                          STATE OF MICHIGAN

                            COURT OF APPEALS



DAVID HOFFMAN,                                                       UNPUBLISHED
                                                                     April 21, 2015
               Plaintiff-Appellant,

v                                                                    No. 319409
                                                                     Cass Circuit Court
PORTER TOWNSHIP,                                                     LC No. 12-000489-AV

               Defendant-Appellee.


Before: METER, P.J., and SAWYER and BOONSTRA, JJ.

PER CURIAM.

        Plaintiff appeals by right the circuit court’s order affirming the decision of defendant’s
Zoning Board of Appeals (“the ZBA”) to deny plaintiff’s request for a variance and dismissing
plaintiff’s constitutional claims. For the reasons stated below, we vacate in part, reverse in part,
and remand for further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Plaintiff owns a small island1 on Shavehead Lake in Porter Township. Plaintiff desires to
construct a 2,348 square foot home on the island.2 In pursuit of this desire, plaintiff obtained
various permits and authorizations from the Michigan Department of Environmental Quality
(“DEQ”), the Cass County Drain Commissioner, and the Michigan Department of Natural
Resources (“DNR”)3. He also sought to determine how the Porter Township Zoning Ordinance
applied to his island property.



1
 Defendant maintains that the “island” is more properly characterized as a “wetland.” For ease
of reference, we will for purposes of this opinion use plaintiff’s preferred term, “island.”
2
 Because of the wetland qualities of the island, plaintiff proposed to build the house entirely on
pilings, elevated from the surface of the island, with boardwalks extending to the water’s edge.
3
 At the time, the DEQ and the DNR were subsumed within the then-newly-created Michigan
Department of Natural Resources and Environment. By Executive Order No. 2011-1, effective
March 13, 2011, the DEQ and DNR were again reconstituted as separate principal departments
within the executive branch of state government.


                                                -1-
        In January 2011, the Township Deputy Zoning Administrator determined that plaintiff’s
island was “not zoned.” However, the Township Planning Commission Chairman appealed that
determination to the ZBA. The minutes from a subsequent meeting of the ZBA on March 10,
2011 support that no prior zoning classification had been placed upon the island. In the interest
of adhering to the ordinance’s intent to zone all property within the township, the ZBA
considered what classification should apply to plaintiff’s island. In so doing, the ZBA referred to
Cass County parcel information for the island, assessment cards for the island, aerial
photographs of the island, and the township zoning map. Notably, the zoning map established
different colors for different zoning districts: purple denoting “lake residential,” light green
denoting “parks, campgrounds and recreational areas,” and white denoting “agricultural,” among
others. The ZBA heard evidence that the entire shoreline of Shavehead Lake was zoned
purple—i.e., “lake residential”—with the exception of a parcel owned by Camp Freidenswald
that was zoned light green—i.e., “parks, campgrounds and recreational areas.” According to the
zoning map, plaintiff’s island appeared to be white—suggesting that it had been zoned
“agricultural”—although it was also suggested that the island was merely “non-colored,”
meaning that it had been given no zoning designation. The ZBA also heard evidence that an
“island” created by a manmade channel on the southeastern side of the lake also was designated
with a white color and thus similarly appeared to have been zoned “agricultural,” although it also
may not have been zoned at all. Finally, the ZBA heard evidence that if an island was less than
five acres in size, even if it were zoned “agricultural,” the zoning standards would default to
“rural residential” according to the ordinance. After hearing public comment, the ZBA
deliberated. In its deliberations, the ZBA noted that no zoning district would ban outright all
construction or development on the island. It further noted that agriculturally-zoned lots on less
than five acres defaulted to the “R-1” residential zoning standards, also referred to by the ZBA as
“rural residential.” The ZBA ultimately voted to reverse the decision of the deputy zoning
administrator that the property was not zoned, to determine that the island was zoned, and to
interpret the zoning map to determine that the property was zoned “agricultural,” subject to the
“R-1” zoning standards. Relevant to this appeal, Article 111.804(f) of the ordinance, governing
“R-1” zoning districts, contains a requirement that the “minimum lot width at the setback line
shall be 100 feet.”4 Although the location of the “setback line” on plaintiff’s island is unclear,
the island was presumed not to meet this requirement, since the property was only 75 feet wide.5



