Schlega v. Detroit Board of Zoning Appeals , 147 Mich. App. 79 ( 1985 )

147 Mich. App. 79 (1985) 382 N.W.2d 737

SCHLEGA
v.
DETROIT BOARD OF ZONING APPEALS

Docket No. 76145.

Michigan Court of Appeals.

Decided September 10, 1985.

Daria N. Schlega, for plaintiff.

Donald Pailen, Corporation Counsel, Abigail Elias, Deputy Corporation Counsel, and Joseph N. Baltimore and Toni S. Wingate, Assistants Corporation Counsel, for defendant.

Before: BEASLEY, P.J., and J.H. GILLIS and M.J. KELLY, JJ.

PER CURIAM.

Valentin Schlega (hereinafter referred to as plaintiff) appeals as of right from an accelerated judgment dismissing his appeal under the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq., from a decision of the Detroit Board of Zoning Appeals. The court ruled that plaintiff's appeal was untimely because the claim of appeal had not been filed by the plaintiff within 20 days after entry of the order by the board, as required under the General Court Rules. GCR 1963, 701-706 (now MCR 7.101-7.105). The court rejected plaintiff's argument that the 60-day filing requirement found in the Administrative Procedures Act (APA) was applicable to appeals from decisions by the Detroit Zoning Board of Appeals. We affirm.

The plaintiff's argument is without merit. Plaintiff incorrectly assumes that the Detroit Zoning Board of Appeals is a state administrative agency. In fact, the board is a municipal administrative agency and the terms of the APA simply do not apply. Detroit v General Foods Corp, 39 Mich. App. 180, 185-186; 197 NW2d 315 (1972); Villa v Fraser Civil Service Comm, 57 Mich. App. 754, 757-758; 226 NW2d 718 (1975). The title of the APA clearly refers only to state departments, bureaus, divisions, boards or commissions, MCL 24.203(2); MSA 3.560(103)(2); Hanselman v Wayne County Concealed Weapon Licensing Bd. 419 Mich. 168; 351 NW2d 544 (1984), and the fact that a local board is authorized by a state statute does not make that board a state board for purposes of the APA.

Therefore, the procedures for perfecting an appeal from a municipal zoning board are set out in the General Court Rules. In Villa v Fraser Civil Service Comm, supra, this Court discussed the issue of the proper appeal procedure from a municipal administrative agency and concluded:

"Where the law provides the right to such an appeal, it should also provide a procedure for the appeal. Indeed, GCR 1963, 11 indicates the existence of a flexibility in the court rules which allows their application in this case. Rule 11.1 indicates that all civil practice in the circuit courts is governed by the rules. Thus the rules must govern every allowable civil appeal to the circuit court. Rules 701 through 706 are clearly appropriate to appeals from municipal agencies to circuit court and, as such, they are applicable to this case." Id., p 759.

The trial court did not err when it ruled that plaintiff's appeal was untimely. Under GCR 1963, 701, plaintiff was required to file a claim of appeal within 20 days after the board's decision. Because the plaintiff failed to do so in this case, the trial court properly dismissed his appeal.

Plaintiff argues that, even if he did use the incorrect appeal procedure, the court should not have dismissed his appeal because the board suffered no prejudice due to the late appeal. Plaintiff's argument is without merit. The failure to file a timely claim of appeal deprives the circuit court of jurisdiction to hear the appeal. Shippey v Madison District Public Schools, 55 Mich. App. 663, 667; 223 NW2d 116 (1974). Plaintiff should have filed a delayed application for leave to appeal. GCR 1963, 701.1(c). Had a delayed application been made, the decision of whether to hear the appeal would have been discretionary with the trial court. However, because no such application was made, plaintiff's claim of no prejudice cannot be reviewed by this Court.

Affirmed.