Carleton Sportsman's Club v. Exeter Township

550 N.W.2d 867 (1996) 217 Mich. App. 195

CARLETON SPORTSMAN'S CLUB, Plaintiff-Appellee,
v.
EXETER TOWNSHIP and Exeter Township Board of Trustees, Defendants-Appellants.

Docket No. 175845.

Court of Appeals of Michigan.

Submitted April 16, 1996, at Detroit. Decided June 14, 1996, at 9:00 a.m. Released for Publication July 29, 1996.

Butzel Long by David W. Berry and Susan K. Friedlaender, Birmingham, for plaintiff.

Ready, Sullivan & Ready by Conly K. Crossley, Monroe, for defendants.

Before TAYLOR, P.J., and FITZGERALD and HOUK,^[*] JJ.

TAYLOR, Presiding Judge.

We granted defendants' interlocutory appeal to resolve the appropriate method of appeal and standard of review where a zoning ordinance does not provide for an appeal to a zoning board of appeals from an unfavorable decision by a township board regarding a request for a special land-use permit. We hold that in such a case the decision of the township board is final and that the appropriate appellate forum is the circuit court, which must review the decision pursuant to Const. 1963, Art. 6, § 28. Because the circuit court here did not conduct its review in this fashion, we reverse and remand.

I

Plaintiff is a recreational organization whose activities include archery, skeetshooting, trapshooting, and rifle, pistol, and black powder shooting. Plaintiff owns three contiguous parcels of land located in Exeter Township that total approximately 104 acres. Plaintiff proposed to build and operate a gun and sportsman club on its property. Under the controlling zoning ordinance affecting plaintiff's land, gun clubs are allowed with a special land-use permit. On February 4, 1992, plaintiff submitted an application for a special land-use permit with the township board, which was subsequently denied. Thereafter, on April 21, 1992, plaintiff submitted a revised application, which was also denied. The township ordinance at issue did not contain a provision that allowed plaintiff to appeal the township board's decision to a zoning board of appeals.

On June 9, 1992, plaintiff filed the instant case, alleging that the zoning ordinance was unconstitutional and that the township board's decisions denying the special land-use applications were arbitrary and capricious and not supported by evidence on the record. On August 30, 1993, plaintiff submitted its third revised request for a special land-use permit, which was denied. Plaintiff amended its complaint to include the township board's third denial.

On April 15, 1994, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that no genuine issue of material fact existed to refute the fact that the ordinance was valid and that the township board's decisions denying plaintiff's application were a proper exercise of its discretionary power. The trial court granted defendants' motion with respect to the constitutionality of the ordinance, but denied the motion with respect to the application of the ordinance to plaintiff. In a written opinion, the trial court also found that the ordinance was arbitrary and capricious as applied to plaintiff. Defendants filed an interlocutory appeal, and we granted leave to resolve the appropriate method of appeal and standard of review.

II

The confusion this case presents is attributable to the fact that Michigan's Township Rural Zoning Act, M.C.L. § 125.271 et seq.; M.S.A. § 5.2963(1) et seq., is silent regarding the method of appeal and standard of review to be employed where a zoning ordinance does not provide for an aggrieved party to appeal to a zoning board of appeals an unfavorable decision of a township board regarding a request for a special land-use permit. Also, defendants filed a motion pursuant to MCR 2.116(C)(10); however, such a motion was inappropriate in this type of case, and the circuit court's decision went beyond deciding this motion.

A

Pursuant to M.C.L. § 125.271; M.S.A. § 5.2963(1), "[t]he township board of an organized township in this state may provide by zoning ordinance for the regulation of land development." Pursuant to M.C.L. § 125.290; M.S.A. § 5.2963(20), a party challenging a particular ordinance may appeal an unfavorable decision of a township board to the township's zoning board of appeals. Pursuant to M.C.L. § 125.293a; M.S.A. § 5.2963(23a), the decision of the zoning board of appeals is final; however, a person having an interest affected by the zoning ordinance may appeal the decision of the board of appeals to the circuit court. That section further provides:

(1) ... Upon appeal the circuit court shall review the record and decision of the board of appeals to insure that the decision:

(a) Complies with the constitution and law 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 board of appeals.

(2) If the court finds the record of the board of appeals inadequate to make the review required by this section, or that there is additional evidence which is material and with good reason was not presented to the board of appeals, the court shall order further proceedings before the board of appeals on conditions which the court considers proper. The board of appeals may modify its findings and decision as a result of the new proceedings, or may affirm its original decision. The supplementary record and decision shall be filed with the court.

(3) As a result of the review required by this section, the court may affirm, reverse, or modify the decision of the board of appeals.

