Saugatuck Dunes Coastal Alliance v. Saugatuck Township ( 2022 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
SAUGATUCK DUNES COASTAL ALLIANCE v SAUGATUCK TOWNSHIP
Docket Nos. 160358 and 160359. Argued on application for leave to appeal October 7,
2021. Decided July 22, 2022.
Appellant, Saugatuck Dunes Coastal Alliance, brought two separate actions in the Allegan
Circuit Court against Saugatuck Township, the Saugatuck Township Zoning Board of Appeals
(the ZBA), and North Shores of Saugatuck, LLC, appealing the ZBA’s decision that appellant
lacked standing to appeal the zoning decision of the Saugatuck Township Planning Commission
(the Commission) concerning a proposed residential site condominium project on property owned
by North Shores. North Shores applied for approval of a planned unit development that would
include condominium units with a private marina, which required special use approval. The
Commission granted conditional, preliminary approval, and appellant appealed the approval to the
ZBA, invoking Saugatuck Township Ordinance, § 40-72 and the Michigan Zoning Enabling Act
(the MZEA), MCL 125.3101 et seq. Appellant attached affidavits from some of its members to
establish standing to appeal under MCL 125.3604(1) of the MZEA, claiming that the members
would be uniquely harmed by the approved development. On October 11, 2017, the ZBA held a
public hearing and decided that appellant lacked standing to appeal the Commission’s decision.
The ZBA framed the allegations raised by appellant’s members as complaints that might be true
of any proposed development in the area and found that appellant had not demonstrated any special
damages—environmental, economic, or otherwise—that would be different from those sustained
by the general public. Appellant appealed the ZBA’s decision in the Allegan Circuit Court and
added two original claims: one for declaratory and injunctive relief and another seeking abatement
of an alleged nuisance. While the first appeal was pending, North Shores obtained various state
and federal approvals and applied to the Commission for final approval of the planned unit
development, which included the marina. The Commission granted final approval, and appellant
appealed the decision to the ZBA. After another public hearing on April 9, 2018, the ZBA adopted
a resolution that largely mirrored the prior resolution and denied standing to appellant. Appellant
also appealed this decision in the Allegan Circuit Court. On February 6, 2018, the circuit court,
Wesley J. Nykamp, J., affirmed the ZBA’s October 11, 2017 decision and dismissed the appeal;
the court did not, however, address the original claims that appellant had raised. On November
14, 2018, the circuit court, Roberts A. Kengis, J., affirmed the ZBA’s April 9, 2018 decision and
dismissed the appeal. Appellant appealed both circuit court decisions in the Court of Appeals, and
the Court of Appeals consolidated the cases. After determining that it had jurisdiction, the Court
of Appeals, GADOLA, P.J., and MARKEY and RONAYNE KRAUSE, JJ., affirmed the circuit court’s
and the ZBA’s decisions in an unpublished per curiam opinion issued August 29, 2019 (Docket
Nos. 342588 and 346677), holding that appellant lacked standing to appeal because appellant was
not a “party aggrieved” by the approvals. The panel relied on Olsen v Chikaming Twp, 325 Mich
App 170 (2018), and MCL 125.3605. However, the panel remanded Docket No. 342588 to the
circuit court for plenary consideration of the original claims that appellant had raised in that case.
Appellant sought leave to appeal in the Supreme Court, and the Supreme Court ordered oral
argument on the application, directing the parties to address three issues: (1) whether the “party
aggrieved” standard of MCL 125.3605 requires a party to show some special damages not common
to other property owners similarly situated; (2) whether the meaning of “person aggrieved” in
MCL 125.3604(1) differs from that of “party aggrieved” in MCL 125.3605 and, if so, which
standard applies to this case; and (3) whether the Court of Appeals erred by affirming the circuit
court’s dismissal of appellant’s appeals. 505 Mich 1056 (2020).
In an opinion by Justice WELCH, joined by Chief Justice MCCORMACK and Justices
BERNSTEIN, CLEMENT, and CAVANAGH, the Supreme Court, in lieu of granting leave to appeal,
held:
The MZEA does not require an appealing party to own real property and to demonstrate
special damages only by comparison to similarly situated real-property owners; Olsen, 325 Mich
App 170, Joseph v Grand Blanc Twp, 5 Mich App 566 (1967), and related Court of Appeals
decisions were overruled to the limited extent that they required (1) real-property ownership as a
prerequisite to being “aggrieved” by a zoning decision under the MZEA and (2) special damages
to be shown only by comparison to similarly situated real-property owners. Additionally,
“aggrieved” has the same meaning in MCL 125.3604(1) and MCL 125.3605, and appellant in this
case met the definition of a “person,” MCL 125.3604(1), and a “party,” MCL 125.3605.
1. MCL 125.3604(1) provides, in relevant part, that an appeal to the ZBA may be taken
by a person aggrieved or by an officer, department, board, or bureau of this state or the local unit
of government. MCL 125.3605 provides, in pertinent part, that a party aggrieved by the decision
of the ZBA may appeal to the circuit court for the county in which the property is located as
provided under MCL 125.3606. MCL 125.3606(1) provides, in pertinent part, that any party
aggrieved by a decision of the ZBA may appeal to the circuit court for the county in which the
property is located. Zoning statutes in Michigan have a long history of making the ability to appeal
an administrative zoning decision contingent on establishing that one was “aggrieved” by the
decision, but the Legislature has never defined what it means to be aggrieved by a zoning decision.
Joseph, an original action challenging a rezoning ordinance, had been repeatedly cited for the
proposition that to be “aggrieved” by a zoning decision for purposes of an appeal, a comparison to
similarly situated property owners was required, which implicitly required the complaining party
to be a property owner, but there was no discussion about why property ownership was itself key
to one’s ability to contest a zoning decision or how that requirement could be derived from any of
Michigan’s zoning statutes that were then in effect. In Unger, the Court of Appeals applied the
Joseph property-ownership formulation in the context of zoning appeals. In this case, the Court
of Appeals relied on Olsen, which reaffirmed Joseph’s primary holding without analyzing the
procedural differences or the minimal source material relied on in Joseph. Over time, the term
“aggrieved” in the MZEA became inappropriately intertwined with real-property ownership to a
point where judicial decisions began to suggest that only real-property owners had the ability to
appeal a zoning decision. But there is no indication in the text of the MZEA that the Legislature
intended to grant the right to appellate review of zoning decisions only to real-property owners.
Neither the MZEA nor any of Michigan’s previous zoning statutes explicitly require one to own
real property in order to be “aggrieved” by local land-use decisions or to prove “aggrieved” status
by comparison to other property owners who are similarly situated. By requiring one to be a “party
aggrieved” by a zoning decision under MCL 125.3605 and MCL 125.3606, the Legislature
implicitly rejected the idea that standing can be based on mere proximity to a development. The
Legislature omitted mention of ownership or occupancy status when describing the class of
individuals or entities that are entitled to appeal a decision under MCL 125.3605 or MCL
125.3606. Instead, the Legislature used the broader phrase “party aggrieved” without mandating
that the party own any property within the relevant jurisdiction or that the required harm be shown
by comparison to other property owners. That choice of words established a class of potential
appellants broader than real-property owners, with the focus being on whether the decision at issue
“aggrieved” the complaining party.
2. To be a “party aggrieved” under MCL 125.3605 and MCL 125.3606, the appellant must
meet three criteria: (1) the appellant must have participated in the challenged proceedings by taking
a position on the contested decision, such as through a letter or oral public comment; (2) the
appellant must claim some legally protected interest or protected personal, pecuniary, or property
right that is likely to be affected by the challenged decision; and (3) the appellant must provide
some evidence of special damages arising from the challenged decision in the form of an actual or
likely injury to or burden on their asserted interest or right that is different in kind or more
significant in degree than the effects on others in the local community. The phrase “others in the
local community” refers to persons or entities in the community who suffer no injury or whose
injury is merely an incidental inconvenience and excludes those who stand to suffer damage or
injury to their protected interest or real property that derogates from their reasonable use and
enjoyment of it. Factors that can be relevant to this final element of special damages include but
are not limited to: (1) the type and scope of the change or activity proposed, approved, or denied;
(2) the nature and importance of the protected right or interest asserted; (3) the immediacy and
degree of the alleged injury or burden and its connection to the challenged decision as compared
to others in the local community; and (4) if the complaining party is a real-property owner or
lessee, the proximity of the property to the site of the proposed development or approval and the
nature and degree of the alleged effect on that real property.
3. Several well-established principles that are relevant to the standing analysis were
reaffirmed. Under the current MZEA, mere ownership of real property that is adjacent to a
proposed development or that is entitled to statutory notice, without a showing of special damages,
is not enough to show that a party is aggrieved. Additionally, generalized concerns about traffic
congestion, economic harms, aesthetic harms, environmental harms, and the like are not sufficient
to establish that one has been aggrieved by a zoning decision; however, a specific change or
exception to local zoning restrictions might burden certain properties or individuals’ rights more
heavily than others. Further, unlike in an original lawsuit, a circuit court sits as an appellate body
with a closed record when reviewing an appeal brought under MCL 125.3605 and MCL 125.3606;
accordingly, if the circuit court determines that the record is inadequate to make the review that
MCL 125.3606 requires for purposes of analyzing standing under MCL 125.3605 and MCL
125.3606, then the court shall order further proceedings on conditions that the court considers
proper, which may include a remand to the relevant planning or zoning body whose decision is
being contested with instructions as to what is expected by the circuit court.
4. The term “aggrieved” must be given the same meaning in both MCL 125.3604(1) and
MCL 125.3605. The Legislature has provided no indication that the term “aggrieved” was
intended to have different meanings in these closely related statutes. Additionally, appellant in
this matter met the definition of a “person,” MCL 125.3604(1), and a “party,” MCL 125.3605. To
determine whether the ZBA’s standing decision was correct in this case, on remand the circuit
court was directed to first determine whether appellant was aggrieved by the Commission’s
decision for the purpose of appealing to the ZBA under MCL 125.3604, which will inform the
subsequent analysis of whether appellant was aggrieved by the ZBA’s standing decision for the
purpose of appealing in the circuit court under MCL 125.3605 and MCL 125.3606.
Olsen, Joseph, and related Court of Appeals decisions are overruled to the limited extent
that they (1) require real-property ownership as a prerequisite to being “aggrieved” by a zoning
decision under the MZEA and (2) require special damages to be shown only by comparison to
similarly situated real-property owners; Part IV of the Court of Appeals opinion is vacated;
Allegan Circuit Court’s judgment regarding standing is vacated; and the cases are remanded to the
Allegan Circuit Court for reconsideration of appellant’s arguments regarding standing under MCL
125.3604(1) and MCL 125.3605, for consideration of appellant’s original causes of action as
directed by Part V of the Court of Appeals opinion, and for other proceedings as may be necessary
or appropriate under MCL 125.3606.
Justice VIVIANO, joined by Justice ZAHRA, dissenting, would have held that to appeal the
decision of the ZBA, plaintiff needed to show that its members would suffer some harms that were
different from the harms suffered by similarly situated community members and that the Court of
Appeals correctly determined that plaintiff had not made that showing because the harms alleged
were either common to other similarly situated community members or were not damages as a
result of the decision of the Commission or the ZBA. The Court of Appeals in this case correctly
understood that whether a party has standing is a distinct inquiry from whether a party is
“aggrieved” for purposes of the MZEA. And because there has been long and consistent
interpretation of the phrase “party aggrieved” in Michigan zoning jurisprudence, it was not only
proper, but necessary, for the Court of Appeals to consider that caselaw in determining whether
plaintiff was a “party aggrieved” under MCL 125.3605. The Court of Appeals has never held that
a person must be a property owner to appeal a zoning decision or that, to determine aggrieved
status, the appellant must be compared to property owners; rather, the Court of Appeals merely
recognized that the parties challenging the ZBA decisions in Joseph and its progeny were, in fact,
property owners. With regard to interpreting the term “party aggrieved,” the statutory history of
the MZEA and the acts that it replaced demonstrated that the Legislature intended to return to a
narrower “aggrieved” standard in place of the relaxed “interest affected” standard that it had
adopted in 1979. And because the phrase “party aggrieved” had received past judicial
interpretation, the requirement that a party show that he or she suffered some special damages not
common to other property owners similarly situated would have been part of the Legislature’s
understanding of the phrase “party aggrieved” when it enacted the MZEA. The majority
abandoned the interpretation of “aggrieved” that stood for decades, including at the time the
Legislature adopted the MZEA, and the majority’s expansive new definition of “party aggrieved”
is contrary to the intent of the Legislature, confusing, and unnecessary to resolve this case. This
new definition will have far-ranging and destabilizing effects on Michigan zoning law, which had
been settled and had operated well for over a century.
