ROY SMITH CO V AARO WASTE PAPER CO
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STATE OF MICHIGAN
COURT OF APPEALS
ROY SMITH CO. and ROY SMITH
INVESTMENT CO.,
UNPUBLISHED
July 2, 1999
Plaintiffs-Appellants,
v
No. 205640
Wayne Circuit Court
LC No. 96-691359 AA
AARO WASTE PAPER CO. and CITY OF
DETROIT,
Defendants-Appellees.
Before: Bandstra, C.J., and Whitbeck and Talbot, JJ.
PER CURIAM.
Plaintiffs, Roy Smith Co. and Roy Smith Investment Co. (collectively, “Smith”), appeal by leave
granted a circuit court order affirming the decision of the Detroit Board of Zoning Appeals (the “BZA”).
We reverse the circuit court order and remand to the BZA for further proceedings.
I. Basic Facts And Procedural History
This case involves proposed construction by Aaro Waste Paper Company (“Aaro”) of a waste
transfer and recycling facility on its property at 14333 Goddard Street in Detroit. Aaro’s property is
zoned M-4, “intensive industrial district.” Such a use is permitted as of right in an M-5 district, Detroit
Zoning Ordinance §105.0302, and therefore may be permitted with approval in the M-4 district. In
accordance with the procedure set forth in Detroit Zoning Ordinance § 65.0000, Aaro filed an
application with the Detroit Building and Safety Engineering Department (the “B&SE”), which denied
Aaro’s request to construct its proposed facility. Aaro appealed the decision to the BZA, which
reversed the decision of the B&SE. Smith, a property owner in the area of the proposed facility,
appealed this decision to the circuit court, pursuant to MCL 125.585(11); MSA 5.2935(11), which
affirmed the decision. Smith filed an application for leave to appeal with this Court, which was granted.
This Court reversed the decisions of the circuit court and the BZA, holding that the BZA did not make
the findings required by Detroit Zoning Ordinance § 65.0400. This Court remanded the case to the
BZA for further proceedings. On remand, the BZA agreed with its prior decision and again issued a
decision allowing Aaro to construct its proposed facility. Smith again appealed this decision to the
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circuit court pursuant to MCL 125.585(11); MSA 5.2935(11). The circuit court once more affirmed
the decision of the BZA. Smith filed a second application for leave to appeal, which this Court granted.
II. Standard Of Review
This Court reviews appeals from decisions by city zoning boards to circuit courts de novo;
however, we accord great weight to the findings of the circuit court. Rogers v Allen Park, 186 Mich
App 33, 36; 463 NW2d 431 (1990). This Court will grant appellate relief only if it is convinced that it
would have reached a different result sitting as the circuit court. Rogers, supra at 37.
III. Satisfaction Of The Zoning Ordinance Requirements
A. Introduction
On appeal, plaintiff argues that the BZA’s decision was not supported by competent, material
and substantial evidence, and therefore, that the circuit court erred in affirming the BZA’s decision. This
Court has previously explained the application of the City of Detroit’s zoning ordinances to the present
case:
This case involves the proposal of the [defendant Aaro] to construct and
operate a solid waste transfer and recycling facility on its property at 14333 Goddard
Street in Detroit. The property is zoned M-4, “intensive [] industrial district.” Pursuant
to Detroit Zoning Ordinance, § 104.0100, many “usually objectionable” uses, including
sewage disposal plants, are permitted as a matter of right in an M-4 district. The use
desired by Aaro is permitted as of right in an M-5 district, § 105.0302, and therefore,
may be permitted with approval in the M-4 district. § 104.0300. Section 65.0000 et
seq. of the zoning ordinance governs “permitted with approval uses.” [Roy Smith Co v
Detroit, unpublished opinion per curiam of the Court of Appeals, Docket No. 176318,
p 1.]
The findings made by a zoning board are inadequate if they merely repeat the language of an ordinance.
