Polkton Charter Twp. v. Pellegrom

693 N.W.2d 170

265 Mich. App. 88

POLKTON CHARTER TOWNSHIP, Plaintiff-Counterdefendant/Appellant, v. Rick PELLEGROM, Defendant-Counterplaintiff/Appellee.

Docket No. 248935.

Court of Appeals of Michigan.

Submitted November 16, 2004, at Grand Rapids.

Released for Publication March 17, 2005.

Decided February 3, 2005, at 9:00 a.m Mika Meyers Beckett & Jones PLC (by Ross A. Leisman and Ronald M. Redick), Grand Rapids, for the plaintiff.

Charron & Hanisch, P.L.C. (by David W. Charron), Grand Rapids, for the defendant.

Before: WHITBECK, C.J., JANSEN and BANDSTRA, JJ.

JANSEN, J.

Plaintiff/counterdefendant Polkton Charter Township appeals by leave granted a circuit court opinion and order reversing a Polkton Charter Township Zoning Board of Appeals (hereinafter ZBA) decision and requiring that the ZBA issue defendant/counterplaintiff Rick Pellegrom a special permit to create an outdoor pond. On appeal, plaintiff argues that the circuit court ignored the plain language of the zoning ordinance, relied on case law that has been statutorily overruled, did not have subject-matter jurisdiction, and improperly shifted the burden of proof to the ZBA. We affirm.

I

Defendant owns approximately 31.18 acres of land in Polkton Township. About April 29, 2002, defendant filed an application for a special land use permit with the ZBA for the purposes of extracting soil from the property to build a pond and developing walkout waterfront lots. In a land division application, defendant proposed a division for new residential parcels. On June 18, 2002, plaintiff filed a complaint with the circuit court alleging that: (1) defendant was establishing a planned unit development without receiving permits; (2) defendant continued to work after a stop-work order was issued and posted; and (3) defendant removed soil and created a pond without a permit. On July 9, 2002, the ZBA denied defendant's application for a special use permit to build the pond and to extract the soil. On August 7, 2002, defendant filed a counterclaim alleging that plaintiff violated the Michigan Land Division Act, MCL 560.101 et seq., because it failed to give written notice of the reasons why three parcels were not approved for division, and defendant claimed an appeal from the ZBA decision because the ZBA denied defendant's application for a special land use permit without explanation. The parties stipulated that the case, as it relates to the ZBA decision, would be remanded for a hearing to create a record and so the ZBA could give its reasons for denying defendant's request. The circuit court entered an order reflecting the parties' stipulation.

The hearing on remand was conducted before the ZBA to make a record with regard to whether defendant should be granted a permit to create an outdoor pond on his property pursuant to Polkton Charter Township Zoning Ordinance § 4.26¹ and could remove soil from the property under § 4.27. Upon being questioned by ZBA members, defendant stated that he bought the property with the intention of putting a pond on it because he enjoyed ponds, wanted to sell 26,000 yards of the soil, wanted to create walkout lots for when the planned unit development was approved, and that the pond added beauty to the property. Defendant also stated that he would surround the proposed pond area with a four-foot high galvanized fence. Several ZBA members raised the concern that there might be a problem with stagnant water, § 4.26(A)(4), which could be a public health hazard under § 4.26(C). Defendant indicated there would be an aeration device so that the water would not be stagnant and become a breeding ground for nuisance insects (which the ZBA members seemed to agree would cure or prevent stagnation problems). A motion was read to approve defendant's request for special use of the land pursuant to § 4.26. ZBA member Robert Van Dongen indicated that he believed that defendant's real motivation was to sell the soil. ZBA member Ronald Reiffer stated that defendant had a bad track record, started without a permit, continued after the cease-work order, and he thought defendant just wanted to sell the soil. Member William Courtade stated that the permit should be denied under § 4.26(A) and (B) because of the potential for stagnant water. ZBA member Dan Ven Roy stated that he agreed with the board, in particular member Reiffer, and believed that the true purpose of defendant's request was to sell the soil. ZBA Chairman John Steenstra also indicated that his decision was made because he thought plaintiff only wanted to sell the soil. The entire ZBA voted against granting the permit.

On March 5, 2003, defendant filed a motion for summary disposition on plaintiff's complaint and on his counterclaim asking that the trial court: (1) reverse the denial of the land division application and declare that defendant's property qualifies for the division under the Land Division Act;² and (2) reverse the denial of defendant's request for a special land use permit for the purpose of erecting a pond on his property and removing a portion of the soil because the ZBA denial was not justified.