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED July 22, 2022
STATE OF MICHIGAN
SUPREME COURT
SAUGATUCK DUNES COASTAL
ALLIANCE,
Plaintiff-Appellant,
v Nos. 160358-9
SAUGATUCK TOWNSHIP,
SAUGATUCK TOWNSHIP ZONING
BOARD OF APPEALS, and NORTH
SHORES OF SAUGATUCK, LLC,
Defendants-Appellees.
BEFORE THE ENTIRE BENCH
WELCH, J.
This case requires us to determine what it means to be aggrieved for purposes of
appealing certain land-use decisions to a zoning board of appeals, MCL 125.3604(1), and
appealing a zoning board of appeals’ decision to the circuit court, MCL 125.3605.
Appellant, Saugatuck Dunes Coastal Alliance, 1 argues that the lower courts erred when
they found that the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq., denied
it standing to appeal the decisions of the Saugatuck Township Planning Commission
(Commission). Prior Court of Appeals decisions relied on by the Saugatuck Township
Zoning Board of Appeals (ZBA) and lower courts have repeatedly and erroneously read
the term “party aggrieved” too narrowly. Specifically, we hold that the MZEA does not
require an appealing party to own real property and to demonstrate special damages only
by comparison to other real-property owners similarly situated. Cf. Olsen v Chikaming
Twp, 325 Mich App 170; 924 NW2d 889 (2018), lv den sub nom Olsen v Jude & Reed,
LLC, 503 Mich 1018 (2019); Joseph v Grand Blanc Twp, 5 Mich App 566; 147 NW2d 458(1967). We overrule Olsen, Joseph, and related Court of Appeals decisions to the limited
extent that they require (1) real-property ownership as a prerequisite to being “aggrieved”
by a zoning decision under the MZEA and (2) special damages to be shown only by
comparison to other real-property owners similarly situated.
As explained later in this opinion, to be a “party aggrieved” under MCL 125.3605
and MCL 125.3606, the appellant must meet three criteria. First, the appellant must have
participated in the challenged proceedings by taking a position on the contested proposal
or decision. Second, the appellant must claim some protected interest or protected
personal, pecuniary, or property right that will be or is likely to be affected by the
1
Appellant is a nonprofit organization based in Saugatuck, Michigan. Its membership
consists of a coalition of individuals and organizations, and appellant’s stated mission is
protecting and preserving the natural geography, historical heritage, and rural character of
the Saugatuck Dunes coastal region in the Kalamazoo River Watershed.
2
challenged decision. Third, the appellant must provide some evidence of special damages
arising from the challenged decision in the form of an actual or likely injury to or burden
on their asserted interest or right that is different in kind or more significant in degree than
the effects on others in the local community. We agree with the parties’ arguments that
“aggrieved” has the same meaning in MCL 125.3604(1) and MCL 125.3605. We also
agree with the parties that appellant in this matter meets the definition of a “person,” MCL
125.3604(1), and a “party,” MCL 125.3605.
It is not clear whether the lower courts would have reached the same result as to
appellant’s standing in the absence of errors in then-binding precedent. Accordingly, we
vacate Part IV of the Court of Appeals opinion and the Allegan Circuit Court’s judgments
as to standing and remand both cases to the circuit court for reconsideration of appellant’s
standing arguments under MCL 125.3604(1) and MCL 125.3605. On remand, the circuit
court shall also address appellant’s original causes of action as directed by Part V of the
Court of Appeals opinion and conduct such other proceedings as may be necessary or
appropriate under MCL 125.3606.
I. FACTUAL AND PROCEDURAL BACKGROUND
At issue are two separate zoning decisions the Commission made concerning a
proposed residential site condominium project that includes a marina and boat basin with
boat slips 2 on property owned by North Shores of Saugatuck, LLC (North Shores). North
2
Appellant contends that the proposed marina would be, in fact, an artificial channel,
violating Saugatuck Township’s zoning ordinance. We take no position on the merits of
this contention because its resolution is premature before it is determined whether appellant
is “aggrieved” under the MZEA.
3
Shores owns approximately 300 acres of land with frontage on the north shore of the
Kalamazoo River and on Lake Michigan. The proposed development that is the subject of
the appeal occupies a residentially zoned subset of the larger parcel that North Shores refers
to as the “Harbor Cluster.”
North Shores applied for approval of a planned unit development. 3 The planned
unit development would include 23 residential site condominium units 4 surrounding the
boat basin, a community building, a private marina with 33 “dockominium” boat slip
condominium units, and open spaces designated as general common elements. The marina
was proposed as a supplement to North Shores’ application and required special use
approval.
3
See MCL 125.3503(1) (“As used in this section, ‘planned unit development’ includes
such terms as cluster zoning, planned development, community unit plan, and planned
residential development and other terminology denoting zoning requirements designed to
accomplish the objectives of the zoning ordinance through a land development project
review process based on the application of site planning criteria to achieve integration of
the proposed land development project with the characteristics of the project area.”).
4
“Site condominium” is not a term defined under the MZEA, but it has been described as
“ ‘a method of building “subdivisions” without officially subdividing land.’ . . . The single
family residence type of site condo can resemble either a traditional subdivision home or a
detached condominium. The difference depends on what use the owner has of the
immediate lot on which the building sits.” Comment, Site Condominiums: Fast Homes,
For A Price, 6 Cooley L Rev 511, 512 (1989), quoting Wynant & Williams, Site Condos:
A Quiet Revolution, 1988 Plan & Zoning News 5, 5 (1988). A site condominium unit is
“that portion of the condominium project designed and intended for separate ownership
and use, as described in the master deed, regardless of whether it is intended for residential,
office, industrial, business, recreational, use as a time-share unit, or any other type of use.”
MCL 559.104(3).
4
A. PLANNING COMMISSION AND ZONING BOARD OF APPEALS DECISIONS
The Commission granted conditional, preliminary approval of the proposed planned
unit development and the special use approval for the marina on April 26, 2017. Invoking
Saugatuck Township Ordinance, § 40-72 and the MZEA, appellant appealed these
preliminary approvals to the ZBA in June 2017 and provided supplemental arguments in
September 2017. With the supplemental arguments, appellant attached affidavits from
some of its members to establish standing to appeal under MCL 125.3604(1) given that
North Shores had challenged appellant’s standing. The affidavits alleged ways in which
the members claimed they would be uniquely harmed by the approved development. 5
At a hearing on October 11, 2017, the ZBA heard comments from the public,
including from members of appellant and from appellant’s counsel. The ZBA adopted a
resolution that relied on Unger v Forest Home Twp, 65 Mich App 614; 237 NW2d 582(1976), and decided that appellant lacked standing to appeal the Commission’s decision.
The ZBA framed the allegations raised by appellant’s members as complaints that might
be true of any proposed development in the area and found that appellant had not
demonstrated any special damages—environmental, economic, or otherwise—that would
be different from those sustained by the general public as a result of the proposed
5
The members included Dave Engel (a local resident and owner and operator of a salmon
and trout charter boat who alleged injury to his business), Liz Engel (a local resident and
Realtor selling homes in the area who alleged injury to her business), Patricia Birkholz (a
local resident and former Michigan state senator who alleged injury to her legacy and the
natural area that bears her name), Mike Johnson (a local resident and owner of the Coral
Gables Complex in Saugatuck who alleged injury to his businesses), Kathi Bily-Wallace
(a local resident and neighboring property owner who alleged injury to property and
riparian rights), and Chris Deam (an owner of a seasonal cottage and land located near the
Old Saugatuck Lighthouse who alleged injury to his property and riparian rights).
5
development. Appellant appealed the ZBA’s decision in the Allegan Circuit Court and
added two original claims: one for declaratory and injunctive relief and another seeking
abatement of an alleged nuisance.
While the first appeal was pending, North Shores obtained various state and federal
approvals and applied to the Commission for final approval of the planned unit
development, which included the marina. The Commission granted final approval on
October 23, 2017. Appellant appealed this decision to the ZBA in a written statement dated
December 7, 2017. Prior to the public hearing scheduled for April 9, 2018, appellant again
submitted a letter providing a detailed basis for its standing and the alleged merits of its
appeal. The letter raised arguments regarding the depositing of dredge spoils within 300
feet of some members’ property and the potential adverse effects on sturgeon restoration,
local hydrology, and the nearby Patricia Birkholz Natural Area. Appellant requested that
the ZBA revisit and reverse its prior decision that appellant did not have standing to appeal.
On April 9, 2018, after another public hearing, the ZBA adopted a resolution that largely
mirrored the prior resolution and denied standing to appellant. Appellant also appealed
this decision in the Allegan Circuit Court.
B. CIRCUIT COURT DECISIONS
The appeal from the October 11, 2017 ZBA decision was assigned Case No. 17-
058936-AA. In that case, the circuit court incorporated by reference a prior circuit court
opinion addressing appellant’s standing to appeal a different land-use decision involving
different portions of property that North Shores now owns. Relying on this prior opinion
and its analysis of Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d
6
686 (2010), the circuit court affirmed the ZBA’s decision and dismissed the appeal on
February 6, 2018. The circuit court did not, however, address the original claims that
appellant raised in this case. The appeal from the April 9, 2018 ZBA decision was assigned
Case No. 18-059598-AA. On November 14, 2018, relying on the oral statements made on
the record, the circuit court affirmed the ZBA’s decision and dismissed the appeal.
C. COURT OF APPEALS DECISION
Appellant appealed both circuit court decisions in the Court of Appeals, and the
Court of Appeals consolidated the cases. 6 Saugatuck Dunes Coastal Alliance v Saugatuck
Twp, unpublished order of the Court of Appeals, entered January 22, 2019 (Docket Nos.
342588, 346677, and 346679). 7 After determining that it had jurisdiction, the Court of
Appeals affirmed the circuit court’s and ZBA’s decisions holding that appellant lacked
standing to appeal because appellant was not a “party aggrieved” by the approvals.
Saugatuck Dunes Coastal Alliance v Saugatuck Twp, unpublished per curiam opinion of
the Court of Appeals, issued August 29, 2019 (Docket Nos. 342588 and 346677), pp 3-5.
The panel relied on Olsen, 325 Mich App 170, and MCL 125.3605. It observed that
in Olsen, the Court had explained that “the term ‘standing’ generally refers to the right of
a plaintiff initially to invoke the power of a trial court to adjudicate a claimed injury.”
6
The appeal from Case No. 17-058936-AA was assigned Court of Appeals Docket No.
342588, and the appeal from Case No. 18-059598-AA was assigned Court of Appeals
Docket No. 346677.
7
The Court of Appeals consolidated the appeals in Docket Nos. 342588 and 346677 but
denied the portion of appellant’s motion requesting consolidation of Docket Nos. 342588
and 346677 with Docket No. 346679 because the application for leave to appeal in Docket
No. 346679 had not yet been decided.
