ROLAND BERNARDI V RONALD DICICCO
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STATE OF MICHIGAN
COURT OF APPEALS
RONALD DICICCO and CARRIE DICICCO,
UNPUBLISHED
March 1, 2002
Plaintiffs-Appellants,
v
No. 222751
Wayne Circuit Court
LC No. 98-810457-AA
CITY OF GROSSE POINTE WOODS,
Defendant-Appellee.
ROLAND BERNARDI and CAROL BERNARDI,
Plaintiffs-CounterdefendantsAppellees,
v
No. 222998
Wayne Circuit Court
LC No. 97-735731-NZ
RONALD DICICCO,
Defendant-CounterplaintiffAppellant,
and
CITY OF GROSSE POINTE WOODS and
MELISSA SPRANGER,
Defendants.
Before: Bandstra, C.J., and Doctoroff and White, JJ.
PER CURIAM.
In these consolidated cases, defendant Ronald DiCicco appeals as of right in Docket No.
222998 from the circuit court’s order granting partial summary disposition to plaintiffs, denying
DiCicco’s motion for summary disposition, and from the court’s subsequent order denying a
second motion for summary disposition filed by DiCicco. In Docket No. 222751, plaintiffs
Ronald DiCicco and Carrie DiCicco appeal on leave granted from the circuit court’s judgment
affirming the variance denial made by the zoning board of appeals for defendant City of Grosse
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Pointe Woods. We affirm the circuit court’s orders on the motions for summary disposition in
Docket No. 222998, and in Docket No. 222751, we reverse the court’s judgment affirming the
decision of the zoning board of appeals and remand to the zoning board for further proceedings
and a fuller explanation of the facts and reasoning by which the DiCiccos failed to qualify for a
variance under the standards set forth in Grosse Pointe Woods Ordinance, § 98-408(c)(5).
I
In Docket No. 222998, the Bernardis filed suit to enjoin the construction of a house by
Ronald DiCicco on the grounds that DiCicco’s lot was not a buildable lot because it did not meet
the sixty-foot minimum width requirement of Grosse Pointe Woods Ordinance, § 98-73(f),
which was adopted in 1975. The Bernardis also added a claim for money damages against
DiCicco for damages allegedly caused to the Bernardis’ property by the excavation of DiCicco’s
basement. The Bernardis further named as defendants the city and Melissa Spranger, the chief
building inspector, because a building permit had been issued to DiCicco allowing construction
of the house, and the Bernardis sought a writ of mandamus compelling defendants city and
Spranger to revoke the permit.
DiCicco asserted that the lot was not required to meet the width requirement because the
property was covered by a “grandfather” clause contained in Grosse Pointe Woods Ordinance, §
98-73(a), which, in essence, provided that if the lot was a lot of record in 1975, the lot would not
be subject to the sixty-foot width requirement.
After the circuit court entered a temporary restraining order halting construction of the
house, the Bernardis and DiCicco filed motions for summary disposition pursuant to MCR
2.116(C)(8) and (10) concerning the “lot of record” issue, and the Bernardis and defendants city
and Spranger filed motions for summary disposition pursuant to MCR 2.116(C)(8) and (10)
concerning whether a writ of mandamus was appropriate. The circuit court granted the
Bernardis’ motion for summary disposition finding that DiCicco’s lot was not a lot of record, and
therefore, DiCicco’s lot was required to be sixty feet in width in order to construct a house, and
the court entered a permanent injunction against further construction. On the motions regarding
the writ of mandamus, the circuit court ruled that it was not necessary for it to address the issue
whether the building permit should be revoked because of its decision granting a permanent
injunction.
DiCicco filed a delayed application for leave to appeal the circuit court’s decision
regarding the motions for summary disposition on the permanent injunction issue, and
specifically the court’s finding that the lot was not a lot of record in 1975. On February 23,
1999, this Court denied the application “for lack of merit in the grounds presented” in Docket
No. 213470.
While DiCicco’s delayed application for leave to appeal was pending, a hearing was held
on a second motion for summary disposition filed by DiCicco, in which DiCicco argued that the
mandamus action should be dismissed for failure to exhaust administrative remedies available
through the zoning board of appeals. The circuit court denied the motion. Defendants city and
Spranger were dismissed by stipulation of the parties. Subsequently, a stipulated order to
dismiss the remaining claims for money damages, including DiCicco’s counterclaim, was
entered from which DiCicco filed this appeal as of right challenging the lot of record
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determination by the circuit court and the denial of the motion for summary disposition on the
exhaustion of administrative remedies issue.
