Schweihofer v. Zachary , 103 Mich. App. 792 ( 1981 )

103 Mich. App. 792 (1981) 303 N.W.2d 896

SCHWEIHOFER
v.
ZACHARY

Docket No. 45601.

Michigan Court of Appeals.

Decided February 18, 1981.

Bush, Luce, Henderson & Bankson, for plaintiff.

Schlussel, Lifton, Simon, Rands, Kaufman, Lesinski & Jackier (by T. John Lesinski and Douglas E. Busbey), for defendants Norman G. Zachary and Sue Ann Zachary.

Before: DANHOF, C.J., and M.J. KELLY and D.L. SULLIVAN,^[*] JJ.

PER CURIAM.

This appeal concerns an application for a special use permit to allow a trap-shooting range to be constructed on approximately 53 acres of land originally owned by plaintiff Schweihofer and now belonging to plaintiff Van Maele Rod and Gun Club. The numerous issues raised by the parties will be considered seriatim.

I

Intervening defendants argue that the trial court erred in not referring this matter to the township planning commission for the purpose of providing the Board of Zoning Appeals with a written recommendation. The applicable St. Clair Township zoning ordinance allows the Board of Zoning Appeals to permit the use of land for gun club operation only after several conditions are met. Ord. No. 8, § 7.03, 2, b. The board may only act on such matters "after a written recommendation is prepared and filed" with the board by the township planning commission. Ord. No. 8, § 16.06b. After the initial planning commission meeting held on June 9, 1975, the application was referred to the Board of Zoning Appeals without recommendation.^[1] Later, on August 11, 1975, the commission amended the minutes of its prior meeting so as to reflect an affirmative recommendation to the board.^[2] Appellants appear to ignore this amendment by claiming that the Board of Zoning Appeals acted without written recommendation. That is simply not accurate. The recommendation of August 11, 1975, was never set aside, revoked, or effectively superseded.

On September 8, 1975, the planning commission again considered the matter and suggested a denial of the application, directly contrary to its prior written recommendation. That action triggered this lawsuit. The plaintiffs filed suit in the St. Clair County Circuit Court and secured an order setting aside the negative recommendation of the planning commission. Thereafter, that court issued another order compelling the special use permit to be granted by the Board of Zoning Appeals. On August 11, 1977, in an unpublished per curiam opinion, this Court reversed the lower court's decision and remanded the matter for further proceedings. On remand, the trial court did not compel additional review by the planning commission but simply referred the matter to the Board of Zoning Appeals. Intervening defendants assail that action on the ground that there was no written recommendation upon which the board could then act. We do not agree. Review of the record indicates that an existing written recommendation was previously forwarded by the planning commission. At its regularly-conducted meeting held on June 9, 1975, the planning commission referred the matter to the Board of Zoning Appeals. Recognizing its failure to adopt a decisive position, the planning commission amended the June 9, 1975, minutes to reflect an affirmative recommendation to the board. It is entirely consistent with this Court's prior disposition of the matter to conclude that the written-recommendation requirement had been met. In our earlier opinion, we noted that the trial court "could have required the board of zoning appeals to make a decision on the application". Therefore, it was not improper for the township Board of Zoning Appeals to act on the application upon remand. No error requiring reversal occurred in referring the matter to the board.

II

The second issue raised on appeal is the propriety of the lower court's action upon remand. Subsequent to this Court's decision, the trial judge ordered the Board of Zoning Appeals to conduct public hearings on the matter, which were held. Subsequent to the hearings, the board filed its written findings on January 23, 1978. On February 16, 1978, plaintiffs filed a supplemental complaint and a motion for an order to show cause, alleging that the board had failed to vote in finality on the application. Intervening defendants contend that the lower court improperly acted on the pleadings since they allegedly constituted an untimely appeal from the board's decision. In support of their position, intervening defendants cite Villa v Fraser Civil Service Comm, 57 Mich. App. 754; 226 NW2d 718 (1975). The Court in Villa found that GCR 1963, 701-706 provide the appropriate procedure for "appeals from municipal agencies to circuit court". Id., 759.

Reference to GCR 1963, 701.2(a) indicates that the appropriate time for taking an appeal is within 20 days after the entry of the final decision appealed from. Classification of the proceedings below as an appeal would render the action invalid. However, construing the proceedings as an appeal would exalt form over substance. Although the trial court did not expressly retain jurisdiction in its order for further proceedings, it possessed the power to ensure action on the application. By the terms of that order, the board was to issue a written decision and transmit the same forthwith to the parties and to the Court. While jurisdiction is not to be presumed in the absence of facts and a record which establishes it, Gould v Jacobson, 58 Mich. 288; 25 N.W. 194 (1885), a presumption exists which supports judicial action. Lymburner v Jenkinson, 50 Mich. 488; 15 N.W. 562 (1883). The function of the trial court cannot be said to have exceeded its jurisdictional scope. Cf. Kenny v Village of Novi, 377 Mich. 476; 141 NW2d 56 (1966).

