Matthew Frentz v. City of Petoskey Zoning Board of Appeals ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MATTHEW FRENTZ and KATIE FRENTZ, UNPUBLISHED
July 21, 2022
Appellants,
v No. 357425
Emmet Circuit Court
CITY OF PETOSKEY ZONING BOARD OF LC No. 20-107112-AA
APPEALS,
Appellee.
Before: SAWYER, P.J., and LETICA and PATEL, JJ.
PER CURIAM.
In this zoning dispute, Appellants Matthew and Katie Frentz appeal as of right1 the circuit
court’s order affirming appellee City of Petoskey Zoning Board of Appeals’ (ZBA) denial of
appellants’ zoning permit application for a roof structure erected over their pre-existing,
nonconforming deck. The appellants maintain that the roof structure did not enlarge or alter the
open-air deck in such a way that it increased the deck’s nonconformity and, therefore, it should be
allowed pursuant to § 1702(4)(a) of the Zoning Ordinance. We find that the circuit court did not
err in affirming the ZBA’s determination that appellants extended the life of the nonconforming
deck by adding supports, windows, and a permanent roof structure and, therefore, increased its
nonconformity. We affirm.
1
Appellee filed a motion to dismiss arguing that this Court lacks jurisdiction because the circuit
court order was not appealable as of right MCR 7.203(A)(1)(a). This Court denied the motion in
a December 1, 2021, order in which this Court concluded that appellee did not act as a tribunal in
this matter and, thus, MCR7.203(A)(1)(a) is inapplicable. Frentz v City of Petoskey Zoning Bd of
Appeals (Docket No. 357425, unpublished order of the Court of Appeals, entered December 1,
2021).
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I. BACKGROUND
The pertinent facts are undisputed. Appellants purchased the subject property in 2005. The
property is zoned R-2, Single Family and is subject to a side yard setback of 15 feet total, with a
minimum of five feet on a side. Since at least 2004, there has been a deck and a privacy fence on
the western side of the property. The deck is approximately three feet from the western property
line and, therefore, a nonconforming structure.2
In 2016, appellants erected a roof structure extending from the side of the home and over
the pre-existing deck:
Appellants did not request a building permit or a zoning permit before building the roof structure
in 2016.
In May 2020, the Zoning Administrator noticed the roof structure during a site inspection
for an unrelated zoning permit request by appellants. The Zoning Administrator informed
appellants that because roof structure transformed the deck into a porch, it had to comply with the
lot coverage and setback limitations in § 1600 of the Zoning Ordinance and they should have
obtained a zoning permit before it was constructed. Appellants disagreed and sought administrative
review of the Zoning Administrator’s decision. Appellants argued that the roof structure did not
change the footprint of the deck or the use of the deck area. They maintained that the structure was
a deck, not a porch, and the Zoning Ordinance did not preclude coverings over decks. Appellants
further asserted that decks are excluded from the building footprint definition and should not be a
part of the lot coverage calculations. Regardless, they argued that their lot coverage did not exceed
the limitations because the alley adjoining their property afforded them an additional 250 feet of
lot size under § 1800 of the Zoning Ordinance.
The ZBA unanimously affirmed the Zoning Administrator’s determination that the roof
structure was required to357425 meet the setback and lot coverage limitations of § 1600 of the
Zoning Ordinance. Appellants were instructed to submit a zoning permit application with accurate
2
Since the deck existed prior to the enactment of the setback ordinance, it is a permissible
nonconforming structure.
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setback measurements for staff review and, if the structure did not meet the requirements,
Appellants would have to make modifications or request a variance.
Appellants filed a zoning permit application for the roof structure over the pre-existing
deck. Appellants conceded that the deck did not meet the setback requirement, but maintained that
the roof structure did not enlarge or alter their deck in such a way that it increased the deck’s
nonconformity. The Zoning Administrator denied the application because (1) the roof structure
was only four feet from the west property line,3 (2) the addition of the roof structure increased the
deck’s nonconformity, (3) the roof structure was a vertical projection that exceeded the required
side-yard setback, and (4) it was unclear whether appellants had exceeded the lot coverage
allowance because they did not submit an accurate drawing.
