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### STATE OF MICHIGAN

COURT OF APPEALS

DAVID HOFFMAN,

Plaintiff-Appellant, UNPUBLISHED April 21, 2015

v No. 319409

Cass Circuit Court PORTER TOWNSHIP, LC No. 12-000489-AV

Defendant-Appellee.

Before: M ETER , P.J., and S AWYER and B OONSTRA , JJ.

P ER C URIAM

.

Plaintiff appeals by right the ci rcuit court’s order affirming the decision of defendant’s Zoning Board of Appeals (“the ZBA”) to deny plaintiff’s request for a variance and dismissing plaintiff’s constitutional claims. For the reasons stated belo w, we vacate in part, reverse in part, and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff owns a small island 1 on Shavehead Lake in Porter Township. Plaintiff desires to construct a 2,348 square foot home on the island. 2 In pursuit of this desi re, plaintiff obtained various permits and authorizations from the Michigan Department of Environmental Quality (“DEQ”), the Cass County Drain Commissioner, and the Michigan D epartment of Natural Resources (“DNR”) 3 . He also sought to determine how the Porter Township Zoning O rdinance applied to his island property.

1 Defendant maintains that the “island” is more properly charact erized as a “wetland.” For ease of reference, we will for purposes of this opinion use plaintif f’s preferred term, “island.”

2 Because of the wetland qualities of the island, plaintiff prop osed to build the house entirely on pilings, elevated from the su rface of the island, with boardwal ks extending to the water’s edge.

3 At the time, the DEQ and the DNR were subsumed within the then -newly-created Michigan Department of Natural Resources and Environment. By Executive Order No. 2011-1, effective March 13, 2011, the DEQ and DNR we re again reconstituted as sep arate principal departments within the executive branch of state government.-2- In January 2011, the Township Deputy Zoning Administrator dete rmined that plaintiff’s island was “not zoned.” However, the Township Planning Commiss ion Chairman appealed that determination to the ZBA. The minutes from a subsequent meetin g of the ZBA on March 10, 2011 support that no prior zoning classification had been place d upon the island. In the interest of adhering to the ordinance’s intent to zone all property with in the township, the ZBA

considered what classificati on should apply to plaintiff’s isla nd. In so doing, the ZBA referred to Cass County parcel information for the island, assessment cards for the island, aerial photographs of the island, and the township zoning map. Notabl y, the zoning map established

different colors for different z oning districts: purple denotin g “lake residential,” light green denoting “parks, campgrounds and recreational areas,” and white denoting “agricultural,” among

others. The ZBA heard evidence that the entire shoreline of Sh avehead Lake was zoned purple—i.e., “lake residential”—with the exception of a parcel owned by Camp Freidenswald that was zoned light green—i.e., “parks, campgrounds and recrea tional areas.” According to the zoning map, plaintiff’s island a ppeared to be white—suggesting that it had been zoned “agricultural”—although it was al so suggested that the island w as merely “non-colored,” meaning that it had been given no zoning designation. The ZBA also heard evidence that an “island” created by a manmade channel on the southeastern side of the lake also was designated

with a white color and thus sim ilarly appeared to have been zon ed “agricultural,” although it also may not have been zoned at all. Finally, the ZBA heard evidenc e that if an island was less than five acres in size, even if it were zoned “agricultural,” the z oning standards would default to “rural residential” according to the ordinance. After hearing public comment, the ZBA deliberated. In its deliberations, the ZBA noted that no zonin g district would ban outright all construction or development on the island. It further noted th at agriculturally-zoned lots on less

than five acres defaulted to the “R-1” residentia l zoning stand ards, also referre d to by the ZBA as “rural residential.” The ZBA ultimately voted to reverse the d ecision of the deputy zoning administrator that the property was not zoned, to determine tha t the island was zoned, and to interpret the zoning map to determine that the property was zon ed “agricultural,” subject to the “R-1” zoning standards. Relevant to this appeal, Article 111.8 04(f) of the ordinance, governing “R-1” zoning districts, contains a requirement that the “minimu m lot width at the setback line

shall be 100 feet.” 4 Although the location of the “setback line” on plaintiff’s is land is unclear, the island was presumed not to meet this requirement, since the property was only 75 feet wide. 5

