                           STATE OF MICHIGAN

                             COURT OF APPEALS



BRAD JEWETT and TRINA JEWETT,                                          UNPUBLISHED
                                                                       August 17, 2017
               Appellants,

v                                                                      No. 331092
                                                                       Grand Traverse Circuit Court
CHARTER TOWNSHIP OF GARFIELD,                                          LC No. 2015-030915-AA

               Appellee.


Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

       In 2013, appellants Brad and Trina Jewett submitted an application for a special use
permit (SUP) to appellee Garfield Charter Township’s Planning Commission for the construction
of a senior living apartment complex. The Planning Commission denied the application.
Appellants appealed the decision to the circuit court, which affirmed the Planning Commission’s
decision. Appellants appeal by right. We affirm.

                                        I. BACKGROUND

        The property that is the subject of this dispute is 6.3 acres of vacant land that is located in
Garfield Township, Traverse City, Michigan; the property is zoned R-1B for single family
residential housing under the Garfield Township Zoning Ordinance. The R-1B zoning
classification contemplates land use that is “designed to accommodate the development of low-
medium density residential uses . . . [and] also includes existing one-family developments within
the Township . . . .” Section 6.3.1.

       Consistent with this intent, the Ordinance restricts certain land uses in single family
residential zones, but permits, in the discretion of the Planning Commission, some “institutional
uses” upon application for an SUP. See Section 6.3.3; Section 6.2.4(2). Any such “institutional
uses” are “[s]ubject to all requirements of Article VIII, Section 8.5.” Section 6.2.4(2). In this
regard Article VIII, Section 8.5 provides, in relevant part:

       Section 8.5.1 Statement of Intent: In recognition of the many institutional uses
       that have been found to be reasonably compatible with residential uses, the
       Township Planning Commission may authorize the construction, maintenance and
       operation in any residential or agricultural district of certain institutional uses
       specified in this Section by the issuance of a Special Use Permit.

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       Section 8.5.2 Permitted Uses: The following land and structure uses may be
       permitted, PROVIDED, the requirements of Section 8.1 of this Article are met.

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       (4)      Institutions for Human Care: . . . . [H]omes for the aged, adult foster care
       facilities, and age restricted independent housing or assisted living facilities.

Section 8.1 of the Ordinance, in turn, requires that any SUP application meet the “general” and
“specific standards” contained in Section 8.1.3(1) and (2).1

                                          SUP Application

         In December 2013, appellants submitted an application to appellee’s Planning
Commission for an SUP, seeking to construct an independent senior living apartment complex
on the subject property, “Culver Meadows Senior Apartments.” The facility would have 88
units, two floors, and a building footprint of approximately 42,000 square feet, with an overall
square footage of 80,000 square feet. It could house between 88 and 128 occupants. The
apartments were to be located approximately 600 feet from another of appellants’ senior living
facilities, which is one story, 236 feet in length, measures approximately 12,000 square feet, and
is also located within the single family residential housing zoning classification.

       A lengthy administrative process ensued, during which appellants downsized the project
to 43 units based on the Planning Commission’s concerns that the apartments were inharmonious
with the surrounding area. Ultimately, however, the Planning Commission denied the SUP
based on its findings that appellants’ proposed project did not meet three of the Ordinance’s


1
   The general standards required to be met must show that the proposed use will: (1) “be
designed . . . as to be harmonious . . . with the existing or intended character of the general
vicinity[;]” (2) “[n]ot be . . . disturbing to existing or future uses in the same general vicinity[;]”
(3) “[b]e served adequately by essential facilities[;]” (4) “[n]ot create excessive additional
requirements at public cost for public facilities and services[;]” and (5) “[n]ot involve uses . . .
that will be detrimental to . . . the general welfare by fumes, glare or odors.” Section 8.1.3(1)(a)-
(e). The specific requirements to be met include: (1) “[t]hat the applicant may legally apply for
site plan review[;]” (2) “[t]hat all required information has been provided[;]” (3) that the
proposed use “conforms to all regulations of the zoning district in which it is located[;]” (4) that
the plan meet the requirements for public facilities and services and other standards of
governmental agencies where applicable; (5) that natural resources will be maintained as
possible; (6) that the proposed use respects floodways and soil conditions and will not cause soil
erosion; (7) that the drainage plan is adequate to handle storm water runoff; (8) that grading will
not destroy the character of the property; (9) that the phases of development are seamless and
provide for expansion of existing facilities if necessary; (10) that landscaping may be required;
(11) that parking will not adversely affect traffic flow and vehicular and pedestrian traffic will be
safe; (12) that outdoor garbage will be contained; and (13) that the use is in accord with the
“spirit and purpose” of the Ordinance. Section 8.1.3(2)(a)-(r).