4
  A “setback line” is defined in Article 111.1900 of the ordinance (which appears to supply
definitions applicable to the ordinance as a whole) as a line “established adjacent and parallel
with streets and roads for the purpose of defining limits within which no building or structure or
any part thereof shall be erected or permanently maintained.” As discussed later in this opinion,
the seeming difficulty in applying the defined term, “setback line,” to an island property
demonstrates the perils of attempting to apply requirements that appear designed for mainland
development to an isolated island. Similarly, the ordinance’s definitions of the terms “lot,” “lot
line,” “street,” “right-of way,” as well as the undefined term “road,” seem difficult to apply to an
island property.
5
  By contrast, Article 111.804(f) of the ordinance provides that “lake residential” property
“platted after February 8, 2000 shall be 100 feet at the waterfront.” The record before us

                                                -2-
        On April 5, 2012, plaintiff applied to the ZBA for a variance. A public meeting was held
on May 24, 2012. Plaintiff presented his plans for the proposed home and the permits he had
obtained. He answered questions from ZBA members, particularly with regard to concerns
about emergency access to the island. Members of the community, including some who owned
property on the lake, opposed plaintiff’s proposal for various reasons, including concerns about
obstructed views of the lake and the potential impact of running a sewage line under the lake. At
the close of the public hearing, the ZBA voted unanimously to deny the variance request. The
ZBA listed four reasons for the denial: (1) the lot width of 75 feet did not meet the ordinance
requirement; (2) health and safety issues were unresolved; (3) allowing the variance for lot width
would be financially detrimental to neighbors; and (4) neighbors voiced opposition to building
on the island.

        Plaintiff subsequently appealed the ZBA’s decision to the circuit court, and additionally
filed a four-count complaint,6 alleging in Count I that the ZBA’s decision was not supported by
competent, material, and substantial evidence, and constituted an abuse of discretion. In Count
II, plaintiff alleged a substantive due process violation. In Count III, plaintiff alleged an equal
protection violation. Finally, in Count IV, plaintiff alleged an unconstitutional taking of his
property. The circuit court heard arguments with respect to Count I on November 5, 2012, and
on November 27, 2012, issued a written opinion affirming the ZBA. The circuit court concluded
that the ZBA’s decision was supported by sufficient evidence. In so doing, the court in part
rejected plaintiff’s contention that a board member’s alleged conflict of interest tainted the
decision.7 Subsequently, on October 11, 2013, defendant moved the circuit court for summary
disposition on plaintiff’s remaining claims. Following a hearing on the motion, the court granted
defendant’s motion. With respect to the due process and equal protection claims, the court
agreed with defendant’s contention that it lacked subject matter jurisdiction over those claims,

contains no information regarding whether or when the property in question was platted, or how
wide the property would be measured from the waterfront, although the parties agree that the
island is 75 feet wide (measured west to east) and it appears from a topographical survey in the
record that the island is substantially more than 100 feet long (measured north to south).
Article 111.804 of the ordinance also sets forth requirements for the front yard, side yard, rear
yard, and minimum lot size of “lake residential” properties, some of which vary depending on
when the property was platted. We express no opinion regarding whether plaintiff’s island
would satisfy the ordinance requirements applicable to a “lake residential” property or a property
of any other zoning district.
6
  Pursuant to MCR 7.122(A)(1), the circuit court has jurisdiction over appeals from zoning
ordinance determinations, including by a zoning board of appeals. Further, that rule “does not
restrict the right of a party to bring a complaint for relief relating to a determination under a
zoning ordinance.” MCL 7.122(A)(2).
7
  We express no opinion regarding whether the ZBA member in question had a conflict of
interest. We take note, however, of the Zoning Board of Appeals Handbook, published by the
Michigan Municipal League, which states, “You may also consider the possibility of declaring a
conflict of interest if your home falls within a notification radius used by your community for
zoning board of appeals’ actions.” See www.mml.org/pdf/zbabook.pdf, § 17 (accessed
March 31, 2015).


