If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

FRANK SAKORAFOS and ELAINE 

TSAPATORIS,

Plaintiffs-Appellants,

FOR PUBLICATION

November 21, 2023

9:35 a.m.

v No. 362192

Oakland Circuit Court

LC No. 2021-189644-CH

CHARTER TOWNSHIP OF LYON, BOARD OF 

TRUSTEES OF THE CHARTER TOWNSHIP OF 

LYON, JOHN DOLAN, 56560 LLC, DANDY 

ACRES SMALL ANIMAL HOSPITAL PLLC, d/b/a 

THE DOG LODGE, THERESA MCCARTHY, and 

TERRENCE MCCARTHY a/k/a TERRY 

MCCARTHY,

Defendants-Appellees.

Before: BOONSTRA, P.J., and GADOLA and MALDONADO, JJ.

GADOLA, J.

Plaintiffs, Frank Sakorafos and Elaine Tsapatoris, appeal as of right the trial court’s order 

granting defendants summary disposition under MCR 2.116(C)(5), (7), and (8). We affirm in part 

and vacate in part the trial court’s order and remand to the trial court for further proceedings. 

I. FACTS

Plaintiffs reside in the Charter Township of Lyon (the Township). Defendant Dandy Acres 

is a small animal hospital and dog kennel located on ten acres at 56560 Ten Mile Road; the Dandy 

Acres property is adjacent to plaintiffs’ property. A veterinary clinic has operated on the Dandy 

Acres property since 1975. In 2003, Theresa McCarthy, a veterinarian, purchased the veterinary 

practice at Dandy Acres and assumed the operation of the veterinary clinic. In 2013, Theresa 

McCarthy formed 56560 LLC, which then purchased the Dandy Acres property from the previous 

owners. Sometime thereafter, Terrence McCarthy, on behalf of 56560 LLC, authorized 

improvements to the property, such as installing dog runs, for the purpose of opening a commercial 

kennel. In 2013 or 2014, the Dandy Acres defendants began operating a commercial kennel on 
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the property, dubbing it The Dog Lodge, and announcing the kennel on social media throughout 

2014 as a new venture. 

In December 2015, in response to complaints about the operation of the kennel, the 

Township’s Zoning Enforcement Officer (ZEO) advised the Dandy Acres defendants that the 

kennel could not operate without special land use approval, and also that the improvements to the 

property required a dimensional variance. The ZEO sent an official warning notice to Terrence 

McCarthy on behalf of 56560 LLC stating that the expansion of the parking area at Dandy Acres 

without site plan approval and the use of the property for a commercial kennel without special land 

use approval violated the Township’s zoning ordinance. 

 

In January 2016, Terrence and Theresa McCarthy filed a request with the Township to 

amend § 19.02 of the Township’s zoning ordinance to reduce the required setback for a commercial 

kennel; the proposal was tabled by the Township’s Planning Commission and the Dandy Acres 

defendants apparently abandoned their efforts to amend the ordinance. In 2016 and 2017, the 

Township’s ZEO received additional complaints regarding the kennel and repeatedly advised 

Dandy Acres that it was not in compliance with the zoning ordinance.

 

Plaintiffs assert that in June 2017, Dandy Acres sought special land use approval to operate 

a kennel on the Dandy Acres property. Plaintiffs also assert that the planning commission voted 

unanimously to deny the request, noting that the kennel was being operated illegally and that 

residents had complained about the noise, and that the Dandy Acres defendants did not appeal the 

denial of their request for the special use permit. On appeal, the Township denies that Dandy 

Acres applied for and was denied a special use permit to operate a kennel.

