Grandview Beach Association v. County of Cheboygan

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

GRANDVIEW BEACH ASSOCIATION, UNPUBLISHED

March 18, 2021

Appellee,

v No. 350352

Cheboygan Circuit Court

COUNTY OF CHEBOYGAN and CHEBOYGAN LC No. 18-008723-AA

COUNTY PLANNING COMMISSION,

Appellees,

and

HERITAGE COVE FARM, INC., LAWRENCE P.

HANSON, ELIZABETH A. HANSON, and LIB

LIB, LLC,

Appellants.

Before: BORRELLO, P.J., and BECKERING and SWARTZLE, JJ.

PER CURIAM.

Appellants Heritage Cove Farm, Inc., Lawrence P. Hanson, Elizabeth A. Hanson, and Lib

Lib, LLC (collectively, the Hansons)1 appeal by leave granted2 the circuit court’s opinion and order

reversing the Cheboygan County Planning Commission’s decision granting final approval of a

special use permit to the Hansons. For the reasons set forth in this opinion, we reverse the order

of the circuit court and remand for reinstatement of the decision of the planning commission.

1

It appears that throughout these proceedings, the Hansons have acted on behalf of the business

entities. For the sake of simplicity, we will refer to these parties collectively as “the Hansons.”

2

Grandview Beach Ass’n v Cheboygan Co, unpublished order of the Court of Appeals, entered

February 3, 2020 (Docket No. 350352).

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I. BACKGROUND

The facts underlying this case revolve around a protracted dispute over a project proposed

by the Hansons to create a therapeutic farm community for people with mental illnesses. This

Court has previously considered appellee Grandview Beach Association’s (the Association)

objections to this project. See Grandview Beach Ass’n v Cheboygan Co, unpublished per curiam

opinion of the Court of Appeals, issued January 16, 2018 (Docket Nos. 335159 and 335206). In

our prior opinion, we summarized the relevant factual background as follows:

[The Hansons] requested a special use permit and site plan approval for a

proposed development known as Heritage Cove Farm in April 2015. [The

Hansons] presented the Farm as a “therapeutic farm community” for residents with

mental illnesses that “substantially affect” one or more major life activity. For a

fee, the Farm will provide room and board as well as farming opportunities and

other activities in a community setting that is designed to enable residents to “work

toward healing and living independently.” The Farm will have 24-hour on-site

staffing to provide medication reminders, treatment plans with onsite staff, as well

as individual and group therapy. It is expected that residents will remain on the

farm for 4 to 12 months. The proposed site plan for the property includes cabins to

house residents and staff, a garden, a greenhouse, space for animals, a workshop

and storage area, and a community building with dining facilities.

The Farm property consists of 33 acres and it spans two zoning districts, M-

AF (Agricultural and Forestry Management), and P-LS (Lake and Stream

Protection). Discussion and deliberation took place regarding the proposed

development, both between the Commission’s staff and [the Hansons], and in the

form of voluminous public comments. The Commission held a public hearing on

November 4, 2015, and deliberations on December 2, 2015, December 16, 2015,

and January 6, 2015. After reviewing exhibits, staff reports, and correspondence,

the Commission approved, with conditions, [the Hansons’] application for a special

use permit for the Farm as a convalescent home in the M-AF zoning district, and

as cabin colonies and a restaurant in the P-LS zoning district. [The Association]

appealed the Commission’s decision to the circuit court, which affirmed that

decision. [Id. at 1-2.]

