Opinion
No. 348010 No. 348167
02-04-2020
KI PROPERTIES HOLDINGS, LLC, and DF LAND DEVELOPMENT, LLC, Plaintiffs-Appellees, v. ANN ARBOR CHARTER TOWNSHIP, Defendant-Appellant. KI PROPERTIES HOLDINGS, LLC, and DF LAND DEVELOPMENT, LLC, Plaintiffs-Appellees/Cross-Appellants, v. ANN ARBOR CHARTER TOWNSHIP, Defendant-Appellant/Cross-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Washtenaw Circuit Court
LC No. 18-001074-AA Before: O'BRIEN, P.J., and GADOLA and REDFORD, JJ. PER CURIAM.
In these consolidated appeals involving a dispute over a preliminary site plan and related permit applications for a proposed development, defendant, Ann Arbor Charter Township (Township), appeals the circuit court's decision to reverse the decisions of the Township's Planning Commission (Planning Commission) and the Zoning Board of Appeals (Zoning Board). In Docket No. 348010, the Township appeals by right the circuit court's final order denying a stay and dismissing the additional claims by plaintiffs, KI Properties Holdings, LLC (KI Properties) and DF Land Development, LLC (DF Development). Because of some concern about whether the Township had an appeal of right, the Township also filed an application for leave to appeal the circuit court's earlier order granting appellate relief in favor of KI Properties and DF Development, which this Court granted in Docket No. 348167. For the reasons more fully explained below, we reverse and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
DF Development owns real property located to the north of Plymouth Road, east of US-23, and west of North Earhart Place. The land consists of four tax parcels which include two wetlands—one regulated wetland and one nonregulated wetland—and a tributary of Fleming Creek. In October 2016, Cunningham-Limp Company (Cunningham) submitted an application for preliminary site plan review to the Township on behalf of DF Development. Cunningham also submitted an application for a "Tree/Woodland Removal Permit" (Tree Removal Permit) and a "Natural Features Setback and Steep Slope Use Permit" (Natural Features Permit). The site plan proposed a 120,000 square-foot, two-story building that DF Development intended to lease to an unknown future tenant for research and development. The heavily wooded property had significant elevation changes and contained a tributary of Fleming Creek. The Township zoned the area for research and development.
In considering the applications, the Planning Commission relied on the Township's zoning ordinances; specifically, it relied on the sections addressing preliminary site plans, tree and woodland preservation, natural features setback and steep slope use permits, the section addressing research and development zones, general zoning provisions, and the Township's Master Plan. The Planning Commission had its planning consultant and engineer review the site plan and permit applications. The Planning Commission noted a common theme in the reviews that the applicant's proposed plan placed too much of a burden on the property and that it could be revised to fit better with the property, preserve more of the woodlands, and establish a greater buffer between the developed area and the tributary. For those reasons, the Planning Commission asked the applicant to revise the plan to minimize the amount of cutting and filling on the property.
In reviewing the modified plan, the Planning Commission felt that the proposed site plan still required significant disturbance to the site and grading. The Planning Commission stated that the fact that the plan still called for significant changes to the topography demonstrated that the applicant sought to develop the property beyond its natural capacity, inconsistent with the zoning ordinance's requirement that the natural topography and drainage should be minimized to the maximum extent reasonably achievable considering the development. The proposed plan also required the removal of 489 protected trees including 28 trees that met the definition of landmark trees. The Planning Commission expressed concern that the intensity of the proposed development would adversely affect the hydrological benefits to the tributary and found it inconsistent with the zoning ordinances' emphasis on preserving woodlands and natural resources. It also expressed concern about the effect that the development would have on the Plymouth transportation corridor.
The Planning Commission wrote that both it and the Township's consultants suggested alternative configurations that would permit the development while minimizing the impact on the site. Despite those suggestions, the applicant refused to make further changes to the site plan. The Planning Commission indicated that the applicant refused because—in its view—the proposed development met the minimum standards stated in the zoning ordinance fulfilling the requirements warranting approval. The Planning Commission noted that the minimum standards were just that—minimum standards—which may or may not be appropriate for a particular site.
The Planning Commission found the site plan inconsistent with the requirements of the zoning ordinance because it was not harmonious with the current uses and did not adequately preserve the natural resources on the property. Because the applicant refused to modify the plan to better preserve the natural resources on the property, the Planning Commission denied the site plan and permit applications on July 10, 2017.
Cunningham appealed the Planning Commission's decision denying the proposed site plan and permit applications to the Zoning Board on October 5, 2017. It argued that the Planning Commission's findings were not supported by competent, material, and substantial evidence. Cunningham argued that the findings were inaccurate because the proposed plan met the minimum requirements and that the Planning Commission's application of the zoning ordinance put it in the untenable position of determining any objective way to ensure that natural resources would be preserved to a maximum feasible extent. For these reasons, Cunningham asked the Zoning Board to reverse the Planning Commission's decision and approve its plan and permit applications.
In December 2017, the Zoning Board denied Cunningham's appeal on the ground that it was untimely. However, the circuit court reversed the Zoning Board's decision and ordered it to consider the appeal. Cunningham refiled the appeal and the Zoning Board denied Cunningham's appeal in September 2018 on the ground that the Planning Commission founded its decision on competent, substantial, and material evidence.
On October 16, 2018, KI Properties and DF Development appealed the Zoning Board's decision to the circuit court. KI Properties claimed the right to appeal as "the buyer under an agreement to purchase the Property" and Cunningham's assignee. KI Properties and DF Development also sued the Township alleging that it violated due process in its application of the zoning ordinance because its interpretation and application gave the Township unfettered subjective discretion to overrule the objective standards stated in the ordinances. They maintained that the Township had to approve the site plan and applications for permits once it became evident that the proposed site plan and applications met the minimum requirements stated under the law. They claimed that the ordinances were unconstitutionally vague, overbroad, lacked definite standards, and could not be rationally administered. They also alleged that the Township's application of the ordinances amounted to an unconstitutional taking without compensation. KI Properties and DF Development also argued that the Township's decision violated their civil rights under color of state law entitling them to damages under 42 USC 1983.
On appeal to the circuit court, KI Properties and DF Development argued that the court had to decide whether evidence supported the Zoning Board's decision and whether it abused its discretion by denying their appeal. They maintained that, because the site plan and permit applications met the minimum requirements of the applicable zoning ordinances, the Planning Commission had to approve the site plan and applications, and the Zoning Board misapplied the law when it denied KI Properties and DF Development's appeal. The Township argued in part that KI Properties was not an aggrieved party entitled to appeal the Zoning Board's decision because it had no interest in the property. The Township also stated that the minimum standards provided under the zoning ordinances were not adequate given the unique features of the property at issue. The Township noted that the zoning ordinances provided that the ordinances are minimum standards and that when the ordinances are at variance with other rules or regulations, the rule or regulation with the higher standard controls. Because the specific site plan did not minimize the impact on the natural resources, as required under the law, the Township concluded that the Planning Commission properly denied the site plan and associated permit applications and asked the circuit court to affirm the Zoning Board's decision.