1

 

 

1

In their brief on appeal, the Township defendants state, “Plaintiffs’ assertion that the Township 

denied a kennel when the vet clinic applied for a special land use to have doggie daycare added is 

incorrect and is another example [of] Plaintiffs’ brief’s statement of facts being too loose and fast 

with clear facts established by public records. Dandy Acres did not apply to operate a kennel and 

have that denied, as Plaintiffs claim.” The record belies this explanation. In their answer to 

plaintiffs’ complaint, the Township defendants admitted that on June 5, 2017, Dandy Acres applied 

for site plan approval and special land use approval, and admitted that the application sought 

approval for “an addition to the existing structure, as well as an outdoor dog pool and outdoor play 

area,” and also “a new 2,000 square foot barn north of the existing and proposed buildings.” The 

Township defendants further stated in their answer to the complaint that at the conclusion of the 

July 24, 2017 planning commission meeting on the Dandy Acres’ applications, the planning 

commission “recommended denial of the applications” and that “Dandy Acres did not proceed to 

a final decision before the Township Board.” The accusation on appeal by the Township 

defendants that plaintiffs mischaracterized the record appears to be primarily the Township’s 

disagreement that what is occurring at The Dog Lodge is, as suggested by the name, dog lodging. 

Similarly, the Township defendants assert that the Dandy Acres’ applications were not denied; a 

more candid explanation is that the unanimous decision of the planning commission to deny the 

Dandy Acres’ applications did not result in a formal denial because the recommendation 

apparently was not submitted to the Township board for decision. It is unfortunate that the 
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In 2017, defendant John Dolan was elected to the position of Township supervisor. In 

2018, the Township’s attorney advised plaintiffs by letter that the Township considered Dandy 

Acres’ boarding of animals to be a non-conforming use. In 2020, the Township attorney advised 

plaintiffs by letter that the kennel was not a legal use, but that the passage of time had made 

enforcement of the ordinance impossible under the doctrine of laches.

 

Plaintiffs initiated this action in August 2021, alleging that operation of a commercial 

kennel on the property violates the 1975 variance granted to the veterinary clinic and also violates 

the Township’s past and current ordinances. Plaintiffs alleged that in 1975, the Dandy Acres 

property was zoned AG, which permitted kennels and veterinary clinics as a conditional use on 

lots with a minimum width of 500 feet and required any building, pen, or runway to be a minimum 

of 150 feet from any adjacent property line. The Dandy Acres property’s 330-foot width therefore 

could not accommodate a veterinary clinic or kennel under the Township’s 1968 ordinance. 

Plaintiffs alleged that in granting the dimensional variance in 1975 for the property to be used as 

a veterinary clinic, the Township’s ZBA conditioned the variance on the property not being used 

as a kennel or sold for kennel purposes. Plaintiffs further alleged that at the time of the filing of 

the complaint, the property was zoned R-1.0. Plaintiffs alleged that under the current zoning 

ordinance, commercial kennels are permitted only by special use permit and only if the buildings 

in which animals are kept, animal runs, or exercise areas are located at least 200 feet from any 

property line, and are not allowed in any setback area. 

 Plaintiffs’ complaint alleged six counts. Against the Dandy Acres defendants, plaintiffs 

alleged Count I – Abatement of Nuisance per se, Count II – Nuisance per se, and Count III – Civil 

Conspiracy; plaintiffs’ Count III also alleged Civil Conspiracy against the Township Supervisor. 

Against the Township defendants, plaintiffs alleged Count IV – Deprivation of Civil Rights and 

Count V – Mandamus. Count VI was not alleged against specific defendants but requested that 

the trial court appoint a prosecutor to prosecute an action to abate the nuisance pursuant to MCR 

3.601(F). 

The Dandy Acres defendants moved for summary disposition under MCR 2.116(C)(5) and 

(8), contending that plaintiffs lacked standing to maintain the action for abatement of a nuisance 

per se and had otherwise failed to state a claim. The Township defendants moved for summary 

disposition under MCR 2.116(C)(5), (7), and (8), asserting lack of standing, governmental 

immunity, statute of limitations, and failure to state a claim. 

On January 18, 2022, plaintiffs responded to defendants’ motions, asserting that they had 

standing to bring the nuisance action under MCL 125.3407 and also under Chapter 48, §11.04 of 

the Township’s Ordinance that specifically permitted “any person aggrieved or adversely affected 

by” violation of the ordinance to institute suit. On February 7, 2022, the Township amended 

 

Township defendants did not attempt to clarify on appeal the largely semantical nature of this 

particular dispute. It also is a mystery why the dog kennel was permitted to continue its operation 

after the planning commission voted unanimously to recommend denial of Dandy Acres’ 

applications. 
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§11.04, removing the provision that permitted “any person aggrieved or adversely affected by” 

violation of the ordinance to institute suit. 