The Association appealed to this Court, and we affirmed. Id. at 1. As relevant to our

current discussion, in our prior opinion, we affirmed the Commission’s decision to grant the

special use permit conditioned on the Hansons being able to demonstrate through the results of a

“ ‘police, fire, and ambulance impact study’ ” that the standard of Cheboygan Zoning Ordinance

§ 18.7.e was met. Id. at 8-10. As we explained:

Cheboygan Zoning Ordinance § 18.7.e requires that, before approving a

special use permit, the Commission must find that a proposed special land use “will

not place demands on fire, police, or other public resources in excess of current

capacity nor increase hazards from fire or other dangers to the subject property or

adjacent properties.” With regard to this requirement, the Commission recognized

that there were no reports from law enforcement or others regarding the burden that

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would be placed on emergency support personnel. However, as discussed by the

Commission, there was testimony from a retired police officer regarding the

likelihood of an increase in safety hazards and emergency room visits, a statement

from a clinical psychologist espousing concern over possible safety issues, and

evidence of a general study relating to the proportion of emergency room visits that

are made by psychiatric patients. On this record, the Commission expressly found

that [the Hansons] had not made the showing required under 18.7.e, finding that the

record “will not support standard 18.7.e” (emphasis added).

Despite this failing, the Commission conditionally granted a special use

permit to [the Hansons]. The Commission determined that “[b]ecause the sole

reason for not meeting standard 18.7.e is because of the mental disability of the

residents, a modification allowing this use is reasonable and necessary under [the

Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the Fair

Housing Act (FHA), 42 USC 3601 et seq.].” In particular, in an effort to

accommodate the residents’ mental disabilities, the Commission waived the

requirement under 18.7.e as an initial matter and instead conditioned the special use

permit on the requirement that [the Hansons] request comment on the safety issues

from the police department and sheriff’s department. Additionally, in its findings,

the Commission expressly stated that approval for the special use permit “should

be conditioned on the results of a police, fire, and ambulance impact study to

determine whether this standard [under § 18.7.e] has been met by” [the Hansons].

The Commission also noted that even if there was some increased burden on law

enforcement, it would not necessarily preclude the Commission from granting the

special use permit because [the Farm] [was] entitled to reasonable accommodation.

* * *

. . . While the Commission indicated that it was making an accommodation

in granting the special use permit, this accommodation amounted to waiving

Cheboygan Zoning Ordinance § 18.7.e’s requirement that the person applying for

a special use permit demonstrate beforehand that the proposed use would “not place

demands on fire, police, or other public resources in excess of current capacity.”

The Commission instead decided to accommodate [the Farm] by conditioning the

special use permit on the results of a police, fire, and ambulance impact study. The

Commission also noted that even if there was some increased burden on law

enforcement, it would not merit denying the special use permit. The Commission

otherwise determined that the Farm met the requirements for granting a special use

permit. [Id. at 8-9 (third, fourth, and sixth alterations in original).]

In reaching our decision to affirm, we reasoned in pertinent part as follows:

Again, it is important to keep in mind the nature of the accommodation that

the Commission allowed. The Commission conditioned the Farm’s special use

permit on the results of a police, fire, and ambulance impact study. The actual

modification was allowing [the Hansons] to request police comment after the fact

and to demonstrate the requirements of § 18.7.e were met through a study rather

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than requiring them to demonstrate that their demands would not exceed service

capacity as part of their application. Further, the Commission found that even if

there was some increased burden on law enforcement, it would not necessarily

merit denying the special use permit. We note that Cheboygan County Zoning

Ordinance § 18.7.e requires a finding that the increased burden will not exceed

“current capacity.” This is not the same as requiring the applicant to demonstrate

no increased burden at all. Thus, at this point in time, it is not apparent that [the

Hansons] will not satisfy § 18.7.e; and, even if there is some increase in demand

beyond “current capacity,” there is no basis in the record to overturn the

Commission’s finding that some increased burden would not necessarily be

disproportionate to accommodating the residents’ disabilities.8

8

The record before us does not include the results of the impact study. It is unclear

whether the study has been conducted yet or if [the Hansons] have requested

comment on the safety issue from the police and sheriff’s departments. Further,

while the Commission indicated that [the Farm] should be accommodated even if

there is an increased burden on law enforcement, considering the Commission’s

decision as a whole, we do not read this as suggesting that any increase, no matter

how great or unreasonable the resulting cost should be accommodated. Instead, at

this juncture, the Commission has merely given conditional approval for the special

use permit and, until the study is completed, the law enforcement issue remains

unresolved. When the impact study has been completed and comments from law

enforcement elicited, the Commission will have to consider whether there will be

an increased burden beyond the “current capacity” under § 18.7.e and whether such

an increase, if any, must be allowed as a reasonable accommodation. At that time,

the Commission’s decision on this issue may be challenged. [Id. at 10.]

