SUSAN D BAKER V TOWNSHIP OF BAINBRIDGE (Per Curiam Opinion)

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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS SUSAN D. BAKER, UNPUBLISHED April 30, 2020 Appellant, v TOWNSHIP OF BAINBRIDGE and BAINBRIDGE TOWNSHIP ZONING BOARD OF APPEALS, No. 347362 Berrien Circuit Court LC No. 18-000022-AA Appellees. Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ. PER CURIAM. Appellant, Susan D. Baker, appeals by leave granted the circuit’s order rejecting her appeal of appellee Bainbridge Township Zoning Board of Appeals’ (ZBA) decision to grant a special land use permit to Baker’s neighbor that allowed him to operate an automotive repair shop and used car business on his property. The circuit court concluded that Baker was not an “aggrieved party” for purposes of MCL 125.3605; therefore, the court lacked authority to adjudicate the substance of her appeal of the ZBA’s decision. We hold that Baker is indeed an aggrieved party under the statute. Accordingly, we vacate the circuit court’s ruling, reinstate Baker’s appeal, and remand the case to the circuit court for a ruling on the merits of her appeal of the ZBA’s grant of a special land use permit. The underlying facts in this case are not in dispute. Baker owns and lives in a home located on a parcel of land within the boundaries of appellee Bainbridge Township (the township). Baker’s property adjoins land owned by Steven F. Schrage. Both parcels are situated in a district zoned agricultural and are surrounded by farmland. At some point, Schrage, who resides on the property with his family, built an automotive repair facility on the land without permission from the township. He then sought to expand his operation to include a used car dealership. Schrage requested a special land use permit from the township that would allow him to operate the businesses. The township’s planning commission denied the request. Schrage then appealed the planning commission’s decision to the ZBA. Baker submitted a letter to the ZBA opposing Schrage’s request, explaining that she did not want a commercial facility next to her house in the country that disrupted her use and enjoyment of the home. Baker’s attorney also submitted a letter -1- in opposition to Schrage’s request. Baker posited that the particular special land use permit Schrage sought was not even available in an agricultural zone. Nevertheless, on December 13, 2017, the ZBA approved the issuance of a special land use permit thereby allowing Schrage to operate both his car repair business and a used car dealership. The permit was issued the next day. Baker appealed the ZBA’s decision to the circuit court under MCL 125.3605, which provides that a “decision of the zoning board of appeals shall be final[,]” and that “[a] party aggrieved by the decision may appeal to the circuit court for the county in which the property is located . . . .” (Emphasis added.) We note that MCR 7.103(A)(3) provides that “[t]he circuit court has jurisdiction of an appeal of right filed by an aggrieved party from . . . a final order or decision of an agency from which an appeal of right to the circuit court is provided by law.” (Emphasis added.) The township moved to dismiss the appeal on the basis that Baker was not an aggrieved party. The motion was denied by the circuit court on April 18, 2018. At a subsequent hearing on the merits of the appeal, the circuit court expressed confusion regarding whether Schrage had requested only a special land use permit or both a special use permit and a use variance and whether the ZBA had granted one or both. The court remanded the matter to the ZBA for clarification and further findings. Although the ZBA proceedings were a bit confusing, ultimately, the ZBA remained steadfast in its determination to grant Schrage a special land use permit, but it rejected any use variance. The matter returned to the circuit court. On July 3, 2018, this Court issued a published opinion in Olsen v Chikaming Twp, 325 Mich App 170; 924 NW2d 889 (2018). As will be discussed in more detail in our analysis, Olsen thoroughly examined and construed the “aggrieved party” provision found in MCL 125.3605. With Olsen in hand, the township again moved to dismiss the appeal, arguing that Baker was not an aggrieved party under the reasoning set forth in Olsen. To establish her claimed status as an aggrieved party, Baker executed and relied on an affidavit in which she averred as follows: 5. I can easily see and hear all the activities of Schrage’s auto repair business and used car dealership. 6. I can see from my bedroom window the auto repair facility and can also see the auto repair facility from my back deck. 7. I have heard banging noises from the auto repair facility, the loud noise of the impact wrench and the revving of car engines. 8. I see all the comings and goings of the delivery vehicles, the customers, the testing of vehicles by Schrage, and the hauling of vehicles in and out on flatbed trucks. 9. In fact, my driveway is immediately adjacent to Schrage’s driveway. 10. Further, I have a hot tub on my back deck and I see and hear all the loud activities of the auto repair business and used car dealership. 