The circuit court granted defendants’ motions for summary disposition. With respect to 

Count I – Abatement of a Nuisance per se, plaintiffs alleged that the Township defendants failed 

to enforce the zoning ordinance as required by MCL 125.3407, justifying plaintiffs in bringing the 

action as private citizens. The trial court held that as private citizens, plaintiffs had standing to 

bring an action to abate a public nuisance only if they could show special damages, being unique 

harm not common to property owners similarly situated. The trial court found that plaintiffs had 

not demonstrated special damages and therefore did not have standing to bring the action. The 

trial court did not address whether plaintiffs had standing under Chapter 48, §11.04 of the 

Township’s Ordinance. The trial court also dismissed Count II of the complaint, which sought 

damages for nuisance per se, holding that damages were not an available remedy for nuisance.

With respect to Count III – Civil Conspiracy, the trial court held that because the underlying 

claim of nuisance failed, the claim of civil conspiracy relating to that claim also must fail. The 

trial court further held that the claim of civil conspiracy with regard to Dolan, the Township 

supervisor, was barred by governmental immunity. 

With respect to Count IV – Deprivation of Civil Rights, the trial court held that the 

Township’s obligation to enforce its ordinances was discretionary and its failure to do so did not 

deprive plaintiffs of their property or their civil rights. With respect to Count V, the trial court 

similarly held that plaintiffs were not entitled to mandamus because plaintiffs had no clear legal 

right to enforcement of the Township’s ordinances. With respect to Count VI, plaintiffs’ request 

for appointment of a prosecutor to prosecute the abatement of the nuisance, the trial court held that 

plaintiffs failed to establish that they had standing to bring the lawsuit, that they had a recognizable 

cause of action, or that a special prosecutor should be appointed under MCL 600.3805. Plaintiffs 

now appeal. 

II. DISCUSSION

A. STANDARD OF REVIEW

We review a trial court’s decision to grant or deny a writ of mandamus for an abuse of 

discretion. Southfield Ed Ass’n v Bd of Ed of Southfield Pub Sch, 320 Mich App 353, 378; 909 

NW2d 1 (2017). An abuse of discretion occurs when the trial court’s decision falls outside the 

range of principled outcomes, Adler v Dormio, 309 Mich App 702, 707; 872 NW2d 721 (2015), 

or when the trial court’s decision is premised upon an error of law, Ronnisch Const Group, Inc v 

Lofts on the Nine, LLC, 499 Mich 544, 552; 886 NW2d 113 (2016). Whether a defendant has a 

clear legal duty to act, which is required to warrant mandamus, is a question of law that this Court 

reviews de novo. Rental Props Owners Ass’n of Kent Co v Kent Co Treasurer, 308 Mich App 

498, 518; 866 NW2d 817 (2014). 

We review de novo a trial court’s decision to grant or deny summary disposition. Meemic 

Ins Co v Fortson, 506 Mich 287, 296; 954 NW2d 115 (2020). A motion for summary disposition 

under MCR 2.116(C)(5) is properly granted when the party asserting the claim lacks the legal 

capacity to sue. Standing and legal capacity to sue are distinct concepts, however. See Flint Cold 
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Storage v Dep’t of Treasury, 285 Mich App 483, 502; 776 NW2d 387 (2009). Standing generally 

is the right of the plaintiff initially to invoke the power of the trial court to adjudicate a claimed 

injury, Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 290; 715 NW2d 846 (2006), 

while capacity to sue concerns whether there is a legal barrier, such as mental incompetency, that 

deprives a party of the legal ability to bring an action, Moorhouse v Ambassador Ins Co, Inc, 147 

Mich App 412, 419 n 1; 383 NW2d 219 (1985). A challenge to standing is more appropriately 

considered under MCR 2.116(C)(8) or (10). See Le Gassick v Univ of Mich Regents, 330 Mich 

App 487, 494 n 2; 948 NW2d 452 (2019). 

