|Case Forum:||Michigan Supreme Court|
|Keywords:||ripeness doctrine, Michigan Zoning Enabling Act (MZEA), use variance, zoning ordinance, Zoning Board of Appeals (ZBA)|
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
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
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.
|MSC requested LDF amicus brief?||No|
Plaintiff owns a small parcel in the City and sought to erect a