By: Benjamin J. Gohs, News Editor
Charlevoix 33rd Circuit Court Judge Richard M. Pajtas ruled against Devlon in his Jan. 20 written opinion.
Devlon had appealed to the court in late 2011, to overturn the Boyne City Planning Commission’s decision that the Devlon Corporation’s Boyne City Beach Club development was no longer eligible to continue because it was not proceeding to completion.
“We prevailed on all the issues,” said Boyne City Planning Director Scott McPherson. “The next step is to go back to judge May (Richard May, 90th District Court) for the enforcement order on the citation – that decision was pending Judge Pajtas determination on the expiration of the permit.”
The citation in question, McPherson said, deals with the city’s desire to see the rubble piles cleaned and fencing removed from Devlon’s property.
On May 18, 2011, Devlon was informed that a stagnation of construction over at least two years caused its zoning permit and development plan to expire.
Devlon appealed to the Boyne City Zoning Board of Appeals (ZBA) and on Aug. 2, 2011, the ZBA denied Devlon’s appeal.
Pajtas’ opinion addressed several issues brought by Devlon.
“Initially, the appellant (Devlon) alleged as a major reason to reverse the ZBA a violation of the Open Meetings Act. It brought a separate lawsuit against the ZBA with the same allegations in this court. That lawsuit and this claim on appeal have been abandoned by the appellant as unsustainable,” Pajtas wrote. “The appellant next argues that the ZBA applied the wrong standard in determining what was necessary to keep appellant’s permits alive. It claims that the ZBA applied a stringent “substantial construction” standard instead of the proper and more lenient “proceeding toward completion” standard. The ZBA contends that it considered both standards, and the appellant fails under both.”
According to Pajtas, zoning permits are generally issued for a specific amount of time, in this case, under current law, two years.
The issuance of a zoning or building permit, without substantially more, does not create a vested property right.
The making of preparatory plans, landscaping, and the removal of an existing structure is not sufficient to create a vested property right.
Permits expire, wrote Pajtas, on their own terms unless substantial construction has commenced.
Pajtas cited Schubiner vs. West Bloomfield Township of 1984.
“The appellant does not claim it meets the ‘substantial construction’ mandate. It simply states that the ‘substantial construction test’ dos not apply in this case,” he wrote. “The position of the appellant is that, since the ZBA issued the zoning permit, a different, more lenient standard applies. “
According to Pajtas findings, though Devlon argued that their zoning permit was issued via ZBA order and the two-year time-line should not apply.
The portion of the Boyne City zoning ordinance, 27.65, relevant to the case is as follows:
“No order of the zoning board of appeals permitting the erection … of a building … shall be valid for longer than six months unless such use is established within such period … and such erection … is commenced and proceeds to completion in accordance with the terms of the permit. However, where such use permitted is dependent upon the erection … of a building, such order shall continue in force and effect if a zoning permit for the erection … is obtained within such period and such erection … is started and proceeds to completion in accordance with such permit.”
Pajtas wrote that, while it does not seem an anomaly that 27.65 would apply to the zoning permit in this case and a different test would apply, the ordinance provision is clear on its face and unambiguous.
“Therefore it must be enforced as written,” Pajtas wrote. “The omission of a provision in one part of a statute that is included in another should be construed as intentional.”
He added, “The drafters of the Boyne City Zoning Ordinance excluded the ‘substantial construction’ test by using the phrase ‘ proceeds to completion’ for determining whether a zoning permit continues or expires when the permit is issued pursuant to ZBA order.”
According to Pajtas’ opinion, a particular section of a zoning ordinance must be considered in conjunction with the entire ordinance.
“A common reading of 27.65, in conjunction with the definition of erection establishes that a zoning permit issued by the ZBA remains in effect for a period of six months and may be continued in effect if physical construction of the project has begun and erection of the structure is proceeding to completion,” he wrote. “The activity necessary to keep a permit alive does not include activity short of physical construction. The ordinance does not allow erecting a structure by commencement of minimal construction, then stopping all physical activity for more than three years.”
Pajtas agreed with the ZBA’s determination that the zoning permit expired by “failure to proceed to completion.”
Also on may 18, 2011, Devlon was notified that its building site was inconsistent with the approved development plan due to rubble piles on the property.
Devlon appealed to the ZBA within the proper time-line but the ZBA refused to hear Devlon’s appeal ruling it untimely.
Pajtas reversed the ZBA’s decision on that issue, citing that Devlon should have been heard by the ZBA.
The ZBA also upheld the Boyne City planner’s direction for Devlon to remove the fence around its site once it is safe to do so.
“Devlon contends that the property is not safe at this time and, thus, the fence should remain,” Pajtas wrote. “The court finds that this issue is not ripe for judicial review.”
The last issue before Pajtas was Devlon’s claim that the ZBA erred by relying on advice from an attorney who also represented the city.
“The appellant cites no caselaw or other authority for this argument. Therefore, the issue is considered abandoned,” Pajtas wrote. “A party may not leave it to this court to search for authority to sustain or reject its position.”
He added, “The court does not believe such representation presents any error let alone error that would warrant a reversal of the ZBA’s confirmation of the expiration of appellant’s zoning permit and development plan.”