TWP OF COLDSPRINGS V KALKASKA CNTY ZONING BD OF APPEALS
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STATE OF MICHIGAN
COURT OF APPEALS
COLDSPRINGS TOWNSHIP,
FOR PUBLICATION
May 13, 2008
9:10 a.m.
Petitioner-Appellant,
v
No. 268753
Kalkaska Circuit Court
LC No. 05-008709-AA
KALKASKA COUNTY ZONING BOARD OF
APPEALS,
Respondent-Appellee,
Advance Sheets Version
and
LEE GANCER and GERALD GANCER,
Intervening Appellees.
Before: Bandstra, P.J., and Zahra and Owens, JJ.
ZAHRA, J.
Petitioner Coldsprings Township appeals by leave granted the dismissal for lack of
standing of petitioner’s appeal of the grant of zoning variances by respondent Kalkaska County
Zoning Board of Appeals to intervening appellees Lee and Gerald Gancer. We must determine
whether a municipality has standing to assert legal claims on behalf of residents affected by a
zoning decision. We hold that a municipality lacks standing to sue on behalf of those residents
and only has standing if the municipality can show that it suffered a concrete, particularized
injury. Petitioner failed to assert such an injury. We affirm.
I. Basic Facts
The Gancers own property in Coldsprings Township that fronts Manistee Lake. On
December 6, 2004, they filed a variance application with respondent, seeking to construct a new
home with an attached garage on the property with a 25-foot setback from the lake (later
determined by respondent to be a 30-foot setback) and to build a second garage on the property.
The applicable zoning ordinance required a 60-foot setback and prohibited a second garage of
less than 1,200 square feet on the property. At the time the application was filed, there was a
cottage on the subject property with a 28-foot setback, which they planned to raze. The existing
cottage was 24 by 44 feet, and the proposed new home was to be 46 by 52 feet with an attached
garage of 24 by 24 feet.
Respondent held a public hearing on January 5, 2005, at which the variance requests were
considered. Respondent asserts, and petitioner does not dispute, that notice of the hearing was
mailed to all property owners who owned property within 300 feet of the subject property as
required by the zoning ordinance. Since Gerald Gancer is the chairman of the Kalkaska County
Zoning Board of Appeals, he recused himself from the board when his variance requests were
heard. During the hearing, a letter from Mike Neubecker, petitioner’s supervisor was read. The
letter stated that the variances should be denied because a new construction or a remodeling
project that is less than 60 feet from the lake would contribute to poor water quality of the lake
because of erosion and “improper septic tanks and fields.” Respondent granted the Gancers
requested variances, with the setback set at 30 feet.
Petitioner filed the instant petition for review, arguing that granting the variance request
was inconsistent with §§ 1.02, 4.01, 16.01 of the Kalkaska County zoning ordinance, which
stated that the purpose of the applicable zoning restrictions was to preserve water quality and
prevent erosion and pollution. Petitioner also alleged that although the ordinance allowed
nonconforming uses to continue, nonconforming uses could not be enlarged or extended.
Respondent maintained that petitioner lacked standing to appeal the zoning decision
because it was not “a person having an interest affected by the zoning ordinance” within the
meaning of MCL 125.223(2) or MCL 125.585. (These statutes were repealed by 2006 PA 110,
effective July 1, 2006, but the repeal did not affect actions like the present action pending on that
date, see MCL 125.3702.) The trial court found that petitioner did not have standing under state
law or under the local ordinance and dismissed petitioner’s claim.
II. Standing
A. Standard of Review
Whether a party has standing is a question of law that is reviewed de novo by this Court.
Homer Twp v Billboards by Johnson, Inc, 268 Mich App 500, 504; 708 NW2d 737 (2005).
B. Analysis
At the onset, we note that petitioner conceded during oral argument that MCL 125.223(2)
cannot confer standing merely because “a person [has] an interest affected by the zoning
ordinance . . . .” Rather, as our Supreme Court made clear in Michigan Citizens for Water
Conservation v Nestlé Waters North America Inc, 479 Mich 280, 302; 737 NW2d 447 (2007),
“[t]he elements of individual and organizational standing must be met in environmental cases as
in every other lawsuit, unless the constitution provides otherwise.” To establish standing:
First, the plaintiff must have suffered an injury in fact—an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
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be fairly . . . traceable to the challenged action of the defendant, and not . . . the
result [of] the independent action of some third party not before the court. Third,
it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision. [Id. at 294-295 (citations and quotation marks
omitted).]
Petitioner claims that it, like a nonprofit corporation, has standing on behalf of its
residents who possess riparian rights to the lake. Whether a municipality can sue on behalf of its
residents is an issue of first impression in this state. There is no dispute that a nonprofit
organization has “standing to bring suit in the interest of its members if its members would have
standing as individual plaintiffs.” Id. at 296. However, petitioner’s “analogy of its
representation of its citizens to a private organization’s representation of its members
misconceives the very concept of associational standing.” Olmsted Falls, Ohio v Federal
Aviation Admin, 352 US App DC 30, 36; 292 F3d 261 (2002). Petitioner “does not have
‘members’ who have voluntarily associated . . . .” Id. at 37. Rather petitioner is “effectively
attempting to assert the alleged interests of its citizens under the doctrine of parens patriae.” Id.
Parens patriae “is a concept of standing utilized to protect those quasi-sovereign interests such
as health, comfort and welfare of the people, interstate water rights, general economy of the
state, etc.” Black’s Law Dictionary, (6th ed). However, “political subdivisions such as cities
and counties, whose power is derivative and not sovereign, cannot sue as parens patriae . . . .”
In re Multidistrict Vehicle Air Pollution MDL No 31, State of California v Automobile
Manufacturers Ass’n, Inc, 481 F2d 122, 131 (CA 9, 1973); see also Roseville v Norton, 219 F
Supp 2d 130, 141, (D DC, 2002); Safety Harbor v Birchfield, 529 F2d 1251 (CA 5, 1976);
United States v WR Grace & Co-Conn, 185 FRD 184 (D NJ, 1999); City of New York v Heckler,
578 F Supp 1109, 1123 (ED NY, 1984); Warren Co v North Carolina, 528 F Supp 276, 283 (ED
NC, 1981).
Because petitioner here cannot sue as parens patriae on behalf of its residents with
riparian rights, petitioner must show that it, and not merely certain residents, is detrimentally
affected by respondent’s approval of the zoning variances in a manner distinct from the interest
of the general public. Nestlé, supra at 294. Here, petitioner broadly asserts that it has an interest
in the lake to protect the health, safety, and welfare of its citizens from pollution and its effects.
These claimed harms, however, are not at all distinct from those of the general public and are
indeed purported to be consistent with the interest of the general public. Petitioner presented no
evidence that it suffered any specific injury. The record below does not indicate that petitioner
owned, used, or had access to the lake or that it “enjoyed a recreational, aesthetic, or economic
interest” in the lake. Id. at 297. Petitioner thus failed to establish that it has a substantial interest
in the lake, detrimentally affected by respondent’s approval of the zoning variance, distinct from
the interest of the general public. The absence of a concrete, particularized injury in fact is fatal
to petitioner’s standing to challenge respondent’s approval of the zoning variance.
Affirmed.
/s/ Brian K. Zahra
/s/ Richard A. Bandstra
/s/ Donald S. Owens
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