After hearing the parties' arguments, the circuit court granted the appeal and reversed the decisions of the Zoning Board and Planning Commission on the grounds stated in the appellants' brief. It opined that the Township failed to base its findings on competent, substantial, and material evidence, and therefore, entered an order requiring the Township to approve the site plan and the associated permit applications. It enjoined the Township from preventing development of the property, subject only to the normal Township administrative permitting. The circuit court indicated that the order did not resolve the last pending claims. The Township next moved for an order staying enforcement of the circuit court's order and requested a stay of further proceedings pending an appeal to this Court. The circuit court denied the motion for stay and added that all remaining claims were "either moot, resolved by the court's prior order(s) or otherwise subject to dismissal." The order provided that it was a final order that resolved all the pending claims and closed the case.
On March 13, 2019, the Township appealed by right the circuit court's final order entered on March 7, 2019. This Court assigned Docket No. 348010 to that appeal. The Township also asked this Court to stay the lower court proceedings pending resolution of its appeal. In response to the motion for stay in this Court, KI Properties and DF Development argued in part that the Township's appeal in Docket No. 348010 was not properly before this Court because MCR 7.203(A) provided that this Court does not have jurisdiction to hear an appeal of right from an order of a circuit court acting as an appellate court from any other court or tribunal. This Court denied the motion for stay.
On March 22, 2019, the Township applied for leave to appeal the circuit court's February 27, 2019 order. This Court assigned Docket No. 348167 to that application. On March 25, 2019, KI Properties and DF Development moved to dismiss the Township's appeal in Docket No. 348010 for lack of jurisdiction on the same grounds they asserted in response to the Township's motion for stay and also argued that the Township could not have an appeal of right and an application for leave to appeal pending for the same case.
This Court denied KI Properties and DF Development's motion to dismiss on April 18, 2019, and granted the Township's application for leave to appeal in Docket No. 348167, and consolidated the appeals in Docket Nos. 348010 and 348167 on its own motion. KI Props Holdings, LLC v Ann Arbor Charter Twp, unpublished order of the Court of Appeals, entered April 18, 2019 (Docket No. 348167). On May 7, 2019, KI Properties and DF Development filed a cross-appeal in Docket No. 348167.
II. CIRCUIT COURT APPEAL
A. STANDARDS OF REVIEW
We first address the Township's claim that the circuit court failed to properly apply the law when reviewing the Zoning Board's decision to affirm the Planning Commission.
MCL 125.3606(1) provides a "party aggrieved by a decision of the zoning board of appeals" with a right to direct review of the board's decision in the circuit court. Accordingly, when reviewing a circuit court's decision in an appeal from a zoning board's decision, this Court sits as an intermediate appellate court. Boyd v Civil Serv Comm, 220 Mich App 226, 233-234; 559 NW2d 342 (1996). As an intermediate appellate court, we may not conduct a direct review of the board's decision because our review is limited to determining whether the circuit court "applied correct legal principles and whether it misapprehended or grossly misapplied the substantial-evidence test to the agency's factual findings." Id. at 234.
We review de novo the circuit court's statutory interpretation and application of the Michigan Zoning Enabling Act, MCL 125.3101 et seq. Hooker v Moore, 326 Mich App 552, 555; 928 NW2d 287 (2018). We also review de novo whether the circuit court properly interpreted and applied the ordinances at issue. Grand Rapids v Gasper, 314 Mich App 528, 535-536; 888 NW2d 116 (2016). However, we review the circuit court's application of the substantial-evidence test for clear error. Boyd, 220 Mich App at 234. The circuit court's application of the substantial-evidence test is clearly erroneous when this Court is left with the definite and firm conviction on the whole record that the circuit court made a mistake in applying the test. Id. at 234-235.
B. RELEVANT LAW AND THE TOWNSHIP'S MASTER PLAN
Under MCL 125.3201(1), local units of government are authorized to regulate land use through zoning ordinances. The zoning ordinances promulgated by a local unit of government must be founded on a master plan that, in relevant part, the governmental unit "designed to promote the public health, safety, and general welfare, to encourage the use of lands in accordance with their character and adaptability, to limit the improper use of land, [and] to conserve natural resources and energy . . . ." MCL 125.3203(1). The Legislature required that the zoning ordinances must "be made with reasonable consideration of the character of each district, its peculiar suitability for particular uses, the conservation of property values and natural resources, and the general and appropriate trend and character of land, building, and population development." MCL 125.3203(1).
The Legislature allowed local units of government 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). A decision on a proposed site plan must be made on the basis of the "requirements and standards contained in the zoning ordinance, other statutorily authorized and properly adopted local unit of government planning documents, other applicable ordinances, and state and federal statutes." MCL 125.3501(4). If a proposed site plan contains all of the information required by the zoning ordinances and "is in compliance with the conditions imposed under the zoning ordinance, other statutorily authorized and properly adopted local unit of government planning documents, other applicable ordinances, and state and federal statutes," the local unit of government must approve the site plan. MCL 125.3501(5).
Consistent with the requirements of MCL 125.3203(1), the Township promulgated a Master Plan. It recognized the rural character of the township and emphasized that its landscape was dominated by agricultural lands, woodlands, wetlands, the Huron River and three major streams: Traver Creek, Fleming Creek and Swift Run Drain. The plan recognized the importance of these features and noted that these sensitive natural resources helped define the township and distinguish it from the adjacent City of Ann Arbor:
These features help define the rural character of the area and distinguish it from the urban character of the City. The existence of sensitive natural features throughout the Township puts limits on the development potential of land and has resulted in Township policies and ordinances to preserve agriculture, open space and natural features. Natural features also add amenities and value to existing residential development.
The Township also identified Fleming Creek in its Master Plan as one of the "highest quality tributaries in the Huron River watershed". Because of the importance of Fleming Creek to the character and health of the township, the Master Plan noted that the Fleming Creek Advisory Council had been invited to review all development proposals within the Fleming Creek watershed and provide advice. The Township indicated in its Master Plan that the level of impervious surfaces within a particular watershed constituted an important factor implicating the health of a watershed. It further recognized that spread-out development increases impervious surfaces by lengthening roads and driveways and creating parking areas to accommodate everyday needs and services. The Township stated in its Master Plan that the once forested land now only had fragments of native forests remaining within its boundaries. It further acknowledged the importance of forests along watercourses to maintaining the health of the watercourse.
