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setting forth the requirements for proving a hardship
Summary of this case from Pegasus Wind, LLC v. Tuscola Cnty.Opinion
No. 339018
10-23-2018
CITY OF DETROIT, Petitioner-Appellant, v. CITY OF DETROIT BOARD OF ZONING APPEALS, Respondent-Appellee, and International Outdoor Inc., Intervenor-Appellee.
City of Detroit Law Department (by Charles N. Raimi, Deputy Corporation Counsel, and Sheri L. Whyte, Senior Assistant Corporation Counsel) for the city of Detroit. Lewis & Munday, PC, Detroit (by Reginald G. Dozier and Samuel E. McCargo ) for the city of Detroit Board of Zoning Appeals. Bodman PLC, Troy (by J. Adam Behrendt ) for International Outdoor Inc.
City of Detroit Law Department (by Charles N. Raimi, Deputy Corporation Counsel, and Sheri L. Whyte, Senior Assistant Corporation Counsel) for the city of Detroit.
Lewis & Munday, PC, Detroit (by Reginald G. Dozier and Samuel E. McCargo ) for the city of Detroit Board of Zoning Appeals.
Bodman PLC, Troy (by J. Adam Behrendt ) for International Outdoor Inc.
Before: Cameron, P.J., and Ronayne Krause and Tukel, JJ.
Cameron, P.J.The city of Detroit (the City) appeals the circuit court order affirming the decision of the City’s Board of Zoning Appeals (the BZA) to grant a use variance to International Outdoor Inc. (IO) for the erection of a billboard. On appeal, the City argues that the BZA did not have the authority to grant a use variance in an area of Detroit designated as the Grand Boulevard overlay zone, which bans off-site advertising signs. Even if the BZA did have the authority, the City argues that IO could not prove that the ordinance imposed an unnecessary hardship because IO "purchased the hardship," i.e., it purchased the property with knowledge that the ordinance banned off-site advertising signs. We conclude that the BZA had the authority to grant a use variance in the overlay zone and that the BZA did not err when it granted IO’s request for a use variance based on unnecessary hardship. Because neither IO nor its predecessor in title created the hardship by partitioning, subdividing, or otherwise physically altering the land after the enactment of the ordinance, the BZA could grant the use variance. Therefore, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1999, the City amended its zoning ordinance to ban off-site advertising signs in a portion of the City referred to as the Grand Boulevard overlay zone. See Detroit Zoning Ordinance, § 61-6-65. In 2011, IO purchased a small parcel of vacant property in Detroit that was located within the overlay zone and was zoned as a B4 general business district. The property measured 30 feet wide and 184 feet long with an area of 5,520 square feet. In 2015, IO submitted an application for a permit to erect a billboard on the property. The City’s planning department denied the application, referring to the advertising restrictions in the Grand Boulevard overlay zone.
All citations of the Detroit Zoning Ordinance are to the versions of the relevant sections as codified on May 28, 2005, as shown in the August 11, 2016 version of the ordinance, available at < < https://perma.cc/BA45-6K6A>>.
IO appealed to the BZA, seeking a hardship variance. IO claimed that the City’s ordinance scheme rendered the property unfit for any reasonable or economically feasible use because of its size and shape. IO’s assertion was not disputed, but at the BZA hearing, several board members expressed their concern that IO, as a billboard company, purchased the property with the intent of one day erecting a billboard, though it knew the property was located within the overlay zone. IO’s attorney explained that "there is no feasible or economic or functional use of this property because of the size" and that no one "will ... be able to put any use on this; it would not meet parking, would not meet open space, landscaping, any type of requirement this site could not meet." Instead, IO’s attorney asserted, the only possible uses for the property would be to either erect a billboard or a cell tower—neither of which was currently allowed on the property. One board member also questioned whether the BZA had the authority to grant a variance in an overlay zone—which might have higher authority over other ordinances. In response, IO’s attorney explained that "[i]t’s not higher; it is an ordinance, period. It is not a statute.... If you applied that standard, then there would be no such thing as a dimensional or a hardship variance, you would always say, that’s what the code says, ... we’re inflexible to it." Another board member interjected and asserted that the BZA’s purpose is to consider when to "override the overlay districts and the signs." Before turning to a vote, a third board member made one final observation:
IO also requested a dimensional variance for the height of the proposed billboard. Eventually, IO agreed to lower the height of the billboard so that it complied with Detroit’s height requirements. The City raises no claim related to the site plan of the proposed billboard.
Just, before we get a motion on the floor, the observation that I want to make here is that if we were to approve this as a hardship, virtually any property developer, um, in—virtually any property developer in the city could purchase a subsection of a piece of land in an overlay district and claim that they have a hardship because there
is no other use that they can make of this land other than whatever it is that they bought it for; in this case, a billboard. ... I think that what this does is it creates a precedent that virtually obsolesces the concept of an overlay.
Ultimately, the BZA voted to grant the variance, and the City appealed that decision in the circuit court.
The City did not include IO in its pleadings on appeal in the circuit court. After the appeal was filed, IO filed a motion to intervene, and the court granted the motion.
The circuit court affirmed the BZA’s decision. In its holding, the court explained that while IO bought the property with knowledge of the ban on off-site advertising signs, there was no evidence that IO took any action that physically altered the property to create the hardship now at issue. According to the court, "[c]urrent Michigan law does not support [the City’s] argument that the Self-Created Hardship Rule bars [IO’s] variance request and the [c]ourt declines to expand Michigan law at this time." The City now appeals the circuit court’s decision, claiming that the BZA did not have the authority to grant the variance in an overlay zone and that even if it did, IO’s act of purchasing the property created the hardship at issue.