Badanek v Schroskey, 21 Mich App 582, 584-585; 175 NW2d 784 (1970). Furthermore, as we
said in our earlier decision, judicial review of a zoning board’s decision should not require this Court to
infer the board’s findings from its ultimate decision. Smith, supra at 4.
B. The Requirements Of The Ordinance
Detroit Zoning Ordinance §65.0400 sets forth the applicable standards, all of which must be
satisfied, for determining whether a “permitted with approval use” should be approved. The ordinance
states:
(A) No permitted with approval use shall be approved by the buildings and safety
engineering department or the board of zoning appeals on appeal unless all of the
following findings are made.
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(B) That the establishment, maintenance, location and operation of the proposed
permitted with approval use will not be detrimental to or endanger the social, physical or
economic well being of the surrounding neighborhoods, nor aggravate any pre-existing
physical, social or economic deterioration of surrounding neighborhoods[; and]
(C) That the permitted with approval use will not be injurious to the use and enjoyment
of other property in the immediate vicinity for the purposes permitted, nor substantially
diminish or impair property values within the neighborhood; and
(D) That the establishment of the permitted with approval use will not impede the
normal and orderly development and improvement of surrounding property f r use
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permitted in that district; and
(E) That adequate utilities, access roads, drainage, and other necessary facilities have
been or will be provided; and
(F) That adequate measures have been or will be taken to provide ingress and egress
designed so as to minimize traffic congestion in the public streets; and
(G) That the permitted with approval use will in other respects conform to the
applicable regulations of the district in which it is located.
C. The BZA’s Findings On Remand
Addressing the requirements of the ordinance on remand, the BZA made the following findings:
(1) The Board found that the establishment, maintenance, location and operation of the
proposed Rubbish Transfer Station will not be detrimental to, or endanger the social,
physical or economic well being of the surrounding neighborhoods, nor aggravate any
preexisting physical, social or economic deterioration of surrounding neighborhoods in
part because the premises are located in an intensive industrial district (M4) and per the
Zoning Ordinance a [sic] (M4) district will permit uses which are usually objectionable.
Therefore, to allow a Rubbish Transfer Station at this location would be in keeping with
the intent and purpose of a [sic] (M4) district in question.
(2) The Board further found that the Rubbish Transfer Facility will not be detrimental to
the social, physical or economic well being of the surrounding neighborhood because all
operations will be conducted within a building; furthermore, the proposed use is
consistent with the adjacent legal use of the block in question, a Rubbish Transfer
Station.
(3) The Board further found that although residential development exists within the
immediate area, the dwellings are nonconforming in a [sic] (M4) zone (Intensive
Industrial District), and therefore, subject to the objectionable uses and characteristics
of the existing uses permitted in the zone. Furthermore, a buffer exists between the
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existing residential property and the site in the forms of a railway line and industrial
development. Therefore, to permit the proposed use would not change or alter physical
and social characteristics of the area.
(4) The Board further found that the current use of the property as a trucking terminal
in a [sic] (M4) zone is an allowed use, and therefore, truck traffic and the loading
unloading [sic] of trucks is already occurring on the site, and is somewhat similar to
truck activity that will occur with the proposed use, and therefore, is not introducing a
new activity in the (M4) zone.
(5) The Board further found that the Rubbish Transfer Station will not impede the
normal and orderly development, and improvement of the existing and permitted uses in
the surrounding area because the site will be screened from view by eight foot walls and
landscaping which must be approved by the City Planning Commission, and the
Planning and Development Department, so as to assure that the facility will not be
detrimental to the surrounding land uses.
(6) The Board further found that adequate utilities, access roads, drainage, and other
necessary facilities are provided at the proposed location because the premises are
located in an established (M4) district that provides the necessary industrial
requirements relating to utilities, drainage, and other necessary facilities for objectionable
uses.
