SPRUCE RIDGE DEVELOPMENT V BIG RAPIDS ZONING BD
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STATE OF MICHIGAN
COURT OF APPEALS
SPRUCE RIDGE DEVELOPMENT, L.L.C., and
THE HOLT TRUST,
UNPUBLISHED
June 16, 2009
Petitioners-Appellants,
v
BIG RAPIDS ZONING BOARD OF APPEALS,
No. 281745
Mecosta Circuit Court
LC No. 06-017468-AA
Respondent-Appellee.
Before: Zahra, P.J., and Whitbeck and M. J. Kelly, JJ
PER CURIAM.
Petitioners appeal by leave granted the trial court’s October 18, 2007 order affirming
respondent Big Rapids Zoning Board of Appeals’ (ZBA) denial of petitioners’ request for zoning
variances. Because we conclude that there were no errors warranting relief, we affirm.
The property in this case was zoned as R-1 residential district and consisted of 35 acres of
unimproved land. Petitioners specifically argued at the ZBA hearings that, on the northwest part
of the property, they wanted to mix duplexes with single-family structures. They did not specify
how many structures would be single-family and how many would be duplexes nor indicate how
the mixed structure area would be designed. Petitioners also asserted that they foresaw an
assisted living center being built on the southwest portion of the property, which would be
adjacent to apartment complexes to the south. Petitioners further indicated that the east half of
the property would contain single-family structures with no variances. In addition, eight acres of
the property on the east half of the property would not be developed. In order to facilitate this
planned development, petitioners requested a use variance to allow the construction and
maintenance of duplexes, and requested the two non-use variances to allow the lot size for
single-family structures to be reduced from 11,250 square feet to 7,500 square feet and the
maximum lot coverage to be increased to 30 percent from 25 percent. However, the ZBA denied
the requested variances.
On appeal, petitioners argue that the decision of the ZBA was not supported by
competent, material and substantial evidence on the record. Petitioners also argue that the ZBA
failed to apply the applicable use and non-use variance standards in rendering its decision.
In considering an appeal from a decision of a ZBA, the circuit court shall review the
record and decision to ensure that it is supported by competent, material, and substantial
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evidence on the record and that it represents a reasonable exercise of discretion. MCL
125.3606(1)(c), (d). In reviewing the lower court’s decision, this Court examines “whether the
lower court applied correct legal principles and whether it misapprehended or grossly misapplied
the substantial evidence test to the [ZBA]’s factual findings.” Boyd v Civil Service Comm, 220
Mich App 226, 234; 559 NW2d 342 (1996). We will not substitute our judgment for that of the
ZBA. C & W Homes, Inc v Livonia Zoning Bd of Appeals, 25 Mich App 272, 274; 181 NW2d
286 (1970). “The primary reason for this deference to the findings of the board of appeals is
obvious—its members are local residents who reside in the township and who possess a much
more thorough knowledge of local conditions, current land uses, and the manner of future
development desirable for those who reside in the township.” Szluha v Avon Charter Twp, 128
Mich App 402, 410; 340 NW2d 105 (1983). Variances should be sparingly granted, and “it is
not sufficient to show that the property would be worth more or could be more profitably
employed if the restrictions were varied to permit another use.” Puritan-Greenfield
Improvement Assoc v Leo, 7 Mich App 659, 668; 153 NW2d 162 (1967).
The decision of the ZBA was supported by competent, material, and substantial evidence
on the record; therefore, it should be affirmed. Janssen v Holland Charter Twp Zoning Bd of
Appeals, 252 Mich App 197, 201; 651 NW2d 464 (2002). Petitioners’ primary contention was
that no market existed in a price range where they could make a profit on the sale of lots
developed according to R-1 zoning because of the high infrastructure costs, but the “possibility
of increased financial return shall not of itself be deemed sufficient to warrant a variance.” Big
Rapids Zoning Ordinance, § 13.5:1. Moreover, petitioners did not present specific figures to
show how the infrastructure costs would be reduced and how those decreases would impact a
reasonable rate of return. In addition, the ZBA noted that the estimated infrastructure costs were
based on all of the property being developed and did not exclude the eight acres, which were not
going to be developed. Further, the ZBA found that petitioners’ inability to get a greater rate of
return was primarily due to them paying too much for the property.
In addition to noting these limitations, the ZBA made several findings, applied those
findings to the standards for variances, and concluded that the request should not be granted. See
Big Rapids Zoning Ordinance, § 13.6:1-13.7:2. The ZBA’s decision was based on the
information contained in the record before remand, which consisted of 28 documents providing
information relating to the property and the petitioners request for variances. In addition, the
ZBA considered new information that was presented by petitioners, which included a complete
appraisal, photographs, and updates and other factual information. The members of the ZBA
also properly relied upon their knowledge of local conditions and current land uses. See Szluha,
128 Mich App at 410. Moreover, one of the members of the ZBA was a real estate agent and she
noted that there was a weak market for selling property, not just in Big Rapids, but in Michigan,
and that there appeared to be no current demand for single-family residential structures or
duplexes.