Summary disposition under MCR 2.116(C)(7) is warranted upon demonstration of 

specifically enumerated grounds, including governmental immunity, that compel dismissal of the 

action. When deciding a motion under MCR 2.116(C)(7) the trial court is to consider the 

documentary evidence submitted and to accept the contents of the complaint as true unless 

contradicted by documentation submitted by the moving party. Estate of Miller v Angels’ Place, 

Inc, 334 Mich App 325, 330; 964 NW2d 839 (2020). If no facts are disputed and if reasonable 

minds could not disagree regarding the legal effect of those facts, summary disposition is a 

question of law for the court. Id. A motion for summary disposition under MCR 2.116(C)(8) tests 

the legal sufficiency of the complaint and is properly granted when, accepting all well-pleaded 

factual allegations of the complaint as true, the claims alleged are unenforceable as a matter of law 

and no factual development could justify recovery. El-Khalil v Oakwood Healthcare, Inc, 504 

Mich 152, 159; 934 NW2d 665 (2019). 

B. STANDING

In Counts I-III of their complaint, plaintiffs alleged a nuisance claim against the Dandy 

Acres defendants and a civil conspiracy claim against Dolan and the Dandy Acres defendants. The 

trial court held that plaintiffs lacked standing to bring the nuisance action, that plaintiffs could not 

properly seek damages for their nuisance claim, and that their civil conspiracy claim failed both 

for failure to prove the underlying tort and because governmental immunity barred it with respect 

to Dolan. Plaintiffs contend that the trial court erred by granting defendants summary disposition 

on the basis that plaintiffs lack standing. Plaintiffs argue that they have standing to assert nuisance

per se under MCL 125.3407, and also under Chapter 48, § 11.04 of the Lyon Township Ordinance. 

1. MCL 125.3407

Under § 407 of the Michigan Zoning Enabling Act (MZEA), MCL 125.3407, the use of 

land or a building in violation of a zoning ordinance is a nuisance per se. Twp of Fraser v Haney, 

509 Mich 18, 26; 983 NW2d 309 (2022); see also Soupal v Shady View, Inc, 469 Mich 458, 465; 

672 NW2d 171 (2003). MCL 125.3407 requires the legislative body to designate an official to 

enforce the ordinance and requires that official to enforce the zoning ordinance. The statute 

provides: 

Except as otherwise provided by law, a use of land or a dwelling, building, or 

structure, including a tent or recreational vehicle, used, erected, altered, razed, or 

converted in violation of a zoning ordinance or regulation adopted under this act is 

a nuisance per se. The court shall order the nuisance abated, and the owner or agent 

in charge of the dwelling, building, structure, tent, recreational vehicle, or land is 
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liable for maintaining a nuisance per se. The legislative body shall in the zoning 

ordinance enacted under this act designate the proper official or officials who shall 

administer and enforce the zoning ordinance and do 1 of the following for each 

violation of the zoning ordinance: 

(a) Impose a penalty for the violation.

(b) Designate the violation as a municipal civil infraction and impose a civil fine 

for the violation. 

(c) Designate the violation as a blight violation and impose a civil fine or other 

sanction authorized by law. This subdivision applies only to a city that establishes 

an administrative hearings bureau pursuant to section 4q of the home rule city act, 

1909 PA 279, MCL 117.4q. [MCL 125.3407.]

In certain circumstances, a private party may pursue a nuisance claim against a property owner for 

violation of a zoning ordinance. In Ansell v Delta Co Planning Comm, 332 Mich App 451, 461; 

957 NW2d 47 (2020), this Court explained: 

A violation of a zoning ordinance constitutes a public nuisance that, by itself, “gives

no right of action to an individual and must be abated by the appropriate public 

officer.” Towne v Harr, 185 Mich App 230, 232; 460 NW2d 596 (1990). However, 

a private individual who can “show damages of a special character distinct and 

different from the injury suffered by the public generally” may bring an action to 

abate a public nuisance arising from the violation of a zoning ordinance. Id. 

