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Court of Appeals Overturns Variance for Cell Tower

Written by Lawrence Opalewski on March 2, 2020 Category: Land Use and Zoning, Michigan Land Use and Zoning

Any attorney who has appealed a land use or zoning decision in Michigan knows that courts are hesitant to overturn the decisions of local ZBAs or planning commissions. One recent case gives a roadmap of what a successful challenge to a local planning decision can look like.

In Kingsbury Country Day School v. Addison Township, a charter school appealed the Addison Township ZBA’s grant of a variance to the Township. The Township had requested the variance to facilitate its lease of Township-owned property to a cell tower company on a parcel adjacent to the school. The Township ordinance required lots hosting cell towers to be at least 20 acres in size.

The ordinance also required setbacks from adjacent properties to be at least the same distance as the height of the tower. The tower was proposed to be 197-feet high with only a 90-foot setback from the school’s property. The proposed placement of the tower would put the school’s playground in the tower’s “fall zone.” The ZBA granted the variance, and the school appealed to the circuit court. The circuit court ultimately affirmed the grant of the variance. The school again appealed, this time to the court of appeals.

On appeal, the school argued that the ZBA’s decision was not supported by competent, material, and substantial evidence. The school also argued that the ZBA failed to comply with its own variance ordinance and cell tower ordinance. The court of appeals agreed and reversed.

The Township and cell tower company made two arguments that are common among land use appeals. First, they argued that the court of appeals did not have jurisdiction to hear an appeal from the circuit court’s decision. The Michigan Court Rules provide that the court of appeals does not have jurisdiction of an appeal claimed by right of “a judgment or order of the circuit court on appeal from any other court or tribunal.” The Township argued that the ZBA in this case was acting as a tribunal when it granted the variance, and that the circuit court’s order affirming the grant of the variance therefore was an order on appeal from a tribunal.

The court of appeals rejected the Township’s argument regarding jurisdiction. The court noted the decision of the ZBA was made after a public hearing that did not have the characteristics of a judicial proceeding. Therefore, the school had a right to appeal the circuit court’s decision.

Second, the cell tower company argued that the school was not an “aggrieved party” and therefore had no standing to challenge the ZBA’s approval of the variance. The court noted that to be an “aggrieved party,” “the party must have ‘suffered some special damages not common to other property owners similarly situated.’ ” The court found that since the cell tower’s fall zone was adjacent to the school’s playground, the school had alleged unique damages sufficient to be an “aggrieved party.”

On the merits of the case, the school argued that the ZBA did not make findings of fact to show that the Township met the requirements for a variance. The court agreed that while the ZBA discussed various aspects of the variance and the cell tower, it did not make the specific findings of fact required by the ordinance for approval of the variance.

Specifically, the court found that the ZBA did not make findings as to at least 4 of the variance factors in the ordinance. Further, the court noted that the Township had not even applied for the correct variance. The court also observed that the Township’s application itself did not provide evidence to establish that a variance should be issued. The court ultimately reversed the approval of the variance. You can read the full opinion here.

This case shows that appeals of local planning and zoning decisions are winnable. The case is also a lesson to those same local authorities to support decisions with specific findings of fact consistent with controlling ordinances. Finally, applicants to local planning and zoning authorities should make sure applications are supported by sufficient evidence to warrant approval.

The attorneys at Dalton & Tomich, PLC are leaders in land use and zoning law. We handle requests to administrative bodies as well as appeals to the circuit court. If you have a project that needs approval from a planning commission or ZBA, please do not hesitate to contact us. We would be happy to speak with you.

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