After recognizing the important natural resources within its boundaries, the Township declared in its Master Plan its goal to "retain a largely rural character." To that end, it stated that the "[e]xisting natural features, such as wood lots, wetlands, stream corridors, and fence rows should be protected and preserved." The Township expressed in its Master Plan its finding that failure to protect these vital natural resources could subtract from the quality of life for the Township's residents and neighboring communities. The Township stated in its Master Plan that it considered lands that could not be developed in their natural state to be unsuitable for development. It also specified goals for the protection of stream corridors, watersheds, wetlands, and woodlands.
Consistent with the Master Plan's goals, the Township promulgated zoning ordinances. Zoning Ordinance § 74-605(c) and (e) prohibited the clear-cutting of woodlands without a permit and authorized the Planning Commission to issue a permit to cut woodlands only when the "preservation techniques described in this section have been applied to the greatest extent practical, and tree and/or woodland removal is found by the Planning Commission to be unavoidable." Zoning Ordinance § 74-605(h) included a set of standards governing the Planning Commission's determination whether a proposed removal of trees or woodlands "limited to the minimum necessary to allow a reasonable use of the land" as follows:
(1) The importance and overall value of the trees/woodlands on the site. In general, the importance of trees/woodlands increases with rarity, size, and age.
(2) The existence of overlapping natural features such as wetlands, 100-year flood plains, woodlands, landmark trees, steep slopes or endangered species in one area. Overlapping natural features increase the importance and overall value for preservation of the area.
(3) The impact of the proposed disturbance on the integrity of ecological systems or the continuity between natural features. Wherever possible, ecological systems and continuity between natural features should be preserved.
(4) The amount of disturbance in relation to the scale of the proposed development.
(5) The adequacy of the tree replacement plan or other mitigation plan.
(6) The justification for forestry management practices, the benefits of the proposed disturbance and proposed coordination with the recommendations in the woodland stewardship plan.
Moreover, although the Township provided for the replacement and mitigation of tree loss through development, see, e.g., Zoning Ordinance § 74-605(n), it also provided that "[p]rotected trees, landmark trees and woodlands shall be preserved to the greatest extent practicable through the use of site development techniques." Specifically, the ordinances indicated that landmark trees should be treated as "important design" elements and their removal "should occur rarely and should be considered only after alternatives are studied and found to be not feasible." Additionally, removal should be avoided by minimizing the clearing and grading of the site by working with the "site's existing topography." See Zoning Ordinance § 74-605(o).
In reviewing a site plan, the Planning Commission had to consider whether the site plan included all the required information and, in relevant part, whether the proposed project conformed to "all regulations of the Zoning Ordinance" for the district "consistent with the goals and objective of the Master Plan." Zoning Ordinance § 74-175(b). The Planning Commission also had to consider whether the natural resources on the land "will be preserved to a maximum feasible extent, and the project respects natural topography and minimizes the amount of cutting and filling required." Zoning Ordinance § 74-175(b)(8). Notably, the Township's ordinances regulating the specific requirements for each district required meeting the "minimum regulations for promoting and protecting the public health, safety, and general welfare" but when other rules, regulations, or ordinances applied, the "most restrictive or those imposing the higher standards shall govern." Zoning Ordinance § 74-426(a).
The Township also required any proposed site plan to include information sufficient to allow the Planning Commission to determine the impact of the proposed development on the natural resources on the land. It required, for example, information on the existing topography in one-foot contours and the location and type of natural features on the land, which included wetlands, woodlands, landmark trees, steep slopes, endangered species habitat, and groundwater recharge areas. See Zoning Ordinance § 74-175(a)(1). The site plan also had to include an analysis of the alternative approaches and designs to minimize the disturbance of natural features on the site that were considered in arriving at the proposed design. The applicant had to justify the degree of the disturbance to natural features and state the basis for a proposed mitigation. See Zoning Ordinance § 74-175(a)(1)(f)(3).
C. APPLICATION OF THE LAW BY THE PLANNING COMMISSION
AND ZONING BOARD
The Township zoned the land at issue for research and development. The Township provided that the research and development districts were intended for research facilities and activities, which included offices and prototype manufacturing operations in support of and incidental to research. The districts were intended to be "low density of land coverage" with a minimum of noise, smoke, dust, dirt, gases, offensive odors, heat, glare and other environmental disturbances. Zoning Ordinance § 74-427(e)(1). As such, the Planning Commission had to determine whether the proposed development complied with low density of land coverage and whether it would result in a use that created a minimum of environmental disturbance in addition to all the other criteria already mentioned.
In its resolution addressing the site plan at issue, the Planning Commission specifically identified the law governing its review: the Master Plan, the applicable ordinances already discussed, and the standard regulations for the district. Although the Planning Commission indicated that there were concerns about the approvals that might be needed for vehicle access and sewerage, its primary concerns related to the natural resources on and around the property. The Planning Commission explained that its planning consultant reviewed the site plan and issued various reports that stated a common theme: "that the Applicant 'is placing too much on the site, and that the design of the building and parking lot could be revised to fit in better with the topography, preserve more of the woodland, and provide a greater distance between the development and the . . . tributary.' "
The record reflects that the Planning Commission held a meeting in May 2017 and addressed some of its concerns by asking the applicant to amend the site plan to better preserve the property's natural resources, to better respect the natural topography, and to minimize the cutting and filling. The Planning Commission and the Township's consultants also suggested alternatives that would make the site plan compliant with the zoning ordinances if the applicant:
reconfigured by reducing its size and number of occupants, by any number of means including use of a tiered building built into the hill, use of a three story building (and obtaining a variance for such a building), and further reductions in parking and the building footprint so that the Project is better able to preserve the natural resources of the Property as required by the preliminary site plan standards and take into account the significant change in topography of the site.
Despite these suggestions, the applicant only made minor modifications to the site plan. Even as modified, the Planning Commission explained that the site plan unreasonably proposed the removal of 489 protected trees including 28 landmark trees which was inconsistent with the ordinance governing tree removal. The Planning Commission wrote that it and the Fleming Creek Advisory Council had expressed concern that the tree removal would adversely affect the hydrogeological benefits provided by the property to a tributary of Fleming Creek.