Appellants filed an application with the ZBA, requesting a review of the denial of the
zoning permit application. Appellants argued that the addition of the roof structure did not impede
on the pre-existing, nonconforming, three-foot setback of the deck.
The Zoning Staff recommended that the ZBA affirm the decision because the roof structure
and vertical supports altered the deck in a way that increased its nonconformity. The staff further
opined that “the roof structure extends the use of the previously existing deck by creating
protection from the elements that did not exist when it was an open-air deck.” Because the roof
structure was not within the required setbacks, the staff opined that the roof did not meet the
ordinance exceptions.
The ZBA conducted an administrative review. Appellants made it clear that they were not
requesting a variance or a special accommodation; rather, they were only challenging the
interpretation and application of the Zoning Ordinance. Appellants argued that the addition of the
roof covering did not change the three-foot setback. They further asserted that the covering was
added to provide shade to the area, not to increase the life of the deck. Appellants maintained that
§ 1702(4)(a) of the Zoning Ordinance expressly permitted enlargement or alteration, as long as the
setback was not decreased. The Zoning Administrator maintained that the roof structure
transformed the deck to a porch because the roof was attached to the home, supported by 4’x4’
pillars, and extended over the deck. The Zoning Administrator rejected appellants’ argument that
the roof was an allowable expansion of the pre-existing deck and maintained that the roof structure
was required to be within the 10-foot side-yard setback.
The ZBA upheld the Zoning Administrator’s determination that the addition of the roof
structure exceeded the allowance of §1702(4)(a) of the Zoning Ordinance because it “increased
the lifespan” of the deck and added to its nonconformity. Accordingly, the ZBA ordered that the
roof structure was required to be brought into compliance with the 10-foot side-yard setback.
Appellants appealed the ZBA’s decision to the circuit court.
3
Because the house had less than a five-foot setback on the east side, the Zoning Administrator
maintained that the roof structure, which was on the west side of the property, was required to have
a 10-foot setback.
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The circuit court concluded that ZBA’s decision was supported by competent, material,
and substantial evidence. The circuit court found that the ZBA exercised reasonable discretion,
conformed with the law, and followed proper procedure. Accordingly, the circuit court affirmed
the ZBA’s denial of the zoning permit and ordered appellants to bring the roof structure into
compliance with the setback ordinance. This appeal followed.
II. STANDARD OF REVIEW
“This Court reviews de novo a [circuit] court’s decision in an appeal from a city’s zoning
board, while giving great deference to the [circuit] court and zoning board’s findings.” Edw C Levy
Co v Marine City Zoning Bd of Appeals, 293 Mich App 333, 340; 810 NW2d 621 (2011) (citation
omitted). Our review requires us “to determine whether the circuit court applied the correct legal
principles and whether it misapprehended or grossly misapplied the substantial evidence test to
the [ZBA’s] factual findings.” Olsen v Chikaming Township, 325 Mich App 170, 180; 924 NW2d
889 (2018) (citations and quotation marks omitted).
The rules of statutory construction apply to the interpretation of municipal ordinances.
Piasecki v Hamtramck, 249 Mich App 37, 40 n 3; 640 NW2d 885 (2001). The underlying
interpretation of an ordinance is a question of law that we review de novo. Olsen, 325 Mich App
at 180.
III. ANALYSIS
Appellants argue that the circuit court erred by affirming the ZBA’s determination that the
roof structure over the nonconforming deck extended the life of the deck and, therefore, increased
the nonconformity in violation of § 1702(4)(a) of the Zoning Ordinance. We disagree.
This appeal concerns the interpretation of municipal ordinances. As we stated in Sau-Tuk
Industries, Inc v Allegan County, 316 Mich app 122, 136-137; 892 NW2d 33 (2016):
When interpreting a statute, our primary goal is to give effect to the intent of the
Legislature. If the language of a statute is unambiguous, we presume the Legislature
intended the meaning expressed in the statute. A statutory provision is ambiguous
only if it conflicts irreconcilably with another provision or it is equally susceptible
to more than one meaning. . . . When construing a statute, we must assign every
word or phrase its plain and ordinary meaning unless the Legislature has provided
specific definitions or has used technical terms that have acquired a peculiar and
appropriate meaning in the law.