Following the issuance of our opinion affirming the circuit court, the Commission

subsequently held additional public hearings on June 6, 2018, and September 5, 2018 relative to

the special use permit. At the September 5 hearing, the Commission found that § 18.7.e had been

satisfied, stating its findings as follows:

The Planning Commission finds that based upon the letters from law

enforcement, emergency services, and the Tuscarora Township Volunteer Fire

Chief, as well as the study authored by Paul M. LeBlanc, of PLB Planning Group,

LLC, being a certified planner and other exhibits, that the proposed special land use

will not place demands on fire, police or other public resources in excess of current

capacity or increase hazards from fire or other dangers either to the Heritage Cove

Farm property or any adjacent properties. The Planning Commission further finds

that the letters from the Tuscarora Township Fire Department, the Cheboygan

County Sheriff’s Department and the PLB Planning Group study clearly indicate

that there would not be any increase in demand with respect to fire and police

services in excess of current capacity regardless of whether the agencies are

servicing the Heritage Cove Farm property or other adjacent properties within the

township. The Planning Commission further finds that the amount of services

provided by police and fire within Tuscarora Township and within the vicinity of

Heritage Cove Farm has remained the same for several years while having to

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provide services to a declining population both within Tuscarora Township and

Cheboygan County, thus negating any increase whatsoever of any potential

hazards, including any criminal activity which may or may not occur within the

township by adding Heritage Cove Farm operations as outlined in page 3 of the

PLB Planning Group report to address whether additional evidence that had been

provided established that § 18.7.e had been satisfied.

The Commission adopted these findings, concluding that § 18.7.e had been met. The

Commission also included as conditions that the Farm maintain 24-hour-per-day security

monitoring with security cameras on each cabin and that a written final security plan be provided

to the planning director once the security plan was finalized.

The Association filed a claim of appeal in the circuit court. The Hansons were permitted

to intervene by stipulation of the Association, the County, and the Commission. The circuit court

reversed the decision of the Commission, concluding that a more detailed impact study specifically

addressing the diagnoses, treatment plans, and “associated safety concerns” of the Farm’s residents

was necessary and that the Commission’s decision was thus not supported by competent, material,

and substantial evidence.

The Hansons filed an application for leave to appeal the circuit court’s decision. As

previously stated, this Court granted leave to appeal.

II. STANDARD OF REVIEW

Zoning decisions are appealable by right to the circuit court. This Court in

turn reviews the circuit court’s decision de novo, “because the interpretation of the

pertinent law and its application to the facts at hand present questions of law.” This

includes the circuit court’s decision regarding whether its appellate jurisdiction has

been properly invoked. [Ansell v Delta Co Planning Comm, ___ Mich App ___,

___; ___ NW2d ___ (2020) (Docket No. 345993) (citations omitted); slip op at 3.]

III. ANALYSIS

In their appeal, the Hansons first argue that the circuit court lacked jurisdiction over the

Association’s appeal to the circuit court because the Association was not an “aggrieved party” and

therefore had no right to appeal the Commission’s decision to the circuit court under MCR 7.122.

