Hass v. City of Menominee

193 Mich. App. 163 (1992) 483 N.W.2d 666

HASS
v.
CITY OF MENOMINEE

Docket No. 137861.

Michigan Court of Appeals.

Decided March 2, 1992, at 9:20 A.M.

Janis M. Burgess, for the defendant.

Before: GILLIS, P.J., and MICHAEL J. KELLY and GRIBBS, JJ.

MICHAEL J. KELLY, J.

Defendant appeals as of right from an order of the circuit court granting summary disposition in favor of defendant but granting partial relief in favor of plaintiff. We affirm.

Plaintiff filed this action in the circuit court, requesting that the court issue a writ of mandamus ordering defendant to enforce its zoning ordinance against a certain landowner. Plaintiff initially requested that defendant's zoning administrator enjoin the landowner from using his land in a manner beyond that authorized under an existent nonconforming use variance. The zoning administrator reviewed the landowner's use of his premises and concluded that the landowner was using his property in accordance with the variance. Apparently, defendant refused to take any further action regarding the matter. Plaintiff then filed this lawsuit, requesting that the trial court order defendant to enforce its zoning ordinance or, in the alternative, to order such other relief as is proper under the circumstances. The trial court held that the record was insufficient to serve as a basis for a decision on the merits and that the municipal zoning board of appeals was the proper forum in which to address the issue.

On appeal, defendant argues that zoning enforcement is discretionary and a zoning administrator's decision regarding such enforcement is not reviewable. We disagree. MCL 125.585(3); MSA 5.2935(3) provides, in part:

The board of appeals shall hear and decide appeals from and review any order, requirements, decision, or determination made by an administrative official or body charged with the enforcement of an ordinance adopted under this act.

Therefore, plaintiff had the right to seek from the zoning board of appeals review of the zoning administrator's decision that the third-party landowner's use of his property did not violate the zoning variance. Given the circumstances of this case, the court did not err in ordering the municipality's zoning board of appeals to review the zoning administrator's decision.

Affirmed.

GRIBBS, J., concurred.

GILLIS, P.J. (concurring in part and dissenting in part).

I agree that a zoning administrator's decision regarding zoning enforcement is reviewable by the zoning board of appeals. MCL 125.585(3); MSA 5.2935(3). Further, I believe that the decision of the zoning administrator must first be reviewed by the zoning board of appeals before circuit court review is proper. MCL 125.585(11); MSA 5.2935(11). In this case, plaintiff did not seek review of the zoning administrator's decision with the zoning board of appeals, and, therefore, the circuit court was without authority to order defendant to hold a hearing on plaintiff's request that the third-party landowner be enjoined from using his land in a particular manner.

I would affirm the trial court's order granting defendant's motion for summary disposition. However, I would reverse that part of the trial court's order that instructs defendant to conduct a hearing on plaintiff's claims because the court was without authority to enter such an order.