II. STANDARD OF REVIEW
We review de novo the underlying interpretation and application of an ordinance. Great Lakes Society v. Georgetown Charter Twp. , 281 Mich. App. 396, 407, 761 N.W.2d 371 (2008). MCL 125.3606 provides, in pertinent part, the standard used to review the decision of a zoning board of appeals:
(1) 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.
(d) Represents the reasonable exercise of discretion granted by law to the zoning board of appeals. [ MCL 125.3606(1).]
In other words, "[t]he decision of a zoning board of appeals should be affirmed unless it is contrary to law, based on improper procedure, not supported by competent, material, and substantial evidence on the record, or an abuse of discretion." Janssen v. Holland Charter Twp. Zoning Bd. of Appeals , 252 Mich. App. 197, 201, 651 N.W.2d 464 (2002) ; see also MCL 125.3606(1).
III. THE BZA’S AUTHORITY TO GRANT THE USE VARIANCE
Initially, the question turns on whether the BZA had authority to grant a use variance in the overlay zone. After review of the prevalent statutes and caselaw, we conclude that the BZA had the authority to grant IO’s variance request. MCL 125.3604 defines a board’s authority to grant a use variance, providing, in pertinent part:
(7) If there are practical difficulties for nonuse variances as provided in subsection (8) or unnecessary hardship for use variances as provided in subsection (9) in the way of carrying out the strict letter of the zoning ordinance, the zoning board of appeals may grant a variance in accordance with this section, so that the spirit of the zoning ordinance is observed, public safety secured, and substantial justice done....
* * *
(10) The authority granted [to cities and villages under this ordinance] is subject to the zoning ordinance of the local unit of government otherwise being in compliance with subsection (7) and having an ordinance that requires a vote of 2/3 of the members of the zoning board of appeals to approve a use variance.
(11) The authority to grant use variances [to cities and villages under this ordinance] is permissive, and this section does not require a local unit of government to adopt ordinance provisions to allow for the granting of use variances. [ MCL 125.3604(7), (10), and (11).]
We have held that "[a] township zoning board of appeals has the authority to vary or modify any zoning ordinance to prevent unnecessary hardship if the spirit of the ordinance is observed, the public safety if secured, and substantial justice is done." Janssen , 252 Mich. App. at 201, 651 N.W.2d 464 (emphasis added).
At issue in this case is Detroit’s ordinance banning advertising signs within the Grand Boulevard overlay zone:
Sec. 61-6-65. Advertising signs within the area bounded by Grand Boulevard.
It shall be unlawful to construct, erect, paint, fasten, or affix any new advertising sign, whether billboard or painted wall graphic, on any zoning lot abutting or within the area bounded by East Grand Boulevard, the Detroit River, and West Grand Boulevard. This prohibition in no way limits the right to periodically alter the advertising display on billboards approved for "changeable copy" or to repaint the display on duly licensed painted wall graphics. No lawfully existing advertising sign within said area shall be enlarged or expanded, except upon approval of the Board of Zoning Appeals as provided for in Sec. 61-15-16 of this Code. [Detroit Zoning Ordinance, § 61-6-65.][ ]
The Detroit Zoning Ordinance is Chapter 61 of the 1984 Detroit City Code. References in the Detroit Zoning Ordinance to "this Code" are to the 1984 Detroit City Code. Detroit Zoning Ordinance, § 61-1-1.
With this backdrop, we acknowledge that the BZA has broad power under Detroit’s ordinances to provide relief for any landowner who proves an economic hardship:
Sec. 61-4-127. Additional forms of relief.
The Board of Zoning Appeals may adopt any legally available incentive or measure that is reasonably necessary to offset any denial of reasonable economic use, and may condition such incentives upon approval of specific development plans. Where the Board of Zoning Appeals finds that the denial of the application would create a substantial economic hardship, the Board may consider additional relief to provide an appropriate increase in market value or other benefit or return to the petitioner sufficient to offset the denial of all reasonable economic use. The types of incentives that the Board of Zoning Appeals may consider include, but are not limited to, the following:
* * *
(3) Allow the establishment of a prohibited use, provided, that the petitioner demonstrate none of the permitted or Conditional Uses in the zoning district is economically feasible. [Detroit Zoning Ordinance, § 61-4-127(3).]
The BZA can provide relief necessary to resolve an economic hardship due to an ordinance, so long as no other permitted or conditional use is economically feasible. Nothing in Detroit’s ordinances prohibits the BZA from granting a use variance in the Grand Boulevard overlay zone, and as stated in Janssen , 252 Mich. App. at 201, 651 N.W.2d 464, a board "has the authority to vary or modify any zoning ordinance to prevent unnecessary hardship...." (Emphasis added.) The purpose and intent of Detroit’s Zoning Ordinance is "to guide and regulate the appropriate use or development of all land in a manner which will promote and protect the public health, safety, and general welfare." Detroit Zoning Ordinance, § 61-1-4. To bar the BZA outright from granting any variances in the overlay zone may interfere with the purpose and intent of the Detroit Zoning Ordinance. And contrary to the City’s assertions, the BZA has not usurped the power of Detroit’s City Council. Rather, Detroit’s City Council has granted the BZA broad power through the ordinances to approve use variances when there is unnecessary hardship. Therefore, the BZA had the authority to grant a variance to IO for the erection of a billboard, so long as IO could prove an unnecessary hardship.
