Gasper Randazzo v. Lake Township ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
GASPER RANDAZZO and UNPUBLISHED
NICOLE RANDAZZO, November 12, 2020
Appellees,
v No. 348559
Huron Circuit Court
LAKE TOWNSHIP, LC No. 18-105562-AA
Appellant.
Before: BOONSTRA, P.J., and CAVANAGH and BORRELLO, JJ.
PER CURIAM.
Appellant, Lake Township (the Township), appeals by leave granted1 the trial court’s order
reversing the decision of the Lake Township Zoning Board of Appeals (ZBA) denying a variance
request of appellees, Gasper and Nicole Randazzo. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Appellees filed with the Township a Land Use Permit Application for an addition to their
single-family residence located on Port Austin Road in Caseville, Michigan. On February 14,
2018, the Township’s Zoning Administrator denied appellees’ permit application based on two
purported violations of the Zoning Ordinance: § 1310 (Extensions of Nonconforming Buildings)
and § 705.4(A) (Maximum Building Height).
On February 28, 2018, appellees filed an Application for Appeal, Variance or Exception
with the ZBA. Appellees attached a letter with their application in which they stated that the
proposed improvement to the house would add an additional level that would include a master
bedroom, bathroom, and closet. The ZBA held a public hearing regarding appellees’ appeal and
1
Randazzo v Lake Township, unpublished order of the Court of Appeals, entered August 30, 2019
(No. 348559).
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variance request. At the hearing, appellees pointed out that the current structure had a preexisting
nonconformity regarding the setback requirements because it was only 8.3 feet away from the
road, and argued that the proposed improvements would not increase the nonconformity of the
home under § 1310 of the Zoning Ordinance. Appellees also argued that the proposed
improvements would not violate § 705.4 of the Zoning Ordinance because the highest point of the
building after improvement would be only 23 feet.2
The ZBA denied appellees’ appeal, stating that an “[a]dditional story going straight up
from existing nonconforming roadside is considered increasing the nonconformity. Current
ordinance does not allow third story in R-1.”3 The ZBA did not address the variance standards,
which are set forth in § 303.7(B) of the Zoning Ordinance, either on the record or in its decision.
Appellees appealed the ZBA’s decision to the trial court on July 24, 2018, arguing that the
ZBA had misinterpreted and misapplied the Zoning Ordinance. Appellees argued that the ZBA
had erred when it denied their appeal because the proposed improvements complied with § 705.4
of the Zoning Ordinance and did not increase the structure’s legal nonconformity based on the
setback from the road. The Township argued that the ZBA had correctly applied the Zoning
Ordinance therefore had properly denied the variance request. The trial court entered an order
reversing the ZBA’s decision and granting appellees’ variance request. The court concluded that
the ZBA’s denial did not comply with the Zoning Ordinance because the ZBA has misinterpreted
§ 704.5 of the Zoning Ordinance to prohibit a third story regardless of whether the total height
limit was exceeded. The trial court also concluded that the ZBA erred when it interpreted and
applied § 1310 of the Zoning Ordinance because the proposed project did not further encroach on
the nonconforming setback.
This appeal followed. On appeal, the Township expressly does not challenge the trial
court’s interpretation of § 704.5 or its conclusion that the proposed improvements do not violate
that section of the Zoning Ordinance; rather, it argues only that the trial court erred in its
interpretation and application of § 1310.
II. STANDARD OF REVIEW
Under MCL 125.3606(1), the trial court was required to review the ZBA’s decision to
determine, based on the ZBA record, whether the decision (a) complied with the constitution and
laws of the state, (b) was based upon proper procedure, (c) was supported by competent, material,
and substantial evidence on the record, and (d) represented the reasonable exercise of discretion
granted by law to the zoning board of appeals.
2
§ 705.4 of the Zoning Ordinance sets the maximum building height of a residential unit as “thirty-
five feet (35’) or two (2) stories in height above the average grade of adjacent properties.”
