# O Lindsey Dezman v. Charter Township of Bloomfield

> Michigan Court of Appeals · June 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10447435

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** June 27, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

LINDSEY DEZMAN and JON GEIGER, UNPUBLISHED
June 27, 2024
Plaintiffs-Appellants,

v No. 360406
Oakland Circuit Court
CHARTER TOWNSHIP OF BLOOMFIELD and LC No. 2021-190703-AV
CHARTER TOWNSHIP OF BLOOMFIELD
BOARD OF ZONING APPEALS,

Defendants-Appellees.

ON REMAND

Before: PATEL, P.J., and CAVANAGH and REDFORD, JJ.

PER CURIAM.

Our Supreme Court reversed this Court’s judgment1 which held that plaintiffs were not
required to seek a variance to keep chickens and a coop on their residential property. Our Supreme
Court explained that Zoning Ordinance § 42-3.1.3(B)(i) and (vi) states “what activities are
permitted at the one-family detached dwelling on plaintiffs’ property: accessory uses and
accessory structures customarily incidental to one-family detached dwellings[,]” and that, under
Pittsfield Twp v Malcolm, 375 Mich 135, 142; 134 NW2d 166 (1965), where an ordinance
specifically sets forth permissible uses, in the absence of a specifically stated use under a zoning
classification, the ordinance excludes that use. Dezman v Charter Twp of Bloomfield, ___ Mich
___; 997 NW2d 42 (2023). The Court remanded this matter for consideration whether the circuit
court erred by affirming the Charter Township of Bloomfield Zoning Board of Appeals (ZBA)
decision denying plaintiffs’ request to keep chickens in a chicken coop on their property. We

1
Dezman v Charter Twp of Bloomfield, unpublished per curiam opinion of the Court of Appeals,
issued June 1, 2023 (Docket No. 360406).

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incorporate herein by reference our summary of the facts and proceedings and the statement of the
applicable standard of review set forth in our previous opinion.

Because we conclude the circuit court did not err by affirming the ZBA’s decision to deny
plaintiffs’ request to keep chickens and a coop on their residential property because the accessory
use and accessory structures did not comply with Zoning Ordinance § 42-7.6.6, we affirm.

I. THE ZONING ORDINANCE
AND FUNCTION OF THE ZONING BOARD OF APPEALS

Under Bloomfield Township Zoning Ordinance § 42-3.1.3, permitted uses of R-3 one-
family residential land in relevant part includes: (i) one-family detached dwellings, (ii) farms, and
(vi) accessory uses and accessory structures customarily incidental to any of the permitted uses.2
Plaintiffs’ property featured a one-family detached dwelling and did not constitute a farm.3
Section 42-1.4 states: “No building or structure, or part thereof, shall hereafter be erected,
constructed or altered and maintained, and no new use or change shall be made or maintained of
any building, structure or land, or part thereof except in conformity with the provisions of this
Chapter.” Under § 42-5.1, any accessory structure customarily incidental to any permitted use
under § 42-3.1.3 must, among other conditions, be in a rear yard, may not occupy more than 25%
of the rear yard, may not be within 16 feet of any side or rear lot line, and may not exceed 14 feet
in height. Section 42-5.1 specifies that erection of any accessory structure requires ZBA review
and approval, and the ZBA is charged with determining whether the structure meets the
requirements of § 42-7.6.6.

Although plaintiffs argued that keeping chickens and having a coop did not require them
to obtain a zoning variance, the record reflects that plaintiffs never sought a zoning variance. When
issued a zoning violation, they appealed it to the ZBA and requested permission to have chickens
and a coop on their R-3 zoned residential property. Consequently, the variance standard under
§ 42-7.6.5.C does not apply.4 Plaintiffs’ request sought permission respecting an accessory use

2
Section 42-2.2.1 defines “accessory use and accessory” as “a use which is clearly incidental to,
customarily found in connection with, and (except in the case of accessory off-street parking
spaces or loading) located on the same zoning lot as, the principal use to which it is related.” The
term “accessory use” including but not limited to 10 specified uses for, among other things, servant
or caretaker residential accommodations, recreational facilities, domestic or agricultural storage
barns, sheds, tool rooms or similar accessory buildings or structures, storage facilities related to
business operations, parking, industrial or commercial operations, and signage.
3
Section 42-2.2.31 defines a farm as land not less than 40 acres that operates as greenhouses,
nurseries, orchards, chicken hatcheries, or apiaries.
4
Section 42-7.6.5 in relevant part provides:
C. Variance. To authorize, upon an appeal, a variance from the strict
applications of the provisions of this Chapter where by reason of exceptional
narrowness, shallowness, shape or area of a specific piece of property at the time
of enactment of ordinance from which this Section is derived or by reason of