After the circuit court had granted the permanent injunction with its order granting, in
part, the Bernardis’ motion for summary disposition, the DiCiccos went to the zoning board of
appeals for defendant city seeking a variance from the width requirement, and the board rejected
the variance request. The circuit court affirmed and defendant appeals that decision in Docket
No. 222751.
II
DiCicco first contends that the circuit court erred in granting the permanent injunction
and the Bernardis’ motion for summary disposition on the basis that the lot was not a lot of
record, as defined in Grosse Pointe Woods Ordinance, § 98-1, in 1975. In this regard, we first
address the Bernardis’ assertion that the law of the case doctrine precludes DiCicco from
rearguing the “lot of record” issue. We agree with the Bernardis.
In Grievance Administrator v Lopatin, 462 Mich 235, 259-260; 612 NW2d 120 (2000),
our Supreme Court stated:
Under the law of the case doctrine, “if an appellate court has passed on a legal
question and remanded the case for further proceedings, the legal questions thus
determined by the appellate court will not be differently determined on a
subsequent appeal in the same case where the facts remain materially the same.”
CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981).
The appellate court’s decision likewise binds lower tribunals because the tribunal
may not take action on remand that is inconsistent with the judgment of the
appellate court. Sokel v Nickoli, 356 Mich 460, 465; 97 NW2d 1 (1959). Thus, as
a general rule, an appellate court’s determination of an issue in a case binds lower
tribunals on remand and the appellate court in subsequent appeals. Webb v Smith
(After Second Remand), 224 Mich App 203, 209; 568 NW2d 378 (1997); see,
generally, 5 Am Jur 2d, Appellate Review, § 605, p 300.
The Grievance Administrator Court addressed the law of the case doctrine in the context
of a claim that the denial of an application for leave to appeal constituted the law of the case, and
our Supreme Court held that the doctrine applied to issues actually decided, either implicitly or
explicitly, in the prior appeal. Grievance Administrator, supra at 260. Our Supreme Court
concluded that the law of the case doctrine did not apply in the case before it because in denying
the application for leave to appeal, the Court expressed no opinion on the merits. Id.
In Jackson Printing Co, Inc v Mitan, 169 Mich App 334, 338-339; 425 NW2d 791
(1988), this Court, addressing similar language contained in an order denying an application for
leave, stated:
Initially, we must address plaintiff’s claim that defendant’s appeal is barred by the
law of the case. Plaintiff claims that this Court’s July 2, 1986, denial of
defendant’s application for leave to appeal “for lack of merit in the grounds
presented” bars the reraising of this issue.
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***
The only issue raised in defendant’s previous application was whether she should
have had an appeal as of right; no substantive challenge to the award of
exemplary damages was presented. Because this Court did not previously decide
the issue of the propriety of the jury instructions on the merits, the doctrine of the
law of the case does not preclude defendant’s appeal.
This Court’s denial of DiCicco’s delayed application for leave to appeal indicated that it
was denied “for lack of merit in the grounds presented.” Therefore, because this Court expressed
an opinion on the merits of DiCicco’s arguments in denying the application for leave in Docket
No. 213470, the law of the case doctrine precludes this Court from readdressing the arguments.
In Docket No. 213470, DiCicco raised the same issues as currently presented regarding the
granting of the Bernardis’ motion for summary disposition concerning the permanent injunction;
DiCicco claimed that the lot was a lot of record in 1975 and should not be subject to the sixtyfoot width requirement. There have been no factual changes since DiCicco’s original filing of
the delayed application for leave to appeal. Further, we note that DiCicco’s lot was not a lot of
record when the ordinance was adopted, although the lot width was of record. While DiCicco’s
argument, focusing on the nonconforming dimension being of record, as opposed to the lot, is
reasonable, it is not the approach taken by the ordinance by its terms. Similarly, the approach of
the building official, while reasonable, is undermined by the terms of the ordinance. The zoning
board of appeals is, of course, free to take the fact that while the lot was not of record when the
ordinance was adopted, the non-conforming dimension was, into consideration in determining
whether a variance is appropriate on remand. See section III, infra.