7
Olsen, 325 Mich App at 180. But under MCL 125.3605, “ ‘a party seeking relief from a
decision of a ZBA is not required to demonstrate “standing” but instead must demonstrate
to the circuit court acting in an appellate context that he or she is an “aggrieved” party.’ ”
Saugatuck Dunes Coastal Alliance, unpub op at 4, quoting Olsen, 325 Mich App at 180-
181. The panel noted that both common-law standing and demonstrating aggrieved-party
status require a party to “ ‘establish that they have special damages different from those of
others within the community.’ ” Saugatuck Dunes Coastal Alliance, unpub op at 5, quoting
Olsen, 325 Mich App at 193. But under Olsen, 325 Mich App at 185, the aggrieved-party
analysis refers to “ ‘other property owners similarly situated,’ ” whereas the common-law
standing analysis under Lansing Sch, 487 Mich at 372, refers to “ ‘the citizenry at large.’ ”
Saugatuck Dunes Coastal Alliance, unpub op at 5.
The panel echoed Olsen’s holding that ownership of adjacent land, entitlement to
notice, “ ‘[i]ncidental inconveniences, such as increased traffic congestion, general
aesthetic and economic losses, population increases, or common environmental changes’
were all deemed inadequate to establish that a party is ‘aggrieved.’ ” Id. at 5, quoting
Olsen, 325 Mich App at 185. “Ecological harms” and “[c]oncerns over potential harms
are also insufficient, at least where there is some basis, such as health and building permit
requirements, to conclude that the potential is unlikely to become actual.” Saugatuck
Dunes Coastal Alliance, unpub op at 5, citing Olsen, 325 Mich App at 186-187. The panel
did not read Olsen to preclude “any possibility that such harms could result in a party being
aggrieved” if it was “specifically or disproportionately” affected “in a manner
meaningfully distinct from ‘other property owners similarly situated.’ ” Saugatuck Dunes
Coastal Alliance, unpub op at 5. But the panel concluded that appellant’s arguments were
8
incorrect to the extent that they referred “to injuries that differ from ‘the public at large.’ ”
Id. While recognizing that appellant submitted affidavits “apparently tending to show that
the affiants will suffer harms distinct from the general public,” id., the Court reasoned that
appellant had not met the standard established by Olsen:
Plaintiff has not shown, however, that the affiants will suffer harms distinct
from other property owners similarly situated. A party generally cannot
show a sufficiently unique injury from a complaint that “any member of the
community might assert.” Olsen, 325 Mich App at 193. We reiterate that
we do not consider whether plaintiff might have standing in an appropriate
procedural context. However, some of the affiants are not even actual
owners of nearby property; and otherwise all of the articulated concerns are
either speculative, broad environmental policy matters, or pertain to harms
that could be suffered by any nearby neighbor, business, or tourist.
Irrespective of the seriousness of those harms, or of whether those harms
might differ from the citizenry at large, the trial court properly concluded that
plaintiff was not an aggrieved party pursuant to MCL 125.3605, so plaintiff’s
appeals were correctly dismissed. See id. at 194. [Saugatuck Dunes Coastal
Alliance, unpub op at 5 (emphasis added).]
However, the panel remanded Docket No. 342588 to the circuit court for plenary
consideration of the original claims that appellant raised in that case.
II. ANALYSIS
We directed the parties to address three issues. Saugatuck Dunes Coastal Alliance
v Saugatuck Twp, 505 Mich 1056, 1056 (2020). First, whether the “ ‘party aggrieved’
standard of MCL 125.3605 requires a party to show some special damages not common to
other property owners similarly situated . . . .” Id. Second, whether the “meaning of
‘person aggrieved’ in MCL 125.3604(1) differs from that of ‘party aggrieved’ in MCL
125.3605, and if so what standard applies” to this case. Id. Third, whether the Court of
Appeals erred by affirming the circuit court’s dismissal of appellant’s appeals. Id. These
9
issues turn on questions of statutory interpretation, which we review de novo. Kyser v
Kasson Twp, 486 Mich 514, 519; 786 NW2d 543 (2010). Whether a party has standing is
also a question of law that we review de novo. Mich Ass’n of Home Builders v Troy, 504
Mich 204, 212; 934 NW2d 713 (2019).
A. ZONING APPEALS UNDER THE MZEA
Local governments have no inherent power to regulate land use, but the “Legislature
has empowered local governments to zone for the broad purposes identified in” the MZEA
at MCL 125.3201(1). Kyser, 486 Mich at 520. The MZEA was enacted in 2006 and
consolidated three zoning statutes for cities and villages, for townships, and for counties.
2006 PA 110. In addition to setting the parameters of local zoning power, the MZEA also
established processes and standards for when, how, and who can appeal official decisions
related to the regulation and development of land. See MCL 125.3603 to MCL 125.3607.
At issue in this matter is the standard for a party to show that it has been “aggrieved” by a
decision of a planning commission or zoning board of appeals for purposes of appealing
those decisions under MCL 125.3604(1) and MCL 125.3605.
Several provisions of the MZEA address the appellate process. “For special land
use and planned unit development decisions, an appeal may be taken to the zoning board
of appeals only if provided for in the zoning ordinance.” MCL 125.3603(1). 8 When a
8
When these appeals were taken, Saugatuck Township Ordinance, § 40-72 empowered the
ZBA to “[h]ear and decide appeals from and review any order, requirement, decision or
determination made by the Zoning Administrator or the Planning Commission . . . .”
However, effective June 20, 2018, an amendment of § 40-72 removed the ZBA’s authority
to “hear appeals from a decision on a special approval use, planned unit development, or
rezoning.” We express no opinion about how this amendment might affect future
proceedings in these cases.
10
zoning ordinance allows for an appeal from a planned unit development or special-land-
use decision to a zoning board of appeals, MCL 125.3604(1) governs.
An appeal to the zoning board of appeals may be taken by a person
aggrieved or by an officer, department, board, or bureau of this state or the
local unit of government. . . . The zoning board of appeals shall state the
grounds of any determination made by the board. [MCL 125.3604(1)
(emphasis added).]
MCL 125.3605 addresses the finality of a zoning board of appeals’ decision and
who can appeal such a decision in the circuit court. The statute provides: “The decision of
the zoning board of appeals shall be final. A party aggrieved by the decision may appeal
to the circuit court for the county in which the property is located as provided under [MCL
125.3606].” MCL 125.3605 (emphasis added). MCL 125.3606(1), in turn, provides:
(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.
(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. [Emphasis added.]
B. MEANING OF “AGGRIEVED” UNDER THE MZEA
Zoning statutes in Michigan have a long history of making the ability to appeal an
administrative zoning decision contingent on establishing that one was “aggrieved” by the
decision. The Legislature included this requirement in the MZEA when it repealed the
City and Village Zoning Act, the Township Zoning Act, and the County Zoning Act. 2006
11
PA 110. Each of those prior laws used the term “person aggrieved” to describe who could
appeal a local zoning decision. 9 Despite the prevalence of the terms “person aggrieved”
and “party aggrieved” in Michigan’s zoning laws for the better part of a century, our
Legislature has never defined what it means to be aggrieved by a zoning decision. 10 That
task now falls to this Court.
9
See 1921 PA 207, § 5 (“[An] appeal may be taken by any person aggrieved or by any
officer, department, board or bureau of the city or village.”); 1943 PA 184, § 20 (“[An]
appeal may be taken by any person aggrieved or by any officer, department, board or
bureau of the township, county or state.”); 1943 PA 183, § 20 (“[An] appeal may be taken
by any person aggrieved or by any officer, department, board or bureau of the township,
county or state.”). But see 2000 PA 20, § 5(11) (providing that “a person having an interest
affected by the zoning ordinance may appeal to the circuit court”).
10
Some states have defined “person aggrieved” or “party aggrieved” within their zoning
statutes. See, e.g., Conn Gen Stat 8-8(a)(1) (“ ‘aggrieved person’ includes any person
owning land in this state that abuts or is within a radius of one hundred feet of any portion
of the land involved in the decision of the board”); Fla Stat 163.3215(2) (“ ‘aggrieved or
adversely affected party’ means any person or local government that will suffer an adverse
effect to an interest protected or furthered by the local government comprehensive
plan . . . . The alleged adverse interest may be shared in common with other members of
the community at large but must exceed in degree the general interest in community good
shared by all persons”); Ind Code 36-7-4-1603(b) (establishing a four-part test for
determining whether a person has been aggrieved by a zoning decision); Nev Rev Stat
278.3195(1)(d) (stating that, in a county with a specified population size, one is aggrieved
if they appeared in person, through a representative, or in writing before the relevant
decision-making individual or entity); RI Gen Laws 45-24-31(4) (defining “aggrieved
party” as one whose “property will be injured by a decision of any officer or agency
responsible for administering the zoning ordinance of a city or town” or “[a]nyone
requiring notice pursuant to this chapter”); Wash Rev Code 36.70C.060 (establishing a
four-part test for determining whether someone is aggrieved by a land-use decision); W Va
Code 8A-1-2(b) (defining “aggrieved person” as one who was denied the relief sought in
an application or appeal or one who will “suffer a peculiar injury, prejudice or
inconvenience beyond that which other residents of the county or municipality may
suffer”); Wis Stat 68.06 (defining “person aggrieved” as one “whose rights, duties or
privileges are adversely affected by a determination of a municipal authority”).
12
1. HISTORICAL UNDERSTANDING OF THE TERM “AGGRIEVED”
We do not approach our task with a blank slate. The meaning of “aggrieved” has
been developing in the Court of Appeals for decades. Many of the seminal cases addressing
the meaning of “aggrieved” under prior zoning statutes were never appealed to this Court.
This is the first opportunity for us to decide this issue on the merits. In 1965, the Court of
Appeals recognized a national consensus “that to have any status in court to attack the
actions of a zoning board of appeals, the party must be an aggrieved party, and said party
must be more than a resident of the city.” 11 Marcus v Busch, 1 Mich App 134, 136; 134
NW2d 498 (1965), citing 58 Am Jur, Zoning, § 253 (1956); Anno: Construction and
Application of Provisions for Variations in Application of Zoning Regulations and Special
Exceptions Thereto, 168 ALR 133 (1947); 8 McQuillin, Municipal Corporations, § 25.292
(3d ed rev 1957).
A few years later, the Court of Appeals decided Joseph v Grand Blanc Twp, 5 Mich
App 566; 147 NW2d 458 (1967). Joseph concerned a township resident’s original action
challenging the adoption of an ordinance that rezoned certain property within the township.
Id. at 569-570. The plaintiff, who owned land about one mile from the rezoned property,
had not alleged special damages. Id. The Court acknowledged that Marcus held that in
the absence of special damages, the plaintiff could not contest the decision in court. Id. at
11
This consensus appears to remain true, 83 Am Jur 2d, Zoning and Planning (November
2021 update), § 880, except in those jurisdictions that have adopted a more lenient standard
by statute, see, e.g., Tex Loc Gov’t Code Ann 211.011(a) (allowing persons aggrieved by
a decision of the board of adjustment, taxpayers, and certain government officials to
challenge a decision of the board in court).
13
570-571. The Court then linked its special-damages analysis to property ownership
specifically:
In order to maintain this action, plaintiff, a nonabutting property
owner, must allege and prove that he has suffered a substantial damage
which is not common to other property owners similarly situated. Victoria
Corporation v. Atlanta Merchandise Mart, Inc. (1960), 101 Ga App 163 (112
SE2d 793). See comment in 64 MLR 1070, 1079. In his complaint, plaintiff
claims that because of this rezoning, traffic will be increased on the dirt road
fronting on his property; because of this, he will suffer economic and
aesthetic losses. The record further discloses that the question of whether or
not plaintiff suffered special damage was before the court for a period in
excess of 5 months, during which time special damages could have been
alleged.