The dissent concludes that the BZA "did not have the authority to grant the [hardship] variance at issue...." In reaching this conclusion, the dissent acknowledges that Detroit Zoning Ordinance, § 61-4-103 governs hardship variances and gives the BZA discretion to grant or deny a landowner "relief." The dissent argues, however, that the variance granted in this case contravenes the "spirit, purpose, and intent of the zoning ordinance" as set forth in Detroit Zoning Ordinance, § 61-4-81, which establishes 10 criteria for variances and administrative adjustments. Specifically, the dissent claims:
[P]ermitting an off-site advertising sign would not merely be a grant of leeway for a technical violation. Rather, it would outright "permit the establishment, within a zoning district, of [a] use which is prohibited within the district[.]" See Detroit Zoning Ordinance, § 61-4-81(8). Consequently, the use variance here could not possibly comport with all 10 criteria mandated by § 61-4-81.
We believe that the dissent’s focus on § 61-4-81 is misplaced. While this provision establishes the general standard for any variance, Detroit’s Zoning Ordinance also establishes specific standards for variances based on "substantial economic hardship." That is the type of variance at issue here. Section 61-4-127, provides "[a]dditional forms of relief" for hardship-relief petitions, expressly granting the BZA power to "adopt any legally available incentive or measure that is reasonably necessary to offset any denial of reasonable economic use," including "[a]llow[ing] the establishment of a prohibited use , provided, that the petitioner demonstrate none of the permitted or Conditional Uses in the zoning district is economically feasible." Detroit Zoning Ordinance, § 61-4-127(3) (emphasis added).
In this case, the BZA did just that. It went through the factors as required under § 61-4-81, found no other permitted or conditional use, and concluded that the overlay would deprive the property of all reasonable economic use. The city council, as Detroit’s legislative body, expressly authorized the BZA to grant any request based on hardship in order to effectuate the use of land in a manner that promotes and protects the public health, safety, and general welfare. The BZA recognized that this property has no other reasonable economic use and that denying the variance would perpetuate a hardship caused by Detroit’s ordinances. Moreover, preventing any development of property does not promote the general welfare and arguably raises constitutional concerns. See Detroit Zoning Ordinance, § 61-4-102 (applicants must have "a protectable interest in property under the Fifth Amendment to the United States Constitution and under the 1963 Michigan Constitution"). To allow legislation, such as the Grand Boulevard overlay, to deprive a property owner of all use of property would certainly raise concerns under the Fifth Amendment, and Detroit’s Zoning Ordinance gave the BZA authority to grant a hardship variance in this case. Lastly, we believe that the dissent’s application of the rule of expressio unius est exclusio alterius to interpret the Grand Boulevard overlay under § 61-6-65 is unpersuasive. The last sentence under § 61-6-65 addresses "lawfully existing advertising sign[s]" in the overlay zone, i.e., signs that would be considered nonconforming uses, and grants the BZA express power to enlarge or expand such signs pursuant to Detroit Zoning Ordinance, § 61-15-16. Expressly granting the BZA authority to address a nonconforming use in the overlay zone does not, by the dissent’s application of expressio unius , preclude the BZA’s authority to grant hardship-relief petitions. Moreover, the overlay ban cannot be interpreted as the dissent suggests because MCL 125.3604(7) gives the BZA authority to grant use variances based on unnecessary hardships and §§ 61-4-101 and 61-4-127 authorize the BZA to grant a petitioner "any legally available incentive or measure" involving "any regulations," including the allowance of a prohibited use, when considering a hardship-relief petition. This Court should not apply the rule of expressio unius in order to override a state statute and the City’s properly enacted ordinances. The rule "is a tool to ascertain the intent of the Legislature," and it cannot be employed to contradict or vary a clear expression of legislative intent. Luttrell v. Dep’t of Corrections , 421 Mich. 93, 107, 365 N.W.2d 74 (1984). For these reasons, the BZA was authorized to grant a hardship variance within the overlay zone.
IV. HARDSHIP
The next question turns on whether IO was deprived of all reasonable economic use of the property and, therefore, had proven that the ordinance imposed a hardship meriting a use variance. We conclude that IO made a sufficient showing of hardship.
To prove hardship, the BZA had to find on the basis of substantial evidence the following: "(1) the property cannot reasonably be used in a manner consistent with existing zoning, (2) the landowner’s plight is due to unique circumstances and not to general conditions in the neighborhood that may reflect the unreasonableness of the zoning, (3) a use authorized by the variance will not alter the essential character of a locality, and (4) the hardship is not the result of the applicant’s own actions." Janssen , 252 Mich. App. at 201, 651 N.W.2d 464.
The parties do not dispute the BZA’s findings as to the first three elements of the hardship test. There was no argument that the small, unusual parcel at issue could be reasonably used in a manner consistent with existing zoning, that the landowner’s plight was due to general conditions in the neighborhood reflecting the unreasonableness of the zoning, or that the use variance would alter the essential character of the locality. Instead, the only contention on appeal is whether the hardship was the result of the applicant’s own actions. This determination turns on the applicability of the "self-imposed" or "self-created" hardship rule.
The City claims that IO created the hardship it now complains of by purchasing the property with the knowledge that off-site advertising signs were prohibited there. We disagree.
We conclude that a zoning board must deny a variance on the basis of the self-created hardship rule when a landowner or predecessor in title partitions, subdivides, or somehow physically alters the land after the enactment of the applicable zoning ordinance, so as to render it unfit for the uses for which it is zoned. Zoning boards have broad authority to grant variances to further the purpose and intent of the zoning code. Therefore, we decline to extend the self-created hardship rule to all instances in which a landowner simply purchases the property with knowledge of an ordinance’s applicable restriction.