3
The record reflects that the parties have disagreed about whether the proposed addition would be
that of a second story or a third story. Appellees describe the home (pre-addition) as a “one-story
ranch with a walk-out basement.” As we will describe, however, that issue is not before us on
appeal.
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“Substantial evidence” is evidence that a reasonable person would accept as
sufficient to support a conclusion. While this requires more than a scintilla of
evidence, it may be substantially less than a preponderance. Under the substantial-
evidence test, the circuit court’s review is not de novo and the court is not permitted
to draw its own conclusions from the evidence presented to the administrative body.
Courts must give deference to an agency’s findings of fact. When there is
substantial evidence, a reviewing court must not substitute its discretion for that of
the administrative tribunal even if the court might have reached a different result.
A court may not set aside findings merely because alternative findings also could
have been supported by substantial evidence on the record. [Edw C Levy Co v
Marine City Zoning Bd of Appeals, 293 Mich. App. 333, 340-341; 810 NW2d 621
(2011) (quotation marks and citation omitted).]
A circuit court’s decision in an appeal from a decision of a zoning board of appeals is reviewed
“de novo to determine whether the circuit court applied the correct legal principles and whether it
misapprehended or grossly misapplied the substantial evidence test to the [ZBA’s] factual
findings.” Olsen v Chikaming Twp, 325 Mich. App. 170, 180; 924 NW2d 889 (2018) (alteration in
original, quotation marks and citation omitted). We review for clear error the circuit court’s factual
findings in determining whether the circuit court correctly applied the substantial evidence test.
Hughes v Almena Twp, 284 Mich. App. 50, 60; 771 NW2d 453 (2009). “A finding is clearly
erroneous if the reviewing court, on the whole record, is left with the definite and firm conviction
that a mistake has been made.” Id.
We review de novo issues involving the construction of statutes and ordinances. Id.
III. ANALYSIS
The Township argues that the trial court erred when it interpreted the plain language of
§ 1310 of the Zoning Ordinance and reversed the ZBA’s denial of the variance. We disagree.
The rules applicable to statutory construction apply to the construction of
ordinances as well. The primary goal of statutory interpretation and, by
implication, the interpretation of ordinances, is to give effect to the intent of the
legislative body. The first criterion in determining intent is the specific language
used by the legislative body in the statute or ordinance. If the plain and ordinary
language is clear, then judicial construction is normally neither necessary nor
permitted. However, the court may refer to dictionary definitions when appropriate
when ascertaining the precise meaning of a particular term. [Ballman v Borges,
226 Mich. App. 166, 167-168; 572 NW2d 47 (1997).]
“When the words used in a statute or an ordinance are clear and unambiguous, they express the
intent of the legislative body and must be enforced as written.” Sau-Tuk Indus, Inc v Allegan Co,
316 Mich. App. 122, 137; 892 NW2d 33 (2016).
Section 1310 of the Zoning Ordinance provides:
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No non-conforming building or structure may be enlarged or altered in a way that
increases its nonconformity, except where the nonconforming setback of a building
or structure is not less than one-half (½) of the distance required by this Ordinance.
In such case, the nonconforming setback may be extended along the same plane up
to fifteen (15’) feet in length. In no case shall the setback be further reduced. Only
one nonconforming extension of up to fifteen (15’) feet is permitted. [Emphasis
added.]
The Zoning Ordinance defines a “non-conforming building” as “[a] building or portion thereof
lawfully existing at the effective date of this zoning ordinance, or amendments thereto, and which
does not conform to the provisions (e.g., setbacks, height, lot coverage, parking) of this zoning
ordinance in the zoning district in which it is located.” See Zoning Ordinance, § 202. The Zoning
Ordinance does not define “enlarge” or “alter.” Merriam-Webster’s Collegiate Dictionary (11th
ed) defines “enlarge” as “to make larger.” Merriam-Webster’s Collegiate Dictionary (11th ed)
defines “alter” as “to make different without changing into something else.”