A hearing was conducted on defendant's motion, and defendant argued that the ZBA review was a popularity contest, and he was not liked because he began work before obtaining a permit, so the ZBA put obstacles in his way. Plaintiff only responded that the ZBA decision was supported by substantial, material, and competent evidence on the record. The circuit court entered an opinion and order, in which it found that the decision of the ZBA denying the special use permit was not supported by competent, material, and substantial evidence on the record and constituted a "questionably reasonable exercise of discretion granted by law to the zoning board of appeals." The circuit court reviewed the ZBA's decision pursuant to MCL 125.293a, and, specifically, found that: (1) defendant's proposal complied with the location standards and was not close to adjacent properties (§ 4.26[A]), (2) the ZBA members' opinion was that defendant only wanted the pond for the soil, but no evidence was offered to support this opinion and nothing supported the notion that selling the soil would be unlawful or improper, thus, defendant's proposal complied with the purpose standard and the ZBA's speculation was not supported by competent, material, or substantial evidence (§ 4.26[A]), (3) defendant's proposal complied with the character, nature, and size standards (§ 4.26[A] and [E]), (4) defendant's proposal included an aeration device, and the ZBA appeared to concede this would alleviate the concerns about stagnant water, thus, defendant's proposal complied with this standard (§ 4.26[A] and [C]), (5) no evidence was presented that defendant's pond would adversely affect the wells of adjoining property, thus, defendant's proposal was consistent with the standard (§ 4.26[A] and [F]), (6) it was not unreasonable for the ZBA to determine that the protection and safety of the neighbors and general public required that the pond be enclosed by a fence (§ 4.26[B]), (7) no evidence was presented to show that the pond would constitute a public health hazard, thus, defendant's proposal was not inconsistent with this standard (§ 4.26[C]), and (8) defendant's proposal complies with the discharge pipe, slope, and erosion standards (§ 4.26[D]).

The circuit court further opined that: (1) there appeared to be an attitude or predisposition to reach a particular decision and an inability to exercise objective reasoning by the ZBA, (2) ZBA members applied an improper criterion in considering whether to grant the permit, and (3) at least three ZBA members based their decision on defendant's bad track record, rather than giving defendant full and fair consideration. For the above reasons, the circuit court reversed the ZBA decision and ordered the ZBA to issue defendant a special permit to create an outdoor pond and aow him to remove soil from the premises as long as he complied with his plan specifications, included an aeration device, and enclosed the pond with a chain link fence that is not less than four feet high.

II

Plaintiff's first issue on appeal is that the circuit court ignored the plain language of the zoning ordinance by failing to apply the discretionary general criteria for the evaluation of all special land uses. We find that plaintiff has failed to properly preserve this issue.

Plaintiff argues that the circuit court erred when it failed to consider whether the discretionary special land use criteria found in Polkton Charter Township Zoning Ordinance § 21.05(A) had been satisfied by defendant. What plaintiff neglects to point out, however, is that the ZBA did not consider these criteria when deciding whether to grant the application for the pond permit. Instead, it limited its decision-making process to consideration of the criteria found in § 4.26 of plaintiff's ordinance, which specifically sets forth the criteria for granting a special use permit for pond excavation, as directed by plaintiff's counsel at the hearing on remand. Plaintiff did not argue before the ZBA or the circuit court that either the ZBA or the circuit court was required to consider the criteria found in § 21.05(A).

Generally, an issue is not properly preserved if it is not raised before, addressed, or decided by the circuit court or administrative tribunal. See Town & Country Dodge v. Dep't of Treasury, 420 Mich. 226, 228 n. 1, 362 N.W.2d 618 (1984); Brown v. Loveman, 260 Mich.App. 576, 599, 680 N.W.2d 432 (2004); Alford v. Pollution Control Industries of America, 222 Mich.App. 693, 699, 565 N.W.2d 9 (1997). We need not address issues first raised on appeal. Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents, 444 Mich. 211, 234, 507 N.W.2d 422 (1993); Higgins Lake Property Owners Ass'n v. Gerrish Twp., 255 Mich.App. 83, 117, 662 N.W.2d 387 (2003). But this Court may disregard the issue preservation requirements and...