See also Lamkin v Hamburg Twp Bd of Trustees, 318 Mich App 546, 555; 899 NW2d 408 (2017) 

(KRAUSE, P.J., concurring in part and dissenting in part) (observing that a private citizen may 

bring an action to abate a nuisance caused by violation of a zoning ordinance when impacted “in 

some way distinct from the general public”). To successfully bring an action for nuisance, the 

plaintiff must demonstrate standing, which may be proven by showing that the “defendant’s 

activities directly affected the plaintiff[’s] recreational, aesthetic, or economic interests.” Kallman 

v Sunseekers Prop Owners Ass’n, LLC, 480 Mich 1099 (2008) (quotation marks and citation 

omitted). 

Defendants contend that plaintiffs lack standing to bring the action for nuisance because 

plaintiffs failed to demonstrate that they have “special damages.” Defendants argue that plaintiffs 

have conceded that many Township residents object to the nuisance created by the dog kennel, 

and that because plaintiffs’ damages are not unique, plaintiffs’ damages are not special damages. 

In making this argument, defendants conflate the test for determining standing with the test for 

determining “aggrieved party” status as discussed in Olsen v Chickaming Twp, 325 Mich App 170; 

924 NW2d 889 (2018), overruled in part by Saugatuck Dunes Costal Alliance v Saugatuck Twp, 

509 Mich 561 (2022).

Under MCL 125.3605, a party seeking appellate relief from a decision of a zoning board 

of appeals must demonstrate that he or she is an aggrieved party. In Olsen, this Court held that

based upon a long and consistent interpretation of that phrase in Michigan jurisprudence, to be an 
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aggrieved party a party must prove that he or she had suffered “a unique harm, dissimilar from the 

effect that other similarly situated property owners may experience,” and that “mere ownership of 

an adjoining parcel of land is insufficient to show that a party is aggrieved.” Olsen, 325 Mich App 

at 185. Olsen was thereafter overruled in part by Saugatuck Dunes, 509 Mich 561. In Saugatuck 

Dunes, our Supreme Court announced that to demonstrate aggrieved party status, the party (1) 

must have participated in the challenged proceedings by taking a position on the contested 

decision, such as through a letter or public comments; (2) must claim some legally protected 

interest or protected personal, pecuniary, or property right likely to be affected by the challenged 

decision; and (3) must provide some evidence of special damages arising from the challenged 

decision in the form of an actual or likely injury or burden on their asserted interest or right 

different in kind or more significant in degree than the effects on others in the local community. 

Saugatuck Dunes, 509 Mich at 569, 595. 

By contrast, the term “standing” refers to “the right of a plaintiff initially to invoke the 

power of a trial court to adjudicate a claimed injury.” Id. at 583. The aggrieved party standard 

required by MCL 125.3605 is limited to the context of who may appeal the administrative actions 

of zoning officials as discussed in that statutory section. The requirement of showing aggrieved 

party status does not apply to a plaintiff bringing a claim of nuisance per se under MCL 125.3407. 

Private citizens may bring an action “to abate a public nuisance, arising from the violation of 

zoning ordinances or otherwise, when the individuals can show damages of special character 

distinct and different from the injury suffered by the public generally.” Towne v Harr, 185 Mich 

App 230, 232; 460 NW2d 596 (1990); see also Ansell, 332 Mich App at 461. Standing is thus 

measured by a different standard than that used to measure aggrieved party status. Under the test 

for standing, an adjoining landowner is likely to be determined to be affected by the nuisance 

created by a zoning violation in a manner distinct from the general public. For example, in Travis 

v Preston (On Rehearing), 249 Mich App 338, 346; 643 NW2d 235 (2002), the plaintiffs 

successfully asserted injury of a “special character distinct and different from the injury suffered 

by the public generally” because the odors from the defendant hog farm affected only the 

residences near the hog farm and not the community at large. The plaintiffs therefore asserted 

standing sufficient to initiate a lawsuit to abate the nuisance, and standing in that case was not 

defeated by the fact that certain other residents also experienced the odors from the hog farm. Id.

at 346. Thus, a plaintiff’s injury need not be unique in the community to confer standing to abate 

a nuisance per se. 

Although defendants agree on appeal that the question here is one of standing and not one 

of aggrieved party status, defendants nonetheless focus on the requirements discussed in Olsen

relevant to aggrieved party status. Defendants argue that because plaintiffs concede that other 

residents also are adversely affected by the dog kennel, plaintiffs have failed to establish standing 

because their alleged injury is not unique, but instead is shared by other residents. 