The Hansons, along with the County and the Commission, raised this argument before the circuit

court. The circuit court rejected this argument in cursory fashion, stating:

The Court rejects the Appellees’ [i.e., the County and the Commission,] and

intervening Appellees’ [i.e., the Hansons] collateral arguments the [Association]

lacks standing and the Court is limited by the law of the case and Federal Law from

requiring and considering evidence of any safety concerns regarding mentally

disabled persons. The Court adopts [the Association’s] arguments disputing these

claims.

In the circuit court, the Association claimed that the zoning decision would cause its

members to suffer special damages not common to other property owners. The Association argued

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that as a consequence of these “special damages,” the Association had established themselves as

an aggrieved party. The Association listed several alleged special injuries, predicated on the

proximity of the Farm to the other properties within the Association, and that essentially consisted

of alleged adverse effects on the residential character of the surrounding properties, the safety and

security of the area, the use and enjoyment of Association members’ property, property values, the

local environment and wildlife, storm-water-discharge and water-treatment systems, traffic flow,

and the degree of noise and light in the area.

The authority of local units of government to regulate land development and use through

zoning derives from the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq. Olsen v

Chikaming Twp, 325 Mich App 170, 179; 924 NW2d 889 (2018). Judicial review of a local

government’s zoning decisions is also provided for by the MZEA. Id. Specifically, MCL

125.3605 provides as follows:

The decision of the zoning board of appeals shall be final. A party

aggrieved by the decision may appeal to the circuit court for the county in which

the property is located as provided under section 606. [Emphasis added.]

This Court explained in Olsen that there is a difference between “standing,” which

“generally refers to the right of a plaintiff initially to invoke the power of a trial court to adjudicate

a claimed injury,” and seeking appellate review by the circuit court of a zoning decision. Olsen,

325 Mich App at 180. “[U]nder the MZEA, a party seeking relief from a decision of a ZBA is not

required to demonstrate ‘standing’ but instead must demonstrate to the circuit court acting in an

appellate context that he or she is an ‘aggrieved’ party.” Id. at 180-181, citing MCL 125.3605.

Interpreting the meaning of the term “party aggrieved” for purposes of being empowered

to seek judicial review in the circuit court of a ZBA decision under the MZEA, this Court held in

Olsen:

Therefore, to demonstrate that one is an aggrieved party under MCL 125.3605, a

party must “allege and prove that he [or she] has suffered some special damages

not common to other property owners similarly situated[.]” Incidental

inconveniences such as increased traffic congestion, general aesthetic and

economic losses, population increases, or common environmental changes are

insufficient to show that a party is aggrieved. Instead, there must be a unique harm,

dissimilar from the effect that other similarly situated property owners may

experience. Moreover, mere ownership of an adjoining parcel of land is insufficient

to show that a party is aggrieved, as is the mere entitlement to notice. [Olsen, 325

Mich App at 185 (alterations in original; citations omitted).]

The instant case does not involve an appeal from a zoning board of appeals, but instead

involves an appeal from the decision of the Cheboygan County Planning Commission to grant a

special use permit under the Cheboygan Zoning Ordinance. Such appeals are controlled by MCR

7.122, which provides in relevant part that “[t]his rule governs appeals to the circuit court from a

determination under a zoning ordinance by any officer, agency, board, commission, or zoning

board of appeals” and that “[u]nless this rule provides otherwise, MCR 7.101 through MCR 7.115

apply.” 7.122(A)(1) (emphasis added); see also Ansell, ___ Mich App at ___; slip op at 3. Under

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MCR 7.103(A)(3), “[t]he circuit court has jurisdiction of an appeal of right filed by an aggrieved

party from . . . a final order or decision of an agency from which an appeal of right to the circuit

court is provided by law.” See also Ansell, ___ Mich App at ___; slip op at 3. “In an appeal from

a final determination under a zoning ordinance where no right of appeal to a zoning board of

appeals exists, the court shall determine whether the decision was authorized by law and the

findings were supported by competent, material, and substantial evidence on the whole record.”

MCR 7.122(G)(2).