Our analysis begins with Johnson v. Robinson Twp. , 420 Mich. 115, 126, 359 N.W.2d 526 (1984), in which our Supreme Court concluded that the plaintiffs—as the landowners—were properly denied an area variance because "the only practical difficulty or hardship is one that was produced by the plaintiffs’ family." In that case, an ordinance prohibited the construction of buildings on lots that were less than 99 feet wide. Id . at 117, 359 N.W.2d 526. Notwithstanding the ordinance, the previous landowners (family members of the original landowner) subdivided the property, which resulted in a parcel that was only 60 feet wide. Id . That parcel was then transferred to the plaintiff (another family member) who sought a variance to construct a residence on the undersized lot. Id . The zoning board of appeals denied the variance, but the circuit court and the Court of Appeals concluded that the zoning board erred when it denied the variance because the landowners had demonstrated a hardship and "the self-created nature of the lot was irrelevant in this case." Id . at 118-119, 121, 359 N.W.2d 526 (quotation marks omitted). However, our Supreme Court reversed and reinstated the board’s denial of the variance, holding:
The zoning ordinance preceded the division of this property. Thus the plaintiffs’ problems were not caused by the township, but were caused by the division. Since, prior to the split, this land was being properly used in conformance with the zoning ordinance, we can see no sense in which the township can be said to have unconstitutionally deprived the plaintiffs of their property rights. On the
facts of this case, neither can it be said that the Zoning Board of Appeals abused its discretion. [ Id . at 126, 359 N.W.2d 526.]
Stated differently, a landowner is not entitled to a hardship variance if the parcel had a reasonable use under the zoning ordinance and the landowner’s subsequent act of splitting the property renders the property unfit for the uses for which it is zoned.
After Johnson , this Court issued a number of decisions applying the self-created hardship rule in different contexts. In Bierman v. Taymouth Twp. , 147 Mich. App. 499, 502, 383 N.W.2d 235 (1985), we addressed whether the zoning board of appeals properly denied a special-use permit for a junkyard on property zoned for A-1 agricultural. The property at issue had two defining characteristics—a portion that was used for farming and a portion "much less susceptible to development" consisting of a swamp area caused by sand-mining operations by the previous title owner, the plaintiffs’ grandfather. Id . at 505-506, 383 N.W.2d 235. When addressing the swamp portion of the property, we upheld the board’s denial of a zoning change and concluded that this was not "a situation where a zoning ordinance renders the land, in its natural condition, unadaptable to any reasonable use permitted by the ordinance. Rather, the affirmative actions of the previous owners have changed the basic nature of the property from that capable of agricultural adaptation to a swamp which, in its present form, is useless to the plaintiffs." Id . at 506, 383 N.W.2d 235. In reaching our conclusion, we acknowledged the case’s factual similarities with Johnson and reasoned, like in Johnson , that if the landowners’ property "cannot be utilized in its present condition for any of the uses permitted under the ordinance, they have no one to blame but their grandfather." Bierman , 147 Mich. App. at 506-507, 383 N.W.2d 235. In other words, the grandfather—not the zoning ordinance—imposed a self-created hardship on the land that followed the successors in title because he "voluntarily disrupted the natural condition of the land so as to make it useless in its resulting state." Id . at 507, 383 N.W.2d 235.
This Court is not bound by its opinions issued before November 1, 1990. MCR 7.215(J)(1). However, earlier Court of Appeals cases may nonetheless be persuasive authority. DC Mex Holdings LLC v. Affordable Land LLC , 320 Mich. App. 528, 543 n. 5, 907 N.W.2d 611 (2017).
In Cryderman v. City of Birmingham , 171 Mich. App. 15, 18-19, 429 N.W.2d 625 (1988), the plaintiffs purchased Lot 92, where they resided, and two adjacent unplatted lots that they used "as a side yard and lawn for their residence on Lot 92." At the time of purchase, a city ordinance prevented the construction of residential buildings on unplatted lots like the plaintiffs’ lots. Id . at 19, 429 N.W.2d 625. Eventually, the plaintiffs sought a hardship variance that would permit them to sell their two unplatted lots as building sites. Id . Their request for a variance was denied, and the circuit court affirmed the BZA’s decision. Id . at 19-20, 429 N.W.2d 625. This Court, relying on Johnson , concluded that "the only practical difficulty or hardship was not caused by the zoning ordinance, but by [the] plaintiffs’ decision to sell the property separately from Lot 92." Id . at 22, 429 N.W.2d 625. Thus, the plaintiffs could not properly claim a hardship variance because the property had a reasonable use as a "side yard" and "lawn" under the applicable zoning ordinance and only the plaintiffs’ proposal to develop the property in contravention of the zoning ordinance would result in a self-imposed hardship. Accordingly, we concluded that the "BZA did not err in determining that [the] plaintiffs’ hardship was self-imposed or in denying [the] plaintiffs’ request for a variance on that basis." Id .In Janssen , the landowners sought to rezone 100 acres of property from an A-Agricultural Zoning District to an R-1 Single Family Residential Zoning District and to allow the construction of a 250-unit residential development on the property. Janssen , 252 Mich. App. at 198-199, 651 N.W.2d 464. The landowners successfully argued to the zoning board of appeals that the zoning created an unnecessary hardship because rising property taxes caused the land’s zoned uses to no longer be economically viable such that the land could not "reasonably be used in a manner consistent with existing zoning." Id . at 199, 201, 651 N.W.2d 464. The circuit court upheld the zoning board’s decision, and this Court affirmed. Id . at 199, 202, 651 N.W.2d 464. In addressing whether the hardship was self-created, we concluded that the "evidence supports the finding that the hardship is not the result of the applicants’ own actions. The increasing taxable value of the property and the comparatively low rental income derived are not ‘self-created’ burdens." Id . at 202-203, 651 N.W.2d 464.