The Planning Commission stated that the applicant refused to make further changes to the site plan because—in the applicant's view—the Planning Commission had to approve the plan because it met the minimum zoning regulations applicable to land zoned for research and development. The Planning Commission rejected that argument essentially because the recited requirements were minimum requirements and, as such, compliance with those requirements did not automatically establish that the site plan sufficiently complied with the remaining ordinances and the Master Plan. The Planning Commission similarly rejected the applicant's argument that it had to design the proposed building its way to promote natural lighting. The Planning Commission explained that alternative designs could be had with similar lighting, but the applicant was "unwilling to consider design alternatives."
As a result of the applicant's unwillingness to make further modifications to the site plan, the Planning Commission found that the site plan did not comply with the Township's ordinances. More specifically, the Planning Commission found in relevant part that the site plan failed to comply with Zoning Ordinance § 74-427(e)(1) because it did not provide for low density of land coverage or a minimum of environmental disturbances. It also found that the development was inconsistent with the Master Plan, did not preserve natural resources to the maximum possible extent, did not respect the natural topography of the property, and did not minimize the cutting and filling as required under Zoning Ordinance § 74-175(b)(8). For similar reasons, it found that the applicant's request for a tree removal permit and a natural features permit were inconsistent with the ordinances. Accordingly, the Planning Commission rejected the site plan and denied the permit applications.
The Zoning Board determined in its review of Cunningham's appeal that the Planning Commission founded its decision on "competent, substantial and material evidence" that the proposed development failed to comply with the ordinances standards. The Zoning Board specifically found that "substantial evidence" established that the site plan did not take the necessary steps to protect the natural resources on the property and determined that the Planning Commission correctly recognized that mere compliance with the requirements applicable to the district failed to suffice because those requirements were minimum requirements. The Zoning Board agreed that the Planning Commission could properly deny a site plan that proposed development too dense for the sensitive and unique nature of the property. The Zoning Board also stated that the evidence supported the Planning Commission's conclusion that the site plan failed to comply with the Master Plan because it did not minimize tree removal and filling, and involved a 43% impervious surface near an important watershed. The Zoning Board found it noteworthy that the Planning Commission provided the applicant with significant opportunities to revise the plan to better suit the property's unique characteristics. Because the Planning Commission accurately applied the ordinances and made findings that were supported by the record evidence, the Zoning Board denied Cunningham's appeal.
D. THE CIRCUIT COURT'S REVIEW
The decision of the Zoning Board was a final decision from which an aggrieved party had the right to appeal to the circuit court. See MCL 125.3605. The circuit court's review, however, was limited. It had to review the decision to determine the following: (1) whether the Zoning Board complied with the constitution and laws of the state, (2) whether it followed proper procedure, (3) whether its decision was supported by "competent, material, and substantial evidence on the record," and (4) whether its decision represented a "reasonable exercise of discretion" on those matters committed to its discretion. See MCL 125.3606(1); see also Detroit v Detroit Bd of Zoning Appeals, 326 Mich App 248, 254-255; 926 NW2d 311 (2018). Notably, the circuit court lacked authority to conduct a de novo review and draw its own conclusions from the evidence presented to the Planning Commission and the Zoning Board, or substitute its view for that of the Planning Commission or Zoning Board. Edw C Levy Co v Marine City Zoning Bd of Appeals, 293 Mich App 333, 341; 810 NW2d 621 (2011).
In this case, the circuit court did not provide an independent analysis of the decisions by the Planning Commission or Zoning Board. Instead, it reversed the decisions of the Planning Commission and Zoning Board based on the grounds stated in KI Properties and DF Development's brief.
1. PROPER INTERPRETATION OF THE RELEVANT ORDINANCES
In their brief on appeal to the circuit court, KI Properties and DF Development repeatedly argued that their site plan complied with every objective and measurable requirement imposed under the Township's zoning ordinances. They maintained that the Planning Commission and Zoning Board failed to properly apply the law because they acted under the belief that the law gave them "unfettered subjective discretion" to deny any site plan with which they disagreed. Stated another way, KI Properties and DF Development argued that the Planning Commission and the Zoning Board misinterpreted the zoning ordinances and other governing documents when they applied the law. They impliedly maintained that the ordinances did not give the Planning Commission and Zoning Board any discretion to deny a site plan that met the objective and measurable requirements stated under the ordinances governing districts zoned for research and development.
As the Planning Commission recognized in its resolution, the ordinances included a set of requirements for the specific zoning districts that were objective, measurable, and capable of ready verification. But the Township also provided by ordinance that those requirements were the "minimum regulations for promoting and protecting the public health, safety, and general welfare" and, when other rules, regulations, or ordinances might apply, the ordinance provided that the "most restrictive or those imposing the higher standards shall govern." Zoning Ordinance § 74-426(a). As such, KI Properties and DF Development could not establish that they were entitled to approval of the site plan and permits merely because their site plan met the minimum standards provided under the ordinances applicable to the district at issue. Instead, they had to demonstrate that the site plan complied with all the conditions "imposed under the zoning ordinance, other statutorily authorized and properly adopted local unit of government planning documents, other applicable ordinances, and state and federal statutes." See MCL 125.3501(5).
The record reflects that, in its Master Plan, the Township specified its goal of preserving the Township's rural character and its natural resources, and it emphasized the need to protect Fleming Creek by limiting impervious surfaces within that creek's watershed and by preserving forested areas and existing trees along the watercourse. The Township's Master Plan provided that lands that could not be developed in their natural state were unsuitable for development. The Township's ordinances were enacted to be consistent with the policy goals stated in the Master Plan and specifically provided the Planning Commission the criteria that must be met in addition to the minimum requirements stated for each district. See Zoning Ordinance § 74-175(b)(8) and (9) (stating that the Planning Commission must consider whether the site plan preserves natural resources "to a maximum feasible extent" and "respects natural topography and minimizes the amount of cutting and filling", and requiring the Planning Commission to consider whether the site plan complies with all ordinances and regulations).
The Township also limited the Planning Commission's authority to issue a permit to clear trees to only those cases in which the applicant has applied the preservation techniques described in the ordinance to the "greatest extent practical" and the Planning Commission finds that the tree removal is "unavoidable." Zoning Ordinance § 74-605(e). Even though the Township recognized that a developer could mitigate the harm caused by tree removal through a replacement and mitigation plan, Zoning Ordinance § 74-605(n), it also required a land developer to ensure that protected trees were preserved to the "greatest extent practicable." Under the ordinance, however, removal with mitigation served as a method of last resort that should be approved only when no other means were practicable for the reasonable development of the property. Zoning Ordinance § 74-605(o). Indeed, the ordinance required a proposed site plan to include analysis of the alternative approaches to design that the applicant considered in order to minimize any disturbance to the natural features on the site, and the applicant had to provide justification for the degree of disturbance the proposed site plan would cause. Zoning Ordinance § 74-175(a)(1)(f)(3).