(7) The Board further found that the Rubbish Transfer Station will not create or
aggravate traffic congestion on the public streets because adequate ingress and egress
to the site will be provided, all staging of trucks must be within the boundaries of the
property, and all access routes to the site, and the design and location of all ingress and
egress to the property must be approved by the Department of Transportation to ensure
that adequate measures will be taken to minimize traffic congestion.
(8) The Board further found that allowing the Rubbish Transfer Station at the location
will not be detrimental to the property values of the existing industrial use in the area
because of conditions formulated by three City Departments. Specifically, conditions
established by the Board of Zoning Appeals, Buildings and Safety Engineering
Department, and the City Planning Commission have been placed on the proposed use
in order to ensure the use will be operated in a manner that will not be detrimental to or
endanger the social, physical or economic well being of the surrounding neighborhoods,
nor aggravate preexisting physical, social or economic deterioration of the surrounding
area.
(9) The Board further found that a R
ubbish Transfer Station will not endanger the
safety, health or general well being of residents and employees in the immediate area
because the operation will be monitored by State, County, and City Agencies licensing
such facilities.
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D. Injury To The Use And Enjoyment Of Surrounding Property
Smith argues that the only evidence presented to the BZA demonstrated that Aaro’s proposed
use would be injurious to the use and enjoyment of surrounding property. Specifically, Smith argues
that the evidence established that property values would decrease, thereby violating § 65.0400(C). As
noted above, the BZA made the following findings regarding property values:
The Board further found that allowing the Rubbish Transfer Station at the location will
not be detrimental to the property values of the existing industrial use in the area
because of conditions formulated by three City Departments. Specifically, conditions
established by the Board of Zoning Appeals, Buildings and Safety Engineering
Department, and the City Planning Commission have been placed on the proposed use
in order to ensure the use will be operated in a manner that will not be detrimental to or
endanger the social, physical or economic well being of the surrounding neighborhoods,
nor aggravate preexisting physical, social or economic deterioration of the surrounding
area.
The BZA found that property values would not suffer because of conditions placed upon Aaro’s
proposed use. This finding is contrary to the evidence before the BZA. The B&SE stated that Aaro’s
proposed waste facility would “endanger the . . . economic well being of surrounding properties.”
Further, Ronald Nelson of the Dean Appraisal Company, concluded that Aaro’s proposed use “would
have an adverse affect on property values in the area, including the [plaintiff’s] property.” On the other
hand, we are unable to find any evidence to refute Smith’s evidence that property values would decline.
Neither of defendants’ briefs on appeal cite any evidence which would support a conclusion that
property values would not decline.
Apparently, the BZA’s decision was based upon the belief that the conditions placed upon
Aaro would prevent property values from declining. When the case was remanded to the BZA, this
Court stated that “unless the evidence shows that the facility will not substantially diminish or impair
property values, and the BZA makes that finding, the BZA is precluded from approving the use.”
Smith, supra at 3. Here, the evidence does not show that property values will remain the same or
increase. On the contrary, the evidence presented to the BZA showed that property values would
decline. Because the evidence shows that property values will decline, we conclude that Detroit Zoning
Ordinance § 65.0400(C) has not been satisfied, and therefore, Aaro’s proposed use was erroneously
granted by the BZA. 1
E. Excessive Noise, Dust, And Odors; Fire Hazard
Smith argues that the evidence failed to establish that Aaro’s proposed use would not produce
excessive noise, dust, and odors. Smith also contends that Aaro’s proposed facility is a fire hazard and
that it could expose neighboring properties to hazardous substances. In support of these contentions,
Smith submitted a report from Robert Tobin, a member of an architectural and engineering firm.
Tobin’s report pointed out several potential problems that could be caused by Aaro’s proposed facility,
such as rodents, smell, noise, debris, dust, and a fire hazard. Neither Aaro nor the City of Detroit
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points to any evidence in their briefs which demonstrates that the proposed facility will not be injurious
to the use or enjoyment of property in the immediate vicinity.
