DELORES GUAY V BEAVER CREEK TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
DELORES GUAY,
UNPUBLISHED
June 30, 2011
Plaintiff-Appellant,
v
No. 296321
Crawford Circuit Court
LC No. 09-007918-AS
BEAVER CREEK TOWNSHIP,
Defendant-Appellee.
Before: WHITBECK, P.J., and MARKEY and K. F. KELLY, JJ.
PER CURIAM.
Plaintiff appeals as of right from the circuit court’s order granting defendant’s motion for
summary disposition. We affirm.
I. BASIC FACTS AND PROCEDURAL BACKGROUND
Plaintiff is a resident of defendant Beaver Creek Township and her home is located in a
residentially zoned neighborhood. Defendant prohibits the operation of businesses in a
residentially zoned area with the exception of “Home Occupations” which are defined in the
Beaver Creek Township Zoning Ordinance, § 14.21.
In 2006 or 2007, plaintiff began to operate Leaning Oaks Cat Haven in her home.
Leaning Oaks Cat Haven is a tax exempt, non-profit cat rescue service. According to plaintiff,
she started the rescue operation in order to provide a service to the community, which includes
taking in cats, neutering and spaying them, giving them shots, and offering them for adoption.
She further asserted that the “rescued cats” are kept in enclosures and are never let outside.
Township officials became aware of Leaning Oaks Cat Haven after a newspaper article
was published regarding plaintiff’s efforts to address an alleged “feral cat” problem in Crawford
County. Gerald Balmes, defendant’s Zoning Administrator, contacted plaintiff and informed her
that defendant had received complaints regarding her property. He informed her that she could
face a civil infraction if the number of cats she housed continued to exceed the number of
animals allowed under the local ordinance. However, he also advised her that she could seek a
variance if she chose to continue her cat rescue operation.
In response, plaintiff retained counsel, who notified Balmes that plaintiff was not
required to obtain a permit in order to operate a home business, and that she reserved the right to
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pursue any necessary course of action in furtherance of her position. However, plaintiff’s
counsel also included plaintiff’s application for a special use permit “in the vein of cooperation.”
On her application, plaintiff described the special use requested as “Home Business/Feline
Rescue/Trapping and Adoption/Shot Clinic for the Public Monthly.”
After a public hearing, the Beaver Creek Township Planning Commission determined
that plaintiff’s animal rescue did not qualify as a “home occupation.” It also denied her request
for a special use permit. Plaintiff sought review by the Beaver Creek Township Zoning Board of
Appeals, but was informed that pursuant to the requirements of the local ordinance, appeals of a
planning commission decision may only be appealed directly to the circuit court.
Rather than appealing the planning commission’s decision, plaintiff instead chose to file
the instant suit against defendant. The initial complaint requested superintending control and
alleged substantive due process violations. Defendant moved for summary disposition, arguing
that plaintiff’s failure to appeal the decision of the planning commission precluded her from
raising the same issues in this action. Plaintiff’s counsel conceded that summary disposition was
proper but requested permission to file an amended complaint. The trial court granted the
motion for summary disposition and also granted plaintiff leave to file an amended complaint.
Plaintiff’s amended complaint sought declaratory relief in the form of an order declaring
that plaintiff’s cat rescue is a “home occupation” consistent with the Beaver Creek Township
Zoning Ordinance. Defendant again moved for summary disposition pursuant to MCR
2.116(C)(4) and (C)(8). Following a hearing, the circuit court found that plaintiff had failed to
exercise her available administrative remedy to appeal the decision of the planning commission.
The circuit court, relying on this Court’s opinion in Krohn v City of Saginaw, 175 Mich App
193; 437 NW2d 260 (1989), concluded that because plaintiff had failed to exhaust her
administrative remedies in relation to the planning commission’s decision, she was barred from
filing a civil action concerning the same matter as it constituted a collateral attack.
Plaintiff appeals of right.
II. STANDARD OF REVIEW
This Court reviews de novo a motion for summary disposition brought under MCR
2.116(C)(4).1 Papas v Mich Gaming Control Bd, 257 Mich App 647, 656; 669 NW2d 326
(2003). MCR 2.116(C)(4) authorizes a trial court to grant summary disposition when it does not
have jurisdiction over the subject matter. A circuit court does not have subject matter
jurisdiction if a plaintiff has failed to exhaust her administrative remedies. Papas, 257 Mich App
at 656, citing Citizens for Common Sense in Gov’t v Attorney General, 243 Mich App 43, 50;
620 NW2d 546 (2000).
III. ANALYSIS
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Although the trial court’s opinion and order references both MCR 2.116(C)(4) and (C)(8), our
review of the order demonstrates that the motion was granted on jurisdictional grounds.