Other jurisdictions have held that a mere increase in traffic with its
incidental inconvenience did not constitute a substantial damage and,
therefore, the plaintiff was not considered to be an aggrieved party. The
reasoning in the cases is that such increase in traffic congestion, with its
attendant difficulties for property owners whose property fronts on the street,
is a matter which addresses itself to the police authorities of the municipality
rather than to the zoning authorities. [Joseph, 5 Mich App at 570-571(citation omitted; emphasis added).]
The addition of a “property ownership” requirement for zoning appeals was not
analyzed in any way in Joseph. While Joseph involved a property owner challenging a
rezoning decision, there was no discussion about why property ownership was itself key to
one’s ability to contest a zoning decision or how that requirement could be derived from
any of Michigan’s zoning statutes that were then in effect. Over time, Joseph repeatedly
has been cited for the proposition that to be “aggrieved” by a zoning decision for purposes
of an appeal, a comparison to other property owners is required, which implicitly requires
the complaining party to be a property owner. As the quotation above shows, Joseph’s
standard came from a single Georgia Court of Appeals decision and a student-authored
14
law-review comment. Both were questionable sources of authority for Michigan law then,
and they remain questionable today. 12
The Court of Appeals then applied the Joseph property-owner formulation in the
context of zoning appeals. The ZBA relied on Unger, 65 Mich App 614, in this matter.
Unger concerned an appeal by a nearby property owner who opposed the approval of
permits for a new apartment complex. Id. at 616. Unger reiterated the holding from Joseph
that a plaintiff “must allege and prove that he has suffered some special damages not
common to other property owners similarly situated,” id. at 617, and it rejected the
argument that ownership of land on the same lake as the property in question alleviated the
need for special damages, id. at 618. Reiteration of the standard from Joseph continued in
zoning-appeal cases for many years without question, despite Joseph not being based on
any of Michigan’s then existing zoning statutes. 13
12
Victoria Corp was not an original action challenging the validity of a legislative zoning
action. Rather, Victoria Corp interpreted the meaning of “substantial interest,” a phrase
used in a Georgia statute governing when a party is entitled to appeal the grant of a zoning
variance. Victoria Corp specifically involved a complaining nearby property owner who
had not participated in the administrative proceedings but filed an appeal based on concerns
about potential increases in traffic congestion. Victoria Corp, 101 Ga App at 163-164.
The cited student-authored comment, Comment, Standing To Appeal Zoning
Determinations: The “Aggrieved Person” Requirement, 64 Mich L Rev 1070 (1966),
quoted Victoria Corp and included a national survey of general trends in zoning law. The
comment did not substantively engage with Michigan law, but it noted ambiguities and
inconsistencies in how different jurisdictions addressed standing in third-party zoning
appeals.
13
See Western Mich Univ Bd of Trustees v Brink, 81 Mich App 99, 102-103, 105; 265
NW2d 56 (1978) (holding that receiving statutory notice and having a “financial interest
in throttling the development of neighboring properties is not” sufficient for a party to be
considered “aggrieved”); Village of Franklin v Southfield, 101 Mich App 554, 556-557;
300 NW2d 634 (1980) (holding that ownership of adjacent land or being an adjacent
15
The Court of Appeals in this case relied on the recent decision in Olsen, 325 Mich
App 170. Olsen concerned an appeal from an original variance decision by a zoning board
of appeals and addressed the “party aggrieved” standard in MCL 125.3605. Olsen correctly
recognized that “the term ‘standing’ generally refers to the right of a plaintiff initially to
invoke the power of a trial court to adjudicate a claimed injury.” Id. at 180, citing
Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 290; 715 NW2d 846 (2006).
The Court further observed that an appeal under MCL 125.3605 is different from an
original action because the former invokes a circuit court’s appellate authority and requires
the party to be “aggrieved” by the decision of the zoning board of appeals. Id. at 180-181.
The Olsen panel also relied on the zoning decisions discussed earlier in this opinion, going
back to Joseph. Without analyzing the procedural differences or the minimal source
material relied on in Joseph, the Court reaffirmed Joseph’s primary holding. Id. at 185-
186.
Given the long and consistent interpretation of the phrase “aggrieved
party” in Michigan zoning jurisprudence, we interpret the phrase “aggrieved
party” in § 605 of the MZEA 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[.]”
Unger, 65 Mich App at 617. Incidental inconveniences such as increased
traffic congestion, general aesthetic and economic losses, population
municipality was not enough to be considered “aggrieved” in the absence of special
damages). But see Brown v East Lansing Zoning Bd of Appeals, 109 Mich App 688, 699-
701; 331 NW2d 828 (1981) (holding that allegations that the development would “intensify
the change in the character of the neighborhood as well as increase the number of its
residents” were “special damages” and that appellants met the requirements under either
the “interests affected” or the “aggrieved party” standards), superseded by statute as stated
in Ansell v Delta Co Planning Comm, 332 Mich App 451, 459 (2020).
16
increases, or common environmental changes are insufficient to show that a
party is aggrieved. See id.; Joseph, 5 Mich App at 571. Instead, there must
be a unique harm, dissimilar from the effect that other similarly situated
property owners may experience. See Brink, 81 Mich App at 103 n 1.
Moreover, mere ownership of an adjoining parcel of land is insufficient to
show that a party is aggrieved, Village of Franklin, 101 Mich App at 557-
558, as is the mere entitlement to notice, Brink, 81 Mich App at 102-103.
[Olsen, 325 Mich App at 185.]
Olsen, thus, followed the precedent of linking a person’s ability to appeal a zoning
decision to real-property ownership and comparison of the alleged harms to other property
owners similarly situated. The Olsen panel went on to agree with the township that the
appellees lacked standing to appeal in the circuit court. Id. at 193. In doing so, the panel
rejected the appellees’ argument that they could rely on the prudential standard for standing
adopted in Lansing Sch, 487 Mich 349, because the appellees had appealed a zoning board
of appeals’ decision under the MZEA rather than commencing an original action. Olsen,
325 Mich App at 193.
2. “PARTY AGGRIEVED” UNDER MCL 125.3605
We specifically requested briefing on whether the “party aggrieved” standard in
MCL 125.3605 requires a party to show some special damages not common to other
property owners similarly situated. “The foremost rule, and our primary task in construing
a statute, is to discern and give effect to the intent of the Legislature.” Sun Valley Foods
Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). As discussed in Part II(B)(2)(b)
of this opinion, the term “aggrieved” has become a legal term of art. This triggers several
additional considerations. MCL 8.3a requires that “technical words and phrases, and such
as may have acquired a peculiar and appropriate meaning in the law, shall be construed
and understood according to such peculiar and appropriate meaning.” We have adopted a
17
similar principle at common law. See Prod Credit Ass’n of Lansing v Dep’t of Treasury,
404 Mich 301, 312; 273 NW2d 10 (1978). We are also mindful that generally “[w]hen a
term has received past judicial interpretation, the Legislature is presumed to have intended
the same meaning.” People v Wright, 432 Mich 84, 92; 437 NW2d 603 (1989).
Over time, the term “aggrieved” in the MZEA has become inappropriately
intertwined with real-property ownership to a point where judicial decisions have begun to
suggest that only real-property owners have the ability to appeal a zoning decision. In
nearly every case already discussed in this opinion, the parties seeking to appeal a zoning
decision premised their right to appeal primarily or solely on their ownership of real
property near or adjacent to the land subject to the challenged decision. This context makes
it unsurprising that most Court of Appeals decisions have focused on real-property
ownership and the harms experienced by such property owners. But there is no indication
in the text of the MZEA that the Legislature intended to grant the right to appellate review
of zoning decisions only to real-property owners. Neither the MZEA nor any of
Michigan’s previous zoning statutes explicitly require one to own real property in order to
be “aggrieved” by local land-use decisions or to prove “aggrieved” status by comparison
to other property owners who are similarly situated.
We take this opportunity to set Michigan zoning law back on its proper trajectory.
By requiring one to be a “party aggrieved” by a zoning decision under MCL 125.3605 and
MCL 125.3606, the Legislature implicitly rejected the idea that standing can be based on
mere proximity to a development. Neither MCL 125.3103 (providing for advance notice
to property owners and occupants within 300 feet of a potential zoning decision) nor MCL
125.3502 (requiring advance notice of a public hearing to property owners or occupants
18
within 300 feet of property considered for special land use) is tied to any appeal rights.
Similarly, the MZEA does not say that taxpayer or residency status makes one aggrieved
by a zoning decision. The MZEA thus suggests that more is required to be “aggrieved.”
The first part of this key phrase is easy enough to parse. To be a “party” 14 under
MCL 125.3605 and 125.3606 means that the appellant must have participated in the zoning
board of appeals proceedings, such as by taking a position on the contested issue in writing
or through public comment. 15 It is the meaning of “aggrieved” that has led to disputes.
There is no reference to an appellant’s property ownership in MCL 125.3605 or
MCL 125.3606. The MZEA provides that a zoning board of appeals’ decision is “final”
and that “[a] party aggrieved by the decision may appeal to the circuit court for the county
in which the property is located” under MCL 125.3606. MCL 125.3605 (emphasis added).
Similarly, MCL 125.3606(1) states that “[a]ny 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.” (Emphasis added.) While both MCL 125.3605 and MCL 125.3606 refer to
“property,” in each statute the term is linked not to the appellant’s property but to the real
property subject to the zoning board of appeals’ decision. This is unsurprising. The MZEA
authorizes the adoption of local zoning ordinances to regulate land use and development to
meet the needs of Michiganders. See MCL 125.3201; MCL 125.3202. Further, the powers
14
See Black’s Law Dictionary (11th ed) (defining “party” as “[s]omeone who takes part in
a transaction . . . .”).
15
The ZBA was empowered to hear these appeals when they were filed. See note 8 of this
opinion. Therefore, we need not address whether the “party aggrieved” standard applies
in an appeal to the circuit court where there is no statute providing for an appeal to a zoning
board of appeals. See MCL 125.3603(1); Ansell, 332 Mich App at 459.
19
of a zoning board of appeals are limited to “questions that arise in the administration of the
zoning ordinance . . . .” MCL 125.3603(1). A zoning board’s power is understandably
linked to real-property regulation.
This makes sense because zoning ordinances affect all who reside or do business
within the local jurisdiction or community regardless of whether they own real property in
that location. Zoning ordinances control land use, which affects where people can live and
where businesses can operate. If being aggrieved by a zoning decision under the MZEA
required proof of “ ‘special damages not common to other property owners similarly
situated,’ ” Olsen, 325 Mich App at 185 (emphasis added), quoting Unger, 65 Mich App
at 617, then all renters of real property (including business owners who lease space) within
a jurisdiction would be effectively excluded from appealing zoning decisions. 16 We can
assume that this is no small group of hypothetical individuals or businesses. 17 It is unlikely
16
Other jurisdictions have recognized that there might be circumstances in which a person
or entity renting real property would have sufficient interest and potential for injury to be
entitled to challenge local zoning decisions. See, e.g., Moutinho v Planning & Zoning
Comm of Bridgeport, 278 Conn 660, 667-668; 899 A2d 26 (2006) (“It is clear . . . that a
lessee may have a sufficient interest in leased property to be aggrieved by a zoning decision
affecting that property.”); Sun-Brite Car Wash, Inc v Bd of Zoning & Appeals of North
Hempstead, 69 NY2d 406, 414-415; 508 NE2d 130 (1987) (explaining that “[a] leaseholder
may . . . have the same standing to challenge municipal zoning action as the owner.”).
17
While local and regional figures vary, a 2019 study from the Michigan State Housing
Development Authority found that 25% of housing stock in the state was renter-occupied
and only 60% was owner-occupied. See Michigan State Housing Development Authority,
Michigan Homeownership Study: Understanding and Advancing Homeownership in
Michigan, Companion Report: Key Trends and Measures by Prosperity Region (March
2019), p 20, available at (accessed January 5,
2022) [https://perma.cc/7WTA-QCHN].