Again, Detroit Zoning Ordinance § 65.0400(C) requires that a permitted use not be “injurious
to the use and enjoyment of other property in the immediate vicinity.” In its initial decision, the BZA
stated:
(3) The Board further found that the proposed facility would not be detrimental to, nor
would the activities impede the use and enjoyment of the properties in the immediate
area because the operation is required to meet all applicable health, safety, air pollution
and traffic flow regulations to obtain the required permits and licenses to operate the
facility.
However, when the BZA issued its second set of findings in this matter, it did not address the effect that
Aaro’s proposed facility would have on the use and enjoyment of other property in the surrounding
area. Therefore, the requirements of Detroit Zoning Ordinance § 65.0400(C) were not satisfied
because the evidence failed to establish that Aaro’s proposed facility would not be injurious to the use
and enjoyment of surrounding property. When the BZA initially addressed this requirement, it stated
that Aaro’s proposed facility would not affect the use and enjoyment of the surrounding property
because the facility was subject to health and safety regulations. This finding is similar to the BZA’s
findings as to property values, which we have found to be unacceptable. The BZA did not base this
finding on evidence; instead, it was based upon the hope that Aaro’s proposed facility would comply
with health and safety regulations. The BZA had an opportunity to address these shortcomings when
this Court remanded the case to it. However, the BZA did not choose to address whether Aaro’s
proposed facility would be injurious to the use and enjoyment of the surrounding property. Therefore,
as the BZA did not make findings as to whether Aaro’s proposed facility would be injurious to the use
and enjoyment of nearby properties, we conclude that Detroit Zoning Ordinance § 65.0400(C) has not
been satisfied.
F. Adequate Ingress And Egress
Smith also claims that Detroit Zoning Ordinance §65.0400(F), which requires that adequate
measures be taken to provide ingress and egress so as to minimize traffic congestion, has not been
satisfied. We disagree. When it initially addressed this requirement, the BZA found:
(2) The Board further found that the proposed recycling/transfer facility would not
interfere with vehicular and pedestrian traffic because the site is of adequate size to
contain all staging, tipping, loading, storage and parking requirements of the use.
The BZA reiterated its findings after this Court remanded the case, stating that Aaro’s proposed facility
would not cause traffic problems because “all staging of trucks must be done within the boundaries of
the property.” We conclude that this finding is sufficient to satisfy Detroit Zoning Ordinance
§ 65.0400(F). The BZA specifically found that Aaro’s proposed facility was large enough to handle all
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necessary activities associated with Aaro’s proposed facility and that traffic would not be affected.
Therefore, we hold that this finding was sufficient.
G. Aaro’s Track Record
Smith argues that Aaro’s proposed facility should have been denied by the BZA based upon
Aaro’s poor track record at a similar facility. Although such information may be interesting, it is not
relevant to a determination under Detroit Zoning Ordinance § 65.0400. We conclude that none of the
criteria set forth in the ordinance concern themselves with the past performance of an applicant for a
“permitted with approval use.” Therefore, we hold that, since such information was not relevant to a
determination under Detroit Zoning Ordinance §65.0400, the BZA was not required to address the
matter.
H. Conclusion
We find that the circuit court erred in determining that the BZA’s decision complied with Detroit
Zoning Ordinance §65.0400. Accordingly, we vacate the circuit court’s order affirming the BZA’s
decision and remand the case to the BZA. On remand, the BZA shall hold a public hearing, with notice
as required by the Detroit Zoning Ordinance and state law2, in order to make an adequate evidentiary
record. The BZA shall base its findings on that record and shall clearly indicate the record evidence that
supports each of its findings. In light of this disposition of the case, Smith’s remaining issue need not be
addressed.
Reversed and remanded to the BZA. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ William C. Whitbeck
/s/ Michael J. Talbot
1
Indeed, we observe that the BZA’s finding that property values will not decline was more in the nature
of a hope or expectation rather than a finding of fact based on evidence.
2
See MCL 125.585(8); MSA 5.2935(8).
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