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and accessory structure. For their request to be permissible under the zoning ordinance, the
proposed use and accessory structure needed to be one customarily incidental to any of the
permitted uses in compliance with § 42-5.1, subject to the ZBA’s review and approval, and its
finding that such complied fully the standards set forth in § 42-7.6.6. See § 42-5.1.6. Section 42-
7.6.6 provides:

Standards. Each case before the Zoning Board of Appeals shall be
considered as an individual case and shall conform to the detailed application
of the following standards in a manner appropriate to the particular
circumstances of such case. All uses as listed in any district requiring Board
approval for a permit shall be of such location, size, and character that, in
general, it will be in harmony with the appropriate and orderly development of
the district in which it is situated and will not be detrimental to the orderly
development of adjacent districts. The Board shall give consideration to the
following:

A. The location and size of the use.

B. The nature and intensity of the operations involved in or conducted
in connection with it.

C. Its size, layout and its relation to pedestrian and vehicular traffic to
and from the use.

D. The assembly of persons in connection with it will not be hazardous
to the neighborhood or be incongruous therewith or conflict with
normal traffic of the neighborhood.

E. Taking into account amount [sic] other things, convenient routes of
pedestrian traffic, particularly of children.

F. Vehicular turning movements in relation to routes of traffic flow,
relation to street intersections, site distance and the general character
and intensity of development of the neighborhood.

exceptional topographic conditions or other extraordinary or exceptional conditions
of such property, the strict application of the regulations enacted would result in
peculiar or exceptional practical difficulties to, or upon the owner of such property,
provided such relief may be granted without substantially impairing the intent and
purpose of this Chapter. In granting a variance the Board may attach thereto such
conditions regarding the location, character, and other features of the imposed uses
as it may deem reasonable in furtherance of the purpose of this Chapter. In granting
a variance, the Board shall state the grounds upon which it justifies the granting of
a variance.

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G. The location and height of buildings: the location, nature and height
of walls, fences and the nature and extent of landscaping of the site
shall be such that the use will not hinder or discourage the
appropriate development and use of adjacent land and buildings or
impair the value thereof.

H. The nature, location, size and site layout of the uses shall be such
that it will be a harmonious part of the district in which it is situated
taking into account, among other things, prevailing shopping habits,
convenience of access by prospective patrons, the physical and
economic relationship of one type of use to another and
characteristic.

I. The location, size, intensity and site layout of the use shall be such
that the operations will not be objectionable to nearby dwellings, by
reason of noise, fumes or flash of lights to a greater degree than is
normal with respect to the proximity of commercial to residential
uses, will not interfere with an adequate supply of light and air, nor
increase the danger of fire or otherwise endanger the public safety.

II. ANALYSIS OF PLAINTIFFS’ ARGUMENTS

Plaintiffs argue that, because the township’s ordinance is silent on keeping chickens, they
should be free to do so and have a chicken coop on their property. They point out that the general
ordinance regulates dog, cat, and horse ownership but does not say anything about chickens.5
Notably, the zoning ordinance is silent on pets and the keeping of animals on residential zoned
properties. Defendants argue that, under Pittsfield Twp, 375 Mich 135, because the zoning
ordinance does not expressly provide for chickens kept at one-family detached dwellings, such are
necessarily excluded. In our previous opinion, we considered that argument and explained:

In Pittsfield Twp, the relevant ordinance stated: “ ‘No building or structure or part
thereof shall be erected, altered, used, or land or premises used in whole or part for
other than one or more of the following specified uses. . . .’ ” Id. at 140. Based on
the ordinance’s language, our Supreme Court held: “Under the ordinance which
specifically sets forth permissible uses under each zoning classification, therefore,
absence of the specifically stated use must be regarded as excluding that use.” Id.
at 142-143. Thus, if an ordinance contains language expressly limiting use of the
land only to the uses listed in the ordinance, a landowner may not use the land for
unlisted purposes. [Dezman, unpub op at 5.]

We found Pittsfield Twp distinguishable from the case at bar because the zoning ordinance
language at issue differs substantively from that in Pittsfield Twp which expressly specified the
only permitted uses allowed; whereas, the zoning ordinance in this case is far less restrictive and

5
See Bloomfield Township Ordinance §§ 8-8.32-48 (dogs); §§ 8-8.70-92 (cats); and § 42-4.12
(horses).

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does not set forth such a list of the only permissible uses under the zoning classification. Dezman,
unpub op at 5. Our Supreme Court’s remand order indicates we should consider Pittsfield Twp
differently and deem that the absence of reference to chicken-keeping in the zoning ordinance at
issue means such is necessarily excluded. As we previously observed, the zoning ordinance at
issue lists three applicable uses but does not designate or expressly limit what activities may be
conducted at R-3 residential zoned properties within those three uses. Section 42-3.1.3.B in
relevant part states that one can use R-3 one-family residential land under subpart (i) for one-
family detached dwellings, and under subpart (vi) for accessory uses and accessory structures
customarily incidental to any of the permitted uses.6