In the instant case, the procedure was somewhat changed in that plaintiff originally sought a special land-use permit from the township board, pursuant to M.C.L. § 125.286d; M.S.A. § 5.2963(16d). According to M.C.L. § 125.290; M.S.A. § 5.2963(20), an appeal of a township board's decisions regarding special land-use and planned unit development decisions, "may be taken to the board of appeals only if provided for in the zoning ordinance." Therefore, if an ordinance provides for an appeal from a township board's decision on a special land-use permit to a zoning board of appeals, then pursuant to M.C.L. § 125.293a; M.S.A. § 5.2963(23a), the decision of the zoning board of appeal's is final and may be appealed to the circuit court under the standard of review prescribed therein. However, M.C.L. § 125.290; M.S.A. § 5.2963(20) is silent regarding what recourse a party has when, as in this case, a township board denies a special land-use permit and the ordinance does not provide for an appeal to the zoning board of appeals. We resolve this issue of first impression by holding that where a township zoning ordinance does not provide for review of a request for a special land-use permit by a zoning board of appeals, the township board's decision is final and subject to appellate review by the circuit court pursuant to Const.1963, Art. 6, § 28.

B

Art. 6, § 28 provides as follows:

All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.

The decision of the township board comes within the purview of this constitutional provision, and the trial court should have reviewed the township board's decision under it. Cf. Lorland Civic Ass'n v. DiMatteo, 10 Mich.App. 129, 135-136, 157 N.W.2d 1 (1968) (Detroit zoning board of appeals is a quasi-judicial body whose decisions affect private rights and Art. 6, § 28 establishes a right to judicial review and a minimum standard of review^[1]). The circuit court is the proper court to review the township board's denial because the circuit courts have appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law. Const.1963, Art. 6, § 13.

A hearing was required regarding plaintiff's request for a special land-use permit, and, thus, the circuit court's review should have been to determine if the township board's decision was authorized by law and supported by competent, material, and substantial evidence on the whole record.

C

We now turn to the issue whether the circuit court properly considered defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). We find that such a motion was improperly considered by the circuit court because the court was not sitting as a court of original jurisdiction, but rather as a court of appellate jurisdiction.^[2] Similarly, in Macenas v. Village of Michiana, 433 Mich. 380, 394-397, 446 N.W.2d 102 (1989), the plaintiff filed a claim of appeal in the Berrien Circuit Court from the decision of the board of appeals of the Village of Michiana denying his building permit. Id. at 383-385, 446 N.W.2d 102. The Macenas Court considered M.C.L. § 125.585(11); M.S.A. § 5.2935(11), which is the counterpart of M.C.L. § 125.293a; M.S.A. § 5.2963(23a) for cities and villages. The defendant village brought a motion for summary disposition pursuant to MCR 2.116(C)(8), claiming that the plaintiff had failed to state a claim upon which relief could be granted. Id. at 385, 446 N.W.2d 102. The circuit court granted the defendant's motion, the plaintiff appealed to this Court, this Court reversed and entered summary disposition in favor of plaintiff, and our Supreme Court granted leave to appeal. Id. at 385-386, 446 N.W.2d 102.

In rendering its decision, the Supreme Court noted that when the circuit court acts as an appellate court for purposes of considering and correcting assigned error within the ambit of review outlined in M.C.L. § 125.585(11); M.S.A. § 5.2935(11), the circuit court is instructed by statute to "``review the record and decision of the board of appeals.'" Id. at 387, 446 N.W.2d 102. Therefore, the Court concluded that a motion for summary disposition pursuant to MCR 2.116(C)(8), which tests only the pleadings, was not appropriate, because if a proper appeal to the circuit court had been filed, a "cause of action" was stated, at least for purposes of obtaining appellate review of the board's decision in accordance with the statute. Id. at 387-388, 446 N.W.2d 102.

Therefore, we conclude that, by analogy, defendants' motion for summary disposition brought pursuant to MCR 2.116(C)(10) was not appropriate where the circuit court was sitting as an appellate court and considering plaintiff's claim within the ambit of Const.1963, Art. 6, § 28. In doing so, the circuit court was required to review the record and decision of the township board for competent, material, and substantial evidence in support of the decision and to determine if it was authorized by law. Therefore, the circuit court could not have properly entertained defendants' motion for summary disposition.

Accordingly, by virtue of the appellate status of the circuit court, the standard of its review, and its statutory options for disposition of the claim, we find that the court's consideration of whether a genuine issue of material fact remained for trial, done under the auspices of a MCR 2.116(C)(10) motion, was not proper. In addition, we also find that the circuit court erred in rendering its decision that the denial of plaintiff's special land-use permit was arbitrary and capricious, because the court failed to employ the appropriate standard of review; i.e., pursuant to Const.1963, Art. 6, § 28.

III

In summary, we hold that where a zoning ordinance does not provide an aggrieved party the right to have an unfavorable decision of a township board regarding a request for special land-use permit reviewed by a zoning board of appeals, appellate review is available to the aggrieved party in the circuit court, which must follow the review method prescribed in Const.1963, Art. 6, § 28. Because the circuit court did not conduct its review in this fashion, and because the circuit court erroneously considered defendants' motion for summary disposition, we reverse and remand for disposition of the case under the appropriate standard of review.

Reversed and remanded. We do not retain jurisdiction.

NOTES

[*] Peter D. Houk, 30th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

[1] As previously noted, the decisions of township zoning boards of appeal are subject to appeal and review pursuant to M.C.L. § 125.293a; M.S.A. § 5.2963(23a).

[2] Const.1963, Art. 6, § 13, provides:

The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.