Similarly, the goal of construction and interpretation of an ordinance is to discern
and give effect to the intent of the legislative body. The most reliable evidence of
that intent is the language of the ordinance itself, which must be given its plain and
ordinary meaning. When the words used in a statute or an ordinance are clear and
unambiguous, they express the intent of the legislative body and must be enforced
as written. [(quotation marks and citations omitted).]
Decisions of a ZBA are subject to appellate review by a circuit court. MCL 125.3605. In
reviewing a ZBA’s decision, the circuit court must determine whether the ZBA’s decision (a)
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complied with the Constitution and laws of this state, (b) was based on proper procedure, (c) was
supported by competent, material, and substantial evidence, and (d) represented the ZBA’s
reasonable exercise of discretion. MCL 125.3606(1). As this Court explained in Edw C. Levy, 293
Mich App at 340-341,
“Substantial evidence” is evidence that a reasonable person would accept as
sufficient to support a conclusion. While this requires more than a scintilla of
evidence, it may be substantially less than a preponderance. Under the substantial-
evidence test, the circuit court’s review is not de novo and the court is not permitted
to draw its own conclusions from the evidence presented to the administrative body.
Courts must give deference to an agency’s findings of fact. When there is
substantial evidence, a reviewing court must not substitute its discretion for that of
the administrative tribunal even if the court might have reached a different result.
A court may not set aside findings merely because alternative findings also could
have been supported by substantial evidence on the record. [Edw C. Levy, 293 Mich
App at 340-341 (quotation marks and citations omitted).]
“The decision of a zoning board of appeals should be affirmed unless it is contrary to law, based
on improper procedure, not supported by competent, material, and substantial evidence on the
record, or an abuse of discretion.” Janssen v Holland Charter Twp Zoning Bd of Appeals, 252
Mich App 197, 201; 651 NW2d 464 (2002).
It is undisputed that the pre-existing deck does not meet the 10-foot side-yard setback
requirements in §1600 of the Zoning Ordinance because it is approximately three feet from the
western property line. The parties agree that the pre-existing deck is a legal, nonconforming
structure because it was built before §1600 was enacted. At issue is the ZBA’s interpretation and
application of §1702(4)(a) of the Zoning Ordinance (Nonconforming structures), which states as
follows:
4. Nonconforming structures. Where a lawful structure exists at the effective date
of adoption or amendment of this ordinance that could not be built under the terms
of this ordinance by reason of restrictions on area, lot coverage, height, yards, or
other characteristics of the structure or its location on the lot, such structure may be
continued so long as it remains otherwise lawful, subject to the following
provisions:
a. No such structure may be enlarged or altered in a way which increases
its nonconformity. Such structures may be enlarged or altered in a way which does
not increase its nonconformity.
The intent of this particular ordinance is “to permit legal nonconforming . . . structures . . .
to continue until they are removed but not to encourage their survival.” §1702, Zoning Ordinance
(emphasis added). And “[i]t is further the intent of this ordinance that nonconformities shall not
be enlarged upon, expanded or extended, nor be used as grounds for adding other structures or
uses prohibited elsewhere in the same district.” Id. This expressed intent is consistent with “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 v Petty, 317 Mich App 482, 488; 896
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NW2d 477 (2016); see also MCL 125.3208 (authorizing municipalities to enact ordinances
prohibit the enlargement, expansion, or extension of nonconforming uses and structures but also
provide for the diminution of nonconforming uses and structures without requiring cessation).
Section 201 of the Zoning Ordinance contains several definitions that are pertinent to this
matter:
Alteration: Any change, addition, or modification in construction; type of
occupancy; or in the structural members of a building, such as walls, partitions,
columns, beams, or girders. The consummated act of which may be referred to
herein as “altered” or “reconstructed.”
* * *
Deck: An accessory structure or platform supported by pillars or posts, either
attached or unattached to a building, that is higher than seven inches above grade
at any portion of the structure or platform and does not contain walls.
* * *
Patio: A level, landscaped, and/or surfaced area, directly adjacent to a building, at
or within seven inches of the finished grade and not covered by a permanent roof.
* * *
Porch: A horizontal surface consisting of a deck, slab, or other similar construction
attached to a building and designed for outdoor seating or as a means of entry to
the building. A porch is covered by a roof structure that is supported by pillars or
other similar means and may be enclosed by windows, screens, or other similar
methods.