                                                -3-
and therefore dismissed them under MCR 2.116(C)(4). With respect to the takings claim, the
court agreed that plaintiff had failed to create a genuine issue of fact, and therefore dismissed the
claim under MCR 2.116(C)(10). This appeal followed.

                  II. DUE PROCESS AND EQUAL PROTECTION CLAIMS

        Because we find our resolution of plaintiff’s due process and equal protection claims to
be dispositive, we address them first. We review constitutional questions de novo. Risko v
Grand Haven Charter Twp Zoning Bd of Appeals, 284 Mich App 453, 459; 773 NW2d 730
(2009).

                            A. CIRCUIT COURT’S JURISDICTION

        Plaintiff first argues that the circuit court erred in dismissing his due process and equal
protection claims pursuant to MCR 2.116(C)(4). We agree. Under the Michigan Zoning
Enabling Act (MZEA), MCL 125.3101 et seq., administrative decisions of a zoning board of
appeals are final, subject to appeal in the circuit court. MCL 125.3605. A circuit court does not
have jurisdiction to hear an appeal if it is not timely filed. Krohn v Saginaw, 175 Mich App 193,
196; 437 NW2d 260 (1988). In this case, plaintiff timely appealed the ZBA’s May 24, 2012
denial of his variance request to the circuit court within 21 days of the ZBA approving the
minutes of its public meeting. MCL 125.3606(3)(b). Accordingly, the circuit court had proper
subject matter jurisdiction over plaintiff’s appeal and related claim contesting the 2012 ZBA
decision. Krohn, 175 Mich App at 196-198.

        We further hold that the circuit court had proper subject matter jurisdiction over
plaintiff’s constitutional claims. Those claims relate in part to the ZBA’s May 24, 2012 denial of
plaintiff’s variance request, and to that extent clearly are also timely. But they also relate in part
to the ZBA’s underlying March 10, 2011 decision that plaintiff’s island was zoned agricultural,
and on that basis defendant contends that the claims were not timely appealed, and that the
circuit court thus lacks subject matter jurisdiction. We disagree. Based on the record before us,
it appears that the 2011 ZBA determination may have been a decision regarding zoning or
rezoning, which is legislative, rather than administrative, in nature. Sun Communities v Leroy
Twp, 241 Mich App at 665, 669-671; 617 NW2d 42 (2000).8 In that event, plaintiff had no duty
to appeal that decision. Id. at 672 (“[t]here is no authority that requires a party to pursue an
appeal to challenge the constitutionality of a legislative act of rezoning”). In fact, had plaintiff
attempted to immediately challenge the ZBA’s 2011 decision without first seeking a variance,
the challenge would not have been ripe for review. See Paragon Prop Co v Novi, 452 Mich 568,


8
  As discussed in this opinion, the record suggests that, by its 2011 decision that the island
should be zoned “agricultural,” the ZBA may have overstepped its administrative authority and
usurped the legislative authority of the township board. See MCL 125.3201; MCL 125.3202.
On remand, the circuit court should explore the propriety of the 2011 ZBA decision, in light of
the deputy zoning administrator’s determination that the island had never been zoned, and the
apparent absence of any record of any action by the township board, acting in its legislative
capacity, to zone the island in the first instance.


                                                 -4-
579-582 and n. 15; 550 NW2d 772 (1996) (“neither a . . . decision to rezone land nor a [ZBA]
decision to grant a variance is relevant to the constitutionality or unconstitutionality of an
ordinance’s provisions”). Instead, plaintiff would have been confined to first seeking relief in
the form of a variance; once that request was denied, “relief in the form of an appeal to the
circuit court” was authorized by statute. Id. at 581. See MCL 125.3606. Thus, the circuit court
erred in dismissing plaintiff’s due process and equal protection claims under MCR 2.116(C)(4).9

                                         B. ANALYSIS

        To prevail on a substantive due process claim regarding zoning ordinances, the claimant
must prove either “(1) that there is no reasonable governmental interest being advanced by the
present zoning classification or (2) that an ordinance is unreasonable because of the purely
arbitrary, capricious, and unfounded exclusion of other types of legitimate land use from the area
in question.” Frericks v Highland Twp, 228 Mich App 575, 594; 579 NW2d 441 (1998). The
zoning classification is presumed to be valid. Id.