20
that the Legislature intended to completely exclude leaseholders from those who may
obtain judicial review of a zoning board of appeals’ administrative decisions by mere
implication.
The Legislature, in fact, has specifically required “property ownership” as a
statutory criterion in other parts of the MZEA. For example, MCL 125.3103(2) requires
that advance notice of a public hearing be provided to “owners of property” that is subject
to a potential zoning decision and “occupants of all structures within 300 feet” of the
property. Similarly, MCL 125.3502(2) entitles the “property owner or the occupant of any
structure located within 300 feet of the property” being considered for a special land use to
notice of public hearings on the issue and allows them to demand that a public hearing be
held before a decision is made. The MZEA also allows “an interested property owner” to
request a public hearing on a proposed zoning ordinance. MCL 125.3401(4). Moreover,
MCL 125.3406(3) grants certain exceptions to an applicant for a zoning permit who
“became the owner of the property by foreclosure or by taking a deed in lieu of foreclosure”
under certain circumstances.
The Legislature omitted mention of ownership or occupancy status when describing
the class of individuals or entities that are entitled to appeal a decision under MCL
125.3605 or MCL 125.3606. Instead, the Legislature used the broader phrase “party
aggrieved” without mandating that the party own any property within the relevant
jurisdiction or that the required harm be shown by comparison to other property owners.
That choice of words establishes a class of potential appellants broader than real-property
owners, with the focus being on whether the decision at issue “aggrieved” the complaining
party.
21
a. PROPERTY OWNERSHIP IS NOT REQUIRED TO APPEAL ZONING
DECISIONS
As already discussed, Court of Appeals precedent incorrectly imposed an extra-
statutory property-ownership limitation on the term “aggrieved” within the MZEA. While
the purported requirement dates back to Joseph, that decision was not appealed in this
Court. Joseph is also distinguishable because it concerned an original action challenging
the validity of a legislative act of rezoning property as opposed to an appeal from an
administrative zoning decision. 18 The Joseph decision imported a requirement that the
alleged special damages be based on a comparison to other property owners similarly
situated. The Unger, Brink, and Village of Franklin decisions, which also were not
appealed in this Court, doubled down on Joseph by grafting the nonstatutory standard onto
the statutory standards for seeking appellate review of administrative zoning decisions.
Olsen then applied the same standard to MCL 125.3605 based on an assumption that the
Legislature relied on what we have identified as incorrect judicial construction of prior
statutes. Olsen, 325 Mich App at 182-185. In light of the precedent discussed below that
predates Joseph and defines the term “aggrieved” without regard to property ownership,
18
The zoning and rezoning of property are considered legislative functions under Michigan
law. Schwartz v Flint, 426 Mich 295, 307-308; 395 NW2d 678 (1986). There is authority
to suggest that “ ‘[t]he remedy of the party who conceives himself injured by an
amendment is to wait until it has been adopted and then challenge it in court’ ” rather than
to seek an administrative appeal. Sun Communities v Leroy Twp, 241 Mich App 665, 669-
670; 617 NW2d 42 (2000), quoting Crawford, Michigan Zoning and Planning (3d ed),
§ 1.11, p 53. Sun Communities was not appealed in this Court. We take no position on the
issue decided in Sun Communities beyond recognizing that there is a difference between
appealing the administrative application of existing zoning ordinances under the MZEA
and challenging the legal validity of a municipality’s legislative zoning actions.
22
we decline to recognize an extra-statutory property-ownership requirement merely because
a mistake has been repeated over time. 19
b. WHAT IT MEANS TO BE AGGRIEVED BY A ZONING DECISION
We must decide the standard for determining when a potential appellant has been
“aggrieved” by a zoning decision. 20 Long before Olsen or Joseph were decided, the term
19
The dissent argues that the “Court of Appeals has never held that a person must be a
property owner to appeal a zoning decision or that, to determine aggrieved status, the
appellant must be compared to property owners” and further states that “[n]or do the cases
hold that the ‘similarly situated’ component of the test requires comparing the appellant to
property owners.” Such arguments ignore the actual statements of law made by the Court
of Appeals in Olsen, related decisions, and this case. See Olsen, 325 Mich App at 185;
Unger, 65 Mich App at 617; Brink, 81 Mich App at 103 n 1. Olsen itself is internally
inconsistent because it simultaneously refers to special damages as harm “not common to
other property owners similarly situated,” Olsen, 325 Mich App at 183, 184, 185, 186(quotation marks and citation omitted), “harm different from that suffered by people in the
community generally,” id. at 183, 186, “a unique harm different from similarly situated
community members,” id. at 186, and harms “different from those of others within the
community,” id. at 194. In this case, the Court of Appeals, citing Olsen, noted that
“[p]laintiff has not shown, however, that the affiants will suffer harms distinct from other
property owners similarly situated” and that “some of the affiants are not even actual
owners of nearby property[.]” Saugatuck Dunes Coastal Alliance, unpub op at 5, citing
Olsen, 325 Mich App at 193. In the absence of a Court of Appeals decision regarding an
aggrieved nonproperty owner, we cannot know whether zoning boards of appeal and circuit
courts have been more literal in their reading of the law than what the dissent suggests the
Court of Appeals has historically been. Those bodies are the bodies who primarily decide
who has been “aggrieved” for purposes of MCL 125.3605 and MCL 125.3606, and it is
those bodies that will most benefit from clarification of the law. Nor can we know how
attorneys counsel their clients based upon the caselaw.
20
Appellant and the Environmental Law and Policy Center ask us to effectively adopt the
Lansing Sch prudential standard for standing as the interpretive explanation for the
“aggrieved party” standard under the MZEA or, alternatively, to harmonize the two.
Conversely, North Shores argues that property ownership is not a prerequisite to claiming
an appeal under the MZEA and suggests that the reference to property ownership is merely
23
“aggrieved” had a settled meaning in Michigan outside the zoning context. Nearly 100
years ago, we stated that “ ‘[t]he question of who may be aggrieved was settled in Labar
v. Nichols, 23 Mich. 310 [(1871)]. To be aggrieved, one must have some interest of a
pecuniary nature in the outcome of the case, and not a mere possibility arising from some
unknown and future contingency.’ ” George Realty Co v Paragon Refining Co of Mich,
282 Mich 297, 301; 276 NW 455 (1937). It is not clear why the Joseph, Unger, and later
decisions failed to mention this precedent when interpreting the term “aggrieved” within
the context of zoning appeals. 21 More recently, in the context of establishing standing to
appeal a judicial decision, we reiterated that
standing refers to the right of a party plaintiff initially to invoke the power of
the court to adjudicate a claimed injury in fact. In such a situation it is usually
the case that the defendant, by contrast, has no injury in fact but is compelled
to become a party by the plaintiff’s filing of a lawsuit. In appeals, however,
a similar interest is vindicated by the requirement that the party seeking
appellate relief be an “aggrieved party” under MCR 7.203(A) and our case
law. This Court has previously stated, “To be aggrieved, one must have some
interest of a pecuniary nature in the outcome of the case, and not a mere
possibility arising from some unknown and future contingency.” In re Estate
of Trankla, 321 Mich 478, 482; 32 NW2d 715 (1948), citing In re Estate of
Matt Miller, 274 Mich 190, 194; 264 NW 338 (1936). An aggrieved party is
not one who is merely disappointed over a certain result. Rather, to have
a mechanism for ensuring that the special-damages assessment looks at those “who share
the same legally cognizable interest.”
21
The Legislature is presumed to have had knowledge of all caselaw regarding the
definition of “aggrieved”—including the pre-1970s precedent from this Court concerning
what it means to be aggrieved by a legal determination—when it enacted the MZEA in
2006. See 2006 PA 110. Thus, just as the Legislature is presumed to have known of Joseph
and its progeny, it is also presumed to have known that this Court’s pre-1970s precedent
was inconsistent with Joseph and its progeny and that this Court had never adopted or
endorsed the Joseph formulation.
24
standing on appeal, a litigant must have suffered a concrete and
particularized injury, as would a party plaintiff initially invoking the court’s
power. The only difference is a litigant on appeal must demonstrate an injury
arising from either the actions of the trial court or the appellate court
judgment rather than an injury arising from the underlying facts of the case.
[Federated Ins Co, 475 Mich at 290-292 (citations omitted).][22]
Additionally, Black’s Law Dictionary defines “aggrieved” as “([o]f a person or entity)
having legal rights that are adversely affected; having been harmed by an infringement of
legal rights” and defines “aggrieved party” as “[a] party entitled to a remedy; esp., a party
whose personal, pecuniary, or property rights have been adversely affected by another
person’s actions or by a court’s decree or judgment.” Black’s Law Dictionary (11th ed),
pp 83 and 1351.
We are tasked with now determining what it means to be aggrieved by a zoning
decision. Synthesizing concepts from caselaw and Black’s Law Dictionary, as a general
matter, to be aggrieved by a legal determination, one must have a protected interest or a
protected personal, pecuniary, or property right that is or will be adversely affected by the
substance and effect of the challenged decision. Moreover, despite some disagreements
with prior Court of Appeals precedent, we agree with the longstanding requirement that a
party appealing under the MZEA must demonstrate special damages as a part of
demonstrating aggrieved-party status. This is a derivative of the requirement that the
complaining party demonstrate injury to a protected right or interest. Such a requirement
is necessary to balance the rights of private-property owners seeking zoning approval and
22
Even a prevailing party can be “aggrieved” by a decision for appellate purposes if the
legal effects of the decision mean that the party “nonetheless suffered a concrete and
particularized injury as a result . . . .” Manuel v Gill, 481 Mich 637, 644; 753 NW2d 48(2008).
25
the interests of third parties seeking to ensure that local zoning ordinances are correctly
and lawfully administered. Requiring an appellant to demonstrate special damages also
aligns with how a majority of other jurisdictions have construed the requirement of being
aggrieved in their zoning statutes. 23 This requirement also aligns with the observations
offered in a leading legal encyclopedia:
To maintain standing to challenge a zoning decision as an aggrieved
person, a person must have and maintain a specific, personal, and legal
interest in the subject matter of the appeal throughout the course of the appeal
and must present proof of the adverse effect the changed status has or could
have on the use, enjoyment, and value of his or her property. The zoning
board decision must not only affect a matter in which the protestant has a
specific interest or property right, but he or she must also be personally and
specially affected in a way different from that of the public generally. [83
Am Jur 2d, Zoning and Planning (November 2021 update), § 882 (citations
omitted).]
Based on our review of the statutes and other available authority, we hold that to be
a “party aggrieved” under MCL 125.3605 and MCL 125.3606, the appellant must meet
three criteria.
23
See, e.g., Virginia Beach Beautification Comm v Bd of Zoning Appeals of Virginia
Beach, 231 Va 415, 419-420; 344 SE2d 899 (1986) (“The word ‘aggrieved’ in a statute
contemplates a substantial grievance and means a denial of some personal or property right,
legal or equitable, or imposition of a burden or obligation upon the petitioner different from
that suffered by the public generally.”); Safest Neighborhood Ass’n v Athens Bd of Zoning
Appeals, 2013-Ohio-5610, ¶ 26; 5 NE3d 694 (Ohio App, 2013) (“A party is directly
affected by an administrative decision, as distinguished from the public at large, when he
or she can demonstrate a unique harm.”); Copple v City of Lincoln, 210 Neb 504, 507; 315
NW2d 628 (1982) (“In order to have standing as an aggrieved person for the purpose of
attacking a change of zone, the plaintiff must demonstrate that he suffers a special injury
different in kind from that suffered by the general public.”).
26
• First, the appellant must have participated in the challenged proceedings by
taking a position on the contested decision, such as through a letter or oral public
comment.
• Second, the appellant must claim some legally protected interest or protected
personal, pecuniary, or property right that is likely to be affected by the
challenged decision.