* * *
Setback: The minimum horizontal distance measured at right angles from the front,
side, or rear lot line to the vertical plane of the building wall.
* * *
Structure: Anything constructed or erected, the use of which requires location on
the ground or attachment to something having location on the ground. [§201,
Zoning Ordinance.]
The Zoning Ordinance does not define “enlarge.” Merriam-Webster’s Collegiate
Dictionary (11th ed) defines “enlarge” as “to make larger.”
While the addition of the roof structure did not enlarge the footprint of the pre-existing,
open-air deck, it certainly altered it so that it was no longer a “deck” as defined by § 201 of the
Zoning Ordinance. Pillars were erected, windows were placed on top of the pre-existing fences,
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and the roof structure was attached to the house and the top of the windows. These alterations to
the deck created walls. The plain language of the ordinance provides that a deck “does not contain
walls.” § 201, Zoning Ordinance. A porch, however, consists “of a deck . . . attached to a building
and designed for outdoor seating [and] is covered by a roof structure that is supported by pillars or
other similar means and may be enclosed by windows . . . .” § 201, Zoning Ordinance.
The clear and unambiguous language of § 1702 precludes the alteration of a nonconforming
structure in such a way that increases its nonconformity and encourages its survival. “When the
words used in a statute or an ordinance are clear and unambiguous, they express the intent of the
legislative body and must be enforced as written.” Sau-Tuk Indus, Inc, 316 Mich App at 137. As
expressed by the Zoning Administrator, appellants altered their deck in such a way that they
constructed something entirely new – a porch. The ZBA unanimously concluded that this alteration
increased the nonconformity by extending the survival of the pre-existing, open-air deck.
The circuit court determined that substantial evidence supported the ZBA’s decision:
The photo evidence shows that the appellant had added a structure that changed the
overall tenure of the deck. The roof structure provides cover, shelter, increases the
use of the deck in inclement weather, there were windows added to the side, and
the manner in which the roof was added provided walls on several sides to the deck
and the roof is intended to be permanent.
Further, appellants admitted that the gutters on the roof structure extend beyond the pre-existing
deck footprint by approximately six inches or more, which the circuit court determined expanded
the nonconformity. The circuit court found that the ZBA exercised reasonable discretion in
determining that adding the supports, windows, and a permanent roof structure to the pre-existing
deck altered it in such a way that it increased its nonconformity and, thus, appellants were required
to bring the roof structure into compliance with the 10-foot side-yard setback.
Applying the definition of “substantial evidence,” we conclude that the circuit court did
not err by holding that there was substantial evidence supporting the ZBA’s decision. “When there
is substantial evidence, a reviewing court must not substitute its discretion for that of the
administrative tribunal even if the court might have reached a different result.” Edw C. Levy, 293
Mich App at 340-341 (citation omitted).
Finally, we are not persuaded by appellants’ reliance on this Court’s unpublished opinion
in Randazzo v Lake Township, unpublished per curiam opinion of the Court of Appeals, issued
December 10, 2020 (Docket No. 348559).4 The appellees in Randazzo owned a residential home
that had a preexisting nonconformity because it was only 8.3 feet from the road and the required
setback was 25 feet. The appellees applied for a Land Use Permit in order to add another level to
their home, but their application was denied. They appealed to the ZBA, arguing that adding
vertically to their home would not increase the nonconformity. The ZBA disagreed and affirmed
4
Pursuant to MCR 7.215(C)(1), unpublished opinions are not binding, but they may be considered
for their instructive or persuasive value. Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219
(2017).
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the denial. The circuit court reversed the ZBA’s decision, concluding that the proposed project
did not further encroach on the nonconforming setback. This Court affirmed, stating “the building
would be just as nonconforming after the improvements as it was before.” Id. at p 4. Conversely,
appellants in this case completely altered the pre-existing, nonconforming, open-air deck by
adding supports, windows, and permanent roof structure. These alterations completely
transformed the deck into an entirely new structure, which is not consistent with the intent of §1702
of the Zoning Ordinance.
IV. CONCLUSION
We find that the circuit court did not err by affirming the ZBA’s decision. Accordingly, we
affirm the circuit court’s decision.
/s/ David H. Sawyer
/s/ Anica Letica
/s/ Sima G. Patel
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