Similarly, the trial court in this case conflated the test for standing with that of aggrieved 

party status. The trial court granted defendants’ motions for summary disposition with respect to 

Counts I – III of plaintiffs’ complaint, holding that plaintiffs had not demonstrated special damages 

and therefore did not have standing to bring the action. In reaching this conclusion, however, the 

trial court applied the aggrieved party test applicable to a party seeking to appeal a zoning decision

under MCL 125.3605. The trial court concluded that because plaintiffs had not demonstrated 

unique damages as described in the aggrieved party test, they lacked standing to initiate suit for 
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nuisance. In doing so, the trial court clearly erred. The correct standard is whether plaintiffs “can 

show damages of a special character distinct and different from the injury suffered by the public 

generally.” Ansell, 332 Mich App at 461; Towne, 185 Mich App at 232. Plaintiffs’ damages need 

not be singular to confer standing to bring a nuisance claim; the fact that other nearby residents 

also may have suffered ill effects from the dog kennel does not defeat plaintiffs’ standing to bring 

a suit alleging nuisance. Moreover, plaintiffs’ status as an adjacent property owner lends support 

to the finding that plaintiffs have demonstrated special damages different from injury suffered by 

others in the community generally. 

2. §11.04

Plaintiffs also contend that they have standing to assert nuisance under Chapter 48, § 11.04 

of the Lyon Township Ordinance. At the time plaintiffs filed their complaint, § 11.04 provided: 

The township board or its duly authorized representative is hereby empowered to 

commence and pursue any and all necessary and appropriate actions or proceedings 

in the circuit court, or any other court having jurisdiction, to restrain or prevent any 

noncompliance with or violation of any of the provisions of this Ordinance, and to 

correct, remedy, or abate such noncompliance or violation. Any person aggrieved 

or adversely affected by such noncompliance or violation may institute suit or 

join the township board in such a suit to abate the violation. [Emphasis added.]

Plaintiffs filed their complaint initiating this matter on August 20, 2021. On January 18, 

2022, in response to defendants’ motions for summary disposition, plaintiffs asserted that they had 

standing to bring a nuisance action under MCL 125.3407 and also under Chapter 48, §11.04 of the 

Township’s Ordinance that specifically permitted “any person aggrieved or adversely affected by” 

violation of the Ordinance to institute suit. On February 7, 2022, the Township amended § 11.04 

of Chapter 48 of its Ordinance, removing the provision that permitted a person aggrieved or 

adversely affected by noncompliance with or a violation of the ordinance to institute suit to abate 

the violation. As amended, § 11.04 provides:

The township is hereby empowered to commence and pursue any and all necessary 

and appropriate actions or proceedings in the circuit court, or any other court having 

jurisdiction, to restrain or prevent any noncompliance with or violation of any of 

the provisions of this Ordinance, and to correct, remedy, or abate such 

noncompliance or violation. 

On appeal, the Township defendants argue that in this case the amended version of § 11.04 

applies because that version was in effect at the time of the trial court’s decision. See 

Grand/Sakawa of Northfield, LLC v Northfield Twp, 304 Mich App 137, 141; 851 NW2d 574 

(2014) (The applicable law is that in effect at the time of the trial court’s decision; if a zoning 

ordinance is amended after suit is filed, a court will give effect to the amendment.) This is a 

general rule, but two exceptions to the rule exist. A court will not apply an amendment to a zoning 

ordinance if (1) to do so would deprive a property owner of a vested property interest acquired 

before the enactment of the amendment, or (2) the “amendment was enacted in bad faith and with 

unjustified delay.” Id. “[T]he test to determine bad faith is whether the amendment was enacted 

for the purpose of manufacturing a defense to plaintiff’s suit.” Landon Holdings, Inc v Grattan 
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Twp, 257 Mich App 154, 161; 667 NW2d 93 (2003). “The factual determination that must control 

is whether the predominant motivation for the ordinance change was improvement of the 

municipality’s litigation position.” Grand/Sakawa, 304 Mich App at 143-144. 

