STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6219

April 17, 1984

CITIES, HOME RULE:

Designation of zoning board of appeals to review and approve planned unit developments

ZONING AND PLANNING:

Planned unit developments--initial review and approval by zoning board of appeals

A home rule city may not designate the zoning board of appeals as the body to review and approve initial applications for planned unit developments under 1921 PA 207, Sec. 4b(2).

Honorable Jelt Sietsema

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

The review and approval of a planned unit development under the city and village zoning enabling act, 1921 PA 207; MCLA 125.581 et seq; MSA 5.2931 et seq, may occur at two different levels or stages of review: the first occasion is at the outset upon the submission of an application for a proposed planned unit development; the second occasion may occur where there is a subsequent appellate review of the decision earlier rendered on the first occasion. A recognition of this distinction facilitates the understanding and interpretation of the zoning enabling act.

The review and approval of planned unit developments at the application or submission stage of the proceedings are governed primarily by 1921 PA 207, supra, Sec. 4b; which, in pertinent part, provides:

While 1921 PA 207, Sec. 4b(4), supra, requires the planned unit development regulations to specify the 'body or official which will review and approve the planned unit development requests,' the selection is only among those enumerated in 1921 PA 207, Sec. 4b(2), supra. ⁽³⁾ The zoning board of appeals is not expressly mentioned as the body to review and approve a planned unit development.

Assuming arguendo that it is permissible for a zoning board of appeals to be designated to serve in such capacity, it is likely that the application of a planned unit development may require additional action to be taken by the zoning board of appeals. For example, when a planned unit development application is submitted, and no variance from the existing ordinance is necessary, the submission would be reviewed by the official or body described in section 4b(2), and might thereafter be reviewed at the appellate level by the zoning board of appeals acting as an appellate tribunal, if the ordinance provides for such appellate review. 1921 PA 207, supra, Sec. 5. Where, however, a planned unit development application is submitted, and a variance from the ordinance is involved, the variance issue would be referred to the zoning board of appeals for decision on the variance, provided of course, that there is an ordinance designating the zoning board of appeals as the body to determine the variances. See, 1921 PA 207, Sec. 5, supra; compare, Mitchell v Grewal, 338 Mich 81; 61 NW2d 3 (1953); and Lorland Civic Ass'n v DiMatteo, 10 Mich App 129; 157 NW2d 1 (1968). Once the variance had been determined by the zoning board of appeals, the matter is returned to the official or body having outset jurisdiction under section 4b(2), to proceed thereafter as discussed above. ⁽⁴⁾

It is noted that proceedings before the city zoning board of appeals are quasi-judicial in nature. Barkey v Nick, 11 Mich App 381, 385, 161 NW2d 445 (1968). An administrative tribunal may not serve as the reviewing body of its own orders or decisions.

The appellate review process and the function of the zoning board of appeals are provided for in 1921 PA 207, Sec. 5, supra:

The zoning board of appeals is by definition an appellate tribunal, and 1921 PA 207, Sec. 5, supra, contemplates that the zoning board of appeals shall review decisions earlier made by another administrative body or official. ⁽⁵⁾

The capability of a zoning ordinance to include or delete appeals of planned unit development decisions to the zoning board of appeals under section 5, supra, should not be confused with a specification in the zoning ordinance of the administrative body or official charged with the review and approval of applications for planned unit developments under section 4b(2), supra. A zoning ordinance which designates a zoning board of appeals as the body to review and approve applications for planned unit developments, at the submission stage of the proceedings, would disregard the appellate function of zoning boards of appeal, and would be at variance with the expressed intention of 1921 PA 207, Sec. 4b(2), supra.

It is my opinion, therefore, that a zoning board of appeals of a home rule city may not be designated as the body which reviews or approves initial applications for planned unit developments, even where the city's zoning ordinance confers such power. 1921 PA 207, Sec. 4b(2), supra.

Frank J. Kelley