11. I observe tool trucks in and out, UPS delivery trucks in and out, the Schrage’s employees coming in and out. -2- 12. I hear the testing of motor vehicles, the revving of their engines and banging noises associated with repairing the engines and cars and other vehicles. 13. I observe cars parked all over Schrage’s property, sometimes 10 or more. 14. I very rarely use my deck anymore or go in my backyard because all of the activities of these businesses; people using the businesses; servicing the business and employees at the business and the loss of my privacy connected therewith. 14.[1] I am constantly exposed to the noises and visual impact from these businesses and the auto repair shop is close enough where I will be exposed to the smells associated with repairing automobiles and trucks, including but not limited to degreasing, cleaning solvents, engine oil, anti-freeze, transmission fluids, brake fluids, refrigerants, the sm[e]ll of oily rags, leaking vehicles and the smells from accidental spills and leaks associated with these processes. 15. The presence of these 2 businesses are and shall interfere with the beneficial use and enjoyment of my own land, deck and backyard. I no longer have a peaceful, quiet home. I can no longer sit and relax in my hot tub. By the time this motion was heard, the circuit court judge who had presided over earlier proceedings had retired and a new judge had been assigned to the appeal. The circuit court heard the motion to dismiss on December 17, 2018. The court discussed Olsen and then ruled that because the types of harm Baker alleged were not unique, and were in some cases, speculative, she was not an aggrieved party entitled to appeal the ZBA’s decision. This Court granted Baker’s application for leave to appeal. Baker v Bainbridge Twp, unpublished order of the Court of Appeals, entered June 14, 2019 (Docket No. 347362). With respect to a circuit court’s review of a decision made by a zoning board of appeals, MCL 125.3606 provides, in part, as follows: (1) Any party aggrieved by a decision of the zoning board of appeals may appeal to the circuit court for the county in which the property is located. The circuit court shall review the record and decision to ensure that the decision meets all of the following requirements: (a) Complies with the constitution and laws of the state. (b) Is based upon proper procedure. 1 Two of the averments were numbered 14. -3- (c) Is supported by competent, material, and substantial evidence on the record. (d) Represents the reasonable exercise of discretion granted by law to the zoning board of appeals. And the circuit court “may affirm, reverse, or modify the decision of the zoning board of appeals” or “may make other orders as justice requires.” MCL 125.3606(4). “Our review of a circuit court’s decision in an appeal from a decision of a zoning board of appeals is de novo to determine whether the circuit court applied the correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the . . . factual findings.” Olsen, 325 Mich App at 180 (quotation marks and citations omitted). “In addition, we review de novo issues involving the construction of statutes . . . .” Id. We begin with a discussion of Olsen. In Olsen, the applicant land owner requested a nonuse dimensional variance that would allow him to construct a cottage on his land where his lot was otherwise too small to build upon under the controlling ordinance and where the rear-setback line for the planned cottage would otherwise violate the minimum rear-setback requirement of the ordinance. Id. at 175. The zoning board of appeals voted to approve the request for a variance despite objections by neighboring property owners. Id. at 176. The neighboring property owners filed an appeal of the decision in the circuit court, which determined that they were aggrieved parties and that the zoning board of appeals did not have the authority to grant the variance. Id. at 177. The applicant land owner appealed to this Court, arguing that the neighboring property owners lacked standing to challenge the decision of the zoning board of appeals. Id. at 178-179. This Court held that the neighboring property owners were not aggrieved parties; therefore, they were unable “to invoke judicial review by the circuit court.” Id. at 179. The Olsen panel examined the language in MCL 125.3605 requiring a party to be “aggrieved” in order to appeal a decision by a zoning board of appeals. The Court noted that the issue did not technically concern a question of “standing.” Olsen, 325 Mich App at 180-181.2 This Court reviewed numerous authorities addressing the term “aggrieved party” as used in the court rules and in zoning contexts outside of the current version of MCL 125.3605. Id. at 181185. The Olsen panel extrapolated from the rules and caselaw the following principles: Given the long and consistent interpretation of the phrase “aggrieved party” in Michigan zoning jurisprudence, we interpret the phrase “aggrieved party” in § 605 . . . consistently with its historical meaning. Therefore, to demonstrate that one is an aggrieved party under MCL 125.3605, a party must allege and prove that he or she has suffered some special damages not common to other property owners similarly situated. Incidental inconveniences such as increased traffic congestion, general aesthetic and economic losses, population increases, or common environmental changes are insufficient to show that a party is aggrieved. Instead, there must be a unique harm, dissimilar from the effect that other similarly situated property owners may experience. Moreover, mere ownership of an adjoining parcel The “aggrieved party” language in the court rules in connection with claims of appeal to the circuit court, MCR 7.103(A), and this Court, MCR 7.203(A), regards the issue of jurisdiction. 