Plaintiffs argue that the ZBA abused its discretion by engaging in an uneven application of
the zoning standards. According to plaintiffs, the ZBA did not consider lot size, shape, or unique
features of the land for other applicants, including for the applicant on Aldgate Drive, whose
request was considered at the ZBA hearing on August 10, 2021. Plaintiffs further contend that the
ZBA has not denied a variance to keep hens in the past seven years. Plaintiffs assert that their
parcel of land is four times larger than the Aldgate parcel, yet the ZBA granted that request without
regard to the neighbors’ health concerns or the unique features of the land.

At the September 14, 2021 ZBA meeting, the ZBA made the following determination
regarding plaintiffs’ request:

Based on the information presented, the applicant did not demonstrate compliance
with Section 42-7.6 standards because the use of the accessory structure is
inappropriate for the neighborhood and the location will hinder and discourage the
adjacent neighbor to live in harmony on their property due to issues associated with
the proposed use.

Respecting the request on Aldgate Drive, the ZBA determined on August 10, 2021:

Based on the information presented, the applicant did demonstrate compliance with
Section 42-7.6 standards because it will not hinder or discourage the use of adjacent
property. Based on the information presented, the applicant did demonstrate all of
the standards for practical difficulty because compliance with the strict letter of the
ordinance would be unduly burdensome because there they have three front yards.
There is no injustice to the adjoining neighbors because the chickens have resided
at the home for over three years with no issues. Unique circumstances exist with
the property since it has three frontages and that is not self created. Application for
permits must be made within 5 business days for the existing chickens and coops.
Additional screening may be required to screen from public view. The approval is

6
Although application of the Pittsfield Twp principle could lead to the conclusion that plaintiffs
needed a variance for keeping chickens and having a coop for them, because they never sought
one and requested permission to do so, as others apparently successfully did, we believe the focus
should be on the permission decision process. Irrespective of whether plaintiffs could qualify for
a variance, the erection of an accessory structure incidental to a permitted use nevertheless required
review and approval by the ZBA of such structure’s compliance with § 42-7.6.6.

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for 8 years until 8-10-29 and chickens can remain on the site for the remainder of
their life cycle and cannot be replaced.

The minutes demonstrate that the ZBA applied the same standard in the Aldgate case as it
did in this case by considering in both cases whether the applicant complied with § 42-7.6.6, a
necessary prerequisite to accessory uses and erection of accessory structures incidental to
permitted uses. The record reflects that the ZBA considered lot size, shape, and unique features
of the land in the Aldgate case. The ZBA further considered the impact on the neighbors and the
visibility of the chicken coop in that case. Although the ZBA reached a different result in the
Aldgate case, plaintiffs fail to establish that the ZBA did not apply the proper procedure or abused
its discretion by arbitrarily applying the zoning ordinance in this case. The record indicates that
the ZBA considered the standards and based its determination on the evidence presented. The
question then is whether substantial evidence on the record supported the ZBA’s determination in
this case. The fact that the ZBA granted permission requests for chicken coops in other instances
does not establish that the ZBA acted arbitrarily in this case. Plaintiffs have not provided all of
the facts underlying those determinations, so they cannot establish by comparison that the ZBA
acted improperly or arbitrarily, or abused its discretion in this case.

Plaintiffs argue that the ZBA impermissibly relied on less than a scintilla of evidence, their
next-door neighbor’s unsubstantiated and speculative allegations that she and her family would
suffer health problems and would see the chicken coop in the winter months. The record indicates
that the neighbor, Gracey, spoke at the August 10, 2021 hearing in opposition to the chicken coop.
The ZBA did not vote on the issue at that hearing but tabled the decision until the full board could
consider the request. Gracey spoke again at the September 14, 2021 hearing and asserted that “the
chickens would create allergy and respiratory issues for her family, attract pests, create odor, and
the chicken coop would be visible from her property[.]” Gracey also submitted a letter in
opposition to plaintiffs’ request, stating that the chicken coop “is only partially covered by the
arborvitae trees” and she and her family “can still see it.” She complained that, in the winter
months, the coop “will remain largely uncovered and clearly visible.” She asserted that she and
her family members had severe allergies that would be affected by dander from the chickens and
the dust created by the chickens, which “dig holes” in order to “dust bathe.” Gracey referred to
the coop as being “unsightly,” causing “extreme odor nuisance” from the ammonia, causing
constant noise nuisance, creating a risk of encounters with predators, creating a risk of disease,
and decreasing property values.