The nonconformity at issue in this appeal is the setback requirement of the building.
Section 705.2(A) requires that “[e]ach front yard shall be a minimum of twenty-five (25’) feet
from road right-of-way.” Zoning Ordinance, § 705.2(A). The Zoning Ordinance defines
“setback” as “[t]he minimum horizontal distance required to exist between a structure (overhangs)
and the property lines.” Zoning Ordinance, § 202. It is undisputed that the residence is an existing
nonconforming building with respect to its setback, being set back only 8.3 feet from the road.
The Township argues that it was intent of the drafters of § 1310 to “prohibit any expansion
or alteration of a nonconforming structure with less than ½ of the required setback distance.”
However, the plain language of the ordinance provides that “[n]o conforming building or structure
may be enlarged or altered in a way that increases its nonconformity.” Zoning Ordinance, § 1310
(emphasis added). “When the words used in a statute or an ordinance are clear and unambiguous,
they express the intent of the legislative body and must be enforced as written.” Sau-Tuk Indus,
Inc, 316 Mich. App. at 137. In this case, the ZBA’s interpretation of § 1310 was contrary to the
unambiguous language of § 1310.
The proposed improvements to the property would not further decrease the setback, or, in
other terms, enlarge or alter the nonconformity of the setback. Moreover, because the Township
has elected not to challenge the trial court’s findings concerning the height requirement, there is
no basis for concluding that the proposed improvements would result in a vertical nonconformity
by exceeding the height requirement of § 705.4. The ZBA’s finding was therefore not supported
by competent, material, and substantial evidence because there was no evidence that any
nonconformity would be enlarged or altered; in simple terms, the building would be just as
nonconforming after the improvements as it was before. Although the Township argues that the
proposed improvement would result in “more of the building being located within the
nonconforming setback(s),” they have not provided any authority for the proposition that this
constitutes an enlargement or alteration of the nonconformity itself. As noted, the trial court
determined that the vertical expansion would not violate the height requirements of the Zoning
Ordinance, and the Township has not appealed that decision. Moreover, the structure will fail to
conform to the setback requirements in exactly the same way both before and after the
improvements; there is nothing in the language of the ordinances governing or defining setbacks
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that addresses height or total square footage of a building within an encroachment. See Zoning
Ordinance, § § 705.2(A), 202. Therefore, the trial court did not err when it determined that the
ZBA misinterpreted § 1310 and reversed the ZBA’s decision.
The Township also argues that the trial court erred because, in its decision, it considered
the “harmony” of the area rather than merely interpreting the language of the relevant ordinances.
We find this argument unpersuasive. While the trial court mentioned “harmony,” its decision was
based on the language of the ordinance itself. Notably, § 705.4(A) of the Zoning Ordinance
specifically states that “site plan review will take into consideration existing structures on adjacent
properties in order to maintain harmony.” Zoning Ordinance, § 705.4, 7-5. The Township also
complains that the trial court based its decision on photographs attached to appellees’ brief below;
however, the record does not indicate that the trial court relied on the photographs. In any event,
the trial court’s interpretation was well-grounded in the plain language of the ordinances at issue.
We note that the ZBA and the trial court refer to appellees’ appeal of the denial of the land
use permit as a request for a variance; however, a variance request is not required when the project
complies with the Zoning Ordinance. See Zoning Ordinance, § 307 (stating that a land use permit
will not be issued “unless the request is in conformance with the provisions of [the Zoning]
Ordinance or amendment adopted from time to time after the effective date of this Ordinance.”).
Although the trial court employed the terminology of reversing the ZBA’s denial of appellees’
“variance request” and of granting appellees “variance request,” the trial court actually held that
the ZBA’s stated reasons for denying appellees’ application for a land use permit were erroneous.
With that clarification, we affirm the trial court’s interpretation and application of the Zoning
Ordinance.
Affirmed.
/s/ Mark T. Boonstra
/s/ Mark J. Cavanagh
/s/ Stephen L. Borrello
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