In Ansell, this Court held that the aggrieved party standard applicable to appeals from

decisions of a zoning board of appeals also applied to appeals from zoning decisions where review

by a zoning board of appeals was not available. Ansell, ___ Mich App at ___; slip op at 3. This

Court in Ansell specifically applied the aggrieved party standard to the question whether the

appellate jurisdiction of the circuit court had properly been invoked in an appeal from a county

planning commission’s zoning decision. Id. at ___; slip op at 2-3. “Both appeals from a township

board and municipal zoning commission planning board are entitled to the same review.” Id. at

___; slip op at 4. We held, in short, that “only an aggrieved party may appeal the final

determination under a zoning ordinance.” Id; see also Connell v Lima Twp, ___ Mich App ___;

___NW2d ___(2021), slip op at 14 (explaining that, when appealing an administrative decision of

a zoning board (e.g., the grant of a special-use permit), “the appellant must be an aggrieved party,

as opposed to a legislative decision, which does not require that the appellant be an aggrieved

party).”

Accordingly, in the present case, the Association was only entitled to appeal the

Commission’s zoning decision to the circuit court if the Association was an “aggrieved” party. Id.

To this point, the Association argues that the issue of whether it was an aggrieved party

has been waived because this Court has already decided an appeal involving this matter and the

issue was not raised until the most recent proceedings in the circuit court that occurred after this

Court’s prior opinion. The Association views the entire dispute involving the Hansons’ special

use permit as one continuous judicial proceeding and further contends that this Court remanded

the case to the Commission in our prior opinion involving this matter. The Association

misunderstands the current procedural posture of this case as well as our disposition of the matter

in the prior appeal.

We begin by noting that we did not order a remand in our prior opinion. We simply

affirmed in all respects the circuit court’s decision that had affirmed the Commission’s decision to

grant the special use permit with conditions to the Hansons. Grandview Beach, unpub op at 1-2,

12. As specifically relevant to our current discussion, we affirmed with respect to the

Commission’s decision to condition the grant of the special use permit on the results of a police,

fire, and ambulance impact study to determine whether § 18.7.e of the zoning ordinance could be

satisfied with or without a reasonable accommodation. Grandview Beach, unpub op at 8-10, 12.

Although we acknowledged that further proceedings before the Commission were necessary in

order to resolve this particular issue, we did not retain jurisdiction or otherwise order a remand.

See id. at 9-10, 10 n 8, 12. It is clear from our opinion that we resolved the issues that had been

presented to us on appeal, terminated our jurisdiction over the matter, and allowed the matter to

proceed to run its natural course that no longer involved this Court but may involve public hearings

before the Commission.

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Furthermore, the Commission is not a court and was not acting as a tribunal in holding

public hearings on the special use permit and rendering its decision related to the special use

permit. See Ansell, ___ Mich App at ___ n 1; slip op at 2 n 1 (“Accordingly, the appeal to the

circuit court was not taken from a court or tribunal because the planning commission is not a court

and did not act as a tribunal in issuing the permits in question.”). The right of the Association and

its members to participate in the public hearings before the Commission is distinct from the

question whether the Association had a right to appeal this particular zoning decision to the circuit

court. Olsen, 325 Mich App at 191-192. Whether the Association had a right to participate and

make its arguments in the public hearings before the Commission is not in dispute in this case.

See id. at 192 (noting the general right of neighboring property owners to participate in public

hearings regarding zoning decisions).

However, the question whether a party has been “aggrieved” by a zoning decision such

that the party has a right to seek appellate review in the circuit court of that zoning decision—

which is the question in dispute in the present case—is “a question for initial determination by the

circuit court” and is timely raised if raised for the first time in the circuit court. Id. at 191-192. As

we have already explained, a party seeking to challenge a final zoning decision made by a zoning

board of appeals or planning commission through an appeal to the circuit court must properly

invoke the circuit court’s appellate jurisdiction by demonstrating that it is an aggrieved party.

