N.W.2d at 724).
This case was decided on July7 12, 2002; this summary was prepared November, 2002.