                            STATE OF MICHIGAN

                             COURT OF APPEALS



STEPHEN DELING,                                                       UNPUBLISHED
                                                                      November 15, 2016
                 Plaintiff-Appellant,

v                                                                     No. 329767
                                                                      Branch Circuit Court
TOWNSHIP OF GIRARD,                                                   LC No. 13-100618-AV

                 Defendant-Appellee.


Before: SAWYER, P.J., and MARKEY and O’BRIEN, JJ.

PER CURIAM.

        Plaintiff wished to build a garage on his property in defendant’s township. The
applicable zoning ordinance limited the height of the garage to 16 feet. Plaintiff sought a
variance to allow a height of 26 feet. Defendant’s Zoning Board of Appeals denied the variance
and plaintiff appealed to the circuit court. It was determined that the record was insufficient to
allow adequate review by the court and the parties stipulated that the matter should be sent back
to the ZBA for rehearing. On rehearing, the ZBA granted only a 23.5 foot variance. Plaintiff
again appealed to the circuit court, which upheld the ZBA’s decision. Plaintiff now appeals and
we affirm.

       This Court reviews de novo the circuit court’s decision in a zoning board appeal.
Norman Corp v City of East Tawas, 263 Mich App 194, 198; 687 NW2d 681 (2004). MCL
125.3606(1) sets forth the standard for the court’s review of a decision by the ZBA:

                Any party aggrieved by a decision of the zoning board of appeals may
       appeal to the circuit court for the county in which the property is located. The
       circuit court shall review the record and decision to ensure that the decision meets
       all of the following requirements:

                 (a) Complies with the constitution and laws of the state.

                 (b) Is based upon proper procedure.

                 (c) Is supported by competent, material, and substantial evidence on the
       record.



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              (d) Represents the reasonable exercise of discretion granted by law to the
       zoning board of appeals.

In determining how to apply this statutory standard, we find guidance in our Supreme Court’s
decision, although it was decided under the prior, now repealed zoning statute, in Macenas v
Village of Michiana, 433 Mich 380, 395; 446 NW2d 102 (1989):

               The typical zoning case often presents questions that are a mix of law and
       fact. This convergence tends at times to obscure the principle that courts have
       primary authority to determine questions of law. “Where the facts relating to a
       particular use are not in dispute, the legal effect of those facts, that is, how the
       terms of the ordinance are to be interpreted in relation to the facts, is a matter of
       law, and the courts are not bound by the decisions of administrative bodies on
       questions of law.” 3 Rathkopf, The Law of Zoning & Planning (4th ed), § 42.07,
       p 42-69.

               The statute instructs courts to defer to determinations of fact made by an
       appeals board if supported by competent, material, and substantial evidence on
       the record, MCL 125.585(11)(c); MSA 5.2935(11)(c). The board’s decisions
       based on those determinations of fact are to be deferred to provided they are
       procedurally proper, MCL 125.585(11)(b); MSA 5.2935(11)(b); and are a
       reasonable exercise of the board’s discretion, MCL 125.585(11)(d); MSA
       5.2935(11)(d). This deference, however, does not undercut the authority of the
       court to decide questions of law as they arise in the course of a review of appeals
       board actions and to negate actions that are so unreasonable as to rise to the level
       of unconstitutionality.

Thus, we read the statute, with the assistance of Macenas, to require that any factual findings of
the ZBA are to be reviewed under the competent, material and substantial evidence standard,
while the decision itself of the ZBA based upon any factual conclusions is to be reviewed to
determine if it is a reasonable exercise of discretion.

        Plaintiff first argues that the ZBA’s decision was not supported by competent, material
and substantial evidence on the record. But plaintiff points to no specific factual determination
made by the ZBA that was not supported by the record. Rather, plaintiff is arguing that the
decision itself is not supported by such evidence. But that twists the standard to be applied. Not
only does it apply the factual standard to the ultimate decision itself, instead of determining
whether that decision represents a reasonable exercise of discretion, but it also creates a standard
that would have the effect of requiring the issuance of a variance unless there was competent,
material and substantial evidence to deny it. We are not persuaded that the Legislature intended
to create such a high burden in order to deny a variance. Indeed, in MCL 125.3604(7) and (8),
the Legislature states that a ZBA “may” grant a variance and it has the authority to do so. But
this is significantly different than if the statute provided that a variance “must be issued
unless . . . .” And that would be the effect of plaintiff’s argument.

      Plaintiff’s next argument more closely addresses the real question in this case, namely
whether the ZBA’s decision was unreasonable because it discriminated against plaintiff because

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similarly situated neighbors were granted the same variance that plaintiff was denied. But, as the
trial court observed, like others in the township, plaintiff was granted a variance. The ZBA
merely reduced the variance from the 26 feet requested to 23.5 feet, “so that only 16 feet show
on the lower side” of the structure. The trial court noted that it “would seem that the Appellant
would have this Court . . . require the Township of Girard to uniformly permit all non-use height
variances at the same or similar maximum heights.” The trial court rejected this concept, as do
we. The ZBA attempted to craft a solution that granted as much of plaintiff’s requested variance
as it could, while keeping with the spirit of the ordinance in terms of how much of the structure
would be showing in light of the contour of the land and its location in the neighborhood.
Plaintiff’s argument that nearby properties were granted the variance that plaintiff requested1
overlooks the fact that ultimately each parcel of land is unique and, even with closely situated
properties, the effect of a particular variance granted to one property might nevertheless have a
different effect when granted to a nearby property. Defendant provides a perfect example of this
in pointing out that a height variance granted to a back-lot property would not have the same
effect on the neighborhood in terms of blocking views of the lake that the same variance would
have if granted to a waterfront property.

       In sum, the fact that slightly different decisions may have been made regarding nearby
properties does not, in our opinion, render the ZBA’s decision discriminatory, much less that it
represents an unreasonable exercise of its discretion. We are satisfied that the ZBA’s decision
represents a reasonable exercise of discretion.

       Affirmed. Defendant may tax costs.



                                                             /s/ David H. Sawyer
                                                             /s/ Jane E. Markey
                                                             /s/ Colleen A. O’Brien




1
  We also note that the factual support for this argument is thin at best. Moreover, plaintiff does
not address defendant’s argument that the variance granted allows plaintiff to achieve his desired
goals in the construction, though perhaps at a higher cost due to the need to utilize custom rafters
rather than stock rafters.


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