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general standards—Sections 8.1.3(1)(a) (requiring harmony with intended character), (b) (to not
disturb future/existing uses), and (e) (to not create detrimental fumes, glare, and odors)—and
three of the Ordinance’s specific standards—Sections 8.1.3(2)(b) (failure to provide information
required), (c) (non-conformity with regulations), and (r) (not in accord with spirit of Ordinance).

                                   Circuit Court Proceedings

        Appellants appealed the Planning Commission’s decision to the circuit court. In their
complaint, they alleged that the Planning Commission erroneously found that “the project is not
harmonious and compatible with the surrounding area, based solely on its size in comparison to a
single family residential home[.]” Appellants asked that the Planning Commission’s decision be
reversed, claiming that it was not supported by the evidence and was an abuse of discretion. The
circuit court, however, affirmed the Planning Commission’s denial of the SUP. First, the circuit
court rejected appellants’ contention that the Planning Commission’s decision was based solely
on the project’s size and was therefore arbitrary, reasoning:

       [A] review of the record indicates that the Planning Commission made multiple
       findings, not just limited to the size of the proposed building, about the Special
       Use Permit. With regard to Appellants [sic] project, the Planning Commission
       found that only two of the five general standards [applicable under Section 8.1.3
       of the Ordinance when considering an SUP] were met.

Then, after reciting the Commission’s findings pertinent to the denial, the circuit court stated:

       [T]he Planning Commission discussed each general and specific standard
       provided for in the Ordinance and indicated how and why the proposed project
       met or did not meet each standard. By thoroughly discussing each standard, the
       Planning Commission provided [a] rationale for its determination that the project
       was inharmonious and incompatible with the Single Family Residential District.
       The Planning Commission’s determination that Appellants [sic] project failed to
       meet the requirements and standards for approval is supported by competent,
       substantial and material evidence on the record, and was clearly not arbitrary

                                 II. STANDARDS OF REVIEW

        A circuit court may review an administrative decision to determine if it were authorized
by law and whether the decision was supported by competent, material and substantial evidence
on the whole record. Const 1963, art 6, § 28. An agency decision is not authorized by law if it
violates constitutional or statutory provisions, is beyond the agency’s jurisdiction, follows from
unlawful procedures resulting in material prejudice, or is arbitrary and capricious. Northwestern
Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998). A decision is
supported by substantial evidence if a “reasonable mind would accept [that evidence] as
adequate to support a decision[.]” Vanzandt v State Employees Retirement Sys, 266 Mich App
579, 584; 701 NW2d 214 (2005) (citation and quotation marks omitted). “Substantial evidence”
is “more than a scintilla of evidence, although it may be substantially less than a preponderance
of the evidence.” Leahy v Orion Twp, 269 Mich App 527, 529-530; 711 NW2d 438 (2006)
(citation omitted). When supported by sufficient evidence, “the circuit court may not substitute

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its judgment for that of the agency, even if the court might have reached a different result.”
Vanzandt, 266 Mich App at 584.

        Our review of the circuit court’s decision on appeal from an agency decision is more
limited. “[W]hen reviewing a lower court’s review of agency action this Court must determine
whether the lower court applied correct legal principles and whether it misapprehended or
grossly misapplied the substantial evidence test to the agency’s factual findings.” Boyd v Civil
Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). The last stated standard is the
same as the clearly erroneous standard. Id. “[A] finding is clearly erroneous when, on review of
the whole record, this Court is left with the definite and firm conviction that a mistake has been
made.” Id. at 235. In sum, we review the circuit court’s legal conclusions de novo and its
findings of fact for clear error. Braska v Challenge Mfg Co, 307 Mich App 340, 352; 861 NW2d
289 (2014).

                                        III. ANALYSIS

      On appeal, appellants claim that the circuit court erred by concluding that the denial of
the SUP was supported by substantial evidence and by looking exclusively to the Planning
Commission’s findings that the project was too large. We disagree that the circuit court erred.