Olsen, 325 Mich App at 180-181; Ansell, ___ Mich App at ___; slip op at 2-4. In discussing the

general requirements for establishing that a party is “aggrieved,” in Olsen we stated:

An aggrieved party is not one who is merely disappointed over a certain result.

Rather, to have standing on appeal, a litigant must have suffered a concrete and

particularized injury, as would a party plaintiff initially invoking the court’s power.

The only difference is a litigant on appeal must demonstrate an injury arising from

either the actions of the trial court or the appellate court judgment rather than an

injury arising from the underlying facts of the case. [Olsen, 325 Mich App at 181

(quotation marks and citation omitted) (emphasis added).]

Thus, the pertinent inquiry is whether the party appealing a final zoning decision to the

circuit court was aggrieved by that particular decision; the appeal is specific to the final zoning

determination at issue. Id.; see also MCL 125.3605 (providing a right to appeal in the circuit court

to a “party aggrieved by the decision” of the zoning board of appeals); MCR 7.122(A)(1) (“This

rule governs appeals to the circuit court from a determination under a zoning ordinance by any

officer, agency, board, commission, or zoning board of appeals . . . .”). In this case, the

Association appealed the Commission’s decision that decided whether the Hansons had fulfilled

the condition of satisfying § 18.7.e of the zoning ordinance. In concluding that the Hansons had

fulfilled § 18.7.e, the Commission found that the “proposed special land use will not place

demands on fire, police, or other public resources in excess of current capacity nor increase hazards

from fire or other dangers to the subject property or adjacent properties.” We acknowledged in

our previous opinion that further proceedings would be required before the Commission on this

issue, see Grandview Beach, unpub op at 10 n 8, and the Commission’s subsequent decision that

is now at issue in the present appeal was narrowly focused on this precise issue.

It was from this decision that the Association appealed to the circuit court in the case now

before us, which was a separate and distinct decision from the Commission’s earlier decision

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granting the special use permit.3 The Association appealed that earlier decision, which was

affirmed by both the circuit court and then this Court. Grandview Beach, unpub op at 1. However,

the fact that the Association appealed an earlier, separate planning commission decision does not

establish that it is an aggrieved party for any subsequent final zoning decision that might happen

to involve the same property or special use permit. Although we indicated in our previous opinion

that the Commission’s decision regarding § 18.7.e was subject to being challenged, see Grandview

Beach, unpub op at 10 n 8, we did not suggest that such a challenge could be brought by a party

that was not aggrieved by the decision. Moreover, the Association’s second appeal to the circuit

court has a different file number than the first, further demonstrating that these were two separate

circuit court appeals.

When the Association appealed the Commission’s most recent zoning decision regarding

§ 18.7.e to the circuit court, the Hansons argued in the circuit court that the Association was not

an aggrieved party with a right to appeal that zoning decision. The Hansons could not have raised

this particular challenge any earlier because they could not argue that the Association had not been

aggrieved by a decision that had not yet been made; thus, they timely raised this challenge and did

not waive it. Olsen, 325 Mich App at 191-192 (“Moreover, at the time of the proceedings before

the ZBA, the ZBA had not yet granted the variance and thus any challenge to appellees’ ability to

appeal that future decision would have been premature. So, although appellees had a right to

participate in the ZBA’s public hearing, the issue whether appellees were parties “aggrieved by

the decision” of the ZBA under the MZEA with the right to appeal the decision of the ZBA in the

circuit court was a question properly raised for the first time before the circuit court. Indeed, it

could not have been raised any earlier.”). Accordingly, we conclude that the Hansons did not

waive their right to challenge the Association’s status as an aggrieved party in this appeal by

declining to raise such a challenge in the previous, separate circuit court appeal from a different

zoning decision. The rationale behind this conclusion is obvious; the issue of whether the circuit

court’s jurisdiction was properly invoked in the first appeal is irrelevant to whether it was properly

invoked in this appeal.