The remaining issue in Docket No. 222998 is DiCicco’s argument regarding exhaustion
of administrative remedies. This argument was not the subject of the delayed application for
leave to appeal in Docket No. 213470, and is properly before us.
DiCicco’s argument specifically maintains that the Bernardis lacked standing to file an
action seeking a writ of mandamus because they failed to exhaust their administrative remedies
available through various ordinances. However, the mandamus count of the Bernardis’
complaint sought a writ of mandamus compelling defendants city and Spranger to revoke the
previously issued building permit. The mandamus count pertained to defendants city and
Spranger, and not DiCicco, and those defendants were dismissed pursuant to stipulated orders
that are not being challenged.
III
The DiCiccos contend that the circuit court erred in affirming the zoning board of
appeals’ decision to deny the variance request. Because in the present case a city is involved,
MCL 125.585(11) is applicable, which statute dictates that the record shall be reviewed to insure
that the decision by the zoning board: (a) complies with the constitution and laws of Michigan;
(b) is based on proper procedure; (c) is supported by competent, material, and substantial
evidence on the record; and (d) represents the reasonable exercise of discretion granted by law to
the board of appeals.
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Grosse Pointe Woods Ordinance, § 98-408, regards variances and provides, in pertinent
part:
(c) The board of appeals may, in specific cases and subject to appropriate
conditions and safeguards, determine and vary the application of the regulations
established in this chapter in harmony with their general purpose and intent, as
follows:
***
(5) Permit variations in the requirements for outer courts in dwellings, and permit
such variation or modification of yard, lot area, and percentage of lot coverage
requirements of this chapter as may be necessary to secure an appropriate
improvement of a parcel of land which is of size, shape or dimension, or which
has such peculiar or exceptional geographical or topographical conditions, that it
cannot be appropriately improved without such variation or modification,
provided that the purpose and spirit of this chapter shall be observed, public safety
secured and substantial justice done.
***
(13) The board of appeals may, in specific cases and subject to appropriate
conditions and safeguards, determine and vary the application of the regulations
established in this chapter upon written application when undue hardship or
practical difficulty is found by a majority of the board of appeals.
In Reenders v Parker, 217 Mich App 373, 378-379; 551 NW2d 474 (1996), this Court,
addressing the process by which a zoning board of appeals must render variance decisions,
stated:
Meaningful judicial review of whether there was competent, material, and
substantial evidence on the record to support a zoning board decision requires “a
knowledge of the facts justifying the board’s . . . conclusion.” Tireman-JoyChicago Improvement Ass’n v Chernick, 361 Mich 211, 219; 105 NW2d 57
(1960). Accordingly, “the board of zoning appeals must state the grounds upon
which it justifies the granting of a variance.” Id. It is insufficient for the zoning
board to merely repeat the conclusory language of the zoning ordinance without
specifying the factual findings underlying the determination that the requirements
of the ordinance were satisfied in the case at hand. Badanek v Schroskey, 21
Mich App 582, 584-585; 175 NW2d 784 (1970). [Ellipsis in original.]
The minutes from the hearing before the zoning board of appeals indicated that besides
denying the variance request by a seven to zero vote, there were no direct factual findings, but
simply brief comments by two of the board members. No other board members spoke as to their
position on the issue other than to vote against the variance request. The circuit court’s ruling on
appeal was more a de novo review, with the court making its own findings of fact as opposed to
reviewing findings of the zoning board of appeals. There were no specific findings regarding
whether the lot could be appropriately improved without a variance and whether the granting of
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the variance would be violative of the purpose and spirit of the zoning ordinances, threaten
public safety, and create a substantial injustice. There were insufficient factual findings by the
board, as required under Reenders, identifying and explaining the basis and reasoning for the
denial, which would allow us to partake in meaningful judicial review.
We affirm the circuit court’s orders on the motions for summary disposition in Docket
No. 222998, and in Docket No. 222751, we reverse the court’s judgment affirming the decision
of the zoning board of appeals and remand to the circuit court with directions to remand to the
zoning board for further proceedings and a fuller explanation of the facts and reasoning by which
it concluded that the DiCiccos failed to qualify for a variance under the standards set forth in
Grosse Pointe Woods Ordinance, § 98-408(c)(5). We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Martin M. Doctoroff
/s/ Helene N. White
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