The timing of the Township’s amendment of §11.04 in this case suggests bad faith, as the 

amendment appears to have the purpose of removing plaintiffs’ right to bring suit to enforce the 

Township’s ordinance against the Dandy Acres defendants. The trial court in this case, however, 

addressed neither the applicability of § 11.04 nor its hasty mid-litigation amendment, necessitating 

remand to the trial court for determination of which version of § 11.04 applies and whether 

plaintiffs have standing to bring their action under that ordinance section. 

C. MANDAMUS

In Count IV of their complaint, plaintiffs alleged deprivation of civil rights as a result of 

the Township’s failure to enforce its ordinance. In Count V of their complaint, plaintiffs sought a 

writ of mandamus to compel the Township defendants to enforce their ordinance. The trial court 

dismissed Counts IV and V, reasoning that the Township was within its discretion to decline to 

enforce its ordinance, and that plaintiffs therefore were not deprived of civil rights and not entitled 

to mandamus. On appeal, plaintiffs contend that the trial court erred by granting the Township 

defendants’ motion for summary disposition, contending that MCL 125.3407 requires a 

municipality to enforce its ordinances, and that plaintiffs are entitled to seek the equitable relief of 

mandamus in light of the Township’s failure to enforce its ordinance.2 

 Mandamus is properly issued only to compel officials to perform duties to which there is a 

clear legal right and no discretion. Southfield Ed Ass’n, 320 Mich App at 378. This Court in 

Southfield Ed Ass’n explained:

A writ of mandamus is an extraordinary remedy that will only be issued if (1) the 

party seeking the writ “has a clear legal right to the performance of the duty sought 

to be compelled,” (2) the defendant has a clear legal duty to perform the act 

requested, (3) the act is ministerial, that is, it does not involve discretion or 

judgment, and (4) no other legal or equitable remedy exists that might achieve the 

same result. [Id.] 

As discussed, under § 407 of the MZEA, MCL 125.3407, the use of land or a building in 

violation of a zoning ordinance is a nuisance per se. Haney, 509 Mich at 26; see also Soupal, 469 

Mich at 465. Under MCL 125.3407 “[t]he court shall order the nuisance abated.” MCL 125.3407 

further requires the legislative body to designate an official to enforce the ordinance and requires 

that official to enforce the zoning ordinance, providing in part that “[t]he legislative body shall in 

 

2 The trial court also dismissed Count VI of plaintiffs’ complaint, which sought appointment of a 

prosecutor to prosecute the abatement of the nuisance under MCL 600.3805. On appeal, plaintiffs 

do not specifically challenge the trial court’s dismissal of Count VI. 
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the zoning ordinance enacted under this act designate the proper official or officials who shall 

administer and enforce the zoning ordinance . . . .” 

In Towne, this Court reasoned that MCL 125.294, the precursor statute to MCL 125.3407, 

provided that “the township board enacting the ordinances shall administer and enforce the same 

and that the court shall order such nuisance abated.” Towne, 185 Mich App at 231-232. Similarly, 

this Court in Hass v City of Menominee, 193 Mich App 163, 164; 483 NW2d 666 (1992), 

referencing a different statutory section, former MCL 125.585(3), held that the plaintiff was 

entitled to bring an action before the city’s zoning board of appeals seeking enforcement of the 

city’s zoning ordinance against a property owner who allegedly was using his land in a manner 

beyond that authorized under an existing nonconforming use variance. Id. at 164-165. This Court 

in Hass rejected the defendant’s argument that “zoning enforcement is discretionary and a zoning 

administrator’s decision regarding such enforcement is not reviewable.” 

Municipalities, however, are granted discretion in the enforcement of their ordinances. The 

MZEA, MCL 125.3101 et seq., provides townships statutory authority to enact and enforce zoning 

ordinances “for the orderly planning of their communities.” Lyon Charter Twp v Petty, 317 Mich 

App 482, 487; 896 NW2d 477 (2016). One of the purposes of the authority to zone articulated by 

the MZEA is “to ensure that use of the land is situated in appropriate locations and relationships.” 