Finally, this Court addressed the "self-imposed hardship rule" in Wolverine Commerce, LLC v. Pittsfield Charter Twp. , unpublished per curiam opinion of the Court of Appeals, issued November 20, 2008 (Docket No. 282532), p. 3, 2008 WL 4958785, ( Wolverine I ), rev’d 483 Mich. 1023, 765 N.W.2d 343 (2009). In that case, the plaintiff purchased a large parcel that was zoned agricultural with the intent to have it rezoned to an industrial planned unit development in order to build a business park. Wolverine I , unpub op. at 1-2. After the property was rezoned, but before construction began, the plaintiff realized that he had made a "very expensive mistake" and sought to have the property rezoned to R3 moderate density residential. Id . at 2. The zoning board denied his request. Id . This Court concluded that the self-imposed hardship rule barred any variance to rezone the property because the plaintiff "did cause the property to become zoned for uses to which it is—taking [the] plaintiff’s factual assertions as true—unsuited." Id . at 3. Thus, while the plaintiff had not physically altered the property’s characteristics, this Court extended the "self-imposed hardship" rule as a basis to deny rezoning or a variance when the "legal conditions imposed on the property [that caused the hardship] ... were all brought about by the direct efforts of [the] plaintiff and [the] plaintiff’s predecessor in title." Id .
In Wolverine Commerce, LLC v. Pittsfield Charter Twp. , 483 Mich. 1023, 1024, 765 N.W.2d 343 (2009) ( Wolverine II ), our Supreme Court disagreed, concluding that the self-imposed hardship rule did not bar the property owners from obtaining a variance. The Court declined to expand the self-imposed hardship rule to instances in which the owners created a legal status on the property that rendered it unfit for the uses for which it was zoned. Id . The Court held, "There is no legal precedent to extend the self-imposed hardship rule to prevent a plaintiff who personally sought to conform the property’s zoning classification to the municipality’s master plan in the first instance from later seeking, in good faith, to rezone the property to another classification to allow a different use." Id . Instead, the rule precluded relief when the property owner "subdivided or physically altered the land so as to render it unfit for the uses for which it is zoned, not to cases in which the legal status of the property has been altered." Id .
In this case, the City claims that IO bought the property knowing full well there was a billboard ban in effect and, therefore, that any hardship was caused by IO’s own actions. In contrast, IO and the BZA argue that IO did not physically alter the property in such a way as to create the hardship at issue. Given the circumstances in this case, we conclude that the BZA’s decision to grant the hardship variance was supported by competent, substantial, and material evidence in the record. There is no evidence in the record that IO did anything but purchase the property, and as the circuit court aptly explained, a landowner may seek any variance the law permits and should not be limited just because they purchased the piece of property knowing the City’s ordinances barred a particular use. Indeed, this is a similar business risk to that the plaintiff in Wolverine I and Wolverine II took when he purchased land zoned industrially with the hope that he could later get the property rezoned. Unlike Johnson , Bierman , Cryderman , and Janssen , the hardship here was not caused by the landowner’s actions. IO simply purchased the property at a time when there was no permitted reasonable use and took a business risk that the BZA would grant a variance to erect the billboard in the overlay zone.
Importantly, there was no evidence in the record that suggests a previous title owner partitioned the property at all. In fact, the only reference to the parcel’s history suggests that it has had the same unique shape and size since well before the 1999 ordinance was enacted. Counsel for IO represented to the BZA that he had researched as far back as the 1950s and could not determine how the property came to be in its current state. Thus, unlike the partition cases of Johnson and Cryderman , in which the zoning ordinance was clearly in existence before the landowner created his own hardship, what little we know about the history of this parcel suggests that its unique shape was not "rendered unadaptable to any reasonable use" until the ordinance was enacted in 1999. As stated in Wolverine II , the self-imposed hardship rule precluded relief when the property owner "subdivided or physically altered the land so as to render it unfit for the uses for which it is zoned...." Wolverine II , 483 Mich. at 1024, 765 N.W.2d 343. There is no evidence that this occurred here.
The City urges this Court to adopt the rule set forth in Massasauga Rattlesnake Ranch, Inc. v. Hartford Twp. Bd. of Zoning Appeals , unpublished opinion of the Court of Appeals of Ohio, issued March 26, 2012 (Docket Nos. 2011-T-0060 and 2001-T-0061), 2012 WL 1020293. The Ohio Court of Appeals stated the following rule: "A party purchasing a property with knowledge of zoning restrictions cannot claim unnecessary hardship caused by those restrictions for the purposes of a [sic] obtaining a use variance." Id . at 4. Massasauga , as an out-of-state opinion, is not binding on this Court, Great Lakes Society v. Georgetown Charter Twp. , 281 Mich. App. 396, 414, 761 N.W.2d 371 (2008), and furthermore, our own precedent’s analysis of the self-created hardship rule, starting with Johnson , is clearly distinguishable from Ohio’s analysis.
The BZA did not abuse its discretion when it concluded that the self-imposed hardship rule was inapplicable under these circumstances and then granted the variance. There is no evidence that the property owner or the predecessor in title took actions after the enactment of the overlay zone that in some way physically altered the land so as to render it unfit for the use for which it is zoned. Wolverine II , 483 Mich. at 1024, 765 N.W.2d 343. Thus, the use variance was properly granted because IO proved an unnecessary hardship meriting relief under MCL 125.3604(7).
