Village of Franklin v. City of Southfield , 101 Mich. App. 554 ( 1980 )

101 Mich. App. 554 (1980) 300 N.W.2d 634

VILLAGE OF FRANKLIN
v.
CITY OF SOUTHFIELD

Docket No. 45379.

Michigan Court of Appeals.

Decided November 19, 1980.

Feiler & Glass, P.C., for plaintiffs.

Sigmund A. Beras, for defendant City of Southfield.

Butzel, Fruhauf, Keidan, Simon, Myers & Graham (by Larry K. Griffis), for intervening defendant S.B. McLaughlin Associates, Inc.

Before: V.J. BRENNAN, P.J., and R.M. MAHER and H.E. DEMING,^[*] JJ.

H.E. DEMING, J.

Plaintiffs, Village of Franklin and Lilyan Victor, appeal as of right from the circuit court's award of summary judgment in favor of defendants and subsequent denial of plaintiffs' motion for rehearing.

In March, 1978, the Southfield City Council approved a site plan for a proposed residential and commercial development called Park LaSalle and authorized the issuance of building permits. Plaintiffs appealed to the Southfield Board of Zoning Appeals, challenging the approval. The board, acting on the advice of the city attorney that it lacked jurisdiction, refused to hear the appeal. Plaintiffs then filed a complaint in circuit court seeking injunctive relief and an order requiring the board to hear their appeal. Both sides filed motions for summary judgment, and, on March 13, 1979, Circuit Court Judge William J. Beer issued an opinion holding that defendants were entitled to summary judgment because plaintiffs, having failed to allege and prove special damages, lacked standing under the zoning enabling act, MCL 125.581 et seq.; MSA 5.2931 et seq. Plaintiffs filed a motion for rehearing and/or reassignment which was denied on May 16, 1979.

In order for a party to have standing in court to attack the actions of a zoning board of appeals, the party must be an aggrieved party, and standing cannot be based solely on the fact that such party is a resident of the city. Marcus v Busch, 1 Mich. App. 134; 134 NW2d 498 (1965). In the present case, the circuit court relied on MCL 125.590; MSA 5.2940, which authorizes an appeal to circuit court by a "party aggrieved" by a board of zoning appeals decision. We agree with the circuit court's decision that the present plaintiffs lacked standing because they were not aggrieved parties.

In Unger v Forest Home Twp, 65 Mich. App. 614; 237 NW2d 582 (1975), this Court held that a party, seeking to establish his status as a person aggrieved, must allege and prove that he has suffered special damages not common to other property owners similarly situated. The Court referred to Joseph v Twp of Grand Blanc, 5 Mich. App. 566; 147 NW2d 458 (1967), which held that mere increase in traffic volume resulting from the challenged action does not constitute special damages nor is proof of general economic and aesthetic loss sufficient. In the present case, plaintiff Village of Franklin relies on its status as an adjoining community to establish its standing. No special damages were alleged or proven, and we agree with the circuit court's conclusion that this plaintiff was not aggrieved and therefore lacked standing.

Plaintiff Lilyan Victor relies on her status as the owner of land adjoining the proposed development site to establish standing and likewise failed to allege or prove special damages. The cases discussed above did not involve abutting landowners; however, in Western Michigan University Board of Trustees v Brink, 81 Mich. App. 99, 103 fn 1; 265 NW2d 56 (1978), the plaintiff claimed standing to appeal a zoning board decision by virtue of its ownership of property adjoining property affected by the decision. This Court found the issue was not properly preserved for appeal, but commented as follows:

"Even if this issue were preserved for review we would be little impressed by plaintiff's argument. Our research has revealed no Michigan case on point; foreign jurisdictions split on the question. See Comment, Standing to Appeal Zoning Determinations: The `Aggrieved Person' Requirement, 64 Mich. L Rev 1070, 1079 (1966), and cases therein cited; 4 Anderson, American Law of Zoning (2d ed), 25.18, pp 231-237; 2 Rathkopf, The Law of Zoning and Planning (3d ed), pp 63-21 to 63-23. See also 1 Yokley, Zoning Law and Practice (2d ed), § 172, pp 427-434. We see little reason for abandoning the general rule that `[t]hird parties will be permitted to appeal to the courts as persons aggrieved if they can "show that * * * their property will suffer some special damages as a result of the decision of the board complained of, which is not common to other property owners similarly situated"'. Comment, 64 Mich. L Rev, supra, at 1078-1079. (Footnotes and citation omitted.) If adjoining landowners could suffer such special damages, then they can easily plead them. If the board's decision does not pose a threat of unique harm to the neighbor, then the courts would be ill-served by a rule allowing his suit."

We see no reason for presuming that plaintiff Victor was aggrieved absent proof of special damages. The circuit court correctly ruled that she lacked standing.

We do not address plaintiffs' claim that the environmental protection act, MCL 691.1201 et seq.; MSA 14.528(201) et seq., conferred standing because the claim was not presented below. The record does not support plaintiffs' allegation that their action was consolidated with another circuit court action based on the environmental protection act.

Affirmed.

NOTES

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