Plaintiffs argue that Gracey provided no medical documentation in support of her claim
that she and her family had allergies. Plaintiffs, however, fail to establish that medical
documentation must be provided at a ZBA hearing for a ZBA to find substantial evidence to
support its determination. Moreover, Gracey’s claims of allergies involve a credibility
determination. “[I]f the administrative findings of fact and conclusions of law are based primarily
on credibility determinations, such findings generally will not be disturbed because it is not the
function of a reviewing court to assess witness credibility or resolve conflicts in the evidence.”
Dep’t of Community Health v Risch, 274 Mich App 365, 372; 733 NW2d 403 (2007). Accordingly,
we must defer to the ZBA’s credibility determination. We also note that plaintiffs’ argument is
factually incorrect. Plaintiffs suggest that Gracey expressed concern merely about the animal
dander. Her letter, however, clarified that she also had concerns about the dust created by chickens.
Further, contrary to plaintiffs’ contention, the fact that Gracey’s family has two dogs does not

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necessarily diminish the credibility of her statements regarding her and her family members’
allergies.

Plaintiffs also argue that Gracey provided no evidence in support of her claim that the
arborvitaes will thin in the winter and that she will possibly see the chicken coop. This issue,
however, also involved a credibility determination by the ZBA to which we give deference. The
record also indicates that plaintiffs misstate Gracey’s position. She did not state that she would
possibly see the coop in the winter; she stated that the coop was visible and only partially covered
by the arborvitae trees, and would be clearly visible in the winter months when the arborvitaes are
not as full. Plaintiffs focus on whether arborvitaes thin in the winter. Anania opined that the trees
provided year-round coverage. Gracey, however, asserted that the coop could be seen from her
property during the entire year. Obviously, the ZBA had to make credibility determinations in this
regard. As this Court has explained, the primary reason for deference to the ZBA is “its members
are local residents who reside in the township and who possess a much more thorough knowledge
of local conditions, current land uses, and the manner of future development desirable for those
who reside in the township.” Szluha v Charter Twp of Avon, 128 Mich App 402, 410; 340 NW2d
105 (1983).

Plaintiffs rely on Henry v Dow Chemical Co, 473 Mich 63, 72; 701 NW2d 684 (2005), in
support of their assertion that speculative claims of future harm are insufficient. In Henry, the
Court stated that “[i]f plaintiffs’ claim is for injuries they may suffer in the future, their claim is
precluded as a matter of law, because Michigan law requires more than a merely speculative
injury.” Id. The Court in Henry, however, described the injury required to support a negligence
claim, not the substantial-evidence test respecting a ZBA decision. Henry, therefore, is inapposite.

III. CONCLUSION

The record reflects that the ZBA’s decision is supported by competent, material, and
substantial evidence. The ZBA relied on the information provided by Gracey to conclude that “the
use of the accessory structure is inappropriate for the neighborhood and the location will hinder
and discourage the adjacent neighbor to live in harmony on their property due to issues associated
with the proposed use.” As such, the accessory structure failed to comply with § 42-7.6.6.
Plaintiffs focus only on the issues of Gracey’s allergies and the visibility of the chicken coop, but
Gracey listed several other ways in which the chicken coup would hinder her use of her property
and ability to live in harmony, including the odor, noise, risk of predators, risk of disease, and
decreased property values. Although Anania disagreed with Gracey and expressed support for
plaintiffs having the chicken coop, the information provided by Gracey supported the ZBA’s
factual findings which must be affirmed, even if alternative findings could have been supported
by the record.

Finally, although plaintiffs do not challenge the sufficiency of the ZBA’s findings, the ZBA
did not “merely repeat the conclusionary language of the zoning ordinance without specifying the
factual findings underlying the determination that the requirements of the ordinance were satisfied
in the case at hand.” Reenders v Parker, 217 Mich App 373, 378-379; 551 NW2d 474 (1996).
Even though the ZBA did not address each requirement listed in the ordinance, not all were
applicable. See § 42-7.6.6. The circuit court appropriately reviewed the record and applied correct
legal principles. The circuit court did not misapprehend or grossly misapply the substantial-

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evidence test to the ZBA’s factual findings. Accordingly, we hold that the circuit court did not err
by affirming the ZBA’s decision to deny plaintiffs’ request to keep chickens and a coop on their
residential property because the accessory use and accessory structures did not comply with § 42-
7.6.6.

Affirmed.

/s/ Sima G. Patel
/s/ Mark J. Cavanagh
/s/ James Robert Redford

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10447435. Public record. Not legal advice.