       As noted, the Planning Commission found that appellants’ proposed project failed to
meet three general standards of Section 8.1. The Planning Commission first found that Section
8.1.3(1)(a) (harmony with intended character of area) had not been met based on the following
findings:

       ° The existing character of the general vicinity is single family residential homes
       and the intended character of the general vicinity is moderate density residential.
       The essential character of the area in which the project is proposed is low density,
       single family residential.

       ° To the extent that the general vicinity includes non-residential uses, these uses
       are either in another jurisdiction, are exempt from Township zoning control or
       approved through different zoning mechanisms as allowed by the Zoning
       Ordinance. These uses however do not detract from or alter the single family
       residential character of the general vicinity.

       ° In weighing this standard the Planning Commission has considered the density,
       size, and planned operation of the project in comparison to that of the
       surrounding, primarily single-family residential neighborhood.

       ° Appropriate project density is largely determined by its compatibility with
       adjacent uses and existing density in the area. In this case, Township Geographic
       Information System (GIS) records indicate that the density of occupied residential
       property (including the existing Culver Senior Living Facility) within 1/2 mile of
       the subject property averages 0.54 unit per acre. When considering only the
       single-family residential density (and excluding Culver Senior Living) existing
       density falls to less than 0.50 units per acre for residential properties within ½
       mile of the subject property. At approximately 5.9 units per acre, the project
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density is approximately 12-times the prevailing density of that of the surrounding
area. The project is also at the maximum density for Moderate Density
Residential, which density is contemplated only when compatible with
surrounding uses. At 12-times the density of the surrounding uses, such density is
not compatible.

° The proposed structure measures approximately 50,000 square feet in building
area (first and second floors, excluding any basement). Based on Township
Assessing records, the average square footage of residential homes within ¼ mile
of the subject property measures 1,553.2 square feet (all floors, excluding
basement). The average square footage of residential homes within ½ mile of the
subject property measures 1,546.2 square feet (all floors, excluding basement).
As such, the scale and massing of the proposed building is inharmonious and
incompatible with that of the predominantly single-family surrounding area.

° The applicant has designed and presented an apartment building for active
senior citizens. A parking space is provided for each unit similar to an apartment
building due to the active nature of the proposed occupants.

° Traditional apartment buildings are not allowed in the R-1B Single family
Residential District.

° Because of common secondary effects of operating an apartment building such
as traffic, noise, light and glare, this type of use is regularly only allowed within a
designated multi-family zoning district and is not appropriate within a primarily
single-family residential area. The purpose of the Planning Commission’s ability
to authorize an “institutional use” in a low-density residential and agricultural
setting was not to authorize the type of structure or use currently proposed.

° The project as proposed includes more than double the amount of parking
spaces and associated drive areas than is required by the Zoning Ordinance. This
excessive amount of paving leads to unnecessary stormwater runoff and an overly
paved appearance, which is not compatible with that of the primarily single-
family residential area.

° The proposed senior apartment building is not compatible with the uses which
are permitted “by right” within the Rl-B zoning district and will change the
essential character of the area in which it is proposed due to the high density of
the proposed project, the size and mass of the proposed building, the amount of
pavement proposed, and the amount of traffic, noise, light and glare that will be
generated by this project.

° This project is not similar to the existing Culver senior living facility. The
existing Culver senior living facility is one-story, 236-feet in length, and measures
roughly 12,000 square feet. In contrast, the proposed project is two-stories, with
roughly 50,000 square feet overall, and 328 feet in length. The Planning
Commission has previously expressed that the approval for the existing Culver

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       senior living facility pushed the boundaries of compatibility in this vicinity. The
       proposed project is larger in scale, density, and intensity. As a result, the
       proposed project far surpasses the boundary of compatibility.

       ° This project is not similar to Traverse Manor. Traverse Manor is located in
       another part of the Township, the single-story use is shielded by topography and
       landscaping, and is located near the Arbors, a 468- unit apartment complex, and
       Chelsea Park, a 326-unit mixed-use residential development, both similar uses. In
       contrast, the proposed project is not shielded by topography or landscaping, is
       taller, and is proposed to be located in an area surrounded primarily by single
       family residential uses. While Traverse Manor was compatible with the character
       of the general vicinity due to its proximity to the Arbors and Chelsea Park, the
       proposed project is not compatible with the character of the general vicinity here
       due to its proximity to primarily single family residential uses.

