MI Court of Appeals interprets MZEA provisions regarding appeal of site plan approval

by Hannah Dankbar

Julie Visser Trust v. City of Wyoming
(Michigan Court of Appeals, October 30, 2014)

In July 2012 the City of Wyoming rezoned a parcel of land from R-1, single family residential, to R-4, multifamily residential so John Lee Koetje, Koetje Investors Limited Partnership, and Koetje Investors-Chateau Limited Partnership could construct Phase 4 of Chateau Village Apartments.  Phases 1-3 of the project border the rezoned property. Visser Trust owns property zoned R-1 in Chateau Estates, due South of the property in question. In December 2012 after the rezoning, the Wyoming City Planning Commission approved Koetje’s revised site plan for construction. Visser Trust challenged (1) the site plan approval, and (2) the rezoning approval, and further raised issues concerning (3) an alleged Freedom of Information Act violation, (4) an illegal contract rezoning, and (%) a violation of negative restrictive covenants.  In July 2013 the trail court dismissed all counts, and Visser Trust appealed to the Michigan Court of Appeals.

Site plan. The trial court cited MCR 7.112(B) and said that because the plaintiff filed a complaint, and not an appeal of the planning commission’s site plan approval, the time for Visser Trust to object had passed. The Court of Appeals disagreed. The Michigan Zoning Enabling Act (MZEA) does not specifically address whether and how an interested party may challenge the approval or denial of a site plan. There is no statutory provision that requires the plaintiff to challenge the Planning Commission’s approval of the site plan in a specific manner, as opposed to a general civil complaint. The trial court therefore erred in dismissing this part of Visser Trust’s lawsuit.

Rezoning. The plaintiff argues that the rezoning was invalid, contending that after Koetje added nine conditions to its voluntary offer of conditions , the entire application should have gone back through the Planning Commission for an additional public hearing and recommendation.  The Court of Appeals rejected this argument.  The MZEA says the legislative body may refer any proposed amendments to the zoning commission for consideration and comment.  The word “may” indicates that the city council was not required to send the revisions back to the Planning Commission.

Contract zoning.  The plaintiff also argues that the rezoning was illegal “contract zoning”. MCL 125.3405 permits local governments to “approve rezoning subject to voluntary conditions offered by a landowner,” and lists several criteria for distinguishing between a legal voluntary offer and illegal contract zoning. Plaintiff submitted a letter from Koetje’s engineer regarding the rezoning, wherein Stalsonburg wrote that Wyoming “desires to accomplish this as ‘contract rezoning.’” Plaintiff argues that the letter supports the inference that Wyoming engaged in illegal contract zoning. Apart from the use of the phrase “contract rezoning” in the letter, however, plaintiff did not produce any any evidence that Wyoming required Koetje to agree to certain conditions.  The Court of Appeals affirmed the trial court’s dismissal of this count.

FOIA. Plaintiff argues that the trial court erred in dismissing its FOIA claim. Donald Visser submitted a FOIA request, but did not identify for whom the documents were being requested. The plaintiff referenced Donald Visser’s request in the complaint, but the trial court noted that plaintiff neither submitted the FOIA request, nor was the request submitted on plaintiff’s behalf. The plaintiff therefore did not have standing to bring a FOIA complaint.

Negative restrictive covenants. Plaintiff alleged that the subject property was at one time part of a larger parcel that contained the same restrictions as lots in the Chateau Estates—i.e. restricted to single-family development. The trial court found this accusation vague and unclear, and that plaintiff failed to produce any documentary evidence to prove this allegation.

“The essential elements of a reciprocal negative easement are: (1) a common grantor; (2) a general plan; and (3) restrictive covenants running with the land in accordance with the plan and within the plan area in deeds granted by the common grantor.”  The Court of Appeals affirmed the trial court’s findings that the questioned property was not part of the same development as the plaintiff’s property, and that the court was not able to find any documentation to support a contrary conclusion.

The trial court erred in determining that it did not have jurisdiction to hear plaintiff’s challenge to the site plan approval, but was affirmed in all other respects.

 

 

 

Tear down your 9,000 sq. ft. mansion (and Happy Valentines Day!)

by Gary Taylor

Thom and Lockwood Hills HOA v. Palushaj
(Michigan Court of Appeals, February 14, 2012)

The Thoms live in the Lockwood Hills development in Macomb County. The Palushajs purchased the parcel of land adjacent to the Thoms. Several deed restrictions apply to the lots in Lockwood Hills. The relevant restrictions provide that any home built must be a minimum of 100 feet from any adjacent homes, and that any home built must be a minimum of 40 feet from the side lot line.
During construction of the Palushaj’s 9,000 square foot mansion, the Thoms approached them with concerns that the new home potentially violated these deed restrictions.  The Palushajs apparently sought the advice of counsel and concluded that the restrictions were no longer valid and did not apply to their planned construction. They proceeded with construction of their home as planned, which ended up located 80 feet from the Thom’s home and approximately 28 feet from the side lot line.  After litigation spanning years, the Court of Appeals in this case was faced with the question of the appropriate remedy for the violation of the deed restriction.  The court observed that

[D]eed restrictions are a form of a contractual agreement and create a valuable property right. If a deed restriction is unambiguous, we will enforce that deed restriction as written unless the restriction contravenes law or public policy, or has been waived by acquiescence to prior violations, because enforcement of such restrictions grants the people of Michigan the freedom ‘freely to arrange their affairs’ by the formation of contracts to determine the use of land.

The court emphasized that it was “not faced with a situation where by innocent mistake a house was built that slightly encroached into the setback zone. Rather, we have a substantial,
intentional and flagrant violation of the setback requirements…”  In light of this, the court determined that demolition of all or part of the home to bring it into compliance with the deed restrictions was the only adequate remedy available to be imposed by the courts.

OBSERVATION:  This is a case involving violation of home owners association covenants.  Would the court have been as merciless if it were a zoning violation?

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