4 A “setback line” is defined in Article 111.1900 of the ordinan ce (which appears to supply definitions applicable to the ordinance as a whole) as a line “ established adjacent and parallel with streets and roads for the purpose of defining limits withi n which no building or structure or any part thereof shall be erected or permanently maintained.” As discussed later in this opinion, the seeming difficulty in applying the defined term, “setback l ine,” to an island property demonstrates the perils of attempting to apply requirements tha t appear designed for mainland development to an isolated island. Similarly, the ordinance’s definitions of the terms “lot,” “lot line,” “street,” “right-of way,” as well as the undefined term “road,” seem difficult to apply to an island property.

5 By contrast, Article 111.804(f) of the ordinance provides that “lake residential” property “platted after February 8, 2000 shall be 100 feet at the waterf ront.” The record before us-3- On April 5, 2012, plaintiff applied to the ZBA for a variance. A public meeting was held on May 24, 2012. Plaintiff presented his plans for the propose d home and the permits he had obtained. He answered questions from ZBA members, particularly with regard to concerns about emergency access to the island. Members of the community , including some who owned property on the lake, opposed plaintiff’s proposal for various reasons, including concerns about

obstructed views of the lake a nd the potential impact of runnin g a sewage line under the lake. At the close of the public hearing, the ZBA voted unanimously to d eny the variance request. The ZBA listed four reasons for the denial: (1) the lot width of 75 feet did not meet the ordinance requirement; (2) health and safety issues were unresolved; (3) allowing the variance for lot width would be financially detriment al to neighbors; and (4) neighbor s voiced opposition to building

on the island.

Plaintiff subsequently appealed the ZBA’s decision to the circ uit court, and additionally filed a four-count complaint, 6 alleging in Count I that the ZBA’s decision was not supported by competent, material, and substantial evidence, and constituted an abuse of discretion. In Count II, plaintiff alleged a substant ive due process violation. In Count III, plaintiff alleged an equal protection violation. Finally, in Count IV, plaintiff alleged an unconstitutional taking of his property. The circuit court hear d arguments with respect to Co unt I on November 5, 2012, and on November 27, 2012, issued a writt en opinion affirming the ZB A. The circuit court concluded that the ZBA’s decision was supported by sufficient evidence. In so doing, the court in part rejected plaintiff’s contention that a board member’s alleged c onflict of interest tainted the

decision. 7 Subsequently, on October 11, 2013, defendant moved the circui t court for summary disposition on plaintiff’s remaining claims. Following a heari ng on the motion, the court granted defendant’s motion. With respect to the due process and equal protection claims, the court agreed with defendant’s contention that it lacked subject matte r jurisdiction over those claims,

contains no information regardi ng whether or when the property in question was platted, or how wide the property would be measured from the waterfront, althou gh the parties agree that the island is 75 feet wide (measured west to east) and it appears f rom a topographical survey in the

record that the island is subs tantially more than 100 feet long (measured north to south). Article 111.804 of the ordinance also sets forth requirements f or the front yard, side yard, rear yard, and minimum lot size of “la ke residential” properties, so me of which vary depending on when the property was platted. We express no opinion regarding whether plaintiff’s island would satisfy the ordinance requirements applicable to a “lake residential” property or a property of any other zoning district.

6 Pursuant to MCR 7.122(A)(1), the circuit court has jurisdictio n over appeals from zoning ordinance determinations, including by a zoning board of appeal s. Further, that rule “does not restrict the right of a party to bring a complaint for relief r elating to a determination under a zoning ordinance.” MCL 7.122(A)(2).

7 We express no opinion regarding w hether the ZBA member in ques tion had a conflict of interest. We take note, however , of the Zoning Board of Appeal s Handbook, published by the Michigan Municipal League, which states, “You may also consider the possibility of declaring a conflict of interest if your hom e falls within a notification r adius used by your community for zoning board of appeals’ acti ons.” See www.mml.org/pdf/zbabook .pdf, § 17 (accessed March 31, 2015).-4- and therefore dismissed them under MCR 2.116(C)(4). With respe ct to the takings claim, the court agreed that plaintiff had failed to create a genuine issu e of fact, and therefore dismissed the claim under MCR 2.116(C)(10). This appeal followed.