As a final point, the dissent concludes that IO created its hardship when it purchased the property with knowledge of the overlay. As support, the dissent cites a Michigan Supreme Court case and claims that "a purchaser’s foreknowledge of a zoning ordinance may be highly relevant, depending on whether the zoning ordinance is otherwise reasonable and the egregiousness of the purchaser’s intended violation of that ordinance." See Jones v. De Vries , 326 Mich. 126, 40 N.W.2d 317 (1949). The cited case does not support the dissent’s conclusion here.In Jones , our Supreme Court addressed whether the zoning board violated a Grand Rapids hardship relief ordinance when it granted the defendant’s request for a variance to build an apartment complex in an area zoned for residential use. Jones , 326 Mich. at 128, 136, 40 N.W.2d 317. The hardship ordinance at issue gave the zoning board the authority to grant a use variance if " ‘the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone.’ " Id . at 137, 40 N.W.2d 317. The Jones Court concluded that the zoning board erred because the land could yield a reasonable return through other means allowed in that zone. Id . The Court stated, when considering the "plight caused by restrictions in the zoning ordinance, it is somewhat important to note that [the] defendants purchased their interest in this parcel ... with full knowledge of this zoning ordinance which was previously adopted." Id . at 138 (quotation marks omitted). While this fact was "somewhat important," the Court’s decision ultimately turned on the fact that "[t]here [was] no showing of a loss of yield of ‘reasonable return’ if [the] defendants are required to develop and use their present properties within the terms of the existing ordinance." Id ., 40 N.W.2d 317. In this case, there was no reasonable economic use for the property allowed under the already-existing zoning ordinances. Our Supreme Court in Jones did not address whether the self-created hardship rule would apply in that context, and its proclamation that knowledge of the ordinance is "somewhat important" does not change the result in this case.
The dissent also cites Faucher v. Grosse Ile Twp. Bldg. Inspector , 321 Mich. 193, 195, 32 N.W.2d 440 (1948), a case in which the property owners attempted to obtain a permit to build a home on their lot. Because of the dimensional restrictions in the applicable zoning ordinance, it was "impossible" to erect a "practicable building" on the lot. Id . at 198, 32 N.W.2d 440. The defendants refused to issue the permit because the plaintiffs had notice of the zoning ordinance when they purchased the property, claiming that the plaintiffs should have purchased the adjoining lots as well. Id . at 199, 32 N.W.2d 440. The Court stated that "[a]s to the contention that [the] plaintiffs purchased with notice of and subject to the restrictions contained in the ordinance, [the] defendants’ argument presupposes that the ordinance is valid and reasonable with respect to [the lot]." Id . The Court did not find that the harm at issue was self-created; instead, it concluded that the defendants’ refusal to issue the permit, considering the zoning ordinance’s effect on the property, was "unreasonable and arbitrary." Id . at 199-200, 32 N.W.2d 440. Thus, at most, this case supports the conclusion that IO’s purchase of the property with knowledge of the ordinance does not preclude the BZA from granting the use variance. For these reasons, the BZA did not err when it granted the use variance on the basis of economic hardship.
Affirmed.
Tukel, J., concurred with Cameron, P.J.
Ronayne Krause, J. (dissenting).
I respectfully dissent. On the facts and circumstances of this case, the city of Detroit Board of Zoning Appeals (the BZA) did not have the authority to grant the specific variance at issue, and International Outdoor (IO) was not entitled to that variance. I would find in favor of the city of Detroit (the City) and reverse.
I. FACTUAL BACKGROUND
In 2011, IO purchased a small parcel of property adjacent to an expressway in the City, measuring approximately 5,520 square feet, for $ 5,000. At the time of the purchase, the parcel was subject to the City’s zoning ordinance banning "off-site" advertising within the "Grand Boulevard Overlay Zone," pursuant to the City’s overarching plan to improve the area. IO is a sophisticated and experienced entity, so it either knew or should have known that billboards were not permitted. The BZA initially voted to deny IO’s requested use variance, but one board member bizarrely changed her vote after being told that there was not a majority and the variance would not pass, on the apparent basis that the overlay zone was an unimportant concern. IO estimated that the property is worth approximately $5,000.
At oral argument, it was explained that billboards were the "epitome" of "off-site" advertising. In contrast, a business placing a sign for itself on its own premises would be considered permissible "on-site" advertising.
II. STANDARD OF REVIEW
"[T]here is no single standard of review that applies in zoning cases." Macenas v. Michiana , 433 Mich. 380, 394, 446 N.W.2d 102 (1989). A zoning appeal board’s factual determinations are given deference "if supported by competent, material, and substantial evidence on the record." Id . at 395, 446 N.W.2d 102. Decisions based on those factual determinations will likewise be given deference if they are "procedurally proper" and "a reasonable exercise of the board’s discretion." Id . However, courts do not defer to determinations of law, including "what the ordinance means in relation to the facts...." Id . at 395-396, 446 N.W.2d 102 (quotation marks and citation omitted). Issues of statutory construction, including the interpretation and application of ordinances, are reviewed de novo. Soupal v. Shady View, Inc. , 469 Mich. 458, 462, 672 N.W.2d 171 (2003) ; Great Lakes Society v. Georgetown Charter Twp. , 281 Mich. App. 396, 407, 761 N.W.2d 371 (2008). Legal doctrines are likewise reviewed de novo. Estes v. Titus , 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008).