MCL 125.3201(1). To achieve the goals of the statutory zoning authority, “[i]t is the policy of this 

state and a goal of zoning that uses of property not conforming to municipal zoning ordinances be 

gradually eliminated.” Lyon Charter Twp, 317 Mich App at 488, quoting Jerome Twp v Melchi, 

184 Mich App 228, 231; 457 NW2d 52 (1990). However, “[w]hether and when to enforce its 

zoning ordinance to effectuate this gradual elimination is a matter within a township’s discretion.” 

Lyon Charter Twp, 317 Mich App at 488. “Decisions of a planning commission, or other similar 

local agency, concerning whether to enforce zoning ordinances are decisions which are so basic to 

the operation of a municipality that any attempt to create liability with respect thereto would 

constitute an unacceptable interference with [the municipality’s] ability to govern.” Lyon Charter 

Twp, 317 Mich App at 482 (quotation marks and citation omitted). “Absent extraordinary 

circumstances, courts will not interfere with such decisions.” Id. at 488-489 (quotation marks and 

citation omitted). 

As a result, although MCL 125.3407 provides for the enforcement of a zoning ordinance, 

a municipality has discretion in doing so and courts generally will not interfere with the 

municipality’s decisions. See, e.g., id. at 488.3 Again, “a writ of mandamus is an extraordinary 

remedy that will only be issued if (1) the party seeking the writ has a clear legal right to the 

performance of the duty sought to be compelled, (2) the defendant has a clear legal duty to perform 

the act requested, (3) the act is ministerial, that is, it does not involve discretion or judgment, and 

(4) no other legal or equitable remedy exists that might achieve the same result.” Southfield Ed 

Ass’n, 320 Mich App at 378. In sum, the Township has discretion in the enforcement of its 

 

3 We reiterate that the statute requires of the legislative body enacting a zoning ordinance that it 

designate in the ordinance “the proper official or officials who shall administer and enforce the 

zoning ordinance ....” It is these officials who are then required to enforce the ordinance in certain 

designated ways in the exercise of the municipality’s discretion. MCL 125.3407.
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ordinances, and plaintiffs’ ability to seek abatement of the nuisance per se created by the alleged 

zoning violation provides an equitable remedy to achieve enforcement of the ordinance. The trial 

court therefore did not err by determining that plaintiffs are not entitled to a writ of mandamus. 

The Township defendants also argue that they are not failing to enforce their ordinance. 

They argue that Dandy Acres is not violating the Township’s zoning ordinance, or that at least 

there is no violation that the Township can successfully enforce against Dandy Acres because the 

doctrine of laches precludes the Township from enforcing its ordinance at this late date. The trial 

court, however, did not reach the substantive issue whether the Township failed to enforce its 

ordinance. Instead, the trial court dismissed Counts IV and V of plaintiffs’ complaint against the 

Township defendants on the basis that mandamus was not an available remedy under the facts of 

this case. We conclude that the trial court did not abuse its discretion by dismissing Counts IV 

and V and denying plaintiffs’ claim for a writ of mandamus. Southfield Ed Ass’n, 320 Mich App 

at 378. 

To summarize, the trial court erred by granting the Dandy Acres defendants summary 

disposition of plaintiffs’ nuisance suit. The trial court incorrectly applied the “aggrieved party” 

test to determine that plaintiffs lacked standing. The trial court also failed to consider plaintiffs’ 

assertion that they were entitled to initiate a nuisance action under §11.04 of the Township 

ordinance. The trial court did not err, however, by dismissing Counts IV and V of plaintiffs’ 

complaint, and did not abuse its discretion by determining that plaintiffs are not entitled to a writ 

of mandamus. 

The portion of the trial court’s order granting the Dandy Acres defendants summary 

disposition of plaintiffs’ nuisance claim is vacated, and this matter is remanded to the trial court 

for reconsideration of the motion, applying the correct test for standing, and to consider whether 

plaintiffs have standing under §11.04 of the Township ordinance. The trial court’s opinion is 

affirmed in all other respects. We do not retain jurisdiction. 

/s/ Michael F. Gadola 

/s/ Mark T. Boonstra 

/s/ Allie Greenleaf Maldonado