        Next, the Planning Commission found that the general standard of Section 8.1.3(1)(b) (to
not disturb future/existing uses) had not been met, based on the following findings:

       ° The Planning Commission finds that the project has the potential to be
       disturbing to and/or negatively affect existing or future uses in the vicinity due to
       excessive project density and the visual impact of mass and scale of the project in
       relation to the surrounding single-family residential uses. The Planning
       Commission finds that the proposed apartment project has the potential to be
       disturbing and negatively affect existing or future uses in the vicinity due to the
       likely secondary effects of the project, such as traffic, noise, light and glare.

       ° The Planning Commission finds that the apartment project, as proposed, would
       have a detrimental effect to property in the immediate vicinity due to its size,
       mass and intensity.

        The Planning Commission then found that appellants’ project failed to meet a third
general standard, Section 8.1.3(1)(e) (to not create detrimental fumes, glare, and odor), based on
the following finding:

       ° Due to the proposed operation of the project as a senior apartment complex, a
       common secondary effect of such an intense use is excessive light and glare from
       the operation and use of the project by the residents of the 38 proposed units.

        The Planning Commission also found that the application failed to meet three specific
standards of Section 8.1.3. In particular, the Commission found that the proposal had not met the
standards in Sections 8.1.3(b) (failure to provide information required), (c) (non-conformity with
regulations), and (r) (not in accord with spirit of Ordinance) based on the following findings,
respectively:

       ° The applicant has not submitted sufficient information as requested by the
       Garfield Township Planning Commission to demonstrate that the project satisfies
       the general standards set forth in § 8.1.3(1) of the Zoning Ordinance.


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                                               * * *

       ° The project fails to meet the Statement of Intent of Section 8.5, which requires
       institutional uses to be reasonably compatible with residential uses. The project
       fails to meet §8.5.2, which requires the project to meet the requirements of §8.1.

                                               * * *

       ° The application conflicts with the spirit and purpose of this ordinance and with
       the specific objectives and principles as described in Findings [related to
       Sections] 8.1.3(1)(a), 8.l.3(1)(b), 8.1.3(1)(e), 8.l.3(2)(b), 8.l.3(2)(c), . . . and 8.5.

        In reviewing the Planning Commission’s decision to deny appellants’ application for an
SUP, the circuit court first re-stated the Planning Commission’s relevant findings. The circuit
court then found that the “Planning Commission discussed each general and specific standard
provided for in the Ordinance and indicated how and why the proposed project met or did not
meet each standard” and also “provided rationale for its determination that the project was
inharmonious and incompatible with the Single Family Residential District.” The circuit court’s
decision then concludes, “The Planning Commission’s determination that Appellants [sic]
project failed to meet the requirements and standards for approval is supported by competent,
substantial and material evidence on the record . . . .”

        The circuit court fully summarized the administrative proceedings and reiterated the
Planning Commission’s very explicit and detailed findings. Read as a whole, the court’s opinion
patently, but albiet implicitly, agreed that the evidence in the record would convince a reasonable
mind to accept that evidence as supporting the Planning Commission’s decision. See Vanzandt,
266 Mich App at 584. Consequently, we cannot conclude that the circuit court “misapprehended
or grossly misapplied the substantial evidence test to the agency’s factual findings.” Boyd, 220
Mich App at 234. Additionally, we note, more specifically, that the circuit court did not err by
finding that the Planning Commission’s decision was not based on size alone, i.e., that it
contemplated a number of factors, including density of the surrounding area, noise and glare, and
the character of the general vicinity as reflected in the Planning Commission’s findings. Thus,
there is no merit to appellants’ claim that the Planning Commission abused its discretion by
denying the SUP based solely on the project’s size.2

       We affirm.

                                                               /s/ Jane M. Beckering
                                                               /s/ Jane E. Markey
                                                               /s/ Douglas B. Shapiro



2
  That the Planning Commission did not base its decision solely on the size of the project renders
inapposite appellants’ related argument that the denial of the SUP based on size alone rendered
superfluous an alleged presumption as to the validity of institutional uses in Section 8.5.1.



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