The Zoning Ordinances also provided that the Planning Commission had to determine whether the proposed development was consistent with the goals and objectives of the Master Plan, Zoning Ordinance, § 74-175(b)(4), and particularly had to determine whether the site plan preserved the natural resources of the property to the "maximum feasible extent, and . . . respects [the] natural topography and minimizes the amount of cutting and filling required," Zoning Ordinance § 74-175(b)(8). Under the plain language of these provisions, the Planning Commission bore the responsibility and obligation to examine the proposed site plan and determine whether—given the unique features of the land to be developed—the site plan preserved the natural resources to the greatest extent feasible and consistent with the owner's right to develop the property in a reasonable manner.
"We apply the rules of statutory construction when construing a zoning ordinance." Kalinoff v Columbus Twp, 214 Mich App 7, 10; 542 NW2d 276 (1995) (citation omitted). "[W]hen the language used in an ordinance is clear and unambiguous, we may not engage in judicial interpretation, and the ordinance must be enforced as written." Id. (citation omitted). "Courts may not rewrite the plain language of the statute and substitute their own policy decisions for those already made by the Legislature." McGhee v Helsel, 262 Mich App 221, 226; 686 NW2d 6 (2004) (citation omitted). In this case, the Township's ordinances lack ambiguity and, therefore, must be enforced as written. As such, the Planning Commission, the Zoning Board, and the circuit court were not free to ignore the plainly stated requirements imposed on developers who wished to alter the topography of the land to be developed, or wished to remove trees to facilitate their development.
In their brief before the circuit court, KI Properties and DF Development implied that the Planning Commission and Zoning Board could not evaluate whether the site plan complied with any criteria that were not objective and measurable. However, Michigan courts have long recognized that a municipality may condition development on the existence of criteria that depend on the assessment of the evidence. See, e.g., Janigian v Dearborn, 336 Mich 261, 264-265; 57 NW2d 876 (1953) (stating that the Zoning Board had the discretion to deny a permit on the basis of evidence that there would be increased traffic, which would be inimical to public health and safety). To be sure, our Supreme Court has stated that a municipality cannot give an agency the discretion to refuse a permit on the basis of broad statements as to the public health, safety, and general welfare alone. See Osius v St Clair Shores, 344 Mich 693, 699-700; 75 NW2d 25 (1956); see also West Bloomfield Charter Twp v Karchon, 209 Mich App 43, 56; 530 NW2d 99 (1995) (stating that the ordinance was constitutionally repugnant because it contained no rule or provision by which the board could determine whether to grant or deny a permit). But the Court in Osius nevertheless recognized that a zoning ordinance may confer discretion to determine the facts, so long as the agency's exercise of discretion is governed by some definite standard. Osius, 344 Mich at 700-701. Where an ordinance provides sufficient standards for the proper guidance of the agency, a circuit court cannot usurp the agency's role in ascertaining the facts and applying the law to those facts. Florka v Detroit, 369 Mich 568, 581-582; 120 NW2d 797 (1963); see also Mobil Oil Corp v Clawson, 36 Mich App 46, 52; 193 NW2d 346 (1971) (upholding the zoning board's exercise of discretion under an ordinance because the ordinance provided a standard and the zoning board merely ascertained the existence or nonexistence of facts justifying the action under the standard).
In this case, pursuant to Zoning Ordinance, § 74-605(e), the Planning Commission could not have issued the requested permit to remove protected trees unless it found that the proposal applied the preservation techniques to the greatest extent practical and that removal was unavoidable. The Township's ordinances also instructed the Planning Commission to consider a variety of factors when determining whether the tree removal was limited to the "minimum necessary to allow a reasonable use of the land." See Zoning Ordinance, § 74-605(h). The Planning Commission also had to consider whether the proposed site plan preserved natural resources to the "maximum feasible extent" and respected the "natural topography and minimize[d] the amount of cutting and filling required." Zoning Ordinance, § 74-175(b)(8).
These ordinances provided the Planning Commission a set of guidelines governing the approval of the site plan at issue and its associated permits. See Florka, 369 Mich at 581-582; Mobil Oil Corp, 36 Mich App at 52; cf. Osius, 344 Mich at 700-701. The fact that the ordinances set a high standard for development did not equate with a conferral of unfettered discretion on the Planning Commission. Consequently, the circuit court erred as a matter of law to the extent that it determined that the Planning Commission did not have the authority to deny the proposed site plan and associated permits on the basis of a finding that the proposed site plan and permits did not preserve the natural resources as required by the applicable ordinances. See MCL 125.3606(1); see also Detroit, 326 Mich App at 254-255.
2. SUBSTANTIAL-EVIDENCE TEST
KI Properties and DF Development also challenged the evidentiary support for the Planning Commission's findings. They argued that the Planning Commission had no support for its finding that the proposed site plan was inconsistent with "low density of land coverage," or would create any environmental disturbance, see Zoning Ordinance, § 74-427(e)(1), and had no evidence that the site plan was inconsistent with the goals of the Master Plan. They further maintained that no evidence existed that the development involved a steep slope or altered a wetland or stream, and they argued among other things that no evidence supported the Planning Commission's finding that the proposed site plan did not preserve natural resources to the maximum feasible extent and did not preserve the natural topography. Contrary to their argument, the record reflects that substantial evidence supported the Planning Commission's findings.
The documentation submitted in support of the proposed site plan provided evidence that the development would result in extensive grading of the property, the removal of hundreds of trees including numerous protected trees, and would include a parking lot with spaces for hundreds of vehicles. The site plan did not show any design features that tended to suggest that the applicant tried to minimize the clearing and grading by working with the existing topography, as necessitated under Zoning Ordinance § 74-605(o), or otherwise took steps to preserve the natural resources and the amount of filling, as required under Zoning Ordinance § 74-175(b)(8). The tree mitigation plan suggested that the applicant had no intention of preserving the existing trees or otherwise treating the existing trees as an important design element that should only be removed after the study of alternatives showed that no feasible alternative to the removal existed. See Zoning Ordinance, § 74-605(o). The site plan further suggested that the grading and tree removal would be done in the vicinity of wetlands and a tributary to Fleming Creek, an important resource in the Township's Master Plan, and would result in an increase in the impervious surfaces within the watershed for Fleming Creek. The Township's Mater Plan identified the limiting of increases to the impervious surfaces within a watershed as a critical factor in maintaining the health of the watercourse. When examined in context, the Planning Commission could reasonably infer from the plan submitted on behalf of DF Development that the proposed development did not seek to minimize the destruction of the natural resources on the property.