2 -4- of land is insufficient to show that a party is aggrieved, as is the mere entitlement to notice. [Id. at 185 (quotation marks, citations, and alterations omitted).] Pertinent to our discussion, the neighboring property owners in Olsen contended, in part, that they were aggrieved because “they would suffer aesthetic, ecological, practical, and other alleged harms from the grant of the zoning variance.” Id. at 186. This Court rejected the argument, ruling that “[a]esthetic, ecological, and practical harms are insufficient to show special damages not common to other property owners similarly situated.” Id. (quotation marks and citation omitted).3 We hold that Baker is an aggrieved party for purposes of MCL 125.3605 and that the instant case is distinguishable from Olsen. We first note that the impact of an automotive repair facility and used car dealership located on the surrounding, and zoned, agricultural environment, including Baker’s home, is certainly more extreme than the simple construction of a cottage on a smaller than required lot with a shorter than required rear-setback line. Further, there is nothing in the Olsen opinion suggesting or indicating that the neighboring property owners alleged any harm unique to any one particular owner. Evidently, the neighboring property owners merely alleged general, generic claims of aesthetic, ecological, and practical harm incurred by all the owners. Here, Baker’s affidavit set forth specific claims of harm in the form of sights, sounds, smells, and privacy invasion unique to her property when considered in conjunction with the aerial photographic evidence showing Baker’s and Schrage’s properties and the surrounding agricultural landscape. See Olsen, 325 Mich App at 185 (“general aesthetic” harm does not suffice; “[i]nstead, there must be a unique harm, dissimilar from the effect that other similarly situated property owners may experience”). Baker’s property and Schrage’s land are side-by-side, surrounded by farmland. Indeed, there truly is no other occupied property similarly situated to Baker’s parcel when compared to the parcel’s proximity and exposure (line of vision) to Schrage’s car repair operation and a prospective used car dealership. Because of her unique position of being located next to Schrage’s business operation, Baker’s ability to use and enjoy her property has been detrimentally affected by the ZBA’s decision to grant Schrage’s request for a special land use 3 In support of this proposition, the Olsen panel relied solely on Unger v Forest Home Twp, 65 Mich App 614; 237 NW2d 582 (1975). Olsen, 325 Mich App at 186. In Unger, 65 Mich App at 617, this Court observed: In order to have any status in court to challenge the actions of a zoning board of appeals, a party must be aggrieved. The plaintiff must allege and prove that he has suffered some special damages not common to other property owners similarly situated. It has been held that the mere increase in traffic in the area is not enough to cause special damages. Nor is proof of general economic and aesthetic losses sufficient to show special damages. Consequently, when the plaintiff alleges facts showing only those type of damages, summary judgment against him is proper. [Quotation marks and citations omitted.] -5- permit. The noise, sights, smells, and lack of privacy Baker now experiences because of the automotive repair facility, without even considering the addition of a used car lot, are not general concerns or harms experienced by others in the township. While persons in the general vicinity might hear the same sounds, what they may hear would be much less than those constantly bombarding Baker’s senses being immediately adjacent to the businesses. The simple fact is that Baker’s home, and her home alone, is right next to and directly overlooks the car repair facility and would also be so situated in regard to a future used car operation; therefore, she suffers or would suffer unique harm unlike that incurred by anyone else. In sum, we must conclude that Baker is an aggrieved party for purposes of MCL 125.3605. Because the circuit court never reached the substance of Baker’s appellate challenge of the ZBA’s decision, we must allow the court to do so, i.e., at this juncture it would not be prudent or proper for us to address any other issues on appeal in this matter. We vacate the circuit court’s ruling, reinstate Baker’s appeal, and remand the case to the circuit court for a ruling on the merits of Baker’s appeal of the ZBA’s decision to grant a special land use permit. We do not retain jurisdiction. Having fully prevailed on appeal, Baker may tax costs under MCR 7.219. /s/ Jane E. Markey /s/ Kathleen Jansen /s/ Mark T. Boonstra -6-

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