Amicus Brief

Houdini Properties v City of Romulus

Case Year: 2007
Case Forum: Michigan Supreme Court
Keywords: ripeness doctrine, Michigan Zoning Enabling Act (MZEA), use variance, zoning ordinance, Zoning Board of Appeals (ZBA)
Amicus Counsel:

Carol A. Rosati (P32288) | Johnson, Rosati, LaBarge, Aseltyne & Field P.C. | 34405 W. Twelve Mile Road Suite 200 | Farmington Hills, MI 48331-5627 | 248-489-4100

CoAmicus Parties:

State Bar Public Corporation Law Section (PCLS)


Put simply, Plaintiff’s position is inconsistent and incorrect. If Plaintiff truly believes that it has an independent, original cause of action, then Plaintiff’s claims asserted in this case clearly were not ripe. Contrary to the disingenuous arguments advanced by Plaintiff, the law does not require that the landowner either apply for a rezoning or a variance. Instead, the law clearly requires the landowner to make the applications necessary to obtain a final decision from the municipality as to the type and intensity of development that will be permitted on the property. Plaintiff sought a use variance from the ZBA, and nothing more. Plaintiff argued to the ZBA that the City’s Zoning Ordinance was unconstitutional and that a use variance was needed in order to provide Plaintiff with any reasonable use of the property. Plaintiff again raised the constitutional claims and arguments in the appeal of the ZBA decision to Circuit Court. To
hedge its bet, Plaintiff also filed this lawsuit, purporting to set forth an independent, original cause of action. The Circuit Court correctly determined that the claims in this case should have
been raised in the ZBA appeal, correctly ruled that the claims in this case were barred by res judicata, and correctly denied Plaintiff’s Motion for Leave to Amend in order to end this
litigation. The Michigan Court of Appeals reached the correct conclusion as well.


On November 8, 2007, the Court heard oral argument on the application for leave to appeal the June 13, 2006 judgment of the Court of Appeals. On order of the Court, the application is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and VACATE the Wayne Circuit Court’s orders of October 19, 2005, granting summary disposition pursuant to MCR 2.116(C)(6) and (7), on the grounds of failure to comply with MCR 2.203(A) and res judicata. The plaintiff’s claim of appeal pursuant to MCL 125.585(11) was not a “pleading.” MCR 2.110(A). As the defendant has acknowledged, the joinder rules of MCR 2.203 therefore do not apply to a claim of appeal from the decision of a zoning board of appeals. The decision of the circuit court on appeal from the zoning board of appeals’ denial of a use variance was not res judicata on the plaintiff’s constitutional claims. The zoning board of appeals did not have jurisdiction to decide the plaintiff’s substantive due process and takings claims. Under MCL 125.585(11), the circuit court’s review is confined to the record and decision of the zoning board of appeals. Therefore, the circuit court could not rule on takings issues in the plaintiff’s appeal. The Court of Appeals and the Wayne Circuit Court erred in relying on the rationale of the unpublished decision in Sammut v City of Birmingham, issued January 4, 2005 (Docket No. 250322). We REMAND this case to the Wayne Circuit Court for further proceedings not inconsistent with this order.
We do not retain jurisdiction.

MSC requested LDF amicus brief? No

Plaintiff owns a small parcel in the City and sought to erect a
billboard on that land. The subject property is zoned Regional Center (RC), under the City’s Zoning Ordinance. The RC zoning district is designated for large scale development suitable to
an area adjacent to the expanding Detroit Metropolitan Airport and Interstate 94. The subject area contains scattered single-family residential homes and vacant lots. Vacant land exists to the north of the subject property, the 1-94 expressway abuts the southern border, vacant land and Middlebelt Road exist to the east, and long-term parking facilities for the airport and the Extended Stay Hotel are adjacent to Plaintiffs property on the west. Many of the lots in the area have been purchased by the
Federal Aviation Authority or Wayne County, in part due to the property lying within the flight zones, and also in part due to a goal to redevelop the area for commercial uses consistent with,
and complimentary to, the Metropolitan Airport.
At the time of purchase, the property was zone BT,
Business Transitional, under the Zoning Ordinance. Billboards are not a permitted use in either the BT (former zoning) or the RC (current zoning districts). Billboards are, however, permitted
in other areas of the City, and exist elsewhere in the City.
In early 2004, consistent with amendments to the City’s Master Plan, and as the next step to 2001 Zoning Ordinance amendments which had eliminated the BT zoning, the subject
property and the surrounding 55 acres were rezoned to RC. Plaintiff received the required statutory notice of this rezoning, and did not appear at the public hearings or otherwise object
to the rezoning. On November 5, 2004, approximately six (6) years after purchasing the property, Plaintiff filed an application with the City of Romulus Zoning Board of Appeals (ZBA) seeking a use variance to develop the property with a billboard, a use never permitted on the property under the Zoning Ordinance. The application for use variance was reviewed by the City’s Planning Consultant. The Planning Consultant expressed the opinion that erecting a billboard would have a
negative impact on the surrounding neighborhood, and would cast a shadow on the lot to the north. On December 1, 2004, the ZBA denied Plaintiff’s request for a use variance.

Case Number: 2006-25
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