II. DUE PROCESS AND EQUAL PROTECTION CLAIMS

Because we find our resolution of plaintiff’s due process and equal protection claims to be dispositive, we address them first. We review constitutiona l questions de novo. Risko v Grand Haven Charter Twp Zoning Bd of Appeals , 284 Mich App 453, 459; 773 NW2d 730 (2009).

A. CIRCUIT COURT’S JURISDICTION

Plaintiff first argues that the circuit court erred in dismiss ing his due process and equal protection claims pursuant to MCR 2.116(C)(4). We agree. Unde r the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq., administrative decis ions of a zoning board of appeals are final, subject to appeal in the circuit court. MCL 125.3605. A circuit court does not have jurisdiction to hear an appeal if it is not timely filed. Krohn v Saginaw , 175 Mich App 193, 196; 437 NW2d 260 (1988). In this case, plaintiff timely appea led the ZBA’s May 24, 2012 denial of his variance request to the circuit court within 21 d ays of the ZBA approving the minutes of its public meeting. MCL 125.3606(3)(b). Accordingl y, the circuit court had proper subject matter jurisdiction over plaintiff’s appeal and related claim contesting the 2012 ZBA

decision. Krohn , 175 Mich App at 196-198.

We further hold that the circu it court had proper subject matt er jurisdiction over plaintiff’s constitutional claims. Those claims relate in part to the ZBA’s Ma y 24, 2012 denial of plaintiff’s variance request, and to that extent clearly are al so timely. But they also relate in part to the ZBA’s underlying March 10, 2011 decision that plaintiff’ s island was zoned agricultural,

and on that basis defendant contends that the claims were not t imely appealed, and that the circuit court thus lacks subject matter jurisdiction. We disag ree. Based on the record before us, it appears that the 2011 ZBA determination may have been a deci sion regarding zoning or rezoning, which is legislative, ra ther than administrative, in nature. Sun Communities v Leroy Twp , 241 Mich App at 665, 669-671; 617 NW2d 42 (2000). 8 In that event, plaintiff had no duty to appeal that decision. Id . at 672 (“[t]here is no author ity that requires a party to pur sue an appeal to challenge the constitutionality of a legislative act of rezoning”). In fact, had plaintiff attempted to immediately challenge the ZBA’s 2011 decision with out first seeking a variance, the challenge would not have been ripe for review. See Paragon Prop Co v Novi , 452 Mich 568,

8 As discussed in this opinion, the record suggests that, by its 2011 decision that the island should be zoned “agricultural,” the ZBA may have overstepped it s administrative authority and usurped the legislative authority of the township board. See M CL 125.3201; MCL 125.3202. On remand, the circuit court should explore the propriety of th e 2011 ZBA decision, in light of the deputy zoning administrator’s determination that the island had never been zoned, and the apparent absence of any record of any action by the township bo ard, acting in its legislative capacity, to zone the isla nd in the first instance.-5- 579-582 and n. 15; 550 NW2d 772 (1996) (“neither a . . . decisi on to rezone land nor a [ZBA] decision to grant a variance is relevant to the constitutionali ty or unconstitutionality of an ordinance’s provisions”). Inste ad, plaintiff would have been c onfined to first seeking relief in the form of a variance; once that request was denied, “relief i n the form of an appeal to the circuit court” was authorized by statute. Id . at 581. See MCL 125.3606. Thus, the circuit court erred in dismissing plaintiff’s due process and equal protectio n claims under MCR 2.116(C)(4). 9

B. ANALYSIS

To prevail on a substantive due process claim regarding zoning ordinances, the claimant must prove either “(1) that there is no reasonable governmental interest being advanced by the present zoning classification or (2) that an ordinance is unrea sonable because of the purely arbitrary, capricious, and unfounde d exclusion of other types o f legitimate land use from the area in question.” Frericks v Highland Twp , 228 Mich App 575, 594; 579 NW2d 441 (1998). The zoning classification is presumed to be valid. Id

.