The adverse inferences to be drawn from the plans were further bolstered by the opinions of the Township's expert consultants. In the preliminary site review, the Township's consultants indicated that the elevation dropped 46 feet from the high point down to the tributary of Fleming Creek. They stated that the proposed plan required substantial grading to accommodate the building and parking lot. Indeed, the consultants noted that the applicant provided for the use of extensive retaining walls of up to 11 feet in height, which the consultants opined were intended to allow the site to be developed past its natural capacity. The consultants stated that the proposal would remove 489 protected trees and they suggested ways to reduce the number of trees removed. The consultants also identified concerns about the amount of impervious surfaces proposed for the site given the size of the parking lot and loading areas.
In a memorandum dated July 8, 2017, the Township's consultants wrote that they provided five reports on the proposed project over six months. Although the consultants recommended approval, their recommendation was contingent on the resolution of several items. Specifically, they reiterated their previous opinion that it was "the size and configuration of the building that was driving the need to grade and clear the site so extensively." They stated that the applicant's rigid adherence to the design of a low and long building that made it necessary to level the site and remove almost all the woodlands on the affected property. The consultants identified several other landowners who had designed unique buildings for land zoned for research and development that preserved significant amounts of the natural features. They related that they spoke with the applicant about options for a design that worked with the natural topography and preserved more of the woodlands, which included a suggestion for a three-story building with a variance. They further opined that the possibility existed to design a building that would work with the topography and would preserve more woodland.
The Planning Commission also had before it a set of recommendations from the Fleming Creek Advisory Council. The Advisory Council indicated that it believed that the development generally met the requirements for the area, but it noted that the reduction of storm water leaving the site was critical to ensure that the "down gradient hydrology has least impact on the Fleming Creek tributary that runs through the east side of the property." It also expressed concern "about the removal of the extensive area of woodlands on the site" because the woodlands provided "hydrological benefits" to the tributary. For that reason, it asked the Planning Commission to "look closely at mitigation requirements."
The evidence as a whole supported the Planning Commission's findings. The evidence showed that the proposed site plan did not include design features to better preserve the natural topography of the property and to preserve more of the mature trees that were located on the property. Instead, the applicant proposed flattening the land and clear-cutting the existing trees so that it could construct a long and narrow structure—with no attempt to design a building that better integrated into the natural landscape—and pave an extensive surface area for a parking lot premised on speculation concerning the parking needs of some unknown future tenant. Although the applicant made no effort to accommodate the existing trees into the developed area, it did propose to mitigate the loss of 489 trees by planting some replacement trees and donating some money. But the Planning Commission had no obligation to ignore the failure to take any steps to minimize the loss of existing mature trees simply because the applicant proposed to mitigate the harms caused by its rigid adherence solely to its original design. Indeed, the adequacy of the mitigation plan was but one factor to consider when determining whether the applicant limited the removal of trees and woodlands to the "minimum necessary" for the "reasonable use of the land" as required under Zoning Ordinance § 74-605(h). On this record, the Planning Commission could find that the proposed site plan failed to comply with the ordinances requiring applicants to put forth site plans that minimize grading and filling of the land, and better protect the existing trees.
The Planning Commission had to determine whether the site plan met all the requirements imposed by the relevant ordinances. MCL 125.3501(4); Zoning Ordinance § 74-175(b). It had to ensure that the plan preserved the natural resources on the land to a maximum feasible extent. Zoning Ordinance, § 74-175(b)(8). Because evidence established that the site plan did not minimize the cutting, grading, and tree removal, as required by other ordinances, the Planning Commission could properly deny the application and related requests for permits on that basis. MCL 125.3501(4).
In their brief on appeal to the circuit court, KI Properties and DF Development ignored the record evidence that the proposed site development did not meet the requirements of the ordinances for the preservation of topography and trees. Instead, they selectively cited the record to show that the plan met certain minimum requirements imposed under the ordinances. They then asserted that the Planning Commission and Zoning Board erred by ignoring the evidence that they complied with all the "objective" requirements of the ordinances. By adopting this view of the evidence, the circuit court in effect substituted its view of the evidence for that of the Planning Commission and Zoning Board, which it could not do. Edw C Levy Co, 293 Mich App at 341.
The Planning Commission and Zoning Board did not err when interpreting the requirements of the applicable ordinances and substantial evidence supported the Planning Commission's findings. Consequently, the circuit court should have affirmed the Zoning Board's decision to deny the appeal of the Planning Commission's decision. See MCL 125.3606(1); Detroit, 326 Mich App at 254-255.
E. AGGRIEVED PARTY
The Township also argues that the trial court erred when it declined to address the Township's argument that the circuit court had to dismiss KI Properties's appeal because it failed to show that it was a party aggrieved by the Zoning Board's decision. KI Properties argues that the Township did not properly preserve this claim of error for review in this Court.
A party must generally preserve issues for appellate review by raising the claims before the circuit court so that it can address the issue. Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008). In this case, KI Properties and DF Development appealed the Zoning Board's decision to the circuit court and also alleged several causes of action against the Township in a complaint. The Township submitted a brief on appeal in answer to the appeal in the circuit court. In that brief, the Township argued that KI Properties was not a proper party because it did not participate in the proceedings before the Planning Commission and Zoning Board. For that reason, it asked the circuit court to dismiss the claims by KI Properties. In a footnote, it clarified that KI Properties had not established that it was an aggrieved party entitled to circuit court review of the Zoning Board's decision under MCL 125.3605. Because a plaintiff does not have to be an aggrieved party within the meaning of MCL 125.3605 in order to allege claims in a complaint, the Township's argument before the circuit court concerned KI Properties's right to appeal the decision of the Zoning Board alone. Further, an appeal is not a claim subject to summary disposition. See MCR 2.116(B)(1) (stating that a party may move for dismissal or entry of judgment on claims in a civil action). As such, a party does not have to raise a challenge to the circuit court's jurisdiction to hear an appeal in a motion for summary disposition. Rather, motion practice in the circuit court sitting as an appellate court is generally governed by MCR 2.119, which includes a motion to dismiss for lack of jurisdiction under MCR 7.211(C). See MCR 7.110. The Township essentially moved to dismiss KI Properties's appeal before the circuit court as permitted under MCR 7.211(C)(2)(a) in its brief on appeal before the circuit court. In any event, as the Township correctly notes, a party may challenge the circuit court's jurisdiction to hear an appeal from a Zoning Board at any time—even for the first time on appeal. See Polkton Charter Twp v Pellegrom, 265 Mich App 88, 97-98; 693 NW2d 170 (2005). Consequently, the Township preserved its claim that the circuit court did not have jurisdiction to hear an appeal by KI Properties.