• Third, the appellant must provide some evidence of special damages arising
from the challenged decision in the form of an actual or likely injury to or burden
on their asserted interest or right that is different in kind or more significant in
degree than the effects on others in the local community.
We use “others in the local community” to refer to persons or entities in the community24
who suffer no injury or whose injury is merely an incidental inconvenience and exclude
those who stand to suffer damage or injury to their protected interest or real property that
derogates from their reasonable use and enjoyment of it. 25 Factors that can be relevant to
this final element of special damages include but are not limited to: (1) the type and scope
24
The local community will often be limited to those within the jurisdictional boundaries
of the body making the zoning decision. There are situations where the scope or nature of
the decision—or the location of the proposed land use—will affect persons or entities in
adjacent jurisdictions. In such situations, it would be appropriate to consider those
individuals or entities to be part of the relevant community for purposes of analyzing
whether they have standing to appeal a zoning decision.
25
In other words, to be a party aggrieved, the appellant must show an injury different in
kind or more significant in degree from others in the relevant community who suffer
incidental inconvenience as a result of the contested decision. But one need not show an
injury different in kind or more significant in degree from others who also stand to suffer
actionable damage or injury to their real property that derogates from their reasonable use
and enjoyment of it. It would not be appropriate, for example, to say that a neighbor of a
proposed apartment development who can present evidence of harm to his or her protected
property rights does not have standing to appeal merely because another neighbor to the
same development would suffer the same or similar harm. Rather, the inquiry must go
beyond adjacent neighbors and consider what harms are and are not shared by the local
community as a whole to ensure a proper measurement of special damages.
27
of the change or activity proposed, approved, or denied; (2) the nature and importance of
the protected right or interest asserted; (3) the immediacy and degree of the alleged injury
or burden and its connection to the challenged decision as compared to others in the local
community; and (4) if the complaining party is a real-property owner or lessee, the
proximity of the property to the site of the proposed development or approval and the nature
and degree of the alleged effect on that real property. 26
We reaffirm several well-established principles that are relevant to the standing
analysis. Under the current MZEA, mere ownership of real property that is adjacent to a
proposed development or that is entitled to statutory notice, without a showing of special
damages, is not enough to show that a party is aggrieved. See Olsen, 325 Mich App at
185; Village of Franklin, 101 Mich App at 557-558; Brink, 81 Mich App at 102-103. It
also remains true that generalized concerns about traffic congestion, economic harms,
aesthetic harms, environmental harms, and the like are not sufficient to establish that one
has been aggrieved by a zoning decision. See Olsen, 325 Mich App at 185; Unger, 65
Mich App at 617. But we caution courts and zoning bodies against an overbroad
construction of allegations as mere generalizations to avoid addressing the merits of an
appeal. While generalized concerns are not sufficient, a specific change or exception to
local zoning restrictions might burden certain properties or individuals’ rights more heavily
than others. A party who can present some evidence of such disproportionate burdens
26
While we reject appellant’s request to graft the prudential standard for standing to initiate
a lawsuit that we adopted in Lansing Sch onto MCL 125.3605 and MCL 125.3606, we
expect some overlap in analysis because of similarities in the legal standard.
28
likely will have standing to appeal under MCL 125.3605 and MCL 125.3606. 27 In light of
the modest clarification to the law that this opinion makes and the breadth of existing
precedent that has been retained, we disagree with the dissent’s suggestion that this
decision will cause confusion or “upend[] decades of stability in Michigan zoning law.”
Further, unlike in an original lawsuit, a circuit court sits as an appellate body with a
closed record when reviewing an appeal brought under MCL 125.3605 and MCL 125.3606.
If the circuit court determines that “the record [is] inadequate to make the review required
by [MCL 125.3606] or finds that additional material evidence exists that with good reason
was not presented” for purposes of analyzing standing under MCL 125.3605 and MCL
125.3606, then the court “shall order further proceedings on conditions that the court
considers proper.” MCL 125.3606(2). These additional proceedings may include a remand
to the relevant planning or zoning body whose decision is being contested with instructions
as to what is expected by the circuit court.
3. INTERPLAY BETWEEN MCL 125.3604(1) AND MCL 125.3605
We also requested briefing as to whether there is a substantive difference between
the “person aggrieved” standard in MCL 125.3604(1) and the “party aggrieved” standard
27
We observe, for example, that the Court of Appeals’ evaluation of the alleged special
damages incurred by waterfront property owners and river-using business owners in the
present matter seems at odds with another unpublished decision that was decided about a
month later. See Deer Lake Prop Owners Ass’n v Indep Charter Twp, unpublished per
curiam opinion of the Court of Appeals, issued October 10, 2019 (Docket No. 343965), p 9
(holding that a lakefront property owners’ association was aggrieved by a special-land-use
approval when the association alleged “that the additional docks may disrupt or destroy the
shoreline and its ecosystem” because, “[a]s riparian owners who share this shoreline, [the
members of the association] have an interest beyond that of other lake users, the public at
large, or even similarly situated neighbors”).
29
in MCL 125.3605. The task of the ZBA here was to determine whether appellant was a
“person aggrieved” by the Commission’s planned unit development and special use
approval decisions for purposes of an appeal to the ZBA under MCL 125.3604(1). The
ZBA determined that appellant was not a person aggrieved, and that decision was appealed
in the circuit court under MCL 125.3605. In both lower-court proceedings, the circuit court
either overlooked or failed to mention these nuances. Similarly, the Court of Appeals
focused solely on whether appellant was a “party aggrieved” by the ZBA’s decision for
purposes of MCL 125.3605, which was the statute analyzed in Olsen, without any
discussion of whether it was a “person aggrieved” by the Commission’s decisions for
purposes of MCL 125.3604(1). This was a clear error, but not one of consequence for
present purposes.
Appellant meets the broad definition of “person” under MCL 125.3102(q)
(“ ‘Person’ means an individual, partnership, corporation, association, governmental
entity, or other legal entity.”). Thus, appellant is a “person” for purposes of MCL
125.3604(1). The parties do not dispute this. The record also shows that appellant, its
members, and its representatives participated in both the Commission and the ZBA
proceedings concerning the proposed North Shores development; therefore, they were
“parties” under MCL 125.3605. While it is possible that an individual or entity could be a
“person” under MCL 125.3604(1) but not a “party” for purposes of MCL 125.3605, that is
not the situation here.
We also agree with the parties’ arguments that “aggrieved” must be given the same
meaning in both MCL 125.3604(1) and MCL 125.3605. The Legislature has provided no
indication that “aggrieved” was intended to have different meanings in these closely related
30
statutes. 28 See Robinson v Lansing, 486 Mich 1, 17; 782 NW2d 171 (2010) (“[U]nless the
Legislature indicates otherwise, when it repeatedly uses the same phrase in a statute, that
phrase should be given the same meaning throughout the statute.”). To determine whether
the ZBA’s standing decision was correct in this case, on remand the circuit court first must
determine whether appellant was aggrieved by the Commission’s decision for the purpose
of appealing to the ZBA under MCL 125.3604. This determination will inform the
subsequent analysis of whether appellant was aggrieved by the ZBA’s standing decision
for the purpose of appealing in the circuit court under MCL 125.3605 and MCL 125.3606.
III. CONCLUSION
We overrule Olsen, Joseph, and related Court of Appeals decisions to the limited
extent that they (1) require real-property ownership as a prerequisite to being “aggrieved”
by a zoning decision under the MZEA and (2) require special damages to be shown only
by comparison to other real-property owners similarly situated. Real-property ownership
is not a requirement to appeal under the MZEA, and whether someone is “aggrieved” for
purposes of claiming an appeal under the MZEA should be determined using the analysis
laid out in Part II(B)(2)(b) of this opinion. It is not clear whether the lower courts would
have reached the same result as to standing in the absence of the errors in existing
precedent. Accordingly, we decline to decide whether the Court of Appeals erred when it
affirmed the circuit court’s decisions. Instead, we vacate Part IV of the Court of Appeals
opinion, vacate the Allegan Circuit Court’s judgment regarding standing, and remand both
28
We acknowledge that the procedural distinctions between the two statutes might mean
that the facts that make a person “aggrieved” under one statute might differ from the facts
that make a party “aggrieved” under the other statute.
31
cases to the circuit court for reconsideration of appellant’s arguments regarding standing
under MCL 125.3604(1) and MCL 125.3605. On remand, the circuit court shall also
address appellant’s original causes of action as directed by Part V of the Court of Appeals
opinion and conduct such other proceedings as may be necessary or appropriate under
MCL 125.3606. 29
Elizabeth M. Welch
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
29
Depending on the outcome of the circuit court’s analysis of standing, it might be
necessary for the court to also address what effect, if any, Saugatuck Township’s
amendment of § 40-72 of its zoning ordinance regarding the ZBA’s authority to hear
appeals related to special approval use and planned unit development approval will have
on future proceedings in this matter.
32
STATE OF MICHIGAN
SUPREME COURT
SAUGATUCK DUNES COASTAL
ALLIANCE,
Plaintiff-Appellant,
v Nos. 160358-9
SAUGATUCK TOWNSHIP,
SAUGATUCK TOWNSHIP ZONING
BOARD OF APPEALS, and NORTH
SHORES OF SAUGATUCK, LLC,
Defendants-Appellees.
VIVIANO, J. (dissenting).
The majority’s decision today to redefine what it means to be a “party aggrieved”
for purposes of the Michigan Zoning Enabling Act (the MZEA), MCL 125.3101 et seq.,
will have far-ranging and destabilizing effects on Michigan zoning law. The majority
conjures new definitions, criteria, and factors—the contours of which will be litigated for
years to come. In doing so, the majority abandons the interpretation of “aggrieved” that
has stood for decades, including at the time the Legislature adopted the MZEA. The
majority’s expansive new definition of “party aggrieved” is contrary to the intent of the
Legislature, confusing, and unnecessary to resolve this case. Its decision will unsettle an
area of the law that has been settled and has operated well for over a century. For these
reasons, I respectfully dissent.
I. FACTS AND PROCEDURAL HISTORY
In 2017, the Saugatuck Township Planning Commission provided conditional
approval and final approval for a condominium development proposed by defendant North
Shores of Saugatuck, LLC (North Shores). Plaintiff, the Saugatuck Dunes Coastal
Alliance, appealed those decisions to the Saugatuck Township Zoning Board of Appeals
(the ZBA). Plaintiff submitted evidence in the form of written statements and testimony
at the ZBA hearing that it contended gave it standing to appeal the decisions of the Planning
Commission. The ZBA concluded that plaintiff lacked standing in two separate
resolutions. Plaintiff appealed both resolutions in the circuit court, which affirmed both
decisions of the ZBA. Plaintiff appealed both circuit court decisions in the Court of
Appeals, which consolidated the cases. The Court of Appeals affirmed the circuit court’s
decisions but remanded one case to the circuit court for it to consider the original claims
plaintiff had raised in that case. Saugatuck Dunes Coastal Alliance v Saugatuck Twp,
unpublished per curiam opinion of the Court of Appeals, issued August 29, 2019 (Docket
Nos. 342588 and 346677). Plaintiff then sought leave to appeal in this Court.
II. LEGAL ANALYSIS
A. “PARTY AGGRIEVED” AS USED IN MICHIGAN’S ZONING STATUTES IS A
LEGAL TERM OF ART
To properly interpret “aggrieved” in the MZEA, a brief overview of the history of
the appeal provisions in Michigan’s various zoning statutes is necessary. Michigan did not
always have a single consolidated law governing local zoning, such as the MZEA.
Previously, the state had three separate zoning statutes: (1) the City and Village Zoning
Act, 1921 PA 207, later codified at MCL 125.581 to MCL 125.600; (2) the County Zoning
2
Act, 1943 PA 183, later codified at MCL 125.201 to MCL 125.240; and (3) the Township
Zoning Act, 1943 PA 184, later codified at MCL 125.271 to MCL 125.310.
