            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



WOODCREEK OF ANN ARBOR                                               UNPUBLISHED
ASSOCIATION, RICHARD MAZZARI, and                                    March 12, 2019
NORA LIE,

               Plaintiffs-Appellants,

v                                                                    No. 342848
                                                                     Washtenaw Circuit Court
CITY OF ANN ARBOR and FDHE, LLC,                                     LC No. 17-000869-CZ

               Defendants-Appellees.


Before: METER, P.J., and SERVITTO and REDFORD, JJ.

PER CURIAM.

        In this action related to the approval of a site plan for the development of real property in
the City of Ann Arbor, plaintiffs appeal as of right the circuit court’s order granting summary
disposition to defendants, the City of Ann Arbor and Manchester Ann Arbor, LLC, under MCR
2.116(C)(4). We affirm.

        Plaintiffs are a condominium complex in Ann Arbor and individual residents of units
within that complex. Defendant Manchester Ann Arbor, LLC is the predecessor in interest of
defendant-appellee FDHE, LLC. Manchester purchased a 48-acre parcel of land near plaintiffs’
condominium complex with the intent to develop it into the South Pond Village condominium
complex. Over the course of almost two years, Manchester worked with the Ann Arbor Planning
Commission on a site plan for development of the complex. Several public hearings were held
on this issue and the Ann Arbor City Council approved Manchester’s site plan at a public hearing
on September 6, 2016. Manchester eventually sold the real property to FDHE, LLC.

        On September 1, 2017, plaintiffs filed a complaint in the circuit court against defendants,
seeking the revocation of the city council’s site-plan approval and any permits for the
development of South Pond Village. Defendants moved for summary disposition, arguing that
plaintiffs had not timely filed their appeal of the site-plan approval within the 30-day window
prescribed by MCR 7.122(B). Plaintiffs opposed the motion, arguing that their complaint
initiated an original action for relief, rather than an appeal of the city council’s decision. The



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circuit court reasoned that plaintiffs’ claims were derivative of the site-plan approval process and
that plaintiffs’ recourse was to file an appeal of the site-plan approval. Because plaintiffs failed
to timely file their appeal, the circuit court granted summary disposition to defendants under
MCR 2.116(C)(4). This appeal followed.

       On appeal, plaintiffs argue that the circuit court erred by dismissing their case as an
untimely appeal of the city council’s approval of the site plan. “A summary disposition motion
pursuant to MCR 2.116(C)(4) tests the trial court’s subject-matter jurisdiction.” Braun v Ann
Arbor Charter Twp, 262 Mich App 154, 157; 683 NW2d 755 (2004). “Jurisdictional questions
are reviewed de novo, but this Court must determine whether the affidavits, together with the
pleadings, depositions, admissions, and documentary evidence, demonstrate a lack of subject
matter jurisdiction.” PIC Maint, Inc v Dep’t of Treasury, 293 Mich App 403, 407; 809 NW2d
669 (2011) (internal citation, ellipsis, block notation, and quotation marks omitted). A circuit
court does not have jurisdiction to hear an appeal if it is not timely filed. See Krohn v City of
Saginaw, 175 Mich App 193, 196; 437 NW2d 260 (1988).

       MCR 7.122 “governs appeals to the circuit court from a determination under a zoning
ordinance by any . . . legislative body of a city, village, township, or county authorized to enact
zoning ordinances.” MCR 7.122(A)(1). Under this rule, an appeal from the legislative body’s
decision “must be filed within the time prescribed by the statute applicable to the appeal. If no
time is specified in the applicable statute, the appeal must be filed within 30 days after the
approval of the minutes of the legislative body’s decision or 30 days from its written decision,
“whichever deadline comes first.” MCR 7.122(B). This rule, however, “does not restrict the
right of a party to bring a complaint for relief relating to a determination under a zoning
ordinance.” MCR 7.122(A)(2).

        As plaintiffs recognize in their complaint, the Michigan Zoning Enabling Act authorizes
local governments to require the “submission and approval of a site plan before authorization of
a land use or activity regulated by a zoning ordinance.” MCL 125.3501(1). In turn, MCL
125.3501(4) provides, in pertinent part, that a “decision rejecting, approving, or conditionally
approving a site plan shall be based upon requirements and standards contained in the zoning
ordinance.” Accordingly, the city council’s approval of the site plan in this case constitutes a
“determination under a zoning ordinance” by a legislative body, bringing plaintiffs’ challenge
within the purview of MCR 7.122. Therefore, we must determine whether plaintiffs’ complaint
was an “appeal” of the city council’s determination, MCR 7.122(B), or a “complaint for relief
relating to a determination under a zoning ordinance,” MCR 7.122(A)(2).

        Plaintiffs pleaded four counts in their complaint. First, plaintiffs claimed that the city
council’s approval of the site plan was ultra vires because the site plan did not comply with
various statutes, codes, and zoning ordinances. Second, because the city council’s plan was
allegedly null and void, plaintiffs claimed that they were entitled to a writ of mandamus
compelling the city council to revoke its approval of the site plan. Third, plaintiffs alleged that
the site-plan approval violated the Zoning Enabling Act. Finally, plaintiffs argued that the site
plan violated their right to substantive due process because the city council’s approval of the site
plan “was unreasonable, arbitrary, and capricious.”



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       Each count of plaintiffs’ complaint raises issues concerning the adoption of the site plan
by the city council. See Krohn, 175 Mich App at 198. These counts do not establish separate
causes of action; rather, they address the alleged flaws in the city council’s original decision
approving the site plan. Id. Accordingly, we conclude that each count of plaintiffs’ complaint
pleaded an “appeal” from the city council’s decision affirming the site plan.

        Having concluded that plaintiffs’ complaint constituted an appeal of the site-plan
approval, we must next determine what time limits applied to the filing of plaintiffs’ appeal.
There is no statutory provision concerning appeals from a city council’s approval of a site plan.1
Therefore, for the circuit court to have subject-matter jurisdiction over plaintiffs’ claims,
plaintiffs were required to file their appeal within 30 days of the approval of the minutes
delineating the city council’s approval of the site plan. MCR 7.122(B). The city council
affirmed the site plan on September 6, 2016, and approved the minutes pertaining to that
decision on September 19, 2016.2 Plaintiffs, however, did not file their appeal in the circuit court
until September 1, 2017, nearly a year after the city council’s decision. This untimely filing
prevented plaintiffs from establishing the circuit court’s subject-matter jurisdiction over their
claims. MCR 7.122(B). Thus, the circuit court did not err by granting summary disposition to
defendants under MCR 2.116(C)(4).

       Affirmed.



                                                             /s/ Patrick M. Meter
                                                             /s/ Deborah A. Servitto
                                                             /s/ James Robert Redford




1
  For instance, MCL 125.3607 governs an appeal of a legislative body’s decision related to
noncomforming uses or structures, see MCL 125.3208, and provides that such an appeal must be
taken within 21 days after of the approval of the minutes of the decision, or within thirty days
after a written decision, see MCL 125.3606(3). No similar provision applies to an appeal from a
legislative body’s approval of a site plan.
2
  See Ann Arbor City Council Minutes, September 19, 2016, p 10. Although the minutes of the
September 19th city-council meeting were not included in the lower-court record, we take
judicial notice of this public document under MRE 201.


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