We review de novo whether the circuit court had jurisdiction to hear KI Properties's appeal. Id. at 98. Only a "party aggrieved by the decision" of a zoning board has the right to appeal a zoning board's decision to the circuit court. MCL 125.3605. This Court has stated that to be an aggrieved party, the party claiming an appeal from a zoning board's decision must allege and be able to prove that he or she suffered special damages not common to other property owners who are similarly situated. See Olsen v Chikaming Twp, 325 Mich App 170, 185; 924 NW2d 889 (2018).
In this case, after the Township challenged the circuit court's jurisdiction to hear an appeal by KI Properties, KI Properties responded by claiming that it would be able to show that it was an aggrieved party through an agreement involving the property and an assignment. The record, however, contains no document or evidence of such. The record indicates that KI Properties offered to let the circuit court review evidence in camera, but there is no indication in the record that the circuit court did so. Once the Township properly challenged the circuit court's jurisdiction to consider KI Properties's appeal under MCL 125.3605, KI Properties had to prove that it was a party aggrieved by the Zoning Board's decision through more than mere allegations. Olsen, 325 Mich App at 185. The record indicates that it did not do so and the circuit court neglected to make proper inquiry in this regard. Without presentation of evidence establishing KI Properties's aggrieved party status, the circuit court should have dismissed KI Properties's appeal of the Zoning Board's decision for lack of jurisdiction. See MCR 7.110; MCR 7.211(C)(2)(a).
III. CROSS-APPEAL
A. STANDARDS OF REVIEW
On cross-appeal, KI Properties and DF Development argue that the circuit court erred when it dismissed on its own motion the claims that they alleged in the complaint that they submitted along with their claim of appeal in the circuit court. In response, the Township argues that this Court lacks jurisdiction of the cross-appeal because it is untimely. This Court reviews de novo whether it has jurisdiction of an appeal. Chen v Wayne State Univ, 284 Mich App 172, 191; 771 NW2d 820 (2009). This Court also reviews de novo whether the circuit court properly dismissed claims on its own motion. See Al-Maliki v LaGrant, 286 Mich App 483, 484-485; 781 NW2d 853 (2009). And this Court reviews de novo whether a party has standing to bring a claim. See Barclae v Zarb, 300 Mich App 455, 467; 834 NW2d 100 (2013).
B. JURISDICTION
The Township—as it admits on appeal—lacked certainty whether it had an appeal of right from the circuit court's decision reversing the Zoning Board or had to apply for leave to appeal. Accordingly, it filed an appeal of right and an application for leave to appeal. On April 18, 2019, this Court granted the application and consolidated the appeal by leave granted with the appeal of right. See KI Props Holdings, LLC v Ann Arbor Charter Twp, unpublished order of the Court of Appeals, entered April 18, 2019 (Docket No. 348167). KI Properties and DF Development cross-appealed on May 7, 2019, in Docket No. 348167. The Township argues that they failed to timely file their cross-appeal because KI Properties and DF Development did not file the cross-appeal within 21 days of the Township's appeal of right, the first appeal in this case.
A party may file a cross-appeal "[w]hen an appeal of right is filed or the court grants leave to appeal." MCR 7.207(A)(1). A party must file his or her cross-appeal "within 21 days after the claim of appeal is filed with the Court of Appeals . . . if the first appeal was of right," MCR 7.207(B)(1), or "within 21 days after the clerk certifies the order granting leave to appeal, if the appeal was initiated by application for leave to appeal," MCR 7.207(B)(2). To the extent that the cross-appeal might be untimely, we elect to treat the cross-appeal as an application for leave to take a delayed cross-appeal under MCR 7.207(E), and grant the application.
C. DISMISSAL OF CLAIMS
In addition to their claim of appeal to the circuit court, KI Properties and DF Development alleged four independent causes of action against the Township in a complaint filed with their claim of appeal to the circuit court: a due-process claim, a claim for declaratory relief, a takings claim, and a claim under 42 USC 1983. For each claim, KI Properties and DF Development attacked the validity of the Planning Commission's decision to deny the proposed site plan and the related applications, but they also asked for other relief such as damages, which were not available as appellate relief. Because KI Properties and DF Development pleaded these claims as independent causes of action in a complaint, see MCR 2.110(A)(1) (defining pleading to include a complaint), and sought relief beyond "judicial review by the circuit court of a judgment, order, or decision" by the Planning Commission or Zoning Board, see MCR 7.102(2) (defining appeal for purposes of appeals to the circuit court), the circuit court could not resolve those claims in the appeal. Although the better practice might be to file the complaint and the appeal in separate proceedings, the right to appeal a determination under a zoning ordinance does not restrict the right of a party to bring a complaint for relief related to that determination. See MCR 7.122(A)(2). Accordingly, the circuit court had to resolve the claims alleged in KI Properties and DF Development's complaint like any other civil claims.
In this case, the circuit court dismissed the claims on its own motion and in a way that implicated due process. See Lamkin v Hamburg Twp Bd of Trustees, 318 Mich App 546, 550-551; 899 NW2d 408 (2017) (recognizing that due process generally requires a circuit court to give notice that it is contemplating dismissal and an opportunity to be heard). The circuit court did not give the parties notice that it was considering dismissal, did not hold a hearing, and did not identify with specificity the grounds for dismissing the claims. It merely stated in a handwritten modification to an order denying a motion for a stay pending appeal that its decision to grant appellate relief in the related claim of appeal resolved the claims pleaded in the complaint, rendered them moot, or made them otherwise subject to dismissal.
The circuit court did not explain in the order how the decision to reverse the Zoning Board resolved the claims stated in KI Properties and DF Development's complaint and did not address numerous issues related to the claims. For example, it did not address whether and to what extent KI Properties and DF Development might be entitled to damages, did not address the constitutionality of the ordinance at issue, and did not address whether the ordinance—if otherwise valid and enforceable—constituted a permanent or temporary taking without compensation. The circuit court stated that the claims were moot, but that determination was clearly erroneous. Each claim involved a request for relief beyond merely allowing the proposed development to proceed; as such, to the extent that a cause of action could be said to be moot, the claims at issue involved relief which could still be granted. See Warren v Detroit, 261 Mich App 165, 166 n 1; 680 NW2d 57 (2004) (stating that an issue is generally considered moot if an event has occurred that renders it impossible for the court to grant relief). Moreover, the asserted claims each involved live controversies. See, e.g., TM v MZ, 501 Mich 312, 319-320; 916 NW2d 473 (2018). Consequently, the circuit court erred by dismissing the claims on its own motion without providing KI Properties and DF Development notice and an opportunity to be heard. Lamkin, 318 Mich App at 550-551; see also Al-Maliki, 286 Mich App at 488-489.