The City and Village Zoning Act used the term “person aggrieved” when providing
for appeals to the ZBA, former MCL 125.585(a), as enacted by 1921 PA 207, and used the
term “party aggrieved” when allowing appeals of certain ZBA decisions in the circuit court,
former MCL 125.590, as added by 1947 PA 272. But in 1979, the Legislature specifically
added a provision allowing for appeals of all ZBA decisions in the circuit court by “a person
having an interest affected by the zoning ordinance . . . .” Former MCL 125.585(6), as
added by 1978 PA 638. The County Zoning Act used the same “person aggrieved”
language for appeals to the ZBA, former MCL 125.220(2), and the “person having an
interest affected” language for appeals of a ZBA decision in the circuit court, former MCL
125.223(2). The Township Zoning Act mirrored the County Zoning Act. Former MCL
125.290; former MCL 125.293. Thus, beginning in 1979, all appeals from a ZBA in the
circuit court used the “person having an interest affected” standard, regardless of whether
the jurisdiction at issue was a city, village, township, or county.
A host of cases before and after the 1979 amendments examined the “aggrieved”
person or party standard. One case addressed zoning appeals and aggrieved-party status
without looking to the statutes. In Marcus v Busch, 1 Mich App 134, 136; 134 NW2d 498(1965), the Court of Appeals observed that “[t]he consensus of authority throughout the
country is that to have any status in court to attack the actions of a zoning board of appeals,
the party must be an aggrieved party, and said party must be more than a resident of the
city.” Rather than determining whether the plaintiffs were aggrieved parties, the Court of
Appeals remanded the case to the circuit court to make that determination. Id.3
Two years later, the Court of Appeals in Joseph v Grand Blanc Twp, 5 Mich App
566, 570-571; 147 NW2d 458 (1967), relied on Marcus and other caselaw for the
proposition that “[i]n order to maintain this action, plaintiff, a nonabutting property owner,
must allege and prove that he has suffered a substantial damage which is not common to
other property owners similarly situated.” The Court determined that the plaintiff, who
was merely a resident of the township, was not an “aggrieved party” because he had not
alleged any special damages “different in kind from those suffered by the community . . . .”
Id. at 571. This caselaw was cited in Unger v Forest Home Twp, 65 Mich App 614, 617-
618; 237 NW2d 582 (1975), to reject the appellant’s challenge of the issuance of a building
permit for a condominium complex: while he claimed to own real property that bordered
the land in question, he had not shown any special damages. For that reason, his allegations
were insufficient to establish standing. Id. at 618. The Court of Appeals also rejected the
appellant’s argument that the township’s zoning ordinance gave standing to any township
property owner, noting that the ordinance was in conflict with MCL 125.293. Id.Significantly, despite referring to MCL 125.293, the Court of Appeals never addressed that
MCL 125.293 contained the phrase “person having an interest affected” instead of
“aggrieved” party or person.
In Western Mich Univ Bd of Trustees v Brink, 81 Mich App 99; 265 NW2d 56(1978), the Court of Appeals addressed an appeal of a ZBA decision in the circuit court
under the City and Village Zoning Act. The Kalamazoo Zoning Board of Appeals had
granted the defendant’s petition to expand a nonconforming use. Id. at 100. The plaintiff
had wanted to purchase Brink’s property. Id. at 104. Unlike the three cases discussed
above, the Court in this case did look to the zoning statute to determine who may appeal a
4
ZBA decision in the circuit court, noting that MCL 125.590 limited “the right to institute
a suit for review of the [ZBA’s] decision to parties thereby ‘aggrieved[.]’ ” Brink, 81 Mich
App at 101. The Court of Appeals observed that the “aggrieved party” “requirement has
repeatedly been recognized and applied in the decisions of this Court.” Id. at 102, citing
Unger, 65 Mich App 614, Joseph, 5 Mich App 566, and Marcus, 1 Mich App 134. The
Court quoted Unger for the proposition that the “aggrieved” standard requires a plaintiff-
appellant to “ ‘allege and prove that he has suffered some special damages not common to
other property owners similarly situated . . . .’ ” Brink, 81 Mich App at 104, quoting
Unger, 65 Mich App at 617. The plaintiff had only alleged that it would have to pay a
higher price to purchase the land it wanted to purchase and made a general allegation about
the construction causing it irreparable harm. Brink, 81 Mich App at 104. The Court of
Appeals affirmed the trial court’s holding that the plaintiff had not been aggrieved. Id. at
105.
Similarly, in Village of Franklin v Southfield, 101 Mich App 554, 556-558; 300
NW2d 634 (1980), the Court of Appeals applied the “party aggrieved” language from MCL
125.590 and relied on Unger, Joseph, and Brink to interpret the standard. The plaintiffs
challenged approval of a proposed residential and commercial development. Id. at 556.
The Court of Appeals held that the plaintiffs lacked standing, noting that they had not
proven special damages and were therefore not “aggrieved.” Id. at 558.
The following year, in Brown v East Lansing Zoning Bd of Appeals, 109 Mich App
688, 699; 311 NW2d 828 (1981), the Court of Appeals applied the “person having an
interest affected” standard after recognizing that it was a less-stringent standard than the
“party aggrieved” standard. See also Olsen v Chikaming Twp, 325 Mich App 170, 189;
5
924 NW2d 889 (2018) (noting that Brown involved the more-permissive “person having
an interest affected” standard). In Brown, the Court of Appeals determined that “active
opposition” to a variance and participation in ZBA hearings was sufficient to demonstrate
that an individual has an “interest affected” by a decision to grant a variance. Brown, 109
Mich App at 699, quoting MCL 125.585(6). Under the “person having an interest affected”
standard, there was no requirement that the appellant suffer any damages at all by the
decision, let alone “special damages.”
In 2006, the Legislature repealed the separate zoning acts and adopted the MZEA.
MCL 125.3604 addresses appeals to the ZBA and states, in relevant part, that “[a]n appeal
to the zoning board of appeals may be taken by a person aggrieved or by an officer,
department, board, or bureau of this state or the local unit of government.” MCL
125.3604(1). MCL 125.3605 addresses appeals from a ZBA to the circuit court and states:
“The decision of the zoning board of appeals shall be final. A party aggrieved by the
decision may appeal to the circuit court for the county in which the property is located as
provided under section 606.” Thus, the Legislature abandoned the “person having an
interest affected” standard that had been in the original Township Zoning Act and County
Zoning Act and the amended City and Village Zoning Act; instead, the Legislature adopted
a “party aggrieved” standard similar to that in the original City and Village Zoning Act for
appeals to circuit court from ZBA decisions pertaining to nonconforming uses. 1
1
As the majority notes, in a subsequent case, the Court of Appeals recognized that its
decision in Brown applying the “person having an interest affected” standard was
superseded by statute when the Legislature repealed the City and Village Zoning Act. See
Ansell v Delta Co Planning Comm, 332 Mich App 451, 459; 957 NW2d 47 (2020).
6
The Court of Appeals properly recognized the Legislature’s adoption of the “party
aggrieved” standard in Olsen, 325 Mich App 170, in which the Court sought to interpret
the phrase “party aggrieved” in MCL 125.3605. The Court of Appeals understood that the
proper framing of the issue under the MZEA is not one of “standing,” as that word is
traditionally used, but whether the appellees were “parties aggrieved by the decision” of
the ZBA as defined by the MZEA. Id. at 181. The Court recognized the presumption that
the Legislature uses “words in the sense in which they previously have been interpreted,”
id. at 182, and looked to Unger, Joseph, Village of Franklin, and Brink for how the panels
in those cases had defined “party aggrieved,” id. at 182-185. The Court then explained:
Given the long and consistent interpretation of the phrase “aggrieved
party” in Michigan zoning jurisprudence, we interpret the phrase “aggrieved
party” in § 605 of the MZEA 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[.]”
Unger, 65 Mich App at 617. 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. See id.; Joseph, 5 Mich App at 571. Instead, there must
be a unique harm, dissimilar from the effect that other similarly situated
property owners may experience. See Brink, 81 Mich App at 103 n 1.
Moreover, mere ownership of an adjoining parcel of land is insufficient to
show that a party is aggrieved, Village of Franklin, 101 Mich App at 557-
558, as is the mere entitlement to notice, Brink, 81 Mich App at 102-103.
[Olsen, 325 Mich App at 185 (alterations in original).]
Applying the principles from cases that had interpreted the phrase “aggrieved party”
to the facts at issue, the Court concluded that the appellees had failed to show that they
were aggrieved parties for purposes of the MZEA. Olsen, 325 Mich App at 186. The
appellees had alleged that “they would suffer aesthetic, ecological, practical, and other
7
alleged harms from the grant of the zoning variance,” but the Court held that these alleged
harms did not show “ ‘special damages not common to other property owners similarly
situated[.]’ ” Id. (alteration in original), quoting Unger, 65 Mich App at 617. The Court
of Appeals specifically distinguished Brown, finding it “unpersuasive” on the ground that
the “interest affected by the zoning ordinance” standard was “a more permissive threshold”
than the “aggrieved person” threshold the MZEA incorporated. Olsen, 325 Mich App at
189. The panel concluded:
[W]e reiterate that the inquiry here involves not an application of concepts
of standing generally, but a specific assessment of whether, under the MZEA,
appellees have established their status as aggrieved parties empowered to
challenge a final decision of the ZBA. We conclude that appellees are not
parties “aggrieved” under MCL 125.3605, having failed to demonstrate
special damages different from those of others within the community.
[Olsen, 325 Mich App at 194.]
Just as in Olsen, the Court of Appeals in this case correctly understood that whether
a party has standing is a distinct inquiry from whether a party is “aggrieved” for purposes
of the MZEA. 2 And because there has been “long and consistent interpretation of the
2
A number of plaintiff’s members participated in the ZBA hearings and submitted
affidavits, but only plaintiff was a named appellant in the court proceedings. Neither party
has addressed the specific test for determining when an association representing its
members is aggrieved for purposes of the MZEA. The Court of Appeals looked at whether
any of plaintiff’s members were aggrieved for purposes of determining whether plaintiff,
as an association, was aggrieved. The point at which an association representing its
members qualifies as “aggrieved” under the MZEA is an issue that has not received
significant attention from our appellate courts, and I have found no Michigan caselaw
directly addressing whether the standard is different for an association than it is for an
individual. But the Court of Appeals’ approach in this case is consistent with the majority
approach, which looks at whether one or more of an association’s members would qualify
as “aggrieved” for purposes of determining whether the association is aggrieved. See 4
Salkin, American Law of Zoning (5th ed, May 2022 update), § 42:14. Because the parties
8
phrase ‘party aggrieved’ in Michigan zoning jurisprudence,” Olsen, 325 Mich App at 185,
it was not only proper, but necessary, for the Court of Appeals to consider that caselaw in
determining whether plaintiff was a “party aggrieved” under MCL 125.3605.
B. THE COURT OF APPEALS CORRECTLY INTERPRETED “PARTY
AGGRIEVED”
In light of this history, the first problem with the majority opinion is readily
apparent: it goes to great lengths to rid Michigan caselaw of a rule that has never existed.
The Court of Appeals has never held that a person must be a property owner to appeal a
zoning decision or that, to determine aggrieved status, the appellant must be compared to
property owners. Indeed, had the Court of Appeals made such an assertion, it would have
been dicta, since none of the appellants in those cases was a nonproperty owner. Rather,
in the cases discussed above, the Court of Appeals merely recognized that the parties
challenging the ZBA decisions were, in fact, property owners. Therefore, those cases stand
for the proposition that when a party challenging a ZBA decision is a property owner, the
comparison is to other similarly situated property owners. 3 Nothing in Joseph or its
progeny ever held that a nonproperty owner may not be a “party aggrieved.”
