STEVEN PERLMAN V CHARTER TOWNSHIP OF BLOOMFIELD
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STATE OF MICHIGAN
COURT OF APPEALS
STEVEN PERLMAN,
UNPUBLISHED
January 8, 2008
Plaintiff/Counter-DefendantAppellee,
v
CHARTER TOWNSHIP OF BLOOMFIELD, and
BLOOMFIELD TOWNSHIP ZONING BOARD
OF APPEALS,
No. 267493
Oakland Circuit Court
LC No. 2004-062677-AA
Defendants/Counter-PlaintiffsAppellants.
Before: Meter, P.J., and Talbot and Owens, JJ.
PER CURIAM.
Plaintiff built a sports court in his backyard without obtaining a building permit or the
required township approvals. Once the township became aware of the non-conforming and
illegally constructed structure, the township instructed plaintiff to obtain after-the-fact approval
for the structure from the Zoning Board of Appeals (ZBA). The ZBA denied the request to
approve the sports court as a permitted accessory structure. Plaintiff appealed the decision to the
circuit court, and the circuit court reversed the decision of the ZBA that denied approval of the
sports court as an accessory structure. However, the circuit court affirmed the ZBA’s denial of
approval for the fence associated with the court.1 Defendants appeal the circuit court’s decision
to this Court by leave granted. We remand for further proceedings.
Defendants argue that it was improper for the circuit court to view the property and to
consider both the aerial photograph showing other sports courts and the approval of another
sports court in June 2005, because by considering an expanded record, the circuit court
substituted its judgment for that of the ZBA. Defendants are correct that generally the circuit
court’s review is limited to the record before the ZBA. See, e.g., Northwestern Nat’l Casualty
1
Despite defendants’ arguments to the contrary, the fence is not at issue on appeal because the
circuit court affirmed the ZBA’s denial of approval for the fence. Plaintiff did not appeal that
ruling and has represented that the fence has been removed.
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Co v Comm’r of Ins, 231 Mich App 483, 496; 586 NW2d 563 (1998). Defendants, however,
have waived the instant issue. The circuit court specifically asked both parties if they would take
issue with the court’s looking at the property, and defendants’ attorney stated that they did not
object. Further, defendants did not object at the hearing below to the additional evidence
plaintiff presented in its reply brief, and it submitted additional evidence of its own for the circuit
court’s consideration. A party may not waive objection below and then argue on appeal that the
action taken was error. Czymbor’s Timber, Inc v Saginaw, 269 Mich App 551, 556; 711 NW2d
442 (2006).
Defendants next argue that the circuit court erred when it ruled that the ZBA did not have
the discretion to reject plaintiff’s request for approval of the sports court. The circuit court’s
decision in an appeal from a zoning board of appeals is reviewed de novo, although this Court
gives great deference to the circuit court’s and zoning board’s findings of fact. Norman Corp v
East Tawas, 263 Mich App 194, 198; 687 NW2d 861 (2004). A decision of a township zoning
board should be affirmed unless it was contrary to law, based on improper procedure, not
supported by competent, material, and substantial evidence on the record, or an abuse of
discretion. Century Cellunet of So MI Cellular Ltd v Summit Twp, 250 Mich App 543, 546; 655
NW2d 245 (2002); MCL 125.293a. Substantial evidence is “the amount of evidence that a
reasonable mind would accept as sufficient to support a conclusion. While it consists of more
than a scintilla of evidence, it may be substantially less than a preponderance.” In re Payne, 444
Mich 679, 692; 514 NW2d 121 (1994).
A zoning ordinance is subject to the rules governing the construction of statutes. Thomas
v New Baltimore, 254 Mich App 196, 206; 657 NW2d 530 (2002). If ordinance language is clear
and unambiguous, it must be enforced as written; judicial interpretation of plain language is
improper. Id. “Statutory language should be construed reasonably, keeping in mind the purpose
of the act.” Twentieth Century Fox Home Entertainment, Inc v Dep’t of Treasury, 270 Mich App
539, 544; 716 NW2d 598 (2006) (internal citations and quotation marks omitted). The fair and
natural import of the pertinent terms, in view of the subject matter of the law, governs. In re
Wirsing, 456 Mich 467, 474; 573 NW2d 51 (1998).
The parties do not dispute that the sports court is an accessory use and a “principal use
permitted” in the residential district where it is located. Such a use must be located as required
in “Article XV, General Provisions” of the township ordinance. Bloomfield Township Zoning
Ordinance, Article IV, § 400. The general provision governing accessory structures is § 1503 of
the ordinance. The parties do not dispute that the sports court meets the requirements of § 1503,
which require that an accessory use must be in a rear yard, at least 16 feet from the lot lines, and
not higher than one story. In dispute is whether the sports court is a structure that has sides
above the existing grade of the rear yard and that is, therefore, governed by § 1503(6) of the
ordinance, which specifically incorporates the additional standards of § 1804 of the ordinance.
“The omission of a provision in one part of a statute that is included in another part should be
construed as intentional . . . .” Polkton Charter Twp v Pellegrom, 265 Mich App 88, 103; 693
NW2d 170 (2005). Thus, if the sports court is not above the existing grade, then no other
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standards are included in the ordinance for the ZBA to consider, specifically, the standards of §
1804.
There is insufficient evidence on this record to determine if the sports court is above the
existing grade.2 If not, then the circuit court properly reversed the ZBA’s decision because the
sports courts complied with the applicable ordinance provisions. However, if the sports court is
above the existing grade, then the circuit court erred in reversing the ZBA’s decision, in light of
the considerable deference entitled to be given to the ZBA’s decision and in light of the
information from a real estate agent that a neighboring condominium was having trouble being
sold and that agents of prospective buyers had expressed concern regarding the location and size
of the sports court. This evidence implicated § 1804(7), involving the impairment of value of
neighboring properties, and provided sufficient justification for the ZBA’s ruling.
We remand this case for a determination involving whether the sports court has sides
above the existing grade.3
Remanded for further proceedings in accordance with this opinion. We do not retain
jurisdiction.
/s/ Patrick M. Meter
/s/ Michael J. Talbot
/s/ Donald S. Owens
2
The fence is not implicated in determining whether the structure was above the existing grade
because it has been dealt with separately, as indicated in footnote 1.
3
Contrary to the circuit court’s and plaintiff’s suggestions, there was no constitutional violation
here by way of the ZBA’s decision. Each sports court reviewed by the ZBA was a unique entity,
involving different neighbors and neighborhoods, and no equal protection violation is apparent.
See, e.g., Walker’s Amusements, Inc v City of Lathrup Village, 100 Mich App 36, 43; 298 NW2d
878 (1980).
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