III. PERMISSIBILITY UNDER THE ORDINANCE
The Michigan Zoning Enabling Act (the ZEA), MCL 125.3101 et seq ., allows municipalities such as the City to adopt zoning ordinance provisions under which use variances can be granted. MCL 125.3604(11). However, in granting such use variances, "the spirit of the zoning ordinance" must be "observed." MCL 125.3604(7). Consistently with the ZEA, the City’s zoning ordinance establishes that the BZA is empowered to "perform its duties and exercise its powers as provided for by law in such a way that the purpose and intent of this Zoning Ordinance shall be observed, public safety secured, and substantial justice done." Detroit Zoning Ordinance § 61-2-41. The ordinance provides for use variances pursuant to its hardship-relief petition procedure. Detroit Zoning Ordinance § 61-4-101. Under that procedure, if a property owner establishes a "hardship," defined as "a denial of all reasonable economic use of the property," the BZA "may provide the petitioner with relief from applicable zoning regulations." Detroit Zoning Ordinance § 61-4-103 (emphasis added). Any such grant is therefore permissive and discretionary. The hardship-relief procedure does not provide any guidance for exercising that discretion. However, several guides to and restrictions on the BZA’s discretion are found elsewhere in the ordinance.
Importantly, a hardship is unambiguously not the only mandatory prerequisite for granting a use variance. Division 6 of the Detroit Zoning Ordinance addresses variances and administrative adjustments and explicitly provides that variances must comport with all 10 enumerated criteria for approval. Detroit Zoning Ordinance, § 61-4-81. One criterion is that "[t]he requested variance or administrative adjustment is consistent with the Master Plan and the spirit, purpose, and intent of this Zoning Ordinance[.]" Detroit Zoning Ordinance, § 61-4-81(1). Another is that "[t]he variance or administrative adjustment shall not permit the establishment, within a zoning district, of any use which is prohibited within the district[.]" Detroit Zoning Ordinance, § 61-4-81(8). These requirements are consistent with the statutory mandate that use variances must comport with "the spirit of the zoning ordinance." MCL 125.3604(7). Indeed, MCL 125.3604(7) explicitly permits use variances only when a hardship is "in the way of carrying out the strict letter of the zoning ordinance...." (Emphasis added). Consequently, although "[a] land use variance essentially is a license to use property in a way not permitted under an ordinance," such variances must not functionally effectuate a rezoning. Paragon Properties Co. v. Novi , 452 Mich. 568, 575-576, 550 N.W.2d 772 (1996). In other words, the BZA does not have unfettered discretion to grant any variance merely because doing so would ameliorate a hardship.
Under the City’s zoning ordinance, "overlay zones" are geographic subregions with their own special rules above and beyond the regulations otherwise applicable to any given zoning classification. The Grand Boulevard overlay zone at issue only has three such special rules. See Detroit Zoning Ordinance § 61-11-332. One of those rules prohibits certain advertising signs, as set forth in § 61-6-65. Detroit Zoning Ordinance, § 61-11-332(b). In full, § 61-6-65 provides as follows:
Two of the rules are irrelevant: one addresses lofts, and the other addresses certain driveways.
It shall be unlawful to construct, erect, paint, fasten, or affix any new advertising sign, whether billboard or painted wall graphic, on any zoning lot abutting or within the area bounded by East Grand Boulevard, the Detroit River, and West Grand Boulevard. This prohibition in no way limits the right to periodically alter the advertising display on billboards approved for "changeable copy" or to repaint the display on duly licensed painted wall graphics. No lawfully existing advertising sign within said area shall be enlarged or expanded, except upon approval of the Board of Zoning Appeals as provided for in Sec. 61-15-16 of this Code.
Critically, this provision expressly authorizes the BZA to approve an enlargement or expansion of lawfully existing signage, while simultaneously setting forth an absolute prohibition against new signage. The doctrine of expressio unius est exclusio alterius has long been recognized in this state: that "the expression of one thing suggests the exclusion of all others." People v. Wilson , 500 Mich. 521, 526, 902 N.W.2d 378 (2017) ; Williams v. Mayor, &c., of Detroit , 2 Mich. 560, 563 (1853) ; Pine Grove Twp. v. Talcott , 86 U.S. (19 Wall). 666, 674-675, 22 L Ed 227 (1873). This provision clearly and narrowly strips the BZA of any power to grant use variances that would permit new signage within the Grand Boulevard overlay zone. Consequently, the BZA is explicitly precluded by § 61-6-65 from granting the use variance at issue.
In Williams , the Court cautioned that the doctrine may not be used to "do[ ] manifest violence to the plain intent of the framers of the law...." Williams , 2 Mich. at 563. In this case, the Detroit Zoning Ordinance, read as a whole, would be undermined if the doctrine is not applied.
In addition, the BZA is independently precluded by § 61-4-81 from granting the use variance at issue. As noted, the off-site advertising prohibition is one of only three special rules established for the Grand Boulevard overlay zone. This strongly suggests that the signage prohibition is of great importance to "the spirit, purpose, and intent" of the zoning ordinance. See Detroit Zoning Ordinance § 61-4-81(1). Consequently, permitting an off-site advertising sign would not merely be a grant of leeway for a technical violation. Rather, it would outright "permit the establishment, within a zoning district, of [a] use which is prohibited within the district[.]" See Detroit Zoning Ordinance, § 61-4-81(8). Consequently, the use variance here could not possibly comport with all 10 the criteria mandated by § 61-4-81.
