Filing an Appeal Before a Zoning Board of Appeals

<b>Filing an Appeal Before a Zoning Board of Appeals<br><br>Do it Right to Enhance Your Likelihood of Success and Establish Your Case for Judicial Review, if Necessary</b>

March 2005
By Jeffrey R. Dobson Jr. A property owner faces many hurdles while developing a property in the manner he or she deems best. Of these hurdles, obtaining local governmental approval for a development or land use can be one of the most onerous tasks as Michigan is a strong "home rule" state. The State has empowered its municipal governments (cities, townships, and villages) with a great amount of authority and discretion over real property developments within their boundaries. A considerable amount of this power is wielded by a municipality's zoning board of appeals ("ZBA"), which acts like a judicial body in that it passes judgment on appeals relating to the municipal zoning ordinance, among other things. Many decisions on land developments and uses are made by a municipality's ZBA. An appeal to a ZBA should be carefully and comprehensively conducted because their decision is generally considered final. Property owners can seek review of the ZBA's decision by filing a civil suit in the local circuit court, but this can be both time consuming and expensive. Also, the law provides a very limited window of time in which an appeal to the circuit court can be made, which can reduce one's ability to make an effective appeal. While no one can guarantee success before a ZBA, the proper counsel and other professionals can help put the best case forward and help to avoid missing out on a profitable opportunity or having to try to make up for mistakes in subsequent, and costly, litigation. Property owners that apply to a ZBA can be broken down into two general categories. First, there are those property owners who are working on time sensitive matters or who are on a tight budget and cannot afford litigation costs. These persons must realize that the ZBA's decision will likely decide the fate of the project at issue. While not all negative ZBA rulings can be avoided, properly prepared property owners that make a convincing presentation and appear ready to appeal to the circuit court, if necessary, will greatly improve their chances of success. On the other hand, there are those property owners that recognize going into a ZBA appeal that success is improbable and litigation is likely to ensue due to the nature of the issue presented and/or the local politics involved. Such persons must realize that obtaining a ZBA denial is not simply a step on the way to the courthouse. Proper preparation and execution before the ZBA can strengthen a civil suit as the astute applicant is laying the foundation for his or her case while pursing the ZBA appeal. In any situation, the same strategy for success before the ZBA applies: 1. exhaust all administrative remedies to ensure that review is available; 2. understand the legal precedent and standards involved in the application; 3. document the case clearly, comprehensively, and in a positive manner; and 4. make effective use of the ZBA hearing. Following a disciplined and comprehensive approach to filing an appeal may involve more preparation and require a bit of a financial investment, but it is well worth it. As the property owner who does so, he or she will simultaneously make a more convincing presentation to the ZBA and municipal staff, as well as project the fact that they are prepared for a judicial appeal, if necessary. Exhaust All Administrative Remedies The first step to a successful appeal to the ZBA is to ensure that the ZBA has the power to consider the request. The ZBA can only hear appeals from "final" decisions. An unripe application will be denied, resulting in wasted resources and effort. The zoning ordinance usually sets forth what constitutes a "final" decision. Any such rules must be followed to the letter. For example, if a property owner must obtain a rejection from the building department before applying to the ZBA for a variance, he or she must do so even if there is no possible basis upon which the building department can grant the request. Many municipalities will also provide for an intermediate review of an administrative decision, such as appeal to a department director. Sometimes, however, it is not clear if a review before the ZBA, or a court, is possible. Legal counsel can assist with such determinations. Understand the Facts and the Law Regarding the Appeal ZBA appeals brought by property owners that fully understand both the factual basis and the applicable law regarding their appeal face a substantially better chance of success then those that don't. Simply requesting some form of relief based upon the facts at hand is not enough. A complete review of the relevant law must be made because there may be a different standard of review that the ZBA must use in any particular case and because there may be on-point judicial precedent that supports the appeal. Legal review is not "overdoing it." In addition to researching precedent, the appropriate standard of review must be determined so that the request can be properly framed. A ZBA has the power to do many things and its powers vary somewhat from one municipality to the next. In addition, state and federal law imposes different standards in some situations. For example, all ZBAs are empowered to interpret the local zoning ordinance. The general standard of review of such decisions is that it must: a. comply with the Michigan Constitution and laws; b. be procedurally proper; c. be supported by competent, material, and substantive evidence on the record; and d. represent reasonable exercise of discretion. If the property owner simply requests a hardship variance or an interpretation of the zoning ordinance, this standard will likely apply. However, if the property owner can make the case that one or more of his or her constitutional or statutory rights will be violated by a strict application of the zoning ordinance, then entirely different standards may apply. For limited example, Congress enacted the federal Religious Land Use and Institutionalized Persons Act in 2000. This act requires a "compelling governmental interest" and "least restrictive means" determination for any "substantial burdens" on religious exercise that are brought about by land use regulations. Properly framing the issue for the ZBA is critical in that it puts the proper perspective on the application, which may influence the ZBA's decision. Make the Case on Paper Ensuring that your appeal is stated in a clear, convincing and positive manner is just as important as properly framing it. Most municipalities provide a simple "ZBA appeal" form. Often times, however, the form provided is wholly inadequate to make an effective application. Remember, the applicant must convince the ZBA to provide the relief requested. In addition, sometimes, the judicial standard of review will only allow for a review of what the ZBA actually considered. Therefore, submitting the provided application is important, but filing a supplemental memorandum and appropriate documentation to make your case is critical. The memorandum should address the relevant facts, the applicable law, and all of the zoning ordinance's requirements for the request. It should clearly articulate why each issue being reviewed should be resolved in favor of the applicant. In short, the application should be drafted so that it could be attached as Exhibit A to a civil complaint. This does not mean that a property owner should take an overly aggressive position. It means that a logical approach to stating the appeal should be taken. Making a full and convincing case on paper also shows the municipality that you are prepared to file an appeal to the circuit court. Finally, it goes without saying that it helps immensely to put a positive spin on the project being applied for. The ZBA should grant the appeal, at least in part, because it wants to, not because it has to. Using the Hearing Effectively By filing an appropriate application for appeal, the applicant has gone a long way toward making an effective and convincing presentation to the ZBA and preserving the record in the event that judicial review is necessary. To follow through, he or she must make sure to effectively use the public hearing as an opportunity to present the case. The property owner, or his or her representative, must be able to articulate the relevant factual and legal issues clearly and respond appropriately to questions from the ZBA members and/or members of the public. Reference to the application memorandum should be made at the hearing so there is no dispute later as to what was presented. In an extraordinarily contentious case, one could even consider bringing a court reporter. In any event, it is important to make sure that the ZBA, and the municipal staff, understand that you are prepared to file an effective and well documented appeal, if necessary. Under Michigan law, a property owner only has twenty-one days to file for judicial review of an adverse decision of the ZBA. Jeffrey R. Dobson Jr. is an Associate in Dickinson Wright's Ann Arbor office. For additional information filing for appeals, contact Jeff at 734-623-1624 or jdobson@dickinsonwright.com.
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