The issue then becomes whether the Association was aggrieved by the zoning decision it

was appealing. The Association maintains that it is an aggrieved party and relies on essentially

the same claims of special damages in its appellate brief that it raised in the circuit court. The

Association maintains that the Commission’s decision to grant the special use permit for the Farm

will cause special damages to the Association’s members given that the property on which the

Farm will be located is surrounded by properties owned by members of the Association, and the

Association further asserts that the Farm will adversely affect the residential character of the

surrounding properties, the use and enjoyment of Association members’ property, property values

in the area, the local environment and wildlife, storm-water-discharge and water-treatment

systems, traffic flow, the degree of noise and light in the area, and the safety and security of the

area due to the “treatment of patients who suffer from major mental illness.”

3

As we discussed in our previous opinion, there were other conditions as well. Grandview Beach,

unpub op at 2, 4. However, those conditions are not at issue at this juncture.

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Of these claims, all but the last are irrelevant to the question before us because none of

those claimed damages are directly implicated by the decision appealed, which focused on the

condition requiring a police, fire, and ambulance impact study relative to zoning ordinance

§ 18.7.e. Moreover, even if these other concerns were relevant, they do not suffice to establish

special damages or unique harm dissimilar to the effects on other similarly situated property

owners because they are claims relying on mere ownership of nearby parcels of land and

“[i]ncidental inconveniences such as increased traffic congestion, general aesthetic and economic

losses, population increases, or common environmental changes” that are “insufficient to show

that a party is aggrieved.” Olsen, 325 Mich App at 185. Thus, the Association’s reliance on these

claims does not establish that they were aggrieved by the zoning decision appealed in this case. 4

With respect to the Association’s last claim—that the safety and security of the area will

be adversely affected because of the “treatment of patients who suffer from major mental

illness”—the Association essentially argues that because the Farm will house residents with mental

illnesses and because some people with mental illnesses commit various crimes, there is a risk to

the safety and security of the surrounding property owners. However, the Association does not

point to any evidence beyond generalized speculative fears and concerns related to people with

certain mental illnesses in support of this assertion. Mere “speculation or anticipation of future

harm” is insufficient to show the requisite unique harm necessary to establish that a party was

aggrieved. Olsen, 325 Mich App at 186; see also id. at 181 (“[T]o be aggrieved, one must have

some interest of a pecuniary nature in the outcome of the case and not a mere possibility arising

from some unknown and future contingency.”) (quotation marks and citation omitted). Further,

the party seeking appellate review of a zoning decision bears the burden to “demonstrate to the

circuit court acting in an appellate context that he or she is an ‘aggrieved’ party.” Olsen, 325 Mich

App at 180-181, quoting MCL 125.3605.

The Association further faults the Hansons for not providing evidence to disprove the existence of

the Association’s speculative, if not outright bias-based fears, and the Association claims that this

is the reason their asserted safety concerns appear speculative. However, our review of the

Association’s argument, coupled with the letters and statements of its members, leads us to

conclude that the Association, and the circuit court, are essentially contending that by some means

unknown and certainly not required by ordinance or statute, the Hansons are required to personally

insure the safety of everyone in the community from any harm. This is not the proper standard to

be employed when determining the issue of whether a party qualifies as an “aggrieved party.”

Olsen, 325 Mich App at 180-18.

Additionally, the Association’s claims and the circuit court’s decision arise from an

imprudent and speculative conclusion that people who suffer from mental illness automatically

present a safety risk to the well-being of others. As we explained in our prior opinion:

4

To the extent that the condition of the public roads was discussed as part of the Commission’s

most recent zoning decision, the Association on appeal has only made a vague, speculative

allegation of an increase in traffic, which is insufficient to demonstrate a unique harm even if it is

considered relevant in this case. Olsen, 325 Mich App at 185.