Nor do the cases hold that the “similarly situated” component of the test requires
comparing the appellant to property owners. That is, although the Court of Appeals asked
in those cases whether the appellant had suffered injuries different from those experienced
have not briefed this issue and because the Court of Appeals reached the correct result,
there is no need to resolve the issue today.
3
It makes sense that because property owners are often the most intimately affected by
zoning decisions, they are frequently the litigants who challenge those decisions.
9
by similarly situated property owners, this was again because the appellants in those cases
were property owners. The very nature of a “similarly situated” test entails comparing the
appellant to individuals or entities who are, in fact, similarly situated (not just to property
owners). The Court of Appeals caselaw appears to recognize this. In Olsen, 325 Mich
App at 186, for example, the Court determined that the parties were not aggrieved because
they “failed to show that they suffered a unique harm different from similarly situated
community members . . . .” (Emphasis added.) Even Joseph, 5 Mich App at 571,
concluded by noting that any damages alleged by the plaintiff were not “different in kind
from those suffered by the community . . . .” 4 As a result, at the time the Legislature
enacted the MZEA, it would not have understood “party aggrieved” to be limited to
property owners or to require comparisons to the harms suffered by similarly situated
property owners.
Second, and more importantly, even if the majority is correct that Joseph and the
cases that relied on it incorrectly defined “aggrieved” for purposes of zoning law, our role
in this case is not to determine whether “aggrieved” was properly understood in those cases
but to determine what the Legislature meant when it used the term “party aggrieved” in the
MZEA. For zoning in townships, the Legislature made the conscious choice to change
4
See also Ansell, 332 Mich App at 460 (“Such concerns, however, do not show that
appellants stand to suffer any greater negative impacts from the proposals than do their
neighbors or others in the community.”) (emphasis added). North Shores cites a host of
unpublished opinions that illustrate this same point. See, e.g., Deer Lake Prop Owners
Ass’n v Independence Charter Twp, unpublished per curiam opinion of the Court of
Appeals, issued October 10, 2019 (Docket No. 343965), p 9 (comparing the injuries of the
party property owners to those of “other lake users, the public at large, [and] even similarly
situated neighbors”).
10
from a standard that looked at whether one has “an interest affected” and to return to a
standard that looked at whether one is “aggrieved.” Significantly, the Legislature had
previously used an “aggrieved” standard in the state’s zoning laws. “[C]ourts must pay
particular attention to statutory amendments, because a change in statutory language is
presumed to reflect either a legislative change in the meaning of the statute itself or a desire
to clarify the correct interpretation of the original statute.” Bush v Shabahang, 484 Mich
156, 167; 772 NW2d 272 (2009); see also Scalia & Garner: Reading Law: The
Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 73 (“ ‘[I]f a word is
obviously transplanted from another legal source, whether the common law or other
legislation, it brings the old soil with it.’ ”), quoting Frankfurter, Some Reflections on the
Reading of Statutes, 47 Colum L Rev 527, 537 (1947).
The Legislature’s use of old legislation to craft new legislation is not an uncommon
occurrence and can aid courts in the proper interpretation of new or revised legislation.
Most statutes have had many precursors because legislatures avoid the
sudden, sporadic, and unexpected enactment of unprecedented legislation. A
particular act usually expands or restricts the regulation of former acts, but
seldom breaks with the principle of regulation expressed by its
predecessors. . . .
Thus, a full appreciation of any specific enactment requires an
examination of all legislation in a particular field. . . . Such an inquiry will
usually reveal a legislative common law of surprising consistency and
continuity, may help disclose the “legislative intent” behind a particular
statute, and also can pave the way for constructive judicial use of legislative
as well as case law precedents. [2A Singer & Singer, Sutherland Statutory
Construction (7th ed, November 2021 update), § 45:10 (citations omitted).]
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Absent any evidence that the Legislature thought those cases had been wrongly decided
when it adopted the MZEA, the word “aggrieved” in MCL 125.3604(1) and MCL 125.3605
should be understood consistently with those cases.
Thus, the question at issue is not whether Joseph and its progeny were correct; the
question is what the Legislature intended when it chose to use the phrase “party aggrieved”
in MCL 125.3605. At the time the Legislature adopted the MZEA, our courts had
uniformly construed the word “aggrieved” in the context of zoning law for nearly 40 years.
See Reading Law, p 322 (“If a statute uses words or phrases that have already received
authoritative construction by the jurisdiction’s court of last resort, or even uniform
construction by inferior courts . . . , they are to be understood according to that
construction.”). The statutory history of the MZEA and the acts that it replaced
demonstrate that the Legislature intended to return to a narrower “aggrieved” standard in
place of the relaxed “interest affected” standard that it had adopted in 1979. Notably, this
“aggrieved” standard was different from the “person having an interest affected” standard
that had been used in all three zoning statutes prior to their replacement. See Olsen, 325
Mich App at 189.
In 2006, the phrase “party aggrieved” had acquired a particular meaning within
zoning law—that given to it in Joseph, Unger, Brink, and Village of Franklin: when an
individual challenges a ZBA decision, a party aggrieved was one who suffered some
special damages not common to other similarly situated community members. As noted,
because “party aggrieved” had received past judicial interpretation, it is presumed that the
Legislature intended “party aggrieved” to have the same meaning given to it in prior zoning
12
caselaw. See People v Wright, 432 Mich 84, 92; 437 NW2d 603 (1989). 5 Absent any
evidence to the contrary, the presumption that the Legislature intended “party aggrieved”
to have the meaning consistently given to it by Michigan courts should stand. Regardless
of whether it was originally proper to define “party aggrieved” to require a party to show
that he or she “suffered some special damages not common to other property owners
similarly situated,” Unger, 65 Mich App at 617, that requirement would have been part of
the Legislature’s understanding of the phrase “party aggrieved” when it enacted the MZEA.
C. THE MAJORITY’S STANDARD WILL UNSETTLE AN AREA OF THE LAW
THAT HAS BEEN SETTLED FOR DECADES
The majority, in rejecting the proper interpretation of the statute, adopts one that is
troublesome in both its development and effects. In establishing the three new “party
aggrieved” criteria, the majority appears to have spliced together bits and pieces from a
number of other authorities. How exactly the majority arrived at these three criteria is not
entirely clear. The majority discusses a number of cases—some pertaining to zoning law
and others not—and statutes from other jurisdictions, but it does not cite specific authority
for establishing the three criteria in our state. And the factors the majority announces for
5
Although the majority is correct that the Legislature is presumed to have had knowledge
of all caselaw involving the definition of “aggrieved,” only caselaw defining “aggrieved”
in the zoning context is relevant to determining the Legislature’s intent when enacting the
MZEA. When a phrase has received uniform construction by our courts, the phrase
acquires a technical legal sense specific to that field of law. See Reading Law, p 324 (“The
word or phrase at issue is a statutory term used in a particular field of law (to which the
statute at issue belongs). When that term has been . . . given uniform interpretation by the
lower courts . . . , the members of the bar practicing in that field reasonably enough assume
that, in statutes pertaining to that field, the term bears this same meaning. The term has
acquired, in other words, a technical legal sense . . . that should be given effect in the
construction of later-enacted statutes.”).
13
determining whether special damages exist, which appear to have been created out of
whole cloth, are not discussed anywhere else in the majority’s opinion. Thus, when courts
have questions about how the criteria and factors should be applied, they will be left
wondering where to look for further explanation.
Beyond the confusion created by the majority’s method in establishing the criteria,
the criteria themselves are problematic in a number of ways. First, the majority does away
with the requirement that the harm suffered must be different from the harm suffered by
those who are similarly situated. The “similarly situated” requirement ensures that only
those who suffer damages different from those damages suffered by the community in
general may appeal a zoning decision. See Boerner, Standing to Appeal Zoning
Determinations: The “Aggrieved Person” Requirement, 64 Mich L Rev 1070, 1079-1080
(1966); Miller v Fulton Co, 258 Ga 882, 883; 375 SE2d 864 (1989). 6 This Court’s opinion
in Spiek v Dep’t of Transp, 456 Mich 331, 349; 572 NW2d 201 (1998), addressing an
inverse-condemnation suit, demonstrates why such a requirement is necessary:
Where harm is shared in common by many members of the public, the
appropriate remedy lies with the legislative branch and the regulatory bodies
created thereby, which participate extensively in the regulation of vibrations,
pollution, noise, etc., associated with the operation of motor vehicles on
public highways. Only where the harm is peculiar or unique in this context
does the judicial remedy become appropriate.
The same principle applies to zoning decisions appealed to and from a ZBA. If the basis
for the appeal is that the underlying zoning ordinance is allowing for harm shared by many
6
Joseph, 5 Mich App at 570-571, had relied on Georgia caselaw when it recognized the
“similarly situated” requirement, so it is helpful to look at Georgia caselaw to explain that
requirement.
14
community members, the appropriate remedy is to have those community members urge
the legislative body of the municipality to change the zoning ordinance. In any event, it
seems inescapable that one person’s special damages will likely be different in kind or
more significant in degree than at least one other person’s when the comparison is to
everyone else in the community. Thus, by changing the relevant comparison to “others in
the local community” instead of those who are “similarly situated,” the majority’s standard
significantly broadens who can qualify as “aggrieved.”
Second, the majority’s expansion of what constitutes “special damages” also has the
potential to dramatically expand who qualifies as “aggrieved.” Joseph required the special
damages to be “different in kind from those suffered by the community . . . .” Joseph, 5
Mich App at 571. The majority’s third factor expands this, making one aggrieved if the
special damages are “different in kind or more significant in degree than the effects on
others in the local community.” (Emphasis added.) It will almost always be possible to
find “others in the local community” who have not suffered the same kind of damages or
who have suffered them to a lesser degree. This hollows out the special-damages
requirement and disregards its origins. The special-damages requirement comes from
public-nuisance law. See 4 Rathkopf, The Law of Zoning and Planning (4th ed, June 2022
update), § 63:14. In Michigan, to bring an action to abate a public nuisance, one has to
show “ ‘damage of a special character, distinct and different from the injury suffered by
the public generally.’ ” Morse v Liquor Control Comm, 319 Mich 52, 59; 29 NW2d 316(1947), quoting 39 Am Jur, p 378, overruled in part on other grounds by Bundo v Walled
Lake, 395 Mich 679, 691-692 (1976). Joseph’s focus on the kind of harm, rather than the
15
degree of harm, is consistent with the development of the special-damages requirement in
public-nuisance law.
The majority’s unsupported and unexplained addition of “degree” of harm to the
inquiry is likely to have significant effects on zoning law in Michigan. Burdens and injuries
to interests or rights will typically be more significant for those who are closer to the
property for which a zoning decision was made. The degree of harm will typically continue
to decrease for those farther and farther from the property at issue. Thus, the majority’s
standard will likely give “aggrieved” status to all but the most remote individual or entity
who is least harmed by a zoning decision—as long as they will actually or likely suffer an
injury.
The practical effect of the majority’s new standard is that the threshold for who
qualifies as “aggrieved” will be significantly more permissive. The majority ignores the
Legislature’s decision to abandon a “more permissive” standard for a narrower one and in
the process upends decades of stability in Michigan zoning law. 7
III. CONCLUSION
To appeal the decision of the ZBA, plaintiff needed to show that its members would
suffer some harms that were different from harms suffered by similarly situated community
members. The Court of Appeals was correct in determining that plaintiff had not made
such a showing. The harms alleged were either common to other similarly situated
7
Although the majority does not fully resurrect the “interest affected” standard, its use of
the phrase “legally protected interest” in its second factor is, at a minimum, puzzling given
the Legislature’s express choice to abandon the “interest affected” standard.
16
community members or were not damages as a result of the decision of the Planning
Commission or the ZBA. Therefore, I would affirm the judgment of the Court of Appeals.
David F. Viviano
Brian K. Zahra
17