        “The equal protection clauses of the Michigan and United States constitutions provide
that no person shall be denied the equal protection of the law.” Shepherd Montessori Ctr Milan v
Ann Arbor Charter Twp, 486 Mich 311, 318; 783 NW2d 695 (2010), cert den __ US __; 131 S
Ct 928; 178 L Ed 2d 752 (2011). See also US Const, Am XIV; Const 1963, art 1, § 2. “The
Equal Protection Clause requires that all persons similarly situated be treated alike under the
law.” Shepherd Montessori Ctr Milan, 486 Mich at 318. “[U]nless the dissimilar treatment
alleged impinges on the exercise of a fundamental right or targets such protected classifications
as those based on race or gender, the challenged regulatory scheme will survive equal protection
analysis if it is rationally related to a legitimate governmental interest.” Risko, 284 Mich App at
465 (internal quotations and citation omitted). “The party raising the equal protection challenge
has the burden of proving that the challenged law is arbitrary and thus irrational.” Id. (internal
quotations and citation omitted). Plaintiff does not contend that he is a member of a protected
class or that the zoning of his property or the ZBA’s decisions infringed upon a fundamental
right. Accordingly, plaintiff’s equal protection claim is subject to rational basis review.




9
  We recognize that the MZEA was not in effect at the time of the decisions in Sun Communities
and Paragon Prop. However, although the Court in Sun Communities properly recognized that
“the only provision in the [then-applicable Township Zoning Act, MCL 125.271 et seq., prior to
repeal by 110 PA 2006] providing for a direct appeal to the circuit court is MCL § 125.293a . . .,
which authorizes a direct appeal made by a zoning board of appeals,” Sun Communities, 241
Mich App at 670, the City and Village Zoning Act that was applicable at the time of Paragon
Prop did authorize an appeal to circuit court from a decision of the legislative body of a city or
village. See MCL 125.590, prior to repeal by 110 PA 2006. The Court nonetheless held that an
immediate appeal was not required. Moreover, we are persuaded by those decisions that
constitutional claims need not be raised immediately upon legislative action. In any event, we
find that the seeming irregularity of legislative action arguably being taken by the ZBA, rather
than the township board, requires that plaintiff’s constitutional claims be considered.


                                                -5-
        Plaintiff’s due process claim appears to relate both to the ZBA’s 2012 denial of his
variance request and the ZBA’s 2011 determination that the zoning of his property is
“agricultural.” Plaintiff argues that the 2011 decision of the ZBA was unreasonable because
most of the surrounding property is zoned “lake residential” and there is no “agricultural”
property on the lake. Regarding his equal protection claim, plaintiff argues that the zoning of his
property as “agricultural” and the ZBA’s denial of a variance was a result of him being “singled
out” as a “class of one.” The United States Supreme Court has recognized such “class of one”
claims. Willowbrook v Olech, 528 US 562, 564; 120 S Ct 1073; 145 L Ed 2d 1060 (2000). “A
‘class of one’ may initiate an equal protection claim by alleging that he or she ‘has been
intentionally treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.’ ” Lima Twp v Bateson, 302 Mich App 483, 503; 838 NW2d 898
(2013), quoting Willowbrook, 528 US at 564.

        The available evidence from the March 10, 2011 ZBA meeting10 suggests that plaintiff’s
island had never before been zoned, and that indeed was the determination of the deputy zoning
administrator. In the interest of adhering to the ordinance’s intent to zone all property within the
township, the ZBA considered what zoning classification should apply to plaintiff’s island. In so
doing, the ZBA referred to Cass County parcel information for the island, assessment cards for
the island, aerial photographs of the island, and the township zoning map, which revealed that
none of the property around the lake was zoned “agricultural” and most of it was zoned “lake
residential,” but also revealed that one other island property was arguably (because of its “white”
coloration on the zoning map) zoned “agricultural.” The ZBA noted the fact that, because of the
size of plaintiff’s island, the height and width requirements would, if the property were zoned
“agricultural,” default to “rural residential” according to the ordinances. The ZBA proceeded to
reverse the determination of the deputy zoning administrator that the property was “not zoned,”
and instead determined that it was zoned “agricultural.” The ZBA’s subsequent decision in 2012
to deny plaintiff’s requested variance was premised on the ZBA’s 2011 decision establishing the
property’s zoning classification as “agricultural.”