I respectfully believe the majority assembles the ordinance and the zoning enabling statute in the wrong order. Under MCL 125.3604(7), the power given to municipalities to grant use variances based on unnecessary hardships is expressly restricted , not absolute. The statutory mandate to observe "the spirit of the zoning ordinance" is mirrored by § 61-4-81(1). Because § 61-4-101 establishes that a hardship relief petition is the City’s vehicle for granting use variances, § 61-4-81 must apply above and beyond merely finding a hardship. Otherwise, § 61-4-81, which establishes requirements for variances, would be nugatory, an outcome we must avoid. People v. Burns , 5 Mich. 114, 117 (1858) ; State Farm Fire & Cas. Co. v. Old Republic Ins. Co. , 466 Mich. 142, 146, 644 N.W.2d 715 (2002). Simply put, the ordinance does not entitle a landowner to a use variance only on the basis of establishing an unnecessary hardship, nor does the statute. Because of the additional requirements imposed by the ordinance and by the statute , the BZA was not empowered to grant the use variance at issue here. Additionally, the majority notes that there may be "constitutional concerns" under the Fifth Amendment if the variance is not granted. Because the case actually before us is not a takings claim, nor a constitutional claim of any kind, I decline to consider what "constitutional concerns" are present.
The majority notes that the parties do not dispute whether the billboard will alter the essential character of the locality. Whether or not that is true, a party "is entitled to the benefit of testimony in support of a verdict in [its] favor despite [its] expression of an opinion inconsistent therewith." Ortega v. Lenderink , 382 Mich. 218, 223, 169 N.W.2d 470 (1969). Furthermore, courts are not bound by parties’ stipulations to mistakes of law. Magreta v. Ambassador Steel Co. , 378 Mich. 689, 705, 148 N.W.2d 767 (1967), rev’d on other grounds 380 Mich. 513, 158 N.W.2d 473 (1968).
IV. SELF-IMPOSED HARDSHIP
Caselaw has established a legal doctrine known as the "self-imposed hardship rule," which "applies to preclude relief in taking claims asserted by a property owner who has subdivided or physically altered the land so as to render it unfit for the uses for which it is zoned...." Wolverine Commerce, LLC v. Pittsfield Charter Twp. , 483 Mich. 1023, 1024, 765 N.W.2d 343 (2009). The City contends that IO created its own hardship by purchasing property that IO knew could not be used for its intended purpose. Under the circumstances of this case, I agree.
Generally, "a plaintiff who purchases property with knowledge of existing zoning regulations takes the property along with the seller’s legal right to challenge those regulations." Wolverine , 483 Mich. at 1024, 765 N.W.2d 343, citing Kropf v. Sterling Hts. , 391 Mich. 139, 152, 215 N.W.2d 179 (1974). However, Kropf only establishes that the constitutionality of an ordinance does not turn on a purchaser’s knowledge of that ordinance. Kropf , 391 Mich. at 152, 215 N.W.2d 179. This case does not involve a constitutional challenge. Consequently, IO’s foreknowledge of the zoning ordinance, especially given IO’s experience and sophistication, is certainly relevant. See K & K Constr., Inc. v.Dep’t of Environmental Quality , 267 Mich. App. 523, 556, 705 N.W.2d 365 (2005). Indeed, our Supreme Court has indicated that a purchaser’s foreknowledge of a zoning ordinance may be highly relevant, depending on whether the zoning ordinance is otherwise reasonable and the egregiousness of the purchaser’s intended violation of that ordinance. Compare Jones v. De Vries , 326 Mich. 126, 137-139, 40 N.W.2d 317 (1949), with Faucher v. Grosse Ile Twp. Bldg. Inspector , 321 Mich. 193, 199-200, 32 N.W.2d 440 (1948). As illustrated by the majority’s overview of the development of the self-created hardship rule, its application has always been highly fact-specific. Our Supreme Court’s opinion in Wolverine appears only to recite the kinds of cases to which the rule has historically applied, and it holds that a landowner who in good faith arranged for the zoning itself to be changed will not run afoul of the rule. Not one of those cases involved a situation like the matter at bar: a highly sophisticated and experienced corporation that spent a pittance on a parcel of property it knew to be unusable, gambling on being able to generate a massive windfall by flouting an essential part of an entirely reasonable zoning ordinance. Any hardship suffered by IO, beyond owning a parcel of property that is worth its purchase price, is entirely IO’s own creation.
I respectfully believe the majority misconstrues the intended significance of these cases. As the majority notes, in neither was the "self-imposed hardship rule" expressly discussed, and the purchasers’ foreknowledge of the zoning ordinances proved not to be outcome-determinative. Nonetheless, our Supreme Court stated that "[a]s bearing upon whether [the purchasers] are in a ‘plight’ caused by restrictions in the zoning ordinance, it is somewhat important to note that [the purchasers] purchased their interest in this parcel ... with full knowledge of this zoning ordinance which was previously adopted." Jones , 326 Mich. at 138, 40 N.W.2d 317 (emphasis added). The word "important" signifies something more than a trivial side note, so I would find it "more than mere dicta." See Carr v. Lansing , 259 Mich. App. 376, 383-384, 674 N.W.2d 168 (2003). In contrast, Faucher merely stands for the established proposition that foreknowledge of an ordinance does not preclude a challenge to its validity. See Kropf , 391 Mich. at 152, 215 N.W.2d 179. As noted, IO has not brought a constitutional takings claim in the matter at bar.
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I agree with the City that IO created its own hardship here. Therefore, IO was not entitled to receive its requested use variance.
V. CONCLUSION
For all of the above reasons listed in this opinion, the BZA was not empowered to grant the use variance permitting IO to install a billboard on the property, and IO was not entitled to any such use variance. I would reverse.