“The equal protection clauses of the Michigan and United State s constitutions provide that no person shall be denied the equal protection of the law. ” Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp , 486 Mich 311, 318; 783 NW2d 695 (2010), cert den __ US __; 13 1 S Ct 928; 178 L Ed 2d 752 (2011). See also US Const, Am XIV; Con st 1963, art 1, § 2. “The Equal Protection Clause requires that all persons similarly sit uated be treated alike under the

law.” Shepherd Montessori Ctr Milan , 486 Mich at 318. “[U]nless the dissimilar treatment alleged impinges on the exercise of a fundamental right or targ ets such protected classifications as those based on race or gender, the challenged regulatory sch eme will survive equal protection analysis if it is rationally rel ated to a legitimate government al interest.” Risko , 284 Mich App at 465 (internal quotations and citation omitted). “The party rai sing the equal prot ection challenge has the burden of proving that th e challenged law is arbitrary and thus irrational.” Id . (internal quotations and citation omitted). Plaintiff does not contend that he is a member of a protected class or that the zoning of his property or the ZBA’s decisions infringed upon a fundamental right. Accordingly, plaintiff’s e qual protection claim is subj ect to rational basis review.

9 We recognize that the MZEA was not in effect at the time of th e decisions in Sun Communities

and Paragon Prop . However, although the Court in Sun Communities properly recognized that “the only provision in the [then-applicable Township Zoning Act , MCL 125.271 et seq., prior to repeal by 110 PA 2006] providing f or a direct appeal to the cir cuit court is MCL § 125.293a . . ., which authorizes a direct appeal made by a zoning board of appe als,” Sun Communities , 241 Mich App at 670, the City and Village Zoning Act that was appli cable at the time of Paragon Prop did authorize an appeal to circuit court from a decision of th e legislative body of a city or village. See MCL 125.590, prior to repeal by 110 PA 2006. The Court nonetheless held that an immediate appeal was not required. Moreover, we are persuaded by those decisions that constitutional claims need not be raised immediately upon legis lative action. In any event, we find that the seeming irregularityof legislative action arguab ly being taken by the ZBA, rather than the township board, requires that plaintiff’s constitution al claims be considered.-6- Plaintiff’s due process claim a ppears to relate both to the ZB A’s 2012 denial of his variance request and the ZBA’s 2011 determination that the zoni ng of his property is “agricultural.” Plaintiff argue s that the 2011 decision of the ZBA was unreasonable because most of the surrounding property is zoned “lake residential” an d there is no “agricultural” property on the lake. Regarding his equal protection claim, pl aintiff argues that the zoning of his property as “agricultural” and the ZBA’s denial of a variance w as a result of him being “singled

out” as a “class of one.” The U nited States Supreme Court has recognized such “class of one”

claims. Willowbrook v Olech , 528 US 562, 564; 120 S Ct 1073; 145 L Ed 2d 1060 (2000). “A ‘class of one’ may initiate an equal protection claim by allegi ng that he or she ‘has been intentionally treated differently from others similarly situate d and that there is no rational basis

for the difference in treatment.’ ” Lima Twp v Bateson , 302 Mich App 483, 503; 838 NW2d 898 (2013), quoting Willowbrook , 528 US at 564.

The available evidence from the March 10, 2011 ZBA meeting 10 suggests that plaintiff’s island had never before been zoned, and that indeed was the det ermination of the deputy zoning

administrator. In the interest o f adhering to the ordinance’s intent to zone all property within the township, the ZBA considered wha t zoning classification should apply to plaintiff’s island. In so doing, the ZBA referred to Cass County parcel information for t he island, assessment cards for the island, aerial photographs of the island, and the township zoning map, which revealed that none of the property around the lake was zoned “agricultural” a nd most of it was zoned “lake residential,” but also revealed that one other island property was arguably (because of its “white” coloration on the zoning map) z oned “agricultural.” The ZBA no ted the fact that, because of the size of plaintiff’s island, the h eight and width requirements w ould, if the property were zoned “agricultural,” default to “rural residential” according to the ordinances. The ZBA proceeded to reverse the determination of the deputy zoning administrator th at the property was “not zoned,” and instead determined that it was zoned “agricultural.” The Z BA’s subsequent decision in 2012 to deny plaintiff’s requested variance was premised on the ZBA’ s 2011 decision establishing the property’s zoning classification as “agricultural.”