        The MZEA does not authorize a ZBA to make zoning determinations, and a ZBA
therefore is not empowered to decide in what zoning district a particular piece of property should
be placed in the first instance, or whether a property should be rezoned. Rather, as stated earlier,
decisions regarding zoning and rezoning are legislative, rather than administrative, in nature.
Sun Communities, 241 Mich App at 665. Moreover, the MZEA expressly authorizes local units
of government to make zoning decisions by way of zoning ordinances, MCL 125.3201, and
places the authority to adopt such zoning ordinances in the legislative body of a local
government. MCL 125.3202. The “legislative body” of a township is defined as its board of
trustees.” MCL 125.3102(n). The township board is authorized to appoint a zoning
commission11 to formulate a zoning ordinance, MCL 125.3211, and the zoning commission is


10
  The record on appeal includes the minutes of the March 10, 2011 ZBA meeting, but does not
include a transcript of that meeting.
11
  In certain circumstances, a township planning commission may exercise the authority of a
zoning commission. MCL 125.3102(v); MCL 125.3301. It is unclear from defendant’s

                                                -6-
directed to hold at least one public hearing, MCL 125.3306, and to adopt and file with the
township board its recommendations for a zoning plan, for the establishment of boundaries of
zoning districts, and for the text of a zoning ordinance. MCL 125.3305. It is then the obligation
of the township board to consider and vote upon the adoption of a zoning ordinance.
MCL 125.3401(5). It is not apparent from the record that any of that occurred relative to
plaintiff’s property. By contrast, a ZBA is authorized under the MZEA to “hear and decide
questions that arise in the administration of the zoning maps, including the interpretation of the
zoning maps,” as well as to grant variances. See MCL 125.3603. It also is authorized to “hear
and decide appeals from and review any administrative order, requirement, decision, or
determination made by an administrative official or body charged with enforcement of a zoning
ordinance adopted under this act.” Id.

        Presumably, it is pursuant to the latter authority that the ZBA in this case decided in 2011
to reverse the decision of the deputy zoning administrator that the property was “not zoned,” and
decided instead that the property “is zoned” and “interpret[ed] the zoning map to determine that
the property is zoned AG” (and phrased its 2011 board minutes in that manner). However, in
light of the fact that the circuit court did not consider plaintiff’s constitutional claims, and that
the record before this Court contains only the minutes of the 2011 ZBA meeting (and not the
transcript of that meeting), we are unable to conclusively determine from the current record
whether the ZBA’s decision was in fact an “interpretation” of the map, as the phrasing of the
meeting minutes suggest, or whether the ZBA in fact made an initial zoning decision (or a
rezoning decision) regarding the property in question, in excess of the authority granted to it
under the ordinance and the MZEA.

         Our concerns in that regard are heightened by the following additional considerations.
First, it is apparent from the 2011 ZBA meeting minutes alone that the ZBA apparently felt
obliged to “zone” the property because the zoning ordinance reflects an intent to zone all
property. However, any failure of the township board, as the township’s legislative body, to
zone a particular piece of property, notwithstanding an intent to zone all property, does not
empower the ZBA to take upon itself the responsibility of zoning an unzoned property. That
obligation remains that of the township board. Second, the ZBA appears to have done more than
simply interpreting a then-existing zoning map. Rather, it considered assessment cards and
aerial photographs, and entertained argument regarding the wetland characteristics of the island,
fluctuations of lake level, ecological and habitat considerations, potential adverse effects
(including on visibility from neighboring properties and on sub-surface water resources), public
sentiment against construction on the island, whether emergency vehicles would have access to
the property, how the property “should be” zoned, and entreaties to “zone” the property
“unbuildable.” While those factors may be valid considerations, by a legislative body, in
determining how a property should be zoned, or by a ZBA in determining whether a variance

ordinances whether defendant’s planning commission is authorized to exercise, or is exercising,
the authority of a zoning commission; the ordinance establishing the powers of defendant’s
planning commission does not explicitly reference zoning but provides that the planning
commission has the authority to “make, amend and adopt a basic plan as a guide for the
development of unincorporated portions of the township” and submit such a plan to the Cass
County Planning Commission.


