                          STATE OF MICHIGAN

                            COURT OF APPEALS



JUDITH REYNOLDS,                                                     UNPUBLISHED
                                                                     July 12, 2016
               Plaintiff-Appellee,

v                                                                    No. 326532
                                                                     Wayne Circuit Court
HURON CHARTER TOWNSHIP,                                              LC No. 14-010803-AV

               Defendant-Appellant.


Before: JANSEN, P.J., and FORT HOOD and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals by leave granted1 the order reversing the decision of its Zoning Board
of Appeals (ZBA), which rejected plaintiff’s challenge to the Planning Commission’s decision
permitting the Willow Methodist Church (the church) to erect an outdoor electronic sign. We
reverse.

        This case arises from a decision of defendant’s ZBA, which upheld the decision of
defendant’s Planning Commission permitting the erection of an electronic sign pursuant to 11
conditions. Defendant argues that the circuit court improperly ruled that plaintiff’s appeal was
timely and that defendant was estopped from challenging the timeliness of plaintiff’s appeal. We
agree and conclude that the circuit court lacked jurisdiction over the case because plaintiff failed
to file her claim of appeal within 21 days after the March 10, 2014 meeting minutes were
approved on May 12, 2014.

       The issue whether the circuit court has subject-matter jurisdiction over a case is reviewed
de novo. Summer v Southfield Bd of Ed, 310 Mich App 660, 667; 874 NW2d 150 (2015). MCL
125.3606(3) provides:

              An appeal from a decision of a zoning board of appeals shall be filed
       within whichever of the following deadlines comes first:



1
 Reynolds v Huron Charter Twp, unpublished order of the Court of Appeals, entered August 27,
2015 (Docket No. 326532).


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              (a) Thirty days after the zoning board of appeals issues its decision in
       writing signed by the chairperson, if there is a chairperson, or signed by the
       members of the zoning board of appeals, if there is no chairperson.

              (b) Twenty-one days after the zoning board of appeals approves the
       minutes of its decision.

“The failure to file a timely claim of appeal deprives the circuit court of jurisdiction to hear the
appeal.” Schlega v Detroit Bd of Zoning Appeals, 147 Mich App 79, 82; 382 NW2d 737 (1985).
See also MCR 7.104(A) (noting that “[t]he time limit for an appeal of right [in the circuit court]
is jurisdictional”); MCR 7.122(A)(1) (explaining that MCR 7.101 through MCR 7.115 apply to
zoning ordinance determinations unless MCR 7.122 provides otherwise).

        MCR 7.122 governs appeals to the circuit court from zoning ordinance determinations by
a zoning board of appeals. MCR 7.122(A). MCR 7.122(A)(3) provides that an appeal under
MCR 7.122 is an appeal as of right. MCR 7.122(B) provides, in part, that “[a]n appeal under this
rule must be filed within the time prescribed by the statute applicable to the appeal.” MCR
7.111(C)(4) provides that “[t]he appellant must attach to the claim of appeal a copy of the order
and/or minutes of the officer or entity from which the appeal is taken or must indicate that there
is no such document to attach.”

        The ZBA meeting corresponding with its decision took place on March 10, 2014. The
meeting minutes from the March 10, 2014 ZBA meeting were approved on May 12, 2014. The
May 12, 2014 meeting minutes were approved on August 11, 2014. The circuit court concluded
in its opinion and order that plaintiff’s appeal to the circuit court was timely filed and that
defendant was estopped from claiming that the appeal was not timely filed because it deliberately
delayed the release of the certified minutes to plaintiff. The court pointed out that defendant
forced plaintiff to file a Freedom of Information Act (FOIA) request to obtain an official,
certified copy of the meeting minutes, and the May 12, 2014 meeting minutes were not certified
until August 11, 2014.

        We conclude that the circuit court lacked jurisdiction over the case because plaintiff
failed to file her claim of appeal in the circuit court within the statutory time frame. The parties
do not dispute the fact that the ZBA meeting took place on March 10, 2014, and that the meeting
minutes from the March 10, 2014 meeting were approved on May 12, 2014. In addition, the
ZBA record contains no decision in writing signed by the chairperson or the members of the
ZBA. Therefore, plaintiff was required to file her claim of appeal within 21 days after the ZBA
approved the March 10, 2014 meeting minutes on May 12, 2014. Plaintiff filed a claim of appeal
in the circuit court on August 20, 2014, which was well after the 21 days expired. Accordingly,
plaintiff failed to timely file her claim of appeal in violation of MCL 125.3606(3).