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Plaintiff argues that her action for declaratory judgment is not barred by her failure to
pursue her administrative remedies and her failure does not negate her ability to pursue separate
relief in this action. We disagree and conclude that the circuit court properly relied on Krohn,
175 Mich App at 195-196, in granting summary disposition.
In Krohn, adjoining landowners disputed a planning commission’s decision approving an
auto parts store’s request for a variance. Id. at 195. Pursuant to the zoning code, the planning
commission had “the authority of the board of appeals to hear such matters where special
requests or special uses are to be considered.” Id. at 195-196. The plaintiffs filed a complaint in
circuit court challenging the decision of the planning commission, seeking relief under several
theories, including declaratory relief. Id. at 197-198. The trial court concluded that plaintiffs’
request for declaratory relief was untimely, reasoning that because the claim raised an issue
“relative to the decision of the planning commission and the procedures employed,” it did “not
establish [a] separate cause[] of action, but merely address[ed] alleged defects in the methods
employed by the planning commission or the result reached by the commission.” Id. at 198.
Accordingly, the Court concluded, that issue should have been “raised in an appeal from the
decision of the planning commission.” Id. “[S]ince plaintiffs were tardy in claiming their
appeal,” the claim for declaratory relief was “properly dismissed.” Id.
The language of the statutory provision relied on in Krohn that addressed appeals of
zoning decisions to the circuit court is substantially and materially similar to MCL 125.3606(1).
Further, the Beaver Creek Township Zoning Ordinance provides, “No appeal shall be available
[to the Zoning Board of Appeals] from a Special Use or Planned Unit development decision of
the Township Planning Commission. An appeal of such latter decision must be made directly to
the Crawford County Circuit Court.” Beaver Creek Township Zoning Ordinance, § 20.04.
Thus, the planning commission has the final say in special use decisions. See Krohn, 175 Mich
App at 195-196 (noting that “the planning commission [has] the authority of the board of appeals
to hear such matters where special requests or special uses are to be considered”). Like the
action in Krohn, plaintiff’s request for declaratory relief represents no more than a collateral
attack on the planning commission’s decision. Because plaintiff failed to exhaust her
administrative remedies when she failed to appeal the decision of the planning commission to the
circuit court, her claim for declaratory relief based on issues previously addressed by the
planning commission is barred.
Plaintiff also relies on MCR 2.605 to support her claim that the trial court erroneously
concluded it lacked subject matter jurisdiction. MCR 2.605(A)(1) provides that “[i]n a case of
actual controversy within its jurisdiction, a Michigan court of record may declare the rights and
other legal relations of an interested party seeking a declaratory judgment, whether or not other
relief is or could be sought or granted.” Further, MCR 2.605(A)(2) provides that “[f]or the
purpose of this rule, an action is considered within the jurisdiction of a court if the court would
have jurisdiction of an action on the same claim or claims in which the plaintiff sought relief
other than a declaratory judgment.” Plaintiff argues that under MCR 2.605, she is not barred
from obtaining declaratory relief merely because administrative remedies may have been
available.
Plaintiff’s argument is that her request for declaratory relief is separate and distinct from
the decision of the planning commission, and, therefore, does not represent an attack upon it.
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Her argument is without merit. Jurisdiction is determined “not by how the plaintiff phrases [her]
complaint, but by the relief sought and the underlying basis of the action.” Colonial Village
Townhouse Coop v City of Riverview, 142 Mich App 474, 478; 370 NW2d 25 (1985). The
substance of plaintiff’s claim for declaratory relief seeks what the planning commission
explicitly denied, i.e., a determination that her cat rescue constitutes a “home occupation” under
the ordinance.
Finally, plaintiff argues that judicial economy would be served by granting her request
for declaratory relief. However, plaintiff has provided no authority for the proposition that the
interests of judicial economy can serve to effectuate a bypass of the appropriate appellate process
or cure plaintiff’s error in filing a complaint as opposed to an appeal to the circuit court.
Affirmed.
/s/ William C. Whitbeck
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
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