The MZEA does not authorize a ZBA to make zoning determination s, and a ZBA therefore is not empowered to de cide in what zoning district a particular piece of property should be placed in the first instance, or whether a property should b e rezoned. Rather, as stated earlier, decisions regarding zoning and re zoning are legislative, rather than administrative, in nature.

Sun Communities , 241 Mich App at 665. Moreover, the MZEA expressly authorizes local units of government to make zoning deci sions by way of zoning ordinan ces, MCL 125.3201, and places the authority to adopt such zoning ordinances in the leg islative body of a local government. MCL 125.3202. The “legislative body” of a townshi p is defined as its board of trustees.” MCL 125.3102(n). The township board is authorized to appoint a zoning

commission 11 to formulate a zoning ordinance, MCL 125.3211, and the zoning commission is

10 The record on appeal includes the minutes of the March 10, 201 1 ZBA meeting, but does not include a transcript of that meeting.

11 In certain circumstances, a township planning commission may e xercise the authority of a zoning commission. MCL 125.3102(v); MCL 125.3301. It is uncle ar from defendant’s-7- directed to hold at least one public hearing, MCL 125.3306, and to adopt and file with the township board its recommendations for a zoning plan, for the e stablishment of boundaries of zoning districts, and for the text of a zoning ordinance. MCL 125.3305. It is then the obligation of the township board to consider and vote upon the adoption of a zoning ordinance. MCL 125.3401(5). It is not apparent from the record that any o f that occurred relative to plaintiff’s property. By contra st, a ZBA is authorized under t he MZEA to “hear and decide questions that arise in the administration of the zoning maps, including the inte rpretation of the zoning maps,” as well as to grant variances. See MCL 125.3603. It also is authorized to “hear and decide appeals from and revi ew any administrative order, re quirement, decision, or determination made by an administrative official or body charge d with enforcement of a zoning ordinance adopted under this act.” Id

.

Presumably, it is pursuant to the latter authority that the ZB A in this case decided in 2011

to reverse the decision of the d eputy zoning administrator that the property was “not zoned,” and decided instead that the property “is zoned” and “interpret[ed] the zoning map to determine that the property is zoned AG” (and phrased its 2011 board minutes i n that manner). However, in light of the fact that the circui t court did not consider plain tiff’s constitutional claims, and that the record before this Court contains only the minutes of the 2 011 ZBA meeting (and not the transcript of that meeting), we are unable to conclusively dete rmine from the current record

whether the ZBA’s decision was in fact an “interpretation” of t he map, as the phrasing of the meeting minutes suggest, or whether the ZBA in fact made an ini tial zoning decision (or a rezoning decision) regarding th e property in question, in exces s of the authority granted to it

under the ordinance and the MZEA.

Our concerns in that regard are heightened by the following ad ditional considerations. First, it is apparent from the 2011 ZBA meeting minutes alone t hat the ZBA apparently felt obliged to “zone” the property because the zoning ordinance ref lects an intent to zone all property. However, any failure of the township board, as the t ownship’s legislative body, to zone a particular piece of property, notwithstanding an intent to zone all property, does not empower the ZBA to take upon itself the responsibility of zonin g an unzoned property. That obligation remains that of the township board. Second, the ZBA appears to have done more than simply interpreting a then-existing zoning map. Rather, it con sidered assessment cards and aerial photographs, and entertained argument regarding the wetl and characteristics of the island, fluctuations of lake level, eco logical and habitat consideratio ns, potential adverse effects (including on visibility from neighboring properties and on sub -surface water resources), public sentiment against construction on the island, whether emergency vehicles would have access to the property, how the property “should be” zoned, and entreatie s to “zone” the property