        Plaintiff contends that defendant deliberately delayed the release of the certified meeting
minutes until August 12, 2014. However, the statute does not require that a plaintiff be provided
with a copy of the official meeting minutes in order to file a claim of appeal. Instead, the period
to file a claim of appeal begins to run when the ZBA approves the minutes of its decision,
regardless of whether the plaintiff has a copy of the minutes. See MCL 125.3606(3)(b).
Furthermore, the applicable court rule only requires that the appellant attach a copy of the

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relevant meeting minutes to her claim of appeal, and does not require that the copy of the
minutes attached to the claim of appeal be certified or signed. See MCR 7.122(C)(4). The
parties do not dispute the fact that plaintiff had an unofficial copy of the March 10, 2014 meeting
minutes before the time to file her claim of appeal expired. Therefore, plaintiff’s argument that
defendant deliberately delayed the release of the official meeting minutes is without merit
because plaintiff had the document she needed to file her claim of appeal within the applicable
time frame, and plaintiff did not need an official copy of the minutes in order to file her claim of
appeal. See id. Accordingly, the circuit court erred in concluding that defendant deliberately
delayed the release of any document necessary to plaintiff’s appeal and in concluding that this
fact was dispositive on the issue of jurisdiction.

       Plaintiff contends that she had the ability to file a late application for leave to appeal
under MCR 7.105(G) and that the circuit court preserved judicial economy by considering her
appeal as a late appeal and employing judicial estoppel, rather than requiring plaintiff to refile
her appeal. MCR 7.105(G) provides, in relevant part:

               (1) When an appeal of right or an application for leave was not timely
       filed, the appellant may file an application as prescribed under subrule (B)
       accompanied by a statement of facts explaining the delay. The answer may
       challenge the claimed reasons for the delay. The circuit court may consider the
       length of and the reasons for the delay in deciding whether to grant the
       application.

               (2) A late application may not be filed more than 6 months after entry of:

               (a) the order, judgment, or decision appealed[.]

        There is no indication in the record that the circuit court considered plaintiff’s claim of
appeal as a late application for leave to appeal or that it employed judicial estoppel in order to
preserve judicial economy and prevent plaintiff from having to refile her appeal. Instead, the
court concluded that plaintiff timely filed her appeal on August 20, 2014, and concluded that
defendant was estopped from claiming otherwise since it deliberately delayed the release of the
certified minutes to plaintiff. MCR 7.103(B)(2) provides that the circuit court may grant leave to
appeal from “a final order or decision of an agency from which an appeal by leave to the circuit
court is provided by law[.]” MCR 7.103(B)(4) provides that the circuit court may grant leave to
appeal from “a final order or decision of an agency if an appeal of right was not timely filed and
a statute authorizes a late appeal[.]” The applicable statute does not authorize an appeal by leave
granted or a late appeal. See MCL 125.3606(3). Accordingly, plaintiff’s argument fails. See
MCR 7.105(G).

        Plaintiff did not timely file her claim of appeal. The circuit court erred in concluding that
defendant was estopped from claiming the appeal was not timely filed because there is no
indication that defendant deliberately delayed the release of any documents to plaintiff that were
necessary to her appeal, and, even if plaintiff did not obtain a certified copy of March 10, 2014
meeting minutes or an unofficial or certified copy of the May 12, 2014 meeting minutes until
after the time to file her claim of appeal expired, the court rule only required that plaintiff
attached an unofficial copy of the March 10, 2014 meeting minutes to her claim of appeal.

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Accordingly, plaintiff failed to timely file her claim of appeal in the circuit court, and the court
lacked jurisdiction over her appeal. See MCL 125.3606(3)(b); MCR 7.104(A). Because we
conclude that the circuit court lacked jurisdiction over plaintiff’s appeal, we need not address
defendant’s remaining arguments on appeal.

       Reversed.


                                                             /s/ Kathleen Jansen
                                                             /s/ Karen M. Fort Hood
                                                             /s/ Mark T. Boonstra




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