D. ALTERNATE GROUNDS FOR AFFIRMING
The Township argues on appeal that this Court should nevertheless affirm the circuit court's decision to dismiss KI Properties and DF Development's claims for several reasons. With regard to KI Properties, the Township argues that the lower court record showed that KI Properties was not a party aggrieved by the decision of the Zoning Board within the meaning of MCL 125.3605, and so it could not bring claims against the Township. As already discussed, KI Properties failed to establish aggrieved party status with a right to appeal under MCL 125.3605. As such, the circuit court should have dismissed KI Properties's claim of appeal to the circuit court. However, KI Properties did not have to establish that it was an aggrieved party to allege claims against the Township. The fact that it lacked a right to appeal the Zoning Board's decision did not by itself provide an alternate basis for affirming the circuit court's decision to dismiss its claims.
The Township similarly argues that KI Properties lacked standing to bring its claims against the Township. To have standing, a party must have suffered a special injury, or have a substantial interest that will be detrimentally affected in a manner different from the citizenry at large. See Barclae, 300 Mich App at 483. In its complaint, KI Properties alleged that it had an agreement to purchase the land at issue and stated that Cunningham had assigned it any claims that it had against the Township. It further alleged that Cunningham acted as its agent in requesting approval of the site plan and permit applications. These allegations, if true, could establish that KI Properties had a sufficient interest to establish its standing to sue for harms to its legally protected rights. Id.; MOSES, Inc v Southeast Mich Council of Gov't, 270 Mich App 401, 411, 415-416; 716 NW2d 278 (2006) (concluding that summary disposition under MCR 2.116(C)(8) was appropriate because the plaintiffs did not allege facts that demonstrated that they had standing); see also Leite v Dow Chem Co, 439 Mich 920, 920; 478 NW2d 892 (1992) (explaining that a standing defense such as the real-party-in-interest doctrine may be raised under MCR 2.116(C)(8) or MCR 2.116(C)(10)).
The Township, however, points to the fact that no record evidence supported these allegations. Although that may be true, the Township also did not challenge KI Properties's standing to sue in a properly supported motion for summary disposition—it challenged KI Properties's status as an aggrieved party entitled to an appeal of right in its brief on appeal in the circuit court. The challenge to KI Properties's right to appeal could not adequately serve as a summary disposition motion or put KI Properties on notice of the need to respond to a motion under MCR 2.116(C)(10). See Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). Therefore, even though KI Properties did not present evidence sufficient to establish its appellate standing, such cannot serve as an alternate basis for affirming the circuit court's sua sponte dismissal.
Finally, the Township maintains that this Court should affirm the dismissal of the claims by KI Properties and DF Development because those claims all involve issues related to the decision of the Planning Commission and were not actually separate causes of action. As such, it argues, those claims were part of the appeal and, because the circuit court resolved the appeal, the circuit court did not err when it dismissed those claims. The Township relies on the decision in Krohn v Saginaw, 175 Mich App 193; 437 NW2d 260 (1988), and a similar unpublished decision, for the proposition that the claims were not in fact independent causes of action, but rather alternate claims of appeal.
In Krohn, this Court considered whether the circuit court properly dismissed the plaintiffs' complaint alleging claims involving an earlier decision by the defendant planning commission. The circuit court dismissed the complaint because it amounted to an untimely appeal of the planning commission's decision. Id. at 194-195. This Court agreed that each of the claims—except the claim for superintending control—were in fact challenges to the planning commission's decision, which had to have been raised in a timely appeal. Moreover, the claim for superintending control, although a separate cause of action, was not available because the plaintiffs had the right to appeal. Accordingly, this Court affirmed the decision to dismiss the claims. Id. at 197-198.
Although KI Properties and DF Development alleged facts that implicate the Planning Commission's decision, the claims also asked for damages and relief other than that which could be granted in an appeal. That is, the claims are not solely a collateral attack on an administrative decision, as in Krohn. Id. at 198. As such, KI Properties and DF Development were not required to raise those claims in a timely appeal. See, e.g., Sun Communities v Leroy Twp, 241 Mich App 665, 671-672; 617 NW2d 42 (2000) (distinguishing Krohn because the claims did not involve a challenge to administrative activities of a zoning board). Indeed, our Supreme Court has since held that a circuit court sitting on appeal of a decision from a zoning board does not have the authority to decide claims involving substantive due process or takings, see Houdini Props, LLC v Romulus, 480 Mich 1022, 1022; 743 NW2d 198 (2008), and the court rules similarly provide that the rule governing zoning appeals does not restrict the right to bring a separate complaint for relief relating to a zoning determination, MCR 7.122(A)(2). But even if KI Properties and DF Development were required to raise those claims within the time limit for an appeal from the Zoning Board's decision, there is no dispute that KI Properties and DF Development filed their claim of appeal and complaint within that time limit. As such, the decision in Krohn cannot serve as an alternate basis for affirming the circuit court's decision to dismiss the claims at issue. Whether those claims remain viable should in the first instance be determined by the circuit court.
IV. CONCLUSION
The trial court erred to the extent that it determined that KI Properties had an appeal of right from the Zoning Board's decision. For that reason, we remand this case for entry of an order dismissing KI Properties's appeal of the Zoning Board's decision.
The circuit court also erred to the extent that it determined that the Planning Commission had no authority to deny the preliminary site plan and related permit applications on the ground that the plan and applications failed to minimize the harm to the natural resources on the property. The circuit court further erred when it concluded that the Planning Commission's decision lacked support by substantial evidence. Because the Zoning Board did not err when it determined that the Planning Commission properly applied the law and that its decision was supported by substantial evidence, the circuit court should have affirmed the Zoning Board's decision on appeal by DF Development. Accordingly, we reverse the circuit court's decision to grant KI Properties and DF Development appellate relief, vacate its March 6, 2019, order granting appellate and injunctive relief, and remand for entry of an order affirming the Zoning Board's decision.
Finally, the circuit court erred when it dismissed the civil claims alleged by KI Properties and DF Development without providing them notice and an opportunity to be heard. Consequently, we reverse the trial court's decision to dismiss those claims, vacate its order of March 7, 2019, dismissing the claims, and remand for further proceedings consistent with this opinion.
Reversed, vacated, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. We further order that neither party may tax their costs. See MCR 7.219(A).
/s/ Colleen A. O'Brien
/s/ Michael F. Gadola
/s/ James Robert Redford