STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6324

November 22, 1985

ZONING AND PLANNING:

Rehearing after decision on case by city or village board of zoning appeals

A city or village board of zoning appeals may grant a rehearing on a case after its decision has been rendered, provided the board is authorized to do so by ordinance of the city or village.

Honorable Joe Conroy

State Senator

The Capitol

Lansing, MI 47909

You have requested my opinion with respect to two questions concerning the authority of a city or village zoning board of appeals to grant rehearings on a case after its decision has been rendered.

A municipal corporation has no inherent power of zoning and, therefore, may only pursue its policies of use restriction pursuant to the statute enabling it to do so. Detroit Osteopathic Hospital v City of Southfield, 377 Mich 128; 139 NW2d 728 (1968), Schilling v Midland, 38 Mich App 568, 570; 196 NW2d 846 (1972). Cities and villages have been authorized to engage in zoning regulation pursuant to MCL 125.581 et seq; MSA 5.2931 et seq (the 'Act').

Your first question is:

'Under state statute may a city or village zoning board of appeals grant a rehearing on a case brought before it after its decision has been rendered?'

After reviewing the provisions of the Act, it is my opinion in answer to your first question that there are no provisions in the Act expressly providing for a rehearing by a zoning board of appeals of a city or village in a case after its decision has been rendered. As will be developed in the discussion of your second question, however, zoning boards of appeal may grant rehearings pursuant to authorization in the municipality's zoning ordinance.

Your second question is:

'If the authority for rehearing is not found in the state statute, may that authority be given to the zoning board of appeals by local ordinance?'

Under MCL 125.584; MSA 5.2934, the legislative body of the municipality may provide by ordinance for the manner in which regulations shall be enforced, amended or changed. The function of the zoning board of appeals, pursuant to sections 5(1) and 5(4) of the Act, includes:

'. . . The board of appeals shall hear and decide appeals from and review any order, requirements, decision, or determination made by an administrative official or body charged with the enforcement of an ordinance adopted pursuant to this act. The board of appeals shall also hear and decide matters referred to them or upon which they are required to pass under an ordinance of the legislative body adopted pursuant to this act. . . .

. . ..

'. . . Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the ordinance, the board of appeals may in passing upon appeals vary or modify any of its rules or provisions relating to the construction, or structural changes in, equipment, or alteration of buildings or structures, or the use of land, buildings, or structures, so that the spirit of the ordinance shall be observed, public safety secured, and substantial justice done.'

In addition to these decision-making responsibilities and the power to vary or modify various provisions of the municipality's zoning ordinance, the zoning board of appeals is authorized by MCL 125.585(5); MSA 5.2935(5), to impose certain conditions on any affirmative decision under MCL 125.584C(2); MSA 5.2934(3)(2), regarding special land uses or planned unit developments, or other land uses or activities.

As provided in MCL 125.585(1); MSA 5.2935(1), the legislative body of the municipality may act as a zoning board of appeals and, in so acting, may 'fix rules to govern its procedure sitting as a board of appeals.' In the alternative, the legislative body may appoint the membership of the zoning board of appeals consisting of not less than five members. The time for taking appeal to the zoning board of appeals is to be prescribed by general rule of the zoning board of appeals. MCL 125.585(2); MSA 5.2935(2).

In Kethman v Oceola Twp, 88 Mich App 94, 101-102; 276 NW2d 529, lv den, 406 Mich 960 (1979), the court analyzed the zoning enabling act for townships and a previous Michigan case on the topic; and the court indicated that a zoning board of appeals could grant a rehearing if so authorized by ordinance:

'The township zoning enabling act, MCL 125.271 et seq.; MSA 5.2963(1) et seq., does not expressly provide for the rehearing of a granted variance application. Analogically, the city and village zoning enabling act, MCL 125.581 et seq., MSA 5.2931 et seq., similarly does not expressly allow for such a rehearing, yet such a power has been implied under exceptional circumstances. In McVeigh v Battle Creek, 350 Mich 214; 86 NW2d 279 (1957), the appellant city was granted a rehearing before the zoning board of appeals seven days after the hearing during which the plaintiff's variance was granted. The trial court, citing general language of 'finality after 5 days' contained in MCL 125.585(d); MSA 5.2935(d), held that as a matter of law such a rehearing must be held within five days. The Supreme Court affirmed, stating:

'It is urged by defendant, city of Battle Creek, that a zoning board of appeals has inherent power to grant a rehearing where no rights have intervened between entry of the original order and the order granting a rehearing. We note that neither the statute nor the zoning ordinance grants or authorizes a rehearing. We are not unmindful of the fact that zoning appeal boards are not courts, nor are they possessed of the powers of a court. Such boards are limited to the statute and the ordinance. It is our opinion that such boards do not have the inherent power to grant a rehearing.' 350 Mich 214, 217; 86 NW2d 279 (1957). (Emphasis supplied.)

'The court's admonition is also relevant to a consideration of the authority of a township board to grant a rehearing. Here, also, neither the enabling act nor the defendant's ordinance provides for the rehearing of a granted variance. Here, also, the appeal board is imbued with no inherent powers, and thus possesses only those powers expressly invested in it by statute or ordinance. See 3 Anderson, American Law of Zoning (2d ed), s 20.50, p 568. For this reason we hold that the defendant township acted beyond its authority in ordering the reconsideration of the validity of the plaintiff's variance several months after the original hearing. This power, not granted by statute, will not be implied. . . .'

It is noted that at the time of the McVeigh decision, section 5(d) of the Act provided that decisions of the zoning board of appeals did not become final until the expiration of five days from the date of entry of the order unless the board found that the giving of immediate effect to the order was necessary for the preservation of property or personal rights. This provision was amended in the extensive revisions to the Act in 1978 PA 638 to become section 5(6), which provides in relevant part:

'The decision of the board of appeals shall be final. However, a person having an interest affected by the zoning ordinance may appeal to the circuit court. . . .'

Since cities and villages are given the power to enact ordinances with respect to the procedures for enforcement and change of their zoning ordinances, it is reasonable to conclude that such ordinances may provide for rehearing by a zoning board of appeals.

In answer to your second question, it is my opinion that a village or city zoning board of appeals may grant a rehearing if such rehearing is provided for by the municipality's zoning ordinance.

Frank J. Kelley

Attorney General