                                                -7-
from zoning should be granted, they are not proper considerations in determining from an
existing zoning map whether and how a property is in fact zoned, or whether a zoning
administrator erred in determining, following his own investigation and analysis, that the
property was “not zoned.”

        Finally, and while not a part of the record on appeal,12 we take note of the current Porter
Township Zoning Map, adopted January 10, 2012—after the ZBA’s March 10, 2011 meeting.
At that 2011 meeting, the appealing township planning commission chairman described that the
island “appeared to him to be white” on the then-existing zoning map. However, the current and
apparently subsequently adopted map depicts plaintiff’s island as blue in color, identically with
the coloring of the lake that surrounds it, not white, as was represented at the 2011 meeting (and
as purportedly was the basis for the ZBA’s decision to zone the property “agricultural”). See
http://portertownship.org/zoningmap130726.pdf (accessed March 31, 2015). This raises many
questions regarding whether the zoning ordinance was amended after the 2011 ZBA meeting,
whether it was amended by the legislative body or by the ZBA, whether the zoning specifically
of plaintiff’s island was changed after the 2011 ZBA meeting,13 whether the 2011 decision of the
ZBA (as well as the subsequent 2012 decision of the ZBA to deny plaintiff’s request for
variance, being premised on the applicability of the “agricultural” zoning classification adopted
by the ZBA in 2011), remains effective, and the meaning of the blue lake-like coloration of the
island on the current zoning map, which color does not appear in the map’s zoning legend. The
circuit court should consider all of these issues on remand.

        Further, if plaintiff’s property is in fact zoned “agricultural” (as defendant contends, but
the current zoning map appears to refute), or has now been otherwise zoned (perhaps as
“unbuildable”), plaintiff should be allowed to present argument that such a classification is
arbitrary and capricious and not rationally related to a legitimate government interest. Lima Twp,
302 Mich App at 503; Frericks v Highland Twp, 228 Mich App at 594.14 We therefore conclude
that the best course of action is to remand for consideration of plaintiff’s due process and equal
protection claims by the circuit court in the first instance.

                                       C. CONCLUSION

        In light of the circuit court’s erroneous determination that it lacked jurisdiction over
plaintiff’s due process and equal protection claims, we remand for the circuit court to consider


12
  This Court may take judicial notice of a fact that is “not subject to reasonable dispute” and
may take such notice whether or not requested by a party. MRE 201; Hetrick v Friedman, 237
Mich App 264, 269; 602 NW2d 603 (1999).
13
  The current zoning map reflects that, unlike plaintiff’s island, the other referenced island
continues to be depicted with a white coloration.
14
   In considering any such arguments, the circuit court should, on remand, assess the ordinance
definitions discussed earlier in this opinion, in the context of an “agricultural” or other zoning
classification, to determine whether such a classification is arbitrary and capricious as applied to
an island property.


                                                -8-
those claims on their merits. We therefore reverse the circuit court’s November 14, 2013 order
granting summary disposition to defendants on Counts II and III of plaintiff’s complaint.

       Because the ZBA’s 2012 decision denying plaintiff a variance, and the circuit court’s
review of that decision, were premised on the property’s 2011 “agricultural” zoning designation,
we also vacate the ZBA’s decision and the circuit court’s November 27, 2012 order affirming the
ZBA’s decision. Because we do so, the portion of the circuit court’s order regarding plaintiff’s
claim for regulatory taking becomes moot, and we likewise vacate that portion.

        Vacated in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.

                                                           /s/ Patrick M. Meter
                                                           /s/ David H. Sawyer
                                                           /s/ Mark T. Boonstra




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