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Request for Zoning Board of Appeals Rehearing Does Not Pause Claim of Appeal Time Limit

Parties aggrieved by a land use decision of a local body, such as a zoning board of appeals (ZBA) or a board of trustees, have the option to appeal that decision to the local circuit court. Examples of these decisions include rezonings, special land use applications, or variances.

When filing one of these appeals, it is critical to know the time limit for filing. MCL 125.3606(3) provides: An appeal from a decision of a zoning board of appeals shall be filed within whichever of the following deadlines comes first:

(a) Thirty days after the zoning board of appeals issues its decision in writing signed by the chairperson, if there is a chairperson, or signed by the members of the zoning board of appeals, if there is no chairperson.

(b) Twenty-one days after the zoning board of appeals approves the minutes of its decision.

This would appear to conclude the matter. But what about municipalities that allow petitioners to seek a rehearing from the ZBA? Does the rehearing pause the circuit court appeal timeline?

The Michigan Court of Appeals recently dealt with this exact issue. In Eveleigh v City of Charlevoix, No. 354984, 2021 WL 4932573 (Mich. Ct. App. Oct. 21, 2021), The Charlevoix County Zoning Administrator issued a building permit to the owners of a lot neighboring plaintiff’s property for the construction of a house. Plaintiff appealed that decision to the ZBA on the ground that the property constituted an illegal nonconforming lot. Plaintiff did not prevail at the ZBA. The ZBA formally adopted the order as final on April 1, 2019. Plaintiff sought rehearing but the ZBA denied her request. In July 2019, plaintiff filed suit seeking a writ of mandamus ordering the ZBA to hold a rehearing. The ZBA held a public meeting on September 18, 2019, at which plaintiff’s counsel advocated for rehearing. The ZBA determined by unanimous vote that no exceptional circumstances warranted rehearing.

Plaintiff ultimately filed a claim of appeal of the ZBA’s decision to the circuit court on December 6, 2019, seeking reversal of the ZBA’s decision and invalidation of the permit. The circuit court dismissed plaintiff’s appeal for lack of jurisdiction because it concluded that plaintiff was not a party aggrieved by the ZBA’s decision as required under MCL 125.3605 to invoke the appellate jurisdiction of the circuit court. Plaintiff appealed.

On appeal, the Court of Appeals agreed that Plaintiff was not an aggrieved party. Further, the court concluded that the claim of appeal was untimely. The court stated that while Plaintiff had the option to apply for rehearing at the ZBA, nothing in the state statute provided for a pause of the time limit to bring a claim of appeal. In other words, the same time limit applied whether or not Plaintiff sought a rehearing at the ZBA. Since Plaintiff’s claim of appeal did not fall withing the statutory deadline, the case was dismissed for lack of jurisdiction.

This decision underscores the importance of seeking counsel from a land use attorney when applying for or contesting a decision under a local zoning ordinance. No doubt, the plaintiff in this case thought she was preserving her right to bring a claim of appeal by applying for a rehearing when, in reality, she was waiving that right.

The attorneys at Dalton & Tomich, PLC have experience in bringing and defending claims of appeal from local land use decisions. If you are applying for land use approval or contesting an improper request, please do not hesitate to contact us. We would be happy to speak with you.

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