“unbuildable.” While those factor s may be valid considerations , by a legislative body, in determining how a property should be zoned, or by a ZBA in dete rmining whether a variance

ordinances whether defendant’s planning commission is authorize d to exercise, or is exercising, the authority of a zoning commission; the ordinance establishin g the powers of defendant’s planning commission does not explicitly reference zoning but pr ovides that the planning commission has the authority to “ make, amend and adopt a basic plan as a guide for the development of unincorporated portions of the township” and sub mit such a plan to the Cass County Planning Commission.-8- from zoning should be granted, they are not proper consideratio ns in determining from an existing zoning map whether and how a property is in fact zoned , or whether a zoning

administrator erred in determini ng, following his own investiga tion and analysis, that the property was “not zoned.”

Finally, and while not a part of the record on appeal, 12 we take note of the current Porter Township Zoning Map, adopted January 10, 2012—after the ZBA’s M arch 10, 2011 meeting. At that 2011 meeting, the appealing township planning commissio n chairman described that the island “appeared to him to be white” on the then-existing zonin g map. However, the current and apparently subsequently adopted m ap depicts plaintiff’s island as blue in color, identically with the coloring of the lake that surrounds it, not white, as was r epresented at the 2011 meeting (and as purportedly was the basis for the ZBA’s decision to zone the property “agricultural”). See http://portertownship.org/ zoningmap130726.pdf (accessed March 3 1, 2015). This raises many questions regarding whether the z oning ordinance was amended af ter the 2011 ZBA meeting, whether it was amended by the legislative body or by the ZBA, w hether the zoning specifically of plaintiff’s island was changed after the 2011 ZBA meeting, 13 whether the 2011 decision of the ZBA (as well as the subsequent 2012 decision of the ZBA to deny plaintiff’s request for variance, being premised on the applicability of the “agricultu ral” zoning classification adopted by the ZBA in 2011), remains eff ective, and the meaning of the blue lake-like coloration of the island on the current zoning map, which color does not appear i n the map’s zoning legend. The

circuit court should consider a ll of these issues on remand.

Further, if plaintiff’s property is in fact zoned “agricultura l” (as defendant contends, but the current zoning map appears to refute), or has now been othe rwise zoned (perhaps as “unbuildable”), plaintiff should be allowed to present argument that such a classification is arbitrary and capricious and not r ationally related to a legiti mate government interest. Lima Twp

, 302 Mich App at 503; Frericks v Highland Twp , 228 Mich App at 594. 14 We therefore conclude

that the best course of action is to remand for consideration o f plaintiff’s due process and equal protection claims by the circuit co urt in the first instance.

C. CONCLUSION

In light of the circuit court’ s erroneous determination that i t lacked jurisdiction over plaintiff’s due process and equa l protection claims, we remand for the circuit court to consider

12 This Court may take judicial notice of a fact that is “not sub ject to reasonable dispute” and may take such notice whether or not requested by a party. MRE 201; Hetrick v Friedman , 237 Mich App 264, 269; 602 NW2d 603 (1999).

13 The current zoning map reflects that, unlike plaintiff’s islan d, the other referenced island continues to be depicted w ith a white coloration.

14 In considering any such argumen ts, the circuit court should, o n remand, assess the ordinance definitions discussed earlier in this opinion, in the context o f an “agricultural” or other zoning classification, to determine whether such a classification is arbitrary and capricious as applied to an island property.-9- those claims on their merits. We therefore reverse the circuit court’s November 14, 2013 order granting summary disposition to defendants on Counts II and III of plaintiff’s complaint.

Because the ZBA’s 2012 decision denying plaintiff a variance, and the circuit court’s review of that decision, were pr emised on the property’s 2011 “ agricultural” zoning designation,

we also vacate the ZBA’s decisi on and the circui t court’s Novem ber 27, 2012 order affirming the ZBA’s decision. Because we do so, the portion of the circuit c ourt’s order regarding plaintiff’s claim for regulatory taking becomes moot, and we likewise vacat e that portion.

Vacated in part, reversed in part, and remanded for further pr oceedings consistent with this opinion. We do not ret ain jurisdiction.

/s/ Patrick M. Meter /s/ David H. Sawyer

/s/ Mark T. Boonstra