The ZBA also doubted several of the comparisons made by petitioners relating to the
price for which the lots would sell. For example, petitioners asserted that the purchase price of a
lot on their property would range between $15,000 and $20,000 and the “Duray property,” which
was just north of the subject property, and also zoned R-1, provided a good example of how the
purchase price would be lower because the Duray property was comparable to their property and
lots on the Duray property sold for approximately $14,000. The ZBA noted that, although the
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Duray property had a variance granted to reduce the lot size to 7,500 square feet, an open area
was kept for all the people who lived there to use. The Duray property was also platted. There
was water and sewer and rough-in roads, which were already constructed. Thus, the decreased
price per lot could be explained because the property was already partially developed. It was
further noted that the Duray property was a small piece of property, only 3.4 acres, and allowing
a variance on a small piece of property was substantially different than allowing a variance on 35
acres.
Petitioners also asserted that comparable lots in a Sunset Manor subdivision sold for
$13,000, $16,500 and $22,000. However, the ZBA did not agree that these were valid
comparisons: it noted that the $13,000 lot had serious surface water problems that prevented it
from having a basement and that one of the other lots had serious grading problems. Thus, the
ZBA recognized that the decreased price per lot could be explained because there were problems
with the properties. Based on the foregoing, the ZBA clearly found that petitioners did not
submit “credible” proof that their property would not yield a reasonable return without the
requested variances. See Puritan-Greenfield Improvement Assoc, 7 Mich App at 667 (stating
that the property owner seeking a variance “must show credible proof that the property will not
yield a reasonable return if used only for a purpose allowed by the ordinance . . . .”).
Petitioners also argue on appeal that in denying the ordinances the ZBA inappropriately
relied on the city’s inability to enforce its own zoning ordinance. The ZBA expressed concern
about noise and other “trouble” that comes along with duplexes, as opposed to single-family
residences, noting that Big Rapids has had difficulty in the past controlling some of the things
that go on in duplexes. The concern directly corresponded with the ZBA’s obligation to ensure
that public safety is secured, which is an essential element in granting both a use and non-use
variance. See Big Rapids Zoning Ordinance, § 13.6:2 and 13.7:2. Thus, consideration of these
concerns was not improper.
Petitioners also argue that the ZBA inappropriately required petitioners to have a sketch
plan. Although the ordinance does not require petitioners to submit a sketch plan depicting its
proposed use for the property, it is apparent from the members’ comments at the hearings and
their factual finding regarding the lack of a sketch plan, that the ZBA members were not
provided any substantive showing of how the property would actually be developed if the
variances were approved. The ZBA was asked to rely on petitioners’ assertions that the
northwest portion of the property would be made up of intermittent duplexes and single-family
structures and that the southwest portion of the property would potentially contain an assisted
living center. The ZBA’s finding about the lack of a sketch plan was not improper considering
that it was a comment on the lack of information, i.e., that the ZBA was not provided with any
information from which to draw a conclusion as to how the property would actually be
developed.
In addition, petitioners argue that the ZBA inappropriately relied on the character of the
property at the time of purchase. The character of the property at the time of the purchase was
not one of the ZBA’s findings of fact. Moreover, even if the character of the property at the time
of the purchase was mentioned during the January and February 2007 hearings, this fact does not
diminish that there was competent, material, and substantial evidence on the record to support
the ZBA’s ultimate decision. Similarly, petitioners argue that the ZBA inappropriately relied on
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petitioners’ failure to provide an appraisal of the property at the time of purchase and analyzed
the use variance request as a rezoning. The ZBA did make those findings, but regardless of
petitioners’ assertion that these findings were inappropriate, the ZBA clearly articulated
substantial factual findings and applied those findings to the standards for use and non-use
variances resulting in there being competent, material, and substantial evidence on the record to
support the ZBA’s decision. Janssen, 252 Mich App at 201; MCL 125.3606(1)(c). The record
supports the conclusion that the ZBA’s decision represents the reasonable exercise of discretion
granted by law to the ZBA. MCL 125.3606(1)(d). In affirming the ZBA’s decision, the circuit
court applied correct legal principles and did not misapprehend or grossly misapply the
substantial evidence test to the ZBA’s findings.
Affirmed.
/s/ Brian K. Zahra
/s/ William C. Whitbeck
/s/ Michael J. Kelly
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