III

In their third issue, appellants contest the qualifications of board members Schweihofer and Decker with regard to their votes on the application. Appellants claim that member Schweihofer was legally precluded from voting since he was related to the petitioner, that member Schweihofer exhibited actual bias in the proceedings, and that members Schweihofer and Decker took no oath upon commencement of their term of office.

Board member Fred Schweihofer and plaintiff Joseph Schweihofer are related in the third degree of consanguinity; Fred Schweihofer is the plaintiff's uncle. Review of the record indicates that, after extensive deliberation, Fred Schweihofer concluded that he was able to render an impartial and unbiased decision on the matter. His blood relationship does not invoke the judicial-disqualification criteria of GCR 1963, 912.2(5), formerly GCR 1963, 405.1(4). Our review of the record finds no support for intervening defendants-appellants' claims that suspicions are cast on the part of the litigants and the public that subjectivity, bias, and partiality contributed to the outcome of the dispute. Warren Consolidated Schools v Employment Relations Comm, 67 Mich. App. 58; 240 NW2d 265 (1976). The lower court's finding that there existed no basis for the allegation of actual bias is supported by the record.

Intervening defendants' contention regarding the validity of office held by members Decker and Schweihofer is not well taken. The affidavit of the St. Clair Township Clerk refutes this contention with regard to member Decker. The oath of office certificate executed by member Schweihofer on September 3, 1975, validated his activity at all times pertinent. MCL 168.362; MSA 6.1362.

IV

Appellants' claim of inadequate compliance with the requirements of the township zoning ordinance is without foundation. In the original proceedings on this matter, all parties agreed that the 66-foot wide easement satisfactorily complied with the ordinance requirement. The 120-foot width requirement, referred to by intervening defendants, was removed from the ordinance prior to the filing of the present application. The record clearly indicates that access to the parcels was afforded "directly from a public road" and therefore complied with the township ordinance. Finally, Ord. No. 8, § 16.08, authorizes the board to impose additional "conditions or limitations" as deemed necessary. Review of the board action below leads us to conclude that there was no abuse of discretion in granting the special use permit and imposing the special restrictions on such use. Quigley v Dexter Twp, 390 Mich. 707, 710; 213 NW2d 166 (1973).

V

Appellants' claim with regard to Ord. No. 33 is not well taken. By the terms of that ordinance, the Board of Zoning Appeals had no authority to enforce it. Therefore, refusal of the board to consider that ordinance when approving the special use permit was not error. Ord. No. 33 may be enforceable against the plaintiff gun club in subsequent proceedings instituted by the person charged with its enforcement, the township supervisor. A grant of the special use permit by the Board of Zoning Appeals was not improper.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] The June 9, 1975, Planning Commission meeting minutes subscribed by the secretary on June 11, 1975, included the following:

"Motion by Mr. Likens that the application by Mr. Salriatore [sic] president of the Van Meale [sic] Rod & Gun Club be forwarded to the Board of Zoning Appeals for action as provided in Zoning Ordinance § 7.03, 2, b and that a notice of the Board of Zoning Appeals hearing be published in a local newspaper."

[2] The minutes of the August 11, 1975, Planning Commission meeting regarding this item are quoted in full:

"Minutes of July 14, 1975 meeting were read. Item #1 of those minutes concerned minutes of the June 9, 1975 meeting to which the following correction was to have been made: "`6 — Mr. Hal Hoover requested approval of plans for location of a proposed gun club and private access road on properties Q436 and Q437. Mr. Hoover, Mr. Joseph Schweihoffer [sic] and Mr. John Salriatare [sic] displayed a drawing of the proposed club facility. Motion by Mr. Likens that the application by Mr. Salriatare [sic], president of the Van Meale [sic] Rod and Gun Club be forwarded and recommended for adoption by the Board of Zoning Appeals as provided for in Zoning Ordinance, § 703, 2, b and that a notice of the Board of Zoning Appeals hearing be published in a local newspaper. Seconded by Mr. Skonieczny. Ayes: Barshaw, DeWald, Eisen, Godwin, Haas, Likens, Skonieczny and Tabor. Nays: None. Motion Carried.'"