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Both the ADA and FHA apply to municipal zoning decisions. Pacific

Shores Props, LLC v Newport Beach, 730 F3d 1142, 1157 (CA 9, 2013). Congress

enacted the ADA in part “to provide a clear and comprehensive national mandate

for the elimination of discrimination against individuals with disabilities.” 42 USC

12101(b)(1). The ADA recognizes that discrimination against people with

disabilities persists in areas such as housing. 42 USC 12101(a)(3). Disabilities

include mental impairments that substantially limit one or more major life

activities. 42 USC 12102(1)(a). The FHA prohibits discrimination in housing on

the basis of “handicap,” 42 USC 3604(f)(1), which includes a mental impairment

which substantially limits one or more major life activities, 42 USC 3602(h)(1).

Discrimination includes “a refusal to make reasonable accommodations in rules,

policies, practices, or services, when such accommodations may be necessary to

afford such person equal opportunity to use and enjoy a dwelling[.]” 42 USC

3604(f)(3)(b). [Grandview Beach, unpub op at 8-9 (alteration in original).]

The Seventh Circuit Court of Appeals has recognized in the context of reasonable

accommodations for housing that “prospective neighbors’ public safety concerns could not ‘be

based on blanket stereotypes about disabled persons rather than particularized concerns about

individual residents’ ” to support an argument that an accommodation in the form of a zoning

variance or conditional use permit was unreasonable or would cause an undue hardship. Valencia

v City of Springfield, Ill, 883 F3d 959, 970 (CA 7, 2018), quoting Oconomowoc Residential

Programs v City of Milwaukee, 300 F3d 775, 786 (CA 7, 2002).5 The failure to “demonstrate that

the group home at issue was ‘any more likely to generate calls to the police than other area

residents’ ” suggests a lack of particularized concerns about individual residents. Valencia, 883

F3d at 970, quoting Oconomowoc, 300 F3d at 786. Furthermore, “[t]he amendments to the Fair

Housing Act, contained in the FHAA [Fair Housing Amendments Act], specifically prohibit

discrimination in housing on the basis of disability. Oconomowoc, 300 F3d at 782, citing 42 USC

3604. “The FHAA repudiates the use of stereotypes and ignorance, and mandates that persons

with handicaps be considered as individuals. Generalized perceptions about disabilities and

unfounded speculations about threats to safety are specifically rejected as grounds to justify

exclusion.” Oconomowoc, 300 F3d at 786 (quotation marks and citation omitted).

Here, we conclude that the circuit court based its decision on the Association’s speculative

fears and concerns which are based on nothing more than stereotypes and prejudices associated

with mental illness. Such stereotypes and prejudices are not a proper basis for demonstrating that

a party has been aggrieved by a zoning decision. See id.; Valencia, 883 F3d at 970.

When considering the context and speculative nature of the Association’s claims, it

becomes readily apparent that the Association failed to demonstrate that it was aggrieved party for

purposes of appealing the zoning decision. Consequently, the Association did not have the right

to invoke the circuit court’s appellate jurisdiction and the circuit court erred by not dismissing the

5

“Decisions from lower federal courts are not binding but may be considered persuasive.” Truel

v City of Dearborn, 291 Mich App 125, 136 n 3; 804 NW2d 744 (2010).

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appeal. Olsen, 325 Mich App at 194. In light of this conclusion, we need not address the Hansons’

remaining appellate arguments. Id.

We therefore reverse and remand this matter to the circuit court for entry of an order

reinstating the Commission’s decision and otherwise dismissing the Association’s appeal for

failure to demonstrate that it was aggrieved by the decision.

Reversed and remanded for further proceedings consistent with this opinion. We do not

retain jurisdiction. Appellants having prevailed in full, may tax costs. MCR 7.219(A).

/s/ Stephen L. Borrello